Filed 9/17/15 P. v. Hong CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JIANFEI HONG,

Defendant and Appellant.

 H040436

 (Santa Clara County

 Super. Ct. No. B1262087)

Early in the evening on June 23, 2012, defendant Jianfei Hong was driving his 

white Toyota Camry from work in Cupertino to his home in San Francisco on highway

85. Craig Ward was also driving northbound on highway 85 that evening. Ward 

estimated he was driving about 70 miles per hour when he observed an accident caused 

by a white Camry which was being driven in an aggressive and inattentive manner. Ward 

saw the other vehicle involved spinning on the highway before striking a berm, becoming 

airborne and flying into some trees on an embankment, killing its sole occupant, 25-yearold Arlette Alonso. Ward followed the white Camry and wrote down its license plate 

number when traffic slowed ahead. He could see the driver in the Camry’s side view 

mirror. According to Ward, the driver was short and wearing large sunglasses. He called 

911 and reported what he had seen, including the Camry’s license plate number, which 

the California Highway Patrol (CHP) determined was registered to Hong at an address in 

San Francisco.
2

CHP officers responded to the registered address that evening, and located a white 

Camry parked near the home. The hood was warm to the touch and a large pair of 

sunglasses was inside the vehicle. Hong admitted he had recently driven home from 

Cupertino on highways 85 and 101. 

Hong was convicted by a jury of felony vehicular manslaughter with gross 

negligence (Pen. Code, § 192, subd. (c)(1)).1 The jury found him not guilty of fleeing the 

scene of a fatal accident (Veh. Code, § 20001, subds. (a), (b)(2)). After his motion for 

new trial was denied, Hong was placed on formal probation for three years on condition 

that he serve nine months in county jail. 

On appeal, Hong argues: (1) there was not sufficient evidence presented for a jury

to conclude beyond a reasonable doubt that his vehicle caused the accident; (2) there was 

insufficient evidence presented for the jury to find that Hong was grossly negligent; (3) 

the prosecutor committed misconduct in introducing evidence to unduly influence a 

witness’s testimony and also by presenting evidence about the victim which appealed to 

the jurors’ emotions; and (4) the trial court erred in excluding evidence of the victim’s 

contributory negligence as a superseding cause of her death. 

We find no error and will affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The prosecution’s case

1. Jorge Rosales’s testimony

Rosales testified he was driving northbound on highway 85 near the Evelyn 

Avenue off ramp during the early evening hours on June 23, 2012. As he took the offramp, he noticed glass, debris, oil and some other sort of liquid on the roadway, then 

looked and saw a car smashed into a tree on a hill on the side of the road, with smoke 

 

1 Unspecified statutory references are to the Penal Code.
3

coming from its hood. He did not see any skid marks. Rosales stopped on the shoulder 

and ran over to the car to see if he could help. 

Rosales saw a young woman inside, with her left hand on the steering wheel and 

the other on her chest. He could not see any injuries, other than a little blood coming 

from the side of her head. Rosales started to reach inside to take her pulse, but noticed 

she was not moving or breathing, so he immediately called 911. 

2. Craig Ward’s testimony

Ward testified he was driving northbound on highway 85 near Evelyn Avenue on 

June 23, 2012, at around 6:00 p.m. He was in the leftmost of three lanes, i.e., the “fast 

lane,” and was traveling “about 70 [mph].” Ward saw a white Camry cut in front of the 

car ahead of him from the No. 2 lane, causing that car to slow down. Ward had to slow 

as well. Ward estimated the Camry, which “[h]ad to be [going] faster than 70,” cut into a 

space that was about one and one-half car lengths. He saw that there was another vehicle 

in the No. 2 lane that the Camry was attempting to get around. 

After the Camry cut into the No. 1 lane, Ward saw the Camry drift back into the 

No. 2 lane without signaling. There was a vehicle, which Ward later learned was an Audi 

sedan, already in the No. 2 lane and Ward saw that the Camry and the other car were 

“pretty close door to door.” The Camry was about halfway across into lane No. 2 and the 

Audi moved partially into lane No. 3 when the Camry suddenly “jumped back into the 

[No.] 1 lane.” Ward felt the Audi was braking to avoid colliding with the Camry. He did 

not see the two cars make contact but believed they were close enough that they might 

have. Ward believed that had the Audi not moved over to avoid the Camry, “[i]t would 

have been a bad accident because it would have caused the car in front of me to be 

involved . . . and possibly myself.” 

