Filed 3/18/13 P. v. Noriega CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS MIGUEL NORIEGA,

Defendant and Appellant.

 B236018

 (Los Angeles County

 Super. Ct. No. KA091006)

APPEAL from a judgment of the Superior Court of Los Angeles County, Tia 

Fisher, Judge. Affirmed.

Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Esther P. 

Kim, Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury convicted defendant Luis Miguel Noriega of second degree murder (Pen. 

Code, § 187, subd. (a)) (count 1), evading an officer causing death (Veh. Code, § 2800.3, 

subd. (b)) (count 2), leaving the scene of an accident causing death (Veh. Code, § 20001, 

subd. (a)) (count 3), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. 

(a)) (count 4), and receiving stolen property (Pen. Code, § 496d, subd. (a)) (count 5). 

Noriega waived his right to a jury trial and admitted that he had a prior conviction for 

receiving stolen property, a motor vehicle, and unlawful taking of a vehicle (Pen. Code, 

§§ 666.5, 496d; Veh. Code, § 10851). Noriega was sentenced to 20 years to life in state 

prison, consisting of 15 years to life on count 1; the midterm of four years on count 2, to 

run concurrently to count 1; the upper term of four years on count 3, to run consecutively 

to count 1; one-third the midterm of three years, or one year, on count 4, to run 

consecutively to count 3; and the midterm of three years on count 5, to run concurrently 

to count 1. 

Noriega contends on appeal that the trial court erred by admitting into evidence as 

a business record a report regarding the mechanical soundness of the stolen vehicle, and 

by admitting expert testimony based on data retrieved from an “Event Data Recorder” 

(EDR) without first holding a Kelly1 hearing and finding the forensic use of such data 

was generally accepted. He further contends that cumulative error requires reversal of 

the judgment of conviction. We disagree and affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

I. The Police Pursuit and the Collision

On June 17, 2010, Raquel Hernandes reported to police that her 2001 blue 

Chevrolet Tahoe had been stolen. The morning of the following day, Baldwin Park 

 

1 People v. Kelly (1976) 17 Cal.3d 24 (Kelly). 
3

Police Department Officer Norman Gonzalez was on patrol and conducted a random 

license plate check on a blue Tahoe. As the Tahoe, driven by Noriega, began heading 

toward Syracuse Avenue on Ramona Boulevard, Officer Gonzalez‟s computer indicated 

the Tahoe had been reported stolen the previous day and had not been recovered. Officer 

Gonzalez followed the Tahoe, which drove off at a high rate of speed. When Officer 

Gonzalez saw the Tahoe begin driving eastbound in the westbound lanes of traffic, he 

activated his sirens and lights to “Code Three,” which started a digital image recording 

device in the patrol car. 

Noriega passed through several intersections without slowing, driving at about 65 

miles per hour in a 40-mile-per-hour zone. Officer Gonzalez saw a thick plume of smoke 

emanate from the Tahoe‟s tires as Noriega made a turn. Noriega made several more turns 

and Officer Gonzalez briefly lost sight of the Tahoe but saw another patrol vehicle, 

driven by Officer Joseph Coda, pursuing the Tahoe ahead of Officer Gonzalez. Both 

police vehicles were driving east in the eastbound lanes of Ramona Boulevard, while 

Noriega was driving east in the westbound lanes. 

Noriega made two more turns, briefly driving in the appropriate lane with the flow 

of traffic. At the intersection of Ramona Boulevard and Francisquito, Noriega changed 

from the number one lane into the number two lane and collided with a 1999 Chevrolet 

Lumina driven by Walter Williams. After the Tahoe collided with the Lumina, the 

Lumina burst into flames. Williams had been partially ejected from the Lumina and was 

engulfed in flames. He died at the scene. 

