Opinion
G059105
01-21-2022
THE PEOPLE, Plaintiff and Respondent, v. ALEC SCOTT ABRAHAM, Defendant and Appellant.
George L. Schraer for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 15HF0637, Cheri T. Pham, Judge. Affirmed.
George L. Schraer for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
In June 2015, defendant Alec Scott Abraham drove his car into an intersection at about 60 mph against a red light. Abraham broadsided another vehicle, killing its driver and a two-year-old child in the backseat. The prosecution charged Abraham with two counts of second degree, implied malice murder.
In February 2020, on the eve of a retrial, Abraham's hired counsel said: "Your Honor, my client is inquiring about just a possibility of going pro per." The trial court denied Abraham's purported motion to represent himself because it was untimely and not unequivocal. During the trial, the prosecution introduced evidence of prior uncharged acts, including a video of Abraham driving 140 mph on a public highway. (Evid. Code, § 1101, subd. (b).) The jury found Abraham guilty of both murder counts.
Further undesignated statutory references are to the Evidence Code.
Abraham argues the trial court erred by denying his motion for self-representation, by admitting the prior uncharged acts evidence, and by admitting a photograph of the two deceased victims (while alive). Abraham also argues cumulative prejudice, instructional error, and a sentencing error.
The trial court erred by admitting the deceased victims' photograph, but we do not find the error to be prejudicial. Finding no other errors, we affirm the judgment.
I FACTS AND PROCEDURAL BACKGROUND
On June 10, 2015, at about 9:00 p.m., Abraham was driving a Ford Mustang over 70 mph, going "head to head" with another car. Abraham slowed down as he approached an intersection, where a car was stopped for a red light. Abraham then changed lanes and accelerated as he drove around the stopped car. When he entered the intersection, Abraham was driving at about 60 mph with the accelerator at 100 percent.
Abraham broadsided a Chevy Cruze driving through the intersection. Four people were in the car: a 54-year-old female driver, her adult daughter (in the front passenger seat), the driver's seven-year-old grandson (behind the passenger), and the driver's two-year-old granddaughter (behind the driver's seat).
According to an expert, "So when the Mustang went into the car, it went into it so deep that essentially that Cruze wrapped around the side of the Mustang . . . ." After colliding with the Cruze, Abraham's Mustang spun out, striking another vehicle. According to one of the eyewitnesses, the scene was: "Horrible." "There were cars spinning. There were car parts flying." The witness called 9-1-1.
Abraham got out of his Mustang and was "wandering around" in the intersection looking for his cell phone. Abraham borrowed a witness' cell phone, looked inside the Cruze, and ran away with the phone. The next day, police located and arrested Abraham by "pinging" the witness' cell phone.
The driver of the Cruze died at the scene of the collision. The driver's adult daughter and seven-year-old grandson sustained serious injuries. The driver's two-year-old granddaughter was later taken off life support.
Court Proceedings
In April 2019, a jury found Abraham guilty of two counts of second degree, implied malice murder. When the trial court polled the jury, one of the jurors asked to change his/her verdict. The court declared a mistrial.
We denied Abraham's request to augment the record on appeal with the reporter's transcripts of the first trial.
In February 2020, the same trial court judge presided over a second trial. The court admitted evidence of prior uncharged acts through the testimony of six witnesses, a cell phone video, and a traffic citation. (§ 1101, subd. (b).)
An officer testified that he issued Abraham a traffic citation for unsafe speed about five years before the collision. Abraham made an aggressive lane change at night while driving 19 mph over the speed limit in an area commonly used by pedestrians and cyclists. Abraham told the officer this would be his third ticket, and it could negatively affect his employment.
A. Krisela was a former police officer who worked with Abraham at a car dealership, where they were both salesmen. Abraham talked to Krisela about getting a traffic ticket; Krisela advised Abraham "to slow down." Krisela had seen Abraham driving fast and doing a "burnout." Krisela told Abraham not to "'drive like an idiot.'" In 2014, Krisela received a group text from Abraham with a cell phone video. Abraham had videotaped himself driving 140 mph on a public highway, and then yelling "whoa" into the camera. Krisela texted Abraham "that I forwarded it to the California Highway Patrol, along with his address." Krisela did not actually forward the video. Krisela said his reply was intended as "a joke, but also to get [Abraham] not to do that."
F. Kristoff also worked as a salesman at the dealership. Kristoff heard Abraham doing a burnout. Kristoff told Abraham three or four times to slow down. On one occasion, Abraham told Kristoff "he was late for work and he ran a red light just to get here in time." Kristoff was a recipient of the group text with the video. Kristoff later saw an article about the fatal collision and commented online: "I remember telling him that he will kill someone driving like that. [¶] . . . [¶] Unfortunately, I was right." Kristoff later said he could not "remember if I actually used those words."
M. Shields worked in the office at the dealership. Shields said one day she was in a car with co-workers driving back to the dealership. Shields testified "Abraham approached us from behind, driving pretty erratically, and almost clipped the back end of my co-worker's car. . . ." Shields confronted Abraham, who said, "he wouldn't have done it had he known it was us." Shields told Abraham she "didn't give a sh*t who was in the car and that he was driving like an idiot and that he was going to kill somebody."