Ward saw the Audi spinning on the highway, moving from lane No. 3 back into 

lane No. 2, then back into lane No. 3. As it drifted back into lane No. 3, it hit the curb on 
4

the edge of the highway and flew up into the trees alongside the road. Ward did not see if 

it came out of the trees as he kept driving to try to get the Camry license number. 

Ward saw the Camry move into an open space in the No. 2 lane, pass a car in the 

No. 1 lane and move back into the No. 1 lane. Ward followed the Camry until it got 

caught in traffic where highway 85 and highway 101 merge and he was able to write 

down its license plate number. He relayed the license plate number to a 911 operator. 

Ward could only see the Camry’s driver from his reflection in the side view 

mirror. He said the driver “seemed to be short because [he] was slumped down” and was 

wearing large sunglasses. 

3. CHP Sergeant Laura Clare

Sergeant Clare was working an overtime detail on the evening of June 23, 2012,

near the San Francisco-Oakland Bay Bridge. She received a notification to be on the 

lookout for a white Toyota Camry registered to an address in San Francisco that was 

involved in a hit and run traffic accident with a fatality. Hong was listed as the registered 

owner of the Camry. Sergeant Clare drove to the registered address and arrived there 

between 7:20 and 7:30 p.m. 

Sergeant Clare located the Camry parked a couple houses away from Hong’s 

address. After waiting for another CHP unit to arrive, she got out of her vehicle and 

touched the Camry’s hood, finding it was still warm. Sergeant Clare went to Hong’s 

address and knocked on the door. Hong answered and she asked him for identification. 

Hong confirmed that the Camry parked on the street belonged to him. Sergeant Clare 

asked him about his whereabouts that day and Hong told her he had just come home from 

work in Cupertino. He told her he usually drives home on either highway 101 or 280 

and, on this day, he drove home on highway 101. 

4. CHP Officer Joshua Lapoint

Officer Lapoint testified he was on patrol on June 23, 2012, when he received a 

call shortly after 6:00 p.m. to respond to a collision on highway 85 near the Evelyn 
5

Avenue off-ramp. After arriving at the scene, Officer Lapoint looked for defects or 

obstructions in the roadway but saw none. He noted the weather was warm and sunny 

with clear skies. The section of highway where the accident occurred was straight, 

slightly inclined, with good visibility. From the collision, Officer Lapoint observed tire 

friction marks on the roadway, along with debris from trees and shrubs where the vehicle 

had run into the landscaping on the embankment. He also saw debris from the vehicle 

dispersed “all over the off-ramp, on the side of the embankment.” 

Following the trail of tire marks and debris down the embankment, Officer 

Lapoint saw a white Audi resting upon a tree, facing south. He determined the Audi 

impacted the tree on the driver’s side and it had sustained substantial damage. The driver 

was a young Hispanic woman, who was fatally injured and was declared dead at the 

scene. 

While en route to the accident, Officer Lapoint received a dispatch that there was 

another vehicle involved in the accident and a witness (Ward) had provided a license 

plate number for that vehicle. When he arrived on the scene, Officer Lapoint called 

Ward and confirmed that the vehicle linked to the license plate number matched the 

description of the vehicle Ward was reporting was involved in the accident. When it did, 

Officer Lapoint asked dispatch to notify CHP in San Francisco about the white Camry 

with the license plate number provided by Ward. 

Officer Lapoint went to the address himself and saw the white Camry, which was 

being taken for evidence. He inventoried the property found inside, which included a 

large pair of sunglasses, like those Ward said the driver of the vehicle was wearing. 

Officer Lapoint also spoke to Hong and his wife at the address. Hong told him he had 

left work at 6:00 p.m. in Cupertino and drove home to San Francisco, taking highway 85 

to highway 101. 
6

Officer Lapoint prepared a “24 hour profile”2of the victim, which is a “record of 

the person’s life 24 hours before the incident, what did they do, what was their state of 

mind, were they under the influence of any kind of drugs or alcohol, the people they were 

with, what was their mood.” He testified that such profiles are compiled “[t]o rule things 

out, particularly, suicide or bizarre behavior, things of that nature.” 

5. CHP Officer Kylle Rose

Officer Rose qualified as an expert in vehicle collision investigation and accident 

reconstruction and was called in to investigate the fatal accident on June 23, 2012. 

