Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. JCF14924 Raymundo Cota and Juan Ulloa, Judges.
HALLER, J.
Tonya Beach appeals from a judgment convicting her of two counts of gross vehicular manslaughter while intoxicated, based on her involvement in a collision killing two persons in another vehicle. (Pen. Code, § 191.5, subd. (a).) She argues the judgment should be reversed because (1) the manner in which blood was extracted from her arm for a blood alcohol test violated her constitutional rights under the Fourth Amendment; (2) the trial court erroneously failed to give a unanimity instruction regarding the alternative intoxication elements of the section 191.5 offense; and (3) the trial court admitted overly gruesome photographs of the two deceased victims at the accident scene. As to sentencing, she asserts the trial court's selection of a consecutive sentence violated her jury trial rights under the Apprendi rule (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi)). We reject her contentions and affirm the judgment.
Subsequent statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of resolving the issues on appeal, we need only briefly summarize the evidence presented at Beach's lengthy trial. At about 3:00 a.m. on November 26, 2004, Beach left the Los Angeles area to drive to Imperial County. The accident occurred shortly before 7:00 a.m. in Imperial County on Interstate 8 near Seeley. At the time of the accident, Beach was driving about 80 to 90 miles per hour in foggy conditions. A short time before the accident, motorist George Rodriguez, driving about 65 to 70 miles per hour, saw Beach's vehicle approaching him from behind in the slow lane at a high rate of speed. Fearing that Beach would hit him, Rodriguez moved his vehicle toward the emergency lane to let Beach pass. Beach swerved into the fast lane and then back into the slow lane as she passed him. Rodriguez noticed that Beach was slouched down in her seat as if she was tired.
A few minutes after passing Rodriguez's vehicle, Beach's vehicle collided with the victims' vehicle driving in front of her. The victims (Alex Grun and James Wilson), who apparently were not wearing seat belts, were ejected from their vehicle and died at the scene from their injuries.
Officers who arrived at the scene detected an odor of alcohol on Beach's breath. Although initially denying that she had consumed alcohol, Beach eventually told Officer DeeAnn Goudie that she had two glasses of champagne the previous evening between 4:00 and 6:00 p.m. At about 8:08 a.m., Officer Goudie used a preliminary alcohol screening device to test Beach's alcohol level; this device registered her alcohol level at .05. Officer Goudie then administered field sobriety tests to Beach, and assessed that her performance on most of the tests was not satisfactory.
Officer Goudie transported Beach to the El Centro Regional Medical Center, where blood was extracted from Beach's arm at about 8:50 a.m. Testing of this blood sample revealed a blood alcohol level of .05. Extrapolating from this test, a prosecution expert estimated that Beach's blood alcohol level at the time of the accident was .08 to .09. A defense expert criticized the prosecution expert's extrapolation testimony, and stated his view that there was insufficient information to extrapolate Beach's blood alcohol level at the time of the accident based on the blood test. Both the prosecution and defense experts agreed that if Beach's only alcohol consumption had been two glasses of champagne between 4:00 and 6:00 p.m. the previous evening, her blood alcohol level at 8:50 a.m. would have been zero, not .05.
Based on the death of two victims, the jury found Beach guilty of two counts of gross vehicular manslaughter while intoxicated. (§ 191.5, subd. (a).) Under the instructions given the jury, the intoxication element was based on a finding that she was either driving under the influence of alcohol causing impairment (Veh. Code, § 23152, subd. (a)), or driving with a blood alcohol level of at least .08 percent (Veh. Code, § 23152, subd. (b)). In a special verdict form listing three possible grounds to establish an additional element of the section 191.5 offense, the jury found that Beach violated the basic speed law by driving at a speed greater than reasonable or prudent under the conditions (Veh. Code, § 22350).
DISCUSSION
I. Constitutionality of the Blood Extraction
Beach asserts that the manner in which blood was extracted from her arm for the blood alcohol test subjected her to an unreasonable search and seizure in violation of the Fourth Amendment of the federal Constitution. As we shall detail below, two lab employees participated in the blood draw, and the procedure was witnessed by Officer Goudie. The first employee (Greg Bramley) repeatedly inserted the needle into Beach's arm but did not succeed in drawing blood. The second employee, lab assistant Martha Alarcon, came to Bramley's assistance and withdrew the blood after one needle insertion.
Background
Based on her Fourth Amendment claim, Beach filed a pretrial motion to suppress the blood test result showing that she had a blood alcohol level of .05. Officer Goudie and Alarcon testified at the hearing on the suppression motion. Bramley did not testify.