M. Purpura was a service manager at the dealership. Purpura said his exchanges with Abraham were "scary." Abraham almost struck him twice with his car. Abraham told Purpura: "When I drive [the Mustang] over 100, the car makes noise." Purpura told Abraham service department employees cannot drive over the speed limit and "I'm not going to put one of my employees at risk in order to test drive a vehicle."
R. Miller was the general manager of the dealership. Miller testified Abraham was on "a watch list" on two occasions, meaning Abraham could have been excluded from driving with another violation. Miller had seen Abraham driving too fast at the dealership. Miller saw Abraham "at least once burnout" and "more than once I talked to Mr. Abraham about his speed on the lot." Miller told Abraham: "Knock it off. Just stop it. It's dangerous."
Abraham called three witnesses. An officer testified the speed limits approaching the intersection where the collision occurred were 55 mph and 60 mph. Another officer said the Cruze was not inspected until two months after the collision, and its headlamp switch was in the off position. The officer stated this did not prove the Cruze's headlights were off at the time of the collision. Abraham's mother testified he was 20 years old at the time of the collision. Abraham's mother said he was a caring and "really kind person," who put "the feelings of others first."
The second jury found Abraham guilty of both second degree murder counts. The court imposed two consecutive 15-year-to-life terms.
II DISCUSSION
Abraham contends the trial court erred by: A) denying his motion to represent himself; B) admitting the section 1101 (b) evidence; C) admitting a photograph of the deceased victims while alive; D) failing to instruct the jury on a lesser related offense; E) causing cumulative prejudice; and F) imposing consecutive prison terms.
A. Abraham's Inquiry About Representing Himself
Although a defendant has the constitutional right to be represented by counsel, a defendant may affirmatively waive that right and represent himself or herself. (Faretta v. California (1975) 422 U.S. 806, 821 (Faretta) ["The Sixth Amendment . . . implies a right of self-representation"].) Generally, a trial court's denial of a defendant's motion for self-representation (a Faretta motion) is reviewed for an abuse of discretion. (People v. Welch (1999) 20 Cal.4th 701, 729.)
In this part of the discussion, we will: 1) consider general principals of law regarding Faretta motions; 2) summarize the relevant proceedings; and 3) analyze the law as applied to the facts.
1. General Principles of Law
"A trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial." (People v. Welch, supra, 20 Cal.4th at p. 729.)
Unlike the right to counsel, the right to self-representation is not self-executing; a defendant must unequivocally assert the right to represent oneself. (People v. Marshall (1997) 15 Cal.4th 1, 22.) "Many courts have explained that a rule requiring the defendant's request for self-representation to be unequivocal is necessary in order to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation. Without a requirement that a request for self-representation be unequivocal, such a request could, whether granted or denied, provide a ground for reversal on appeal." (Ibid.)
A trial court may deny an ambivalent inquiry about self-representation. (People v. Marshall, supra, 15 Cal.4th at p. 22.) "Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion." (Id. at pp. 223-23, italics added.)
"Our Supreme Court has 'held on numerous occasions that Faretta motions made on the eve of trial are untimely.'" (People v. Stringer (2019) 41 Cal.App.5th 974, 991; People v. Valdez (2004) 32 Cal.4th 73, 102 [Faretta motion untimely when made "moments before jury selection"]; People v. Horton (1995) 11 Cal.4th 1068, 1110-1111; [Faretta motion untimely when made on the date scheduled for trial]; People v. Frierson (1991) 53 Cal.3d 730, 742 [Faretta motion made two days before trial untimely].)
If a defendant's Faretta "motion is untimely . . . it is 'within the sound discretion of the trial court to'" deny the motion. (People v. Johnson (2019) 8 Cal.5th 475, 499.) Under People v. Windham (1977) 19 Cal.3d 121, 128-129, trial courts weigh various factors, including: 1) "the quality of counsel's representation"; 2) "the defendant's prior proclivity to substitute counsel"; 3) "the reasons for the request"; 4) "the length and stage of the proceedings"; and 5) "the disruption or delay which might reasonably be expected to follow the granting of such a motion."
2. Relevant Proceedings
On June 23, 2015, five days after the fatal collision, the court arraigned Abraham on a criminal complaint. Abraham was represented by private counsel.
On May 18, 2016, after Abraham's preliminary hearing, private counsel asked to be relieved, and the court appointed counsel.
On July 7, 2016, Abraham posted a $1 million bond (Abraham remained out of custody until his convictions in the second jury trial).
On November 1, 2018, a second private counsel substituted in as attorney of record. The matter was assigned for all purposes to the courtroom of Judge Sheri T. Pham, and a trial was set to begin on January 29, 2019.
On March 13, 2019, the matter was set for jury trial. Counsel declared a doubt as to Abraham's competence. The court conducted an inquiry. Abraham said he was 24 years old and had dropped out of high school. Abraham said he had worked as a web designer, a dishwasher, and at a car dealership as "one of their top salesmen." The court denied Abraham's counsel's request to suspend proceedings.