Officer Rose took photographs at the scene, which showed the Audi’s roofline collapsed 

and its trunk sheared off when the vehicle collided with the tree. Alonso was still secured 

in the driver’s seat with her seatbelt. 

Officer Rose examined the tire friction marks on the roadway and concluded the 

Audi was driving northbound when it began to rotate clockwise, ultimately facing the 

wrong way. According to Officer Rose, once the front of a vehicle deviates from its 

original direction of travel by about 20 degrees, the driver no longer has control. Officer 

Rose testified the tire marks were consistent with what Ward described seeing at the time 

of the accident. 

6. Coroner’s testimony

Dr. Joseph O’Hara, a forensic pathologist with the Santa Clara Medical 

Examiner’s Coroner’s office, testified that he conducted an autopsy on Alonso and 

determined the cause of death was “blunt force injury of the head with a skull fracture.” 

Alonso also had a broken collarbone, broken ribs on both sides of her body, as well as 

 

2

The prosecution also called Alonso’s mother, Christina Alonso, and sister, Carla 

Alonso, as witnesses to testify about Alonso’s activities and their observations of her 

mood during the 24 hours preceding her fatal accident. The substance of their testimony 

is discussed in more detail in connection with Hong’s argument that the testimony was 

unduly prejudicial and its introduction amounted to prosecutorial misconduct.
7

multiple abrasions and contusions. Dr. O’Hara found no evidence that Alonso had used 

any drugs (illegal or common prescription) or consumed any alcohol. 

B. Defense case

Hong did not testify. He did not present evidence from any percipient or expert 

witnesses. Hong proffered an expert witness to testify regarding the tire tracks, but that 

evidence was excluded by the trial court following an Evidence Code section 402 

hearing.

3

 

C. Jury deliberations, verdict and sentencing

During deliberations the jury asked to review Ward’s testimony on direct 

examination when exhibit No. 4 was discussed. 

The jury found Hong guilty of count 1, felony vehicular manslaughter with gross 

negligence (§ 192, subd. (c)(1)), but found not true the allegation that he fled the scene of 

the accident within the meaning of Vehicle Code section 20001, subdivision (c). The 

jury also found Hong not guilty of count 2, leaving the scene of an accident resulting in 

permanent serious injury or death (Veh. Code, § 20001, subds. (a), (b)(2)). 

Hong’s motions for new trial and to reduce his conviction to a misdemeanor were 

denied and he was placed on three years’ formal probation and ordered to serve nine 

months in county jail. Various fines and fees were imposed along with other conditions 

of probation, none of which have been challenged in this appeal. 

II. DISCUSSION

A. Sufficiency of the evidence

“When considering a challenge to the sufficiency of the evidence to support a 

criminal conviction, we review the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial evidence--that is, evidence 

 

3

The trial court’s ruling on this issue, as well as the substance of the expert’s 

proffered testimony, will be discussed in detail below. 
8

which is reasonable, credible, and of solid value--such that a reasonable trier of fact could 

find the defendant guilty beyond a reasonable doubt.” (People v. Cortes (1999) 71 

Cal.App.4th 62, 71.) “In making this determination, we do not reweigh the evidence, 

resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (Ibid.) Nor 

do we ask whether we “ ‘believe[] that the evidence at the trial established guilt beyond a 

reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v.

Virginia (1979) 443 U.S. 307, 319; see People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [“

‘Although we must ensure the evidence is reasonable, credible, and of solid value, 

nonetheless it is the exclusive province of the . . . jury to determine the credibility of a 

witness and the truth or falsity of the facts on which that determination depends.’ ”].)

1. Identification of Hong’s white Camry

Hong first argues the prosecution failed to prove beyond a reasonable doubt that 

he caused the accident because no reasonable jury could have concluded that Ward 

correctly identified his white Camry as the vehicle involved in this incident. We 

disagree.