Noriega exited the Tahoe and began running. Officer Gonzalez pursued him on 

foot, yelling at him to stop. Albert Mora, a student at a nearby college, managed to stop 

Noriega after Mora saw Noriega was being chased by Officer Gonzalez. Noriega was 

placed under arrest by Officer Gonzalez. A search of his person found a flat tip 

screwdriver and a lock socket used on vehicle lug nuts. On the floorboard inside the 

Tahoe, officers found a ring with three keys, one of which was a shaved vehicle ignition 

key commonly used by car thieves to start a vehicle after damaging the ignition switch. 

The Tahoe ignition switch and steering column had been damaged. 
4

II. The Investigation and Accident Reconstruction

The police pursuit of Noriega lasted less than two minutes, during which time 

Noriega traveled about 2.2 miles. 

Police investigators obtained surveillance videos from nearby Premier Career 

College and from Spy Micro, a business about 150 feet away from the intersection of 

Ramona Boulevard and Francisquito. 

Officers Ted Espanto and Andrew Velebil were delegated the task of investigating 

the collision. Officer Espanto was assigned to the traffic accident investigation team. As 

part of his duties in that capacity he attempted to conduct a mechanical inspection of both 

the Tahoe and the Lumina. It proved unfeasible to conduct a mechanical inspection of 

the Lumina, however, due to the extensive damage to that vehicle. Officer Velebil was 

responsible for interviewing witnesses, obtaining information about the vehicles and 

drivers, and photographing the accident scene. 

When Officer Espanto arrived at the scene he used approximately 31 evidence 

markers to denote the placement of physical evidence including tire treads, gouges, 

debris, the vehicles‟ points of rest, and the victim‟s location. He measured the 

intersection and used a forensic mapping system, known also as a Sokkia Total Station, 

which is akin to surveying equipment and uses four units to capture different points of 

physical evidence. 

Using the information he gathered, Officer Espanto prepared a diagram of the 

collision indicating the distance and direction the vehicles traveled. Officer Espanto also 

entered the data he had gathered into an accident reconstruction software called Visual 

Statement FX. Officer Espanto performed a “conservation of momentum” analysis to 

determine the speed at which each vehicle was traveling at the time of impact. He 

concluded that the Tahoe was traveling at a minimum speed of 70.58 miles per hour at 

the time of the impact, and the Lumina was traveling at 19.78 miles per hour. 

Officer Espanto prepared a written report of his mechanical inspection of the 

Tahoe. He found no mechanical failures that could have contributed to the collision. 
5

Based on the totality of the physical evidence, Officer Espanto concluded that the 

Lumina was turning left at the intersection of Francisquito and Ramona Boulevard when 

it was struck by the Tahoe. When struck, the Lumina spun around and traveled west until 

it hit a curb and a traffic light pole. After bouncing off of the light pole, the Lumina 

caught on fire. 

California Highway Patrol Officer John Grindey was a member of the multidisciplinary accident investigation team assigned to investigate the collision. Members of 

the team have training and experience in engineering, mechanical analysis, and accident 

reconstruction. Officer Grindey had received over 1,500 hours of accident reconstruction 

training. Over the preceding eight years, Officer Grindey had been involved with 533 

accident reconstruction cases, and had personally accessed 200 EDR‟s from different 

vehicles. He had testified as an expert witness in a dozen cases. From the information he 

downloaded from the Tahoe‟s EDR, Officer Grindey concluded that the Tahoe was 

traveling at a speed of 80 miles per hour at the point of collision. Immediately after the 

collision the Tahoe was still traveling at 53 miles per hour. 

Pathologist and deputy medical examiner for the Los Angeles County Department 

of the Coroner, Dr. Ogbonna Chinwah, conducted Williams‟s autopsy. He concluded 

that Williams had died within seconds after the impact as a result of blunt force trauma 

that caused fractures and ruptures of multiple organs within his abdomen and chest. He 

had suffered massive internal bleeding. He also had burns all over his body. 

Noriega did not present evidence in his defense.