On March 25, 2019, during the prosecution's case-in-chief, Abraham made a motion to relieve his private counsel. After conducting a purported Marsden hearing, the trial court denied the motion. Later that day, the court denied a second purported Marsden motion. Two days later, the court denied a third purported Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden), does not apply to a privately retained counsel. (See People v. Lara (2001) 86 Cal.App.4th 139, 149-150.)
On April 3, 2019, the jury found Abraham guilty of both second degree murder counts. As the trial court was polling the jury, one of the jurors asked to change his/her verdict. The court declared a mistrial.
On April 12, 2019, the court granted the second private counsel's request to withdraw. The court appointed counsel.
On May 24, 2019, a third private counsel, Eric Renslo, was substituted in as attorney of record (Renslo remained through all subsequent proceedings).
On August 16, 2019, the minute order noted January 13, 2019, was set as "a FIRM date for trial" and "no further continuances will be granted."
On Monday, January 13, 2020, Renslo answered ready for trial. The court granted the prosecutor's request to trail for three days until Thursday, January 16. After the court ordered the parties to return, Abraham himself said to the court: "There is a hold on a police report, and I was just wondering if I could have it." Abraham talked to Renslo, who informed the court there was no longer a request: "We're good." At the conclusion of the hearing, the following dialogue took place:
"THE COURT: I don't want to hear on Thursday that you have started any other trial. [¶] Am I making myself clear?
"MR. RENSLO: Yes.
"THE COURT: All right. If there is nothing further, we will see all of you back here
"MR. RENSLO: Your Honor, my client is inquiring about just a possibility of going pro per.
"THE COURT: That would be untimely, Mr. Abraham. Your attorney has answered ready for trial. I would consider this request to represent yourself to be untimely, and I have good cause to deny it."
On Thursday, January 16, 2020, at the beginning of the pretrial hearing regarding motions in limine (§ 402), Abraham voiced concerns to the trial court because Renslo was going to argue the motions verbally, rather than in writing.
The court told Abraham "oral 402 motions, that's perfectly acceptable and perfectly legal." After the court started the pretrial hearing, counsel told the court: "Your honor, my client keeps wanting a Marsden hearing." The court said: "It's not going to happen, Mr. Abraham. So you'd better resign yourself to that fact. I am not going to entertain additional requests to fire your attorney. Your attorney will remain for the duration of this trial."
After Abraham said he was leaving the courtroom for the day, the prosecutor asked "the Court to make a clear record regarding his request to go pro per or his request to fire his attorney." The court addressed Abraham as follows:
"THE COURT: Mr. Abraham, the People are correct that perhaps the Court needs to elaborate on the Court's denial of your request to go pro per on Monday after your attorney, Mr. Renslo, had answered ready for trial. [¶] At that point in time --Well, have you made a request to represent yourself today?
"THE DEFENDANT: I have not made a request. I didn't say pro per today, did I?
"THE COURT: Okay. But on Monday when you made that request -- on Monday when you made the request to represent yourself, would you have been ready to go to trial at that point?
"THE DEFENDANT: Yeah.
"THE COURT: Okay.
"THE DEFENDANT: I would have. If you were [to] have granted me my wish on Monday to go pro per, I would have not waived any more time and I would be ready to go to trial. I would feel confident with the police report, the little I did read, which I still haven't received my full police report -- there is a hold on it. I cannot even read my own police report.
"THE COURT: There we go. Based on that
"THE DEFENDANT: Yes, I would have been ready to go to trial. I would have been trial ready. 100 percent.
"THE COURT: I am going to make a finding that, based on the history of this case, based on your track record of wanting to fire your attorney, discharge your attorney -- as I mentioned before, prior to today's -- prior to this hearing commencing today, I have lost count of how many attorneys you've had on this case.
"THE DEFENDANT: Wel1, you guys gave me two.
"THE COURT: And I am going to make a finding that you're saying that you would have been ready, but I can guarantee that if I had granted you your request to represent yourself at that time, which I would not have because it was untimely, you would not have been ready. You would have turned around and said that you did not receive all the police reports in this case, and now that you're representing yourself, that you deserve and you are entitled to more time. "And, based on that, the Court is not going to -- did not grant your request to represent yourself."
The court later stated: "The other thing is pro per requests have . . . to be unequivocal. I think that the Court can note for the record that [Abraham] only wanted to go pro per because he did not -- he was once again expressing dissatisfaction with his retained attorney on Monday."
3. Application and Analysis
Abraham told the trial court he was "inquiring about just a possibility of going pro per." (Italics added.) We find Abraham's inquiry (made through his counsel) to be a request for information about the possibility of representing himself, rather than a Faretta motion. (See People v. Marlow (2004) 34 Cal.4th 131, 147 ["defendant's inquiry-'Is it possible that I just go pro per in my own defense and have someone appointed as co-counsel?'-was a request for information, not a Faretta motion"]; see also People v. Skaggs (1996) 44 Cal.App.4th 1, 5 [defendant's comment while describing his dissatisfaction with counsel-"'I don't . . . I'd like to go pro per if I could'"-was not an unequivocal assertion of the right to self-representation].)