Hong relies on People v. Arias (1996) 13 Cal.4th 92 (Arias), which lists the five 

factors to be evaluated in deciding if misidentification occurred: (1) the witness’s 

opportunity to view the suspect at the time of the crime; (2) the witness’s degree of 

attention; (3) the accuracy of any prior description by the witness; (4) the level of 

certainty displayed by the witness at a suggestive confrontation; and (5) the length of 

time between the crime and the confrontation. (Id. at p. 168.) He contends that Ward 

never saw the driver’s face but could only describe the car he was driving. Ward 

admitted he was shocked at the time of the accident. When he began to follow the white 

Camry, it was already some distance ahead of him and Ward did not testify that he made 

any effort to ensure he was following the same white Camry.
9

Hong’s reliance on Arias is misplaced. In Arias, the California Supreme Court 

was discussing, among other things, what factors a court should use in deciding whether 

to allow an in-court identification when the defendant raises the possibility that the 

process used to elicit an out-of-court identification was unduly suggestive. (Arias, supra, 

13 Cal.4th at p. 168.) Hong did not bring an in limine motion challenging the 

admissibility of Ward’s identification of his vehicle, nor was there any evidence raising 

the possibility that Ward’s identification of that vehicle was influenced by any extraneous 

factors. 

Substantial evidence supports the jury’s finding that Hong was the person driving 

the white Camry that caused the fatal accident. Ward testified he first saw the white 

Camry when it made an unsafe lane change in front of him, which caused Ward and the 

car in front of him to brake in order to avoid a collision. He then saw the Camry slowly 

drift into the second lane, causing Alonso to move over and apparently lose control of her 

vehicle. While Ward may not have kept his eyes firmly fixed on the Camry this entire 

time, the jury was entitled to believe his testimony that the vehicle he began to follow 

immediately after watching the Audi fly off the highway was the same white Camry that 

caused the accident.

To the extent that Ward’s memory of the incident was uncertain as to some of the 

details, such as the exact color and make of the vehicle that was forced off the road by the 

white Camry, Hong was able to elicit those uncertainties on cross-examination and the 

jury was able to evaluate Ward’s credibility as it related to his description of the manner 

in which the Camry was operated. 

Furthermore, Ward’s testimony was corroborated by the evidence provided by the 

CHP officers who testified that the license plate number he provided was issued to a 

white Camry registered to Hong at his residence in San Francisco. When CHP officers 

inventoried the contents of Hong’s Camry, they located large sunglasses inside, similar to 

those Ward said the driver was wearing. 
10

Consequently, Ward’s testimony, as a whole, was not categorically incredible and 

a rational trier of fact could rely on it to find Hong guilty of the charged offense. 

2. Gross negligence

Hong next argues there was insufficient evidence presented to the jury to support 

its finding of gross negligence. Ward testified that Hong was driving more than five 

miles an hour over the speed limit and drifted slowly into Alonso’s lane. Drivers are 

accustomed to being cut off or accidentally cutting off other drivers and understand that 

the consequences usually include collision, horn honking or angry gestures and 

expressions. Hong posits a reasonable person would not expect a driver to react so 

violently as to spin out, cross multiple lanes of traffic and fly into the air. 

Here, the jury was instructed on gross negligence as follows: “Gross negligence 

involves more than ordinary carelessness, inattention, or mistake in judgment. A person 

acts with gross negligence when, one, he acts in a reckless way that creates a high risk of 

death or great bodily injury, and, two, a reasonable person would have known that acting 

in that way would create such a risk. In other words, a person acts with gross negligence 

when the way he acts is so different from how an ordinarily careful person would act in 

the same situation that his act amounts to disregard for human life or indifference to the 

consequences of that act.” 

In People v. Bennett (1991) 54 Cal.3d 1032, the California Supreme Court 

explained that “[g]ross negligence is the exercise of so slight a degree of care as to raise a 

presumption of conscious indifference to the consequences. [Citation.] ‘The state of 

mind of a person who acts with conscious indifferences [sic] to the consequences is 

simply, “I don’t care what happens.” ’ [Citation.] The test is objective: whether a 

reasonable person in the defendant’s position would have been aware of the risk 

involved.” (Id. at p. 1036.) Simply committing a traffic violation, by itself, is generally 

insufficient to establish gross negligence, but “[t]he jury should . . . consider all relevant 
11

circumstances . . . to determine if the defendant acted with a conscious disregard of the 

consequences rather than with mere inadvertence.” (Id. at p. 1038.) 

The evidence presented here was sufficient to permit a jury to find that Hong was 

grossly negligent on the day of the accident. 

First, Hong was driving his car at a high rate of speed, well in excess of the 65

mile per hour speed limit. His argument that Ward’s testimony established that he was 

only exceeding the speed limit by perhaps as little as five miles an hour mischaracterizes 

that testimony. Ward testified that he was driving at about 70 miles per hour when Hong 

passed him on the right. If Hong passed Ward, he must have been traveling faster than 

70 miles per hour. 