DISCUSSION

I. Admissibility of the Mechanical Analysis Report Prepared by Officer 

Espanto 

Noriega contends on appeal that the court erred by admitting into evidence the 

report prepared by Officer Espanto because (1) the statements contained in the report 
6

were conclusions, which are not admissible under the business records exception to the 

hearsay rule (Evid. Code, § 1271), and (2) the report was prepared by an entity dedicated 

to the preparation of reports for use in litigation, and such reports are not admissible 

under Evidence Code section 1271.2 In addition to the fact that defense counsel did not 

make a specific objection to preserve this issue for review on appeal, we find no error in 

the court‟s admission of the report into evidence.

A. Background

After Officer Espanto testified, the prosecutor requested at sidebar that the report 

be received into evidence. Defense counsel objected. The court said the prosecution 

would have to attempt to develop a proper foundation for it as a business record, noting 

that the report contained more information than that to which Officer Espanto had 

testified before the jury. 

Officer Espanto said that immediately after conducting a mechanical analysis of 

the Tahoe, he prepared the written report. He normally prepared such reports in the 

course of his work duties as a police officer and member of the Traffic Accident 

Investigation Team, and did so in this case. All of the information in the report was “of 

what [he] observed and determined.” After defense counsel questioned Officer Espanto 

regarding preparation of the report, the court asked if counsel wished to argue on the 

issue of the business record exception. Defense counsel replied, “I would just object, 

Your Honor, and submit it.” The court found that the proper foundation had been laid 

and, pursuant to sections 1271 and 1280, received the report into evidence. The court 

noted that the sources of the information and the time of preparation were such as to 

indicate trustworthiness. The court offered defense counsel the opportunity to ask 

additional questions in front of the jury regarding the report, but stated that it was 

satisfied the information in the report was nonhearsay “in that this officer made the 

observations personally, documented the information in the report, and there‟s not a 

 

2 All further undesignated statutory references are to the Evidence Code.
7

second level of hearsay.” Defense counsel later engaged in further questioning regarding 

what tools Officer Espanto used to reach his conclusions. He responded that he used a 

steel ruler to measure the brake pads, but for the most part his conclusions were based on 

his visual observation of the Tahoe‟s various systems, some of which he disassembled in 

order to evaluate their functioning.3

B. Analysis

It is important to note at the outset that the trial court admitted the report into 

evidence pursuant to both section 1271, the business records exception to the hearsay 

rule, and section 1280, the official records exception. A trial court‟s ruling admitting a 

record under section 1271 is reviewed for an abuse of discretion. (People v. Jones (1998) 

17 Cal.4th 279, 308.) Likewise, the trial court is vested with “broad discretion” to 

determine whether a party has established the foundational requirements of section 1280, 

and a reviewing court may overturn the trial court‟s exercise of discretion only upon a 

clear showing of abuse. (People v. Martinez (2000) 22 Cal.4th 106, 120.) 

Section 1271 provides: “Evidence of a writing made as a record of an act, 

condition, or event is not made inadmissible by the hearsay rule when offered to prove 

the act, condition, or event if: [¶] (a) The writing was made in the regular course of a 

business; [¶] (b) The writing was made at or near the time of the act, condition, or event; 

[¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its 

preparation; [¶] (d) The sources of information and method and time of preparation were 

such as to indicate its trustworthiness.” 

Similarly, section 1280 provides: “Evidence of a writing made as a record of an 

act, condition, or event is not made inadmissible by the hearsay rule when offered in any 

civil or criminal proceeding to prove the act, condition, or event if all of the following 

 

3

In his report, Officer Espanto set forth his findings regarding the mechanical 

functioning of the Tahoe‟s cooling system, engine, transmission, steering system, braking 

system, suspension, electrical system, and fuel system. 
8

applies: [¶] (a) The writing was made by and within the scope of duty of a public 

employee. [¶] (b) The writing was made at or near the time of the act, condition, or 

event. [¶] (c) The sources of information and method and time of preparation were such 

as to indicate its trustworthiness.” 