During the first trial, Abraham made three purported Marsden motions. And three days after his inquiry about self-representation, Abraham again attempted to make another purported Marsden motion, changed his mind about representing himself, and expressed concerns about a police report. Taken in context, we agree with the trial court that Abraham's inquiry likely had more to do with his dissatisfaction with counsel (and his concerns about a police report), rather than an unequivocal assertion of the right to represent himself. (People v. Scott (2001) 91 Cal.App.4th 1197, 1205 [trial court's denial was not error where defendant's "comments suggest he made the Faretta motion only because he wanted to rid himself of appointed counsel"].)
In any event, Abraham's inquiry-assuming it can be called a Faretta motion-was untimely because it was on the eve of trial. Therefore, the trial court was within its discretion to deny the motion, taking into consideration various factors: 1) the court indicated there were no problems with the quality of counsel's performance; 2) Abraham had demonstrated a proclivity to substitute counsel; 3) the reasons for the inquiry appeared to be related to Abraham's frustration with counsel and/or discovery; 4) the matter had been going on for five years, and was on the verge of a retrial nearly a year after the first trial; and 5) the disruption or the delay which might have followed after granting Abraham's purported motion to represent himself likely would have been significant, given the seriousness of the charges, the number of witnesses, etc. (See People v. Windham, supra, 19 Cal.3d at pp. 128-129; see also People v. Scott, supra, 91 Cal.App.4th at p. 1206 ["while the trial court may not have explicitly considered each of the Windham factors, there were sufficient reasons on the record to constitute an implicit consideration of these factors"].)
In short, we do not find the trial court was arbitrary or capricious when it denied Abraham's Faretta motion, such as it was. Indeed, we think most courts likely would have made the same ruling. Thus, we find no abuse of discretion.
Although we find no abuse of discretion regarding Abraham's purported Faretta motion, we encourage the trial court in the future to utilize a standard procedural checklist when handling these types of situations. (See, e.g., Judges Benchguides, Benchguide 54, Faretta and Marsden issues (CJER 2017 rev.) § 54.2, pp. 54-3 to 54-5.)
Abraham cites several opinions for the proposition: "Under California law, when, at trial, a defendant makes a request for self-representation without asking for a continuance, his request for self-representation is viewed as being timely." But the defendants in those cases-unlike Abraham-had made unequivocal requests for self-representation. (See, e.g., Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1529 ["There was nothing ambivalent about Moon's request for self-representation"]; People v. Herrera (1980) 104 Cal.App.3d 167, 171 ["defendant moved for the right to proceed in propria persona, indicating how he intended to defend his case and appeared ready to proceed"]; People v. Tyner (1977) 76 Cal.App.3d 352, 354 [defendant said "he wanted to represent himself" and "he was ready to proceed forthwith"].)
Here, Abraham's initial inquiry was not an unequivocal assertion of the right to self-representation, even though the court denied the purported Faretta motion. (See People v. Marshall, supra, 15 Cal.4th at p. 25 [the trial court's description of the motion as one for self-representation does not require the conclusion defendant's motion was unequivocal].) Nonetheless, when the court clarified its ruling three days later, Abraham then said he would have been ready to try the case (three days earlier) without a continuance. However, the Supreme Court has held that when a trial court is deciding on a Faretta motion, the defendant's lack of request for "a continuance is not determinative." (People v. Barnett (1998) 17 Cal.4th 1044, 1106.)
Given Abraham's statements and behavior over the course of two particular days, and the trial court's opportunity to observe Abraham's statements and behavior for a period of nearly two years, we hold the trial court did not abuse its discretion.
B. Admission of Section 1101 (b) Evidence
A trial court's ruling under section 1101 (b) is reviewed for an abuse of discretion. (People v. Moore (2016) 6 Cal.App.5th 73, 92.) As such, "we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Goldsmith (2014) 59 Cal.4th 258, 266.)
In this part of the discussion, we will: 1) consider general principals of law regarding prior uncharged acts evidence; 2) summarize the relevant proceedings; and 3) analyze the law as applied to the facts.
1. General Principles of Law
"No evidence is admissible except relevant evidence." (§ 350.) "'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness . . ., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) "Except as otherwise provided by statute, all relevant evidence is admissible." (§ 351.)
Generally, evidence about a defendant's character is prohibited by statute. Evidence "of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a).) However, evidence of prior uncharged acts may be admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than [a defendant's] disposition to commit such an act." (§ 1101, subd. (b).)
The admissibility of evidence of prior uncharged acts "'"depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged [act] to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence."'" (People v. Moore, supra, 6 Cal.App.5th at p. 92.)
If a trial court finds a proffered uncharged act is relevant to prove a fact other than a defendant's criminal disposition, then the court is to weigh the quality and the strength of the evidence (its probative value) against the probability the evidence will "necessitate undue consumption of time or . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.)
"The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
2. Relevant Proceedings
Before trial, the prosecution filed a brief summarizing the anticipated evidence regarding the fatal collision, as well as the evidence that predated the collision. The proffered section 1101 (b) evidence consisted of the cell phone video, the coworkers' testimony, and five prior traffic tickets (failure to wear a seatbelt, speeding, unsafe lane change, failure to stop for emergency vehicles, and unsafe speed).