In addition to the high rate of speed, the jury heard Ward testify that Hong, 

without signaling, cut into a small space, perhaps one and one-half car lengths, in front of 

the car ahead of him, causing both that car and Ward to slow to avoid a collision. 

Finally, after drifting into Alonso’s lane and quickly jerking back into his own lane, Hong 

again moved into the second lane--which was now clear since Alonso’s car was spinning 

out of control and off the highway--and essentially leapfrogged the vehicle that was 

impeding his progress in the first lane. It is within a juror’s common experience to 

evaluate whether a driver who operates his vehicle in such a manner, at speeds in excess 

of 70 miles per hour, is demonstrating conscious indifference to the consequences of his 

actions. The jury’s finding that Hong acted with gross negligence is supported by 

substantial evidence.

B. Prosecutorial misconduct

Hong contends the prosecutor committed misconduct in two ways: (1) by 

submitting an exhibit (exhibit No. 4) which depicted the way in which Hong’s vehicle

was moving just before the accident and using it to unduly influence Ward’s testimony; 

and (2) by eliciting prejudicial evidence of the victim’s background designed to play on 

the jurors’ emotions. 
12

1. Relevant facts

a. Exhibit No. 4

The prosecutor prepared a diagram which purported to show the path of the white 

Camry as described by Ward. It was marked for identification as exhibit No. 4 and the 

prosecutor asked Ward if it accurately represented what he observed the day of the 

accident. After Ward said it did, the prosecutor sought to admit the diagram into 

evidence and publish it to the jury. At that point, Hong’s counsel raised a relevance 

objection. Following an unreported sidebar conference, the trial court sustained the 

objection on the ground that no foundation had been laid. 

The prosecutor then asked Ward if the diagram accurately depicted the 

configuration of highway 85 with three lanes of travel, and whether the boxes and arrows 

on the diagram accurately reflected the positioning and movement of certain vehicles on 

the road, including the white Camry and the Audi. He confirmed that it did, and the 

prosecutor again moved that the exhibit be admitted into evidence and published to the 

jury. Hong’s counsel did not object and the exhibit was admitted. 

b. Testimony by victim’s family members

Christina, Alonso’s mother, and Carla, Alonso’ sister, testified about Alonso’s

activities, as well as their interactions with her and their assessment of her emotional 

state, during the 24 hours preceding the accident. Christina testified Alonso “was like 

happy all the time,” and lived at home following her graduation from college in Merced. 

Alonso was working part-time at the Coach store in the Stanford shopping center and 

part-time at a nightclub operated by Christina’s brother-in-law. Alonso had just “got a 

new position at her work” sometime before the accident and was excited about her job 

prospects. She also was planning to accompany Carla to Arizona for college orientation 

on June 25. Christina saw Alonso early in the morning on June 23 as Christina was 

preparing to go to work, and talked to her about buying presents for Alonso’s twin 

cousins who were having their sixth birthday party that day. 
13

Carla testified she went shopping with Alonso on June 23 to buy presents for their 

cousins and then went with her to the birthday party. Alonso drove to the party and they 

arrived around 1:00 or 2:00 in the afternoon. They spent three or four hours at the party, 

during which time Alonso was happy and excited to see her family. Nothing unusual 

occurred at the birthday party, and there was no alcohol served. Alonso was also going to 

accompany Carla to her upcoming orientation at the University of Arizona. Alonso left 

the party by herself around 6:00 p.m. and said she was going to the Coach store to 

exchange a purse for a family member and then go to work. On cross-examination, Carla 

said that Alonso was wearing shoes when she left, but could not remember what kind.

Hong’s counsel objected during Christina’s testimony on the grounds of relevance 

and prejudice. Following an unreported bench conference, the trial court overruled the 

objection. At a subsequent break in the proceedings, outside the presence of the jury, the 

parties memorialized what was discussed at sidebar regarding Hong’s objection. After 

restating Hong’s objection that Christina’s testimony about Alonso’s “state of being or . .

. happiness” was not relevant, the prosecutor responded that Christina’s testimony was 

“foundational . . . information that the investigating officer in this case took from the 

family members as part of what’s called a 24 hour profile. 24 hour profiles are 

commonly taken in this kind of case where the victim cannot be interviewed because the 

victim is deceased in determining whether there is some other factor in the collision, 

attempted suicide, or depression, or alcohol use, drug abuse, things of that nature.” 

