P. v. Noriega CA2/4

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B236018

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA091006)
v.

LUIS MIGUEL NORIEGA,

Defendant and Appellant.

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.
 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).

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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.

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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.

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 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 multi-
disciplinary 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

5
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.

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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.

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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

8
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

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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

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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.)
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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 two-
page 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.”

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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.”

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 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 cross-
examination.”

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-

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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.

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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.

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