During the section 402 hearing, the court listened to the parties' arguments regarding the proffered evidence. After viewing the video, the court ruled as follows:
"In the video, as I mentioned, Mr. Abraham videotaped himself driving his vehicle starting out with the speedometer going up to 140 miles per hour. And as I mentioned, it did not appear he was on a race course. That was actually on a public highway. It does not take a leap of logic to conclude that anyone driving a car at that speed would be aware of the risks and dangers to human life.
"The Court finds that the video is material and highly probative to the mental state, which is knowledge required for Counts 1 and 2; and to show that Mr. Abraham knew that his act was dangerous to human life, the speeding; and that he deliberately acted and with conscious disregard for human life.
"Furthermore, the video is also admissible under 1101(b) to show Mr. Abraham's motive, intent to speed, plan, and absence of mistake or accident.
"What Mr. Abraham did in the video, which was intentionally accelerating to high rate of speed for the sheer enjoyment of it, is sufficiently similar to the facts alleged in this case to admit under 1101(b) for those purposes.
"Under 352, as the Court mentioned before, the standard for undue prejudice is whether a piece of evidence is so inflammatory that it would evoke some kind of emotion in the jury, motivating them to use the information not to logically evaluate the piece of evidence but to reward or punish one side or the other because of the jurors' emotional reaction. And, under that standard, the Court does not find that this video rises to that standard -- rises to that level."
As to the five proffered traffic citations, the court ruled as follows:
"The Court is going to admit . . . two citations for speeding . . ., and for unsafe speed . . . . The Court finds that they are highly probative of the mental state required in Counts 1 and 2, and they are also probative of Mr. Abraham's motive, intent, plan to speed.
"With respect to the knowledge requirement, the Court finds that the fact that he was cited and ticketed is evidence that he had previously been warned and that he has knowledge of the danger of speeding.
"As far as the 1101(b) evidence, as the Court indicated, it is another piece of evidence under 1101(b) to show his motive, intent, plan to speed, and that he did not unknowingly speed in this case.
"Under 352, the Court finds that the probative value of these tickets substantially outweigh any prejudice . . ., and they also are not outweighed by any other considerations under 352. Therefore, they will be admitted."
Only one citation (for unsafe speed) was admitted into evidence.
As to the coworkers' testimony, the court ruled the evidence was "relevant to the People's case[-]in[-]chief on the knowledge element, the mental state required for Counts 1 and 2." The court stated: "It's for the warning. It's to establish that [Abraham] has been warned about the danger of driving recklessly and the danger to human life."
The court further ruled the service manager "can testify to what he personally experienced, like almost being hit by Mr. Abraham. That he can testify to. That's highly relevant, and that comes in under 1101 (b). And again, I don't see anything under 352 that would outweigh the probative value."
At the end of the conclusion of the evidence, the court instructed the jury on the section 1101 (b) evidence as follows:
"The People presented evidence that the defendant committed another offense . . ., the ticket from [the testifying officer], that was not charged in this case.
"The People presented evidence of other behavior by the defendant: [¶] The video presented through witnesses . . . Kisela and . . . Kristof [¶] The incident involving witness . . . Shields [¶] The incidents involving witness . . . Purpura [¶] The incident described by witness . . . Miller [¶] that were not charged in this case.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses[.] Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely.
"If you decide that the defendant committed the acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether: [¶] a. The defendant acted with conscious disregard for human life; or [¶] b. The defendant had a motive to commit the offenses alleged in this case; or [¶] c. The defendant knew his act was dangerous to human life when he allegedly acted in this case; or [¶] d. The defendant's alleged actions were not the result of mistake or accident.
"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime." (CALCRIM No. 375.)
3. Application and Analysis
The trial court further instructed the jury on the elements of implied malice murder as follows: "The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life." (CALCRIM No. 520.)
The objective (reasonable person) element is whether the defendant's act was dangerous to human life. (People v. Knoller (2007) 41 Cal.4th 139, 157.) The subjective elements are whether, when the defendant deliberately committed the act resulting in death (intent), the defendant knew the act was dangerous to human life (knowledge), but the defendant disregarded the dangerousness of the act and deliberately committed it anyway (intent, motive, lack of mistake or accident). (Ibid.)
While a defendant's motive is not an element of the crime, a defendant's motive is relevant to the subjective elements of implied malice. (See People v. Watson (1981) 30 Cal.3d 290, 300, italics added ["malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life"]; People v. Perez (1974) 42 Cal.App.3d 760, 767-768 ["Motive is always relevant in a criminal prosecution"].)
A trial court may admit into evidence a defendant's prior uncharged acts of dangerous driving when the defendant is currently being charged for implied malice murder based on his or her dangerous driving. (See, e.g., People v. Moore (2010) 187 Cal.App.4th 937 (Moore); People v. Ortiz (2003) 109 Cal.App.4th 104 (Ortiz).)