2. Analysis

Misconduct involves the use of deceptive or reprehensible methods to attempt to

persuade either the trial court or the jury. (People v. Haskett (1982) 30 Cal.3d 841, 866.) 

It is misconduct for a prosecutor to mischaracterize the evidence (People v. Hill (1998)

17 Cal.4th 800, 823), misstate the law (People v. Bell (1989) 49 Cal.3d 502, 538), or 

appeal to the passion of the jurors (People v. Pensinger (1991) 52 Cal.3d 1210, 1250).

“[A] prosecutor commits reversible misconduct if he or she makes use of ‘deceptive or 
14

reprehensible methods’ when attempting to persuade either the trial court or the jury, and 

when it is reasonably probable that without such misconduct, an outcome more favorable 

to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct 

by a prosecutor that does not result in the denial of the defendant’s specific constitutional 

rights--such as a comment upon the defendant’s invocation of the right to remain silent--

but is otherwise worthy of condemnation, is not a constitutional violation unless the 

challenged action ‘ “so infected the trial with unfairness as to make the resulting 

conviction a denial of due process.” ’ ” (People v. Rundle (2008) 43 Cal.4th 76, 157, 

disapproved on a different ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.

22.) Reversal is required “only if, ‘after an examination of the entire cause, including the 

evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant 

would have obtained a more favorable outcome had the error not occurred.” (People v. 

Breverman (1998) 19 Cal.4th 142, 178.)

The People contend Hong forfeited his claims of prosecutorial misconduct, 

because he failed to make any such objection at trial,

4

either when the prosecution sought 

to admit exhibit No. 4 into evidence or when Alonso’s family members were testifying. 

We agree. Hong objected to both exhibit No. 4 and Christina’s testimony only on the 

grounds of relevance. He made no objection or argument about prosecutorial misconduct 

with respect to either of these subjects. Accordingly, Hong’s claims of prosecutorial 

misconduct related to this evidence were forfeited. 

Even if these claims could be deemed to have been preserved in some way, they 

are without merit. With respect to exhibit No. 4, even if the diagram was misleading in 

some way or conflicted with Ward’s testimony, Hong was able to address any such 

 

4

Typically, “ ‘[t]o preserve for appeal a claim of prosecutorial misconduct, the

defense must make a timely objection at trial and request an admonition; otherwise, the 

point is reviewable only if an admonition would not have cured the harm caused by the

misconduct.’ ” (People v. Silva (2001) 25 Cal.4th 345, 373.)
15

discrepancies during cross-examination. Christina’s testimony, while certainly 

emotional, does not rise to the level of a deceptive or reprehensible method such as to 

qualify as misconduct. Furthermore, based on the entirety of the evidence presented to 

the jury in this case, there is no reasonable probability Hong would have obtained a more 

favorable outcome even in the absence of the purported misconduct. 

C. Preclusion of evidence of superseding cause

Hong next argues the trial court erred in not permitting him to introduce evidence 

tending to show Alonso’s contributory negligence was an intervening superseding cause 

of the fatal accident. 

1. Relevant facts

Hong sought to introduce the testimony of an accident reconstruction expert, Joel 

Salinas, regarding his analysis of the tire tracks. The trial court held an Evidence Code 

section 402 hearing, at which Salinas testified that he believed Alonso could have come 

to a stop before leaving the road if she initially applied her brakes when the white Camry 

drifted into her lane. The prosecutor objected to any testimony about what occurred after 

the Camry entered Alonso’s lane because it would be inadmissible evidence of 

contributory negligence. The trial court agreed, finding “any evidence of whether or not 

the victim did or did not break, [sic] whatever the stopping distance may have been . . . is 

irrelevant. I believe it goes to contributory negligence, and it is not a superseding, 

independent event. So any testimony with regard to what happened after the cause of the 

incident will be excluded.” 

The trial court said it would allow Salinas to testify regarding his measurements of 

the highway and how they differed from those taken by the CHP investigator. That 

evidence was ultimately presented to the jury by way of a stipulation.