1. Act, Condition, or Event

Noriega contends Officer Espanto was not simply recording an observed event in 

his report because the analysis of each system required the application of reasoning to 

determine the mechanical viability of a complex automotive system. He argues that the 

statements contained in the report were conclusions that were inadmissible under the 

business records exception to the hearsay rule. We disagree.

Both sections 1280 and 1271 permit the use of writings made as a record of an act, 

condition, or event to prove the act, condition, or event if specified conditions are met. 

The report at issue here was a record of Officer Espanto‟s findings regarding the 

observable condition of the Tahoe‟s various mechanical systems. The fact that special 

knowledge was required on Officer Espanto‟s part in order to appreciate the import of the 

observable condition of each system does not take the report out of the realm of being a 

report on the factual condition of the systems. Noriega does not suggest that reasonable 

minds could differ on whether the factual circumstances of the systems Officer Espanto 

observed meant the systems were or were not functioning properly. Instead, Officer 

Espanto used his knowledge of how the various components of each system should look 

and behave, based on standards evidently agreed upon by those familiar with automotive 

mechanics. We therefore conclude the report fell within the description of writings made 

admissible by sections 1280 and 1271. 

2. Reports Prepared in Contemplation of Litigation

Noriega next contends that the report at issue was prepared by an entity dedicated 

to the preparation of reports for use in litigation and such reports are not admissible under 

section 1271. That is generally a correct statement. (See People v. Khaled (2010) 186 
9

Cal.App.4th Supp. 1, 8 (Khaled), citing Palmer v. Hoffman (1943) 318 U.S. 109; Gee v. 

Timineri (1967) 248 Cal.App.2d 139, 148 [record not prepared in the “normal course” of 

business but in anticipation of the lawsuit with defendant].) 

Here, however, the trial court found that the report was properly admitted under 

section 1280, the official records exception to the hearsay rule, and there is no such 

limitation on documents admitted pursuant to section 1280. This section requires that the 

writing be “made by . . . a public employee” and that the public employee must be under 

a legal duty to make such reports. (§ 1280, subd. (a); see Khaled, supra, 186 Cal.App.4th 

Supp. at p. 6.) Reports prepared by public employees who prepare documents in the 

regular course of their duties, even if those documents are often presented as evidence in 

a court of law, are properly admissible so long as the foundational requirements are met.

“Under either exception [(§ 1280 or § 1271)], „[i]n addition to the statutory 

requirements, the courts have imposed some conditions relative to the admissibility of a 

public record: (a) the record must be made by an official pursuant to governmental duty; 

[citations], and, (b) the record must be based upon the observation of an informant having 

a duty to observe and report. [Citation.] In this regard, a record based on the statements 

of third parties, e.g., an auto accident report compiled by the police, is inadmissible. 

[Citation.]‟ (People v. Flaxman (1977) 74 Cal.App.3d Supp. 16, 20; see, e.g., MacLean 

v. [San Francisco] (1957) 151 Cal.App.2d 133, 143; Reisman v. Los Angeles City School 

Dist. (1954) 123 Cal.App.2d 493, 505-506; Pruett v. Burr (1953) 118 Cal.App.2d 188, 

200-201.)” (People v. Ramos (1997) 15 Cal.4th 1133, 1177.) Officer Espanto was a 

public employee whose duty it was to observe and report his findings in performing 

mechanical analyses of vehicles. (See MacLean v. San Francisco, supra, 151 Cal.App.2d 

at p. 143.) Furthermore, the report was based on Officer Espanto‟s personal

observations. The report was properly admitted.

In any event, even were we to conclude that admission of the report was error, the 

error was not prejudicial. Officer Espanto testified directly about his observations of the 

Tahoe‟s mechanical systems, as well as to the contents of the report. Defense counsel 

had every opportunity to cross-examine him about his observations and the contents of 
10

the report. Any error was necessarily harmless, whether measured by federal 

constitutional or state standards. (Chapman v. California (1967) 386 U.S. 18, 24; People 

v. Watson (1956) 46 Cal.2d 818, 836.)