In Moore, a defendant drove 70 miles an hour, ran a red light, and hit another car, killing its passenger, and severely injuring the driver. Defendant was not driving under the influence. (Moore, supra, 187 Cal.App.4th at p. 939.) Defendant was charged with implied malice murder, among other charges. The trial court admitted into evidence defendant's prior conviction for driving under the influence. (Id. at p. 943-944.) The Court of Appeal agreed: "The prior conviction is relevant regardless of the content of any class he was ordered to attend. The jury could reasonably conclude that his prior conviction put him on notice of the consequences of driving with extreme recklessness." (Id. at p. 943.) The appellate court also found no abuse of discretion under section 352: "Driving under the influence is, unfortunately, a common offense. It is often committed by otherwise law abiding people. Almost every adult has a friend or relative who has suffered such a conviction. Evidence of a prior drunk driving conviction pales in comparison to the evidence supporting the charged offense." (Moore, at pp. 943-944.)
In Ortiz, a defendant drove into oncoming traffic, killing two people. (Ortiz, supra, 109 Cal.App.4th at p. 106.) Defendant was not under the influence. Defendant was charged with two implied malice murders. The trial court admitted into evidence seven prior traffic accidents, some of which involved alcohol, to prove defendant's knowledge. (Id. at pp. 108-109.) The Court of Appeal agreed: "[A] motor vehicle driver's previous encounters with the consequences of recklessness on the highway-whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator-sensitizes him to the dangerousness of such life-threatening conduct." (Id. at pp. 112-113.) "'[W]hen a person repeatedly violates the law while driving a motor vehicle, and is repeatedly apprehended for those offenses, and convicted of those offenses, and presumably becomes more and more aware of the danger of that activity as time goes by, that evidence can support a finding of implied malice.'" (Id. at pp. 117-118.) The appellate court found no error under section 352, given the prior offenses were less inflammatory than the crimes charged, and the trial court had instructed the jury to consider the evidence for a limited purpose. (Ortiz, at pp. 118-119.)
Here, like Moore and Ortiz, the section 1101 (b) evidence in this case was relevant, in part, to prove Abraham's knowledge. For instance, the unsafe speeding citation from the citing officer, as well the warnings from his coworkers, had some tendency in reason to prove Abraham knew of the deadly consequences of his speeding and dangerous and/or reckless driving (e.g., Shields' warning to Abraham "that he was driving like an idiot and that he was going to kill somebody"). The evidence was also relevant to prove Abraham's actions on the night of the fatal collision were not the result of an accident or a mistake (as Abraham recognizes in his briefing, "knowledge and absence of mistake or accident were closely intertwined").
The admitted 1101 (b) evidence was also relevant to prove Abraham's unlawful intent and/or motive to drive dangerously, despite his knowledge of the deadly consequences. For instance, the cell phone video had some tendency in reason to show Abraham had an apparent intent or motive to drive in a highly dangerous manner. As the trial court stated, Abraham was "intentionally accelerating to high rate of speed for the sheer enjoyment of it" and the court therefore found the video "sufficiently similar to the facts alleged in this case to admit under 1101(b) for those purposes." We agree.
As far as the trial court's section 352 ruling, Abraham's prior acts of uncharged conduct were far less inflammatory than his actions on the night of the fatal collision, which resulted in the deaths of two innocent people. We agree with the trial court that the prior uncharged acts were not "so inflammatory that it would evoke some kind of emotion in the jury, motivating them to use the information not to logically evaluate the piece of evidence but to reward or punish one side or the other because of the jurors' emotional reaction." Moreover, the court properly instructed the jury about the limited use of the section 1101 (b) evidence. (See People v. Sanchez (2001) 26 Cal.4th 834, 852 ["Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions"].)
When we consider the court's rulings regarding the prior uncharged acts in their totality, it is apparent the court did not act in an arbitrary or capricious manner. Quite the opposite. For instance, the prosecution initially sought to introduce five traffic citations, but the court considered the alleged conduct and limited the number of citations. The court took the same thoughtful approach regarding the video. That is, the court reviewed the disputed cell phone video before making its ruling, even though the court presumably had already seen the same video months earlier in the first trial.
In sum, we cannot conclude the trial court abused its discretion. Thus, we find no errors regarding the court's section 1101 (b) rulings.
Abraham argues: "None of the uncharged acts was sufficiently similar to the charged act to make them admissible." In this regard, he argues the cases of People v. Hendrix (2013) 214 Cal.App.4th 216 (Hendrix), and People v. Scheer (1998) 68 Cal.App.4th 1009 (Scheer), compel a different result. We disagree.
In Hendrix, defendant got into a fight with a private security guard at an apartment complex and fled. (Hendrix, supra, 214 Cal.App.4th at p. 221.) Additional security guards and police officers gave pursuit. Defendant forcibly resisted when one of the police officers attempted to detain him. (Ibid.) The prosecution charged defendant with knowingly resisting an officer by use of force or violence. (Id. at p. 220.) Defendant argued he did not know he had resisted an officer, rather than one of the security guards. At trial, the prosecution introduced facts about defendant's prior encounters with police in which he resisted through force or violence. (Id. at pp. 220-222.) The appellate court reversed because the prior convictions did not involve defendant having to differentiate between private security guards and police officers. (Id. at p. 240.) The court found the facts in "the prior crimes were dissimilar in a material way" from the facts in the current charge, and therefore the prior convictions "lacked probative value" and should not have been admitted. (Id. at p. 239.)