2. Analysis

“ ‘[P]roximate cause is clearly established where the act is directly connected with 

the resulting injury, with no intervening force operating.’ ” (People v. Schmies (1996) 44 
16

Cal.App.4th 38, 48-49.) An intervening superseding cause can relieve a defendant of 

criminal liability if the act “break[s] the chain of causation” (People v. Wattier (1996) 51 

Cal.App.4th 948, 953) and the defendant’s act is no longer a substantial factor in 

producing the injury. “[A] ‘cause of the [death of the decedent] is an act or omission that 

sets in motion a chain of events that produces as a direct, natural and probable 

consequence of the act or omission the [death] and without which the [death] would not 

occur.’ ” (People v. Schmies, supra, at p. 48.) 

In People v. Armitage (1987) 194 Cal.App.3d 405, 421 (Armitage), the defendant 

caused a drunken victim to end up in the middle of a dangerous river clinging to an 

overturned boat, and subsequently argued it was reckless for the victim to abandon the 

relative safety of the boat and attempt to swim to shore. Like the defendant in Arimtage, 

Hong contends that Alonso’s unforeseeable and violent reaction to his driving halfway 

into her lane caused her to lose control of her vehicle, spin out on the highway and fly 

into the trees on the side of the road. Hong’s expert would have testified that Alonso

could have safely stopped her vehicle before leaving the highway if only she had applied 

her brakes.

The Court of Appeal rejected this claim in Armitage, stating, “the panic-stricken 

victim[’s] [response] . . . was not a wholly abnormal reaction to the perceived peril of 

drowning.” (Armitage, supra, 194 Cal.App.3d at p. 421.) “[I]n criminal law a victim’s 

predictable effort to escape a peril created by the defendant is not considered a 

superseding cause of the ensuing injury or death. [Citations.] As leading commentators 

have explained it, an unreflective act in response to a peril created by defendant will not 

break a causal connection. In such a case, the actor has a choice, but his act is 

nonetheless unconsidered. ‘When defendant’s conduct causes panic an act done under 

the influence of panic or extreme fear will not negative causal connection unless the 

reaction is wholly abnormal.’ ” (Ibid.)
17

In this case, Hong’s expert was precluded from offering testimony about how 

Alonso’s failure to apply her brakes, after she swerved to avoid Hong’s car which was 

drifting into her lane as they both traveled on a highway at a high rate of speed, was an 

independent superseding cause of her death. This was entirely proper. Alonso reacted to 

a sudden peril and took evasive action, veering to the right to avoid colliding with Hong’s 

car. Whatever actions she took or failed to take in response to Hong driving into her 

lane, so long as they were not “ ‘wholly abnormal,’ ” were not sufficient to break the 

chain of causation and cannot be raised as a defense. (Armitage, supra, 194 Cal.App.3d 

at p. 421.) 

D. Hong’s claim of other evidentiary errors have been forfeited

Hong also raises an argument suggesting that he is being punished for a crime for 

which he is not “morally responsible.” In this portion of his brief, he discusses 

comparative negligence in civil actions and then states that it is somehow “inhuman and 

unenlightened” for a defendant, such as himself, to be found guilty of vehicular 

manslaughter in a situation where the decedent’s negligence was equal to or greater than 

that of the defendant. Hong claims he should have been allowed to present evidence 

Alonso was actually accelerating before the collision and was “trying to pass a car at an 

unsafe speed that’s in the process of changing lane [sic],” along with evidence that she 

“possibly had a mechanical malfunction in her car, or [her] missing sandal possibly 

caused the fatal accident.” 

With the exception of Alonso’s footwear, Hong made no offer of proof at trial 

regarding the possibility that Alonso was trying to pass Hong when he moved into her 

lane or that there was any mechanical reason for the accident. Hong proffered his expert 

to testify that Alonso could have safely come to a stop had she braked and that her failure 

to brake was an independent superseding cause of her death. The expert did not offer any 

evidence about what Alonso may or may not have been doing in the moments preceding 

the near-collision between her car and Hong’s Camry. The trial court simply excluded 
18

any testimony about what Alonso might have or should have done in response to Hong 

drifting into her lane. Since these claims of evidentiary error were not raised in the trial 

court, they are forfeited on appeal. (Evid. Code, § 353; Hepner v. Franchise Tax Bd.

(1997) 52 Cal.App.4th 1475, 1486.)

III. DISPOSITION

The judgment is affirmed. 
Walsh, J.*

WE CONCUR:

Rushing, P.J.

Elia, J.

People v. Hong

H040436

 

*

Judge of the Santa Clara County Superior Court assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.