II. Expert Testimony Regarding EDR Data Required a Kelly Hearing

Noriega next contends that forensic use of the EDR data constitutes use of new 

and untested science and therefore the court was required to conduct a hearing under 

Kelly, supra, 17 Cal.3d 24, and find that forensic use of such data is generally accepted in 

the scientific community before allowing its admission into evidence. He also argues that 

Officer Grindey‟s testimony was inadequate to qualify him to testify on the subject. We 

find that these related issues were forfeited because defense counsel did not raise them at 

trial, and that in any event any error in admitting the EDR testimony was harmless. 

A. Background

Officer Grindey stated that the primary function of the EDR system is to 

determine if the air bags would be deployed in a collision. The severity of the collision is 

determined by way of an accelerometer contained within the EDR unit. As part of this 

process, the EDR collects data to determine the speed of the vehicle prior to and at the 

time of the collision, as well as the rate of deceleration. The data remains stored in the 

module. 

The Baldwin Park Police Department obtained a search warrant that permitted 

Officer Grindey to download the information using a data link connector that he hooked 

into the “DLC” underneath the dashboard, plugged in through the EDR module, then 

connected to his laptop. He then queried the computer software program, which 

eventually generated a seven-page report. Officer Grindey also prepared a second report, 

two pages long, that accounted for the different speedometer reading that would occur 

because the actual tires on the Tahoe were not the size recommended by the 

manufacturer. In preparing the second report he used a website called Tennessee Tires. 

The prosecutor asked what size tire the Tahoe came out of the factory with, and defense 
11

counsel objected based on lack of foundation and hearsay grounds. The trial court 

responded that it would “sustain also on 352.” The prosecutor said the next document he 

wished to have marked for identification was the seven-page crash data retrieval for the 

Tahoe generated by the computer software program. The prosecutor asked Officer 

Grindey how fast the Tahoe was going prior to the collision. Defense counsel objected 

again based on lack of foundation and hearsay grounds. The court responded by 

informing the jury that a recess would be taken. 

Outside of the jury‟s presence, the court went through the document page by page 

with Officer Grindey. They agreed that the first two pages were a description of the 

program and its limitations. Officer Grindey said the third through sixth pages were 

generated as a result of the data that he had downloaded that had been recorded within the 

EDR module. Those pages reported the speed change over time that the EDR recorded, 

causing the air bags to deploy. Officer Grindey identified for the court the portions of the 

report that described the data recorded at the time of the crash, including the rate of 

deceleration that occurred upon impact. Other portions of the report had to do with time 

periods unrelated to the collision. The last page of the document contained Officer 

Grindey‟s comments describing how and where he performed the data recovery and 

assessment. The court then asked Officer Grindey about the two-page report regarding 

the actual tire size for the Tahoe. 

The trial court addressed defense counsel‟s hearsay objection regarding the data 

retrieved from the EDR. Defense counsel said that it was not clear how the information 

in the report was determined because the results relied on a computer program generated 

by someone else. She did not know who inputted the data to create that program and thus 

it was all hearsay. 

The prosecutor replied that section 1552 permitted the use of a printed 

representation of computer information.4 The court asked defense counsel if she wanted 

 

4 Section 1552 provides in relevant part: “(a) A printed representation of computer 

information or a computer program is presumed to be an accurate representation of the 

(Fn. continued.)
12

to argue any additional factors. Counsel responded that the testimony was vague, saying, 

“I‟ve just had a really hard time keeping up with this witness, speed and everything.” 

The court overruled the vagueness objection, noting counsel could cross-examine the 

witness. The court sustained the objection to pages one, two, five, six, and seven of the 

report as irrelevant and confusing. (Evid. Code, § 352.) The court marked for 

identification pages three and four of the seven-page report, and the first page of the twopage report regarding the tires. 