Here, unlike Hendrix, Abraham's prior uncharged acts were not "dissimilar in a material way" from his charged acts on the night of the fatal collision. All the prior uncharged acts generally involved Abraham's speeding or driving dangerously and/or recklessly, which were the actions alleged in the charged crimes. Thus, the holding in Hendrix does not alter our conclusion that the trial court did not abuse its discretion by admitting the section 1101 (b) evidence.
In Scheer, defendant ran a stop sign, collided with another car, resulting in the death of a passenger, then fled from the scene. (Scheer, supra, 68 Cal.App.4th at p. 1015.) The prosecution charged a felony hit and run and a vehicular manslaughter. (Id. at p. 1014.) The trial court admitted defendant's prior conviction for willfully evading a police officer, for purposes of proving his intent and motive. (Id. at p. 1020.) The Court of Appeal disagreed because intent was not an element of the charged crime. (Id. at p. 1019.) Further, the appellate court found the prior conviction was inadmissible to show motive, in part, because there were no "overlapping characteristics" between the prior conviction and the charged crimes. (Id. at pp. 1019-1020.)
Here, unlike Scheer, intent was an element of the charged crime. Further, there were "overlapping characteristics" between Abraham's uncharged acts and the charged crimes of implied malice murder. Each uncharged act involved Abraham speeding or driving dangerously and/or recklessly, which were the characteristics at issue in the implied malice murder charges. Thus, Scheer does not alter our conclusion that the trial court did not abuse its discretion by admitting the section 1101 (b) evidence.
Abraham also argues the charged acts "included speeding and going through a red light, resulting in a collision with another car. None of the uncharged acts could have provided appellant with a subjective awareness that the act causing death was dangerous to life or that it had a high probability of death. None of the uncharged acts resulted in a non-fatal accident or even in a collision. They all conveyed to appellant that if he drove in a reckless or dangerous manner, he was able to do so without causing an accident and without injuring, let alone killing, another person."
But Abraham's argument goes to the weight of the prior uncharged acts evidence, rather than to its admissibility. Abraham could have argued to the jury that his prior dangerous driving and the warnings he received did not give him knowledge that his dangerous driving was, in fact, dangerous to human life. But the prosecution could have also credibly argued otherwise. Thus, the evidence was relevant to the consequential factual disputes the jury was called on to decide. (See § 210, italics added ["'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action"].)
To reiterate and conclude, we do not find the trial court abused its discretion by admitting Abraham's prior uncharged acts. (§ 1101, subd. (b).)
C. Admission of Deceased Victims' Photograph
Abraham argues the court erred by allowing the prosecution to introduce a photograph of the deceased victims (while alive). We have reviewed the photograph, which shows the driver in a pool holding her granddaughter; they are both smiling at the camera. We find the trial court committed error, but we do not find it to be prejudicial.
Our Supreme Court has "repeatedly cautioned against the admission of photographs of murder victims while alive unless the prosecution can establish the relevance of such items. [Citations.] Otherwise, there is a risk that the photograph will merely generate sympathy for the victims." (People v. DeSantis (1992) 2 Cal.4th 1198, 1230.) The prosecution in some cases may be able to establish the relevance of such photographs; for instance, if there is a question as to the identity of the victim, or if such photographs might assist the jury in keeping track of multiple victims. (People v. Suff (2014) 58 Cal.4th 1013, 1072; People v. Osband (1996) 13 Cal.4th 622, 677.)
Generally, if a defendant is willing to stipulate to a murder victims' death, and there is no other relevant purpose for its admission, then it is error for a trial court to admit a photograph of the murder victim while he or she was alive. (People v. Poggi (1988) 45 Cal.3d 306, 322-323 (Poggi).) In Poggi, the prosecution sought to admit photographs of a murder victim, including a photograph depicting the victim "while still alive, standing with her husband and son before a Christmas tree." (Ibid.) The defendant agreed to "stipulate to the fact that [the victim] was a human being, that she was alive before the attack, and that she had died. The prosecutor refused the offer." (Id. at pp. 322-323.) The prosecutor said, "he was offering the photographs for 'identification' and the court received them into evidence for that purpose." (Ibid.)
The Supreme Court held: "The admission of the photographs was error. It is true, as the People argue, that the admissibility of photographs lies primarily in the discretion of the trial court. [Citation.] But it is also true that the court has no discretion to admit irrelevant evidence. [Citations.] The photographs here are not relevant to any disputed material issue. The only matters on which they have probative value are the following: [the victim] was a human being; she was alive before the attack; and she is now dead. In view of defense counsel's offer to stipulate, these issues were removed from the case as matters in dispute." (Poggi, supra, 45 Cal.3d at p. 323.)
Significantly, the Supreme Court also found "the error was not prejudicial. As we have observed, the evidence against defendant was strong." (Poggi, supra, 45 Cal.3d at p. 323.) The Court also determined the photograph of the victim while alive did not "seem likely to have appreciably intensified whatever feelings-whether of hostility toward defendant or sympathy toward his victim-that the jury may have developed in this case. Thus, we cannot conclude that it is reasonably probable a result more favorable to defendant would have been reached in the absence of the error." (Ibid.)