The court stated: “As to the objections under computer print-out under Evidence 

[Code] Section 1552, I overrule your objection. It has become in litigation both civil and 

criminal stand [sic] fairly standard operating procedure and given our advancements in 

technology and, in fact, the reason that 1552 even came to being is because of the reality 

of computer generated records, there are a number of cases in California and other states, 

federal jurisdictions that have assessed this issue including relative to the electronic or 

rather event data recorders. The witness has already testified to his training and expertise 

and downloading the data, that the National Traffic Safety, NTSB, that is data that is 

utilized and recognized, the length of time that this particular computerized information 

has been available for use on vehicles.[5] Relative to the issue of this particular type of 

computerized download being common and accepted, the witness testified I think that in 

a certain year all vehicles were . . . .” Officer Grindey interjected, “By 2013 all vehicles 

 

computer information or computer program that it purports to represent. This 

presumption is a presumption affecting the burden of producing evidence. If a party to an 

action introduces evidence that a printed representation of computer information or 

computer program is inaccurate or unreliable, the party introducing the printed 

representation into evidence has the burden of proving, by a preponderance of evidence, 

that the printed representation is an accurate representation of the existence and content 

of the computer information or computer program that it purports to represent.”

5 Officer Grindey testified that each automobile manufacturer used its own method 

of collecting data, “but they do try to develop NHTSA, National Highway Transportation 

Safety Administration has current rulings called par 513 which by model year 2013 

requires all vehicles to have some type of event data recorder in some kind of data where 

you have precrash data and actual speed change data within that box itself.”
13

would be subjected to this.” The court continued, “[T]his data is generally acceptable, 

used by law enforcement, accident reconstruction specialists, manufacturers, regulatory 

bodies. California has, in fact, adopted a statute [Vehicle Code section] 9951[6] which 

was adopted in 2003 dealing with the ownership and assessment of EDR data specifically 

dealing with how it is to be accessed. I did inquire and was advised by the witness that 

he obtained a search warrant and that‟s one of the ways that the data can be downloaded.” 

 

6 Vehicle Code section 9951 provides in relevant part as follows: “(a) A 

manufacturer of a new motor vehicle sold or leased in this state that is equipped with one 

or more recording devices commonly referred to as „event data recorders (EDR)‟ or 

„sensing and diagnostic modules (SDM),‟ shall disclose that fact in the owner‟s manual 

for the vehicle.

“(b) As used in this section, „recording device‟ means a device that is installed by 

the manufacturer of the vehicle and does one or more of the following, for the purpose of 

retrieving data after an accident:

“(1) Records how fast and in which direction the motor vehicle is traveling.

“(2) Records a history of where the motor vehicle travels.

“(3) Records steering performance.

“(4) Records brake performance, including, but not limited to, whether brakes 

were applied before an accident.

“(5) Records the driver‟s seatbelt status.

“(6) Has the ability to transmit information concerning an accident in which the 

motor vehicle has been involved to a central communications system when an accident 

occurs.

“(c) Data described in subdivision (b) that is recorded on a recording device may 

not be downloaded or otherwise retrieved by a person other than the registered owner of 

the motor vehicle, except under one of the following circumstances:

“(1) The registered owner of the motor vehicle consents to the retrieval of the 

information.

“(2) In response to an order of a court having jurisdiction to issue the order.

“(3) For the purpose of improving motor vehicle safety, including for medical 

research of the human body‟s reaction to motor vehicle accidents, and the identity of the 

registered owner or driver is not disclosed in connection with that retrieved data. . . .

“(4) The data is retrieved by a licensed new motor vehicle dealer, or by an 

automotive technician as defined in Section 9880.1 of the Business and Professions Code, 

for the purpose of diagnosing, servicing, or repairing the motor vehicle. . . . ”

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

“(f) This section applies to all motor vehicles manufactured on or after July 1, 

2004.”
14

The court continued: “There‟s no motion relative to that, but I‟m just pointing out 

how the lay of the land has changed relative to the utilization of downloaded data. 