Here, the prosecution sought to admit two photographs of the deceased victims while they were alive "to give respect to the victims, allow the jury to put a face to a name and to show they were real people." Abraham objected and offered to stipulate the victims "were human beings, that they were alive before the incident, and that now they are dead." The court admitted one photograph, not for the "purposes claimed or asserted by the People" but "because it is relevant to the identification by [the surviving adult passenger] of the people that she was with on the date in question."
Given Abraham's proffered stipulation, the trial court erred when it admitted the photograph of the deceased victims under long-standing precedent. (See Poggi, supra, 45 Cal.3d at p. 323.) The identity of the victims was not at issue. Therefore, the photograph was "not relevant to any disputed material issue." (Ibid.)
We now turn to the prejudicial impact of the error. Here, the dispositive issue was whether Abraham acted with implied malice. The photograph of the deceased victims was not relevant as to that issue one way or the other, and the evidence of implied malice was strong. Further, the photograph does not "seem likely to have appreciably intensified whatever feelings" the jury may have had as regards to Abraham or the victims. (See Poggi, supra, 45 Cal.3d at p. 323.) Once the jurors learned the deceased victims were a grandmother and her two-year-old granddaughter, they were undoubtedly so appalled that there was little the photograph-or anything else-could do to make matters worse for the defense. Accordingly, we do not find it reasonably probable the outcome of the trial would have been different in the absence of the error. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
Thus, we do no not find the evidentiary error to be prejudicial.
Although we do not find the admission of the photograph of the murder victims while alive to be prejudicial in this instance, we strongly caution the trial court and the Orange County District Attorney to be mindful of this type of error in future trials.
D. Lesser Related Jury Instruction
Abraham argues: "When a defendant is charged with murder based on a vehicular homicide, the jury should be instructed on vehicular manslaughter with gross negligence even though this offense is not a lesser included offense of murder." (Capitalization & boldfacing omitted.) We disagree.
Generally, the trial court must instruct the jury on any lesser included offenses that are supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) "Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117-118.) However, without the consent of the prosecutor, a trial court has no obligation to instruct on lesser related offenses. (Id. at p. 136.)
When a defendant is charged with an implied malice murder, a vehicular manslaughter offense may be related to, but it is not necessarily included within the implied malice murder charge. (People v. Sanchez (2001) 24 Cal.4th 983, 990 (Sanchez), overruled on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228.)
Abraham recognizes: "This Court is bound by the analysis in Sanchez." (See Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nevertheless, Abraham "respectfully encourages the Court to recommend that the Supreme Court reconsider its holding in Sanchez."
We decline to make such a recommendation to the California Supreme Court. The trial court did not commit an error by not instructing the jury on the lesser related crime of vehicular manslaughter with gross negligence.
E. Cumulative Prejudice
Abraham contends the cumulative prejudice of the alleged foregoing errors compels reversal of his murder convictions. We disagree.
"In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself." (In re Reno (2012) 55 Cal.4th 428, 483, superseded by statute on other grounds as stated in In re Friend (2021) 11 Cal.5th 720, 728.) However, the rejection of each of a defendant's individual claims "cannot logically be used to support a cumulative error claim [where] we have already found there was no error to cumulate." (In re Reno, at p. 483.)
Here, we found one error: the admission of the photograph of the deceased victims while they were alive. However, we also concluded no prejudice resulted from that error. Thus, there is no additional "prejudice" to cumulate or analyze.
F. Consecutive Prison Terms
Finally, Abraham argues the trial court abused its discretion by imposing consecutive, rather than concurrent prison terms. We disagree.
When a trial court's lawful sentence is challenged on appeal, "we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree."'" (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Here, the trial court indicated it intended to impose two consecutive 15-years-to-life terms: "Consecutive sentence is contemplated because . . . the Court finds that the crimes in these two counts involve two separate victims, and that is one of the factors the Court can consider in imposing consecutive sentence. [¶] The Court does not find any circumstance in mitigation applicable in this case to warrant concurrent sentencing." The court asked if either side wished to be heard; both sides answered "No." The court then imposed a sentence of 30 years to life.
Consecutive prison terms were within the scope of the court's discretionary sentencing choices. (See People v. Lepe (1987) 195 Cal.App.3d 1347, 1351 ["[n]either case law nor statutory authority restricts or precludes a sentencing judge from exercising discretion to impose a concurrent rather than a consecutive sentence"].)
Abraham argues the trial court only considered one aggravating factor (multiple victims). But the court also said it had found no applicable mitigating factors. Therefore, it appears the court considered the relevant sentencing factors. (See Cal. Rules of Court, rule 4.409 ["Relevant factors enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise"].)
In conclusion, Abraham has not met his burden of showing the court's sentencing decision was arbitrary or capricious. Thus, we find no abuse of discretion.
III DISPOSITION
Abraham was 20 years old on the date of the collision. We are affirming without prejudice to his filing a postjudgment motion for a Franklin proceeding to preserve evidence of youth-related factors for future parole hearings. (See Pen. Code, § 1203.01; People v. Franklin (2016) 63 Cal.4th 261, 286-287; People v. Madrano (2019) 40 Cal.App.5th 961, 968-969.)
WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.