Everything from iPods. It‟s become so common. And that‟s essentially the basis for the 

1552 exception in the Evidence Code as well. This particular Vehicle Code does not 

address it from an evidentiary standpoint. It‟s simply authorizing how it‟s to be handled 

and treated. But it‟s part of the picture of how society has changed relative to computer 

print-outs. So on foundational grounds, overruled. Hearsay, overruled. The issues that 

you would raise would go to weight, not admissibility in terms of your crossexamination.” 

B. Analysis

From the foregoing recitation of the proceedings concerning Officer Grindey‟s 

testimony regarding the conclusions he reached based on the Tahoe‟s EDR data, it is 

evident that defense counsel did not bring a motion seeking a Kelly hearing or object to 

the admission of the EDR evidence on the basis that it did not meet the standards set forth 

in Kelly. On appeal, Noriega argues that “[d]efense counsel did not specifically request a 

Kelly hearing because the court conducted an inquiry outside the presence of the jury on 

its own motion inquiring into various aspects of the device, the science of EDRs, and the 

computer program on which Grindey had relied to download the data and concluded the 

„data is generally acceptable.‟ [Record citation.] [¶] Although it is well-established that 

the burden is on the proponent of the evidence in a Kelly hearing—here the prosecution—

the court took the laboring oar in the inquiry. [Record citation.] (People v. Pizarro

(1992) 10 Cal.App.4th 57, 67.)” 

This argument misconstrues the nature of the court‟s inquiry into the admissibility 

of the document generated by the computer software that downloaded information from 

the Tahoe‟s EDR. The record demonstrates that defense counsel objected on grounds of 

lack of foundation and hearsay, and the prosecution responded that the document was 

properly admissible under Evidence Code section 1552. That statute and tangentially 

Vehicle Code section 9951 were the subject of the court‟s discussion of use of the EDR-
15

related document. The court did make some statements that would be relevant in the 

context of a Kelly hearing, to the effect that such data “is utilized and recognized,” and 

had been available for some length of time. “Relative to the issue of this particular type 

of computerized download being common and accepted, the witness testified” that by 

2013 all vehicles would be required to have it. The court noted “[t]hat this data is 

generally acceptable, used by law enforcement, accident reconstruction specialists, 

manufacturers, regulatory bodies.” However, the court then specifically noted, “[t]here‟s 

no motion relative to that.” It was incumbent upon defense counsel at that point to bring 

such a motion or object that the Kelly standards had not been adequately demonstrated.7 

She failed to do so. Noriega cannot excuse his forfeiture of the issue by claiming the 

court held a Kelly hearing, albeit a purportedly inadequate one. The court did not hold a 

Kelly hearing because defense counsel did not request one and furthermore did not make 

such a request or object even after the court touched on the subject. Under these 

circumstances, Noriega failed to preserve the issue for appeal. (People v. Clark (1993) 5 

Cal.4th 950, 1018-1019, disapproved on other grounds as stated in People v. Doolin

(2009) 45 Cal.4th 390, 421, fn. 22; People v. Kaurish (1990) 52 Cal.3d 648, 688.) 

Finally, no prejudice could have resulted from the admission of the EDR 

testimony because separate and apart from Officer Grindey‟s testimony that relied on the 

EDR data, Officer Espanto testified based upon physical data gathered at the scene of the 

accident that the Tahoe was traveling at a minimum speed of 70.58 miles per hour at the 

time of the impact with Williams‟s car. Officer Grindey‟s conclusion was that the Tahoe 

was traveling 10 miles per hour faster than that. There could be no doubt in a reasonable 

juror‟s mind that Noriega was driving in a 40-mile-per-hour zone at a reckless speed and 

risked taking another person‟s life by doing so, whether he was traveling 70 or 80 miles 

per hour. We conclude that even if the court erred by admitting the EDR evidence, any 

 

7 As set forth in Kelly, supra, 17 Cal.3d at page 30, such a hearing would have 

inquired into (1) the reliability of the method in general, (2) the use of proper scientific 

procedures in the particular case, and (3) whether the witness furnishing such testimony 

is a properly qualified expert. 
16

error was necessarily harmless, whether measured by federal or state standards. 

(Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at 

p. 836.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.