The blood draw was performed at El Centro Regional Medical Center (Medical Center) on November 26, 2004. Officer Goudie testified Bramley cleansed Beach's left arm with a swab and then inserted a needle into that arm about four to six times. He attempted to draw blood for about five minutes, but was unable to do so. Officer Goudie testified that during Bramley's attempts to draw blood, Bramley moved the needle around inside Beach's arm searching for a place from which to draw the blood. Bramley used the same needle each time he reinserted the needle. Officer Goudie observed Bramley cleanse Beach's arm the first time he inserted the needle, but she did not remember if he did so during the subsequent attempts. Officer Goudie was concerned about Bramley's blood draw attempts. She explained: "[I]n my opinion I felt that [Bramley] wasn't doing his best job at trying to withdraw blood. . . . I asked him to get some help, for somebody to help him draw blood. He was making numerous attempts, to no avail. [¶] . . . [¶] He just seemed unsure about what he was doing. And he had poked her several times, around four to six times. And he was kind of wiggling the needle around. [I]t made me feel uncomfortable. And . . . that's when I asked him if he could possibly get another lab tech in there." Alarcon then came to assist Bramley, and successfully drew blood from Beach's left arm after inserting the needle only one time.
Alarcon testified that she has been a lab assistant at the Medical Center for 11 years. She attended medical assistant school, which included phlebotomy training. Additionally, she has taken a phlebotomist course and has passed a state examination for phlebotomists. She stated she is authorized by her lab to perform blood draws; it is her primary duty at the Medical Center; and she had performed draws for law enforcement agencies prior to Beach's draw. Alarcon testified that Bramley no longer works at the Medical Center. Alarcon did not remember how long he had been working there at the time Beach's blood was drawn. His main duty was to run blood tests and when there was a need to have blood drawn, he would do so.
At the suppression hearing, Alarcon testified she had seen Bramley draw blood on other occasions, whereas at trial she testified she had not seen him do so.
Alarcon testified that an "easy" blood draw typically takes about five minutes for the whole procedure, including inserting the needle and withdrawing the blood. The Medical Center's procedure is for lab assistants to make two attempts to locate a vein, and with patient permission, the assistant may make a third attempt. After this, the lab assistant is supposed to find another person to help with the procedure. It is against hospital protocol for the same lab assistant to try to insert a needle more than three times. Alarcon testified that she has experienced difficulty finding a vein and has had to ask for help. Alarcon stated that when a lab assistant is having difficulty extracting blood, he or she does not have to pull the needle completely out of the arm, but can "back it up a little bit and try to reposition the needle in the vein." However, when a lab assistant has to reinsert a needle, the area should be re-cleansed each time before reinsertion. The hospital protocol allows for, but does not necessarily require, a new needle each time. However, it would be against hospital protocol to reuse the same needle four to five times.
Alarcon—who observed Bramley insert the needle two times—saw him cleanse Beach's arm but did not remember how many times he did so. Although Alarcon did not notice Bramley do anything to Beach that caused her concern, she did notice that Beach looked upset and she heard Beach complain to Bramley that she was in pain.
Although at the suppression hearing Alarcon testified she saw only two needle insertions by Bramley, she stated she had no reason to doubt Officer Goudie's observation of four to six insertions. At trial, she testified she saw Bramley insert the needle three times, but did not know if he did more than three insertions. Alarcon did not know if Bramley asked Beach's permission to continue inserting the needle, and Officer Goudie presented no testimony on this point.
When Bramley asked Alarcon for help with the blood draw from Beach, Alarcon retrieved a disposable needle from the supply drawer, placed a tourniquet on Beach's arm, wiped her arm with a towelette containing an antiseptic cleanser, touched her arm to feel for a vein, inserted the needle, and withdrew the blood. Alarcon had no difficulty finding Beach's vein, and Beach made no complaints to Alarcon that she was in pain.
After presentation of the evidence at the suppression hearing, Beach argued that the blood test result should be excluded because the blood draw was not conducted by properly licensed medical personnel; it was not performed in a medically approved manner; and overall it was a "horrible" and "tortur[ous]" blood draw. The prosecution disagreed, asserting that it was not unusual for a lab assistant to have difficulty finding a vein; Alarcon stepped in to assist after Bramley was having difficulty; the failure to comply with statutory requirements governing blood draws did not alone rise to the level of a Fourth Amendment violation; and although Bramley should perhaps have asked for help sooner, overall the blood draw was performed in a reasonable manner.
The trial court denied the suppression motion. The court found that although the procedures used were "less than satisfying and less than appropriate," they did not constitute "shocking medical procedure[s]" that created a constitutional violation.
Analysis
The Fourth Amendment right to be free from unreasonable search and seizure precludes the government from engaging in a physical body search that " 'shocks the conscience' " or involves " 'methods too close to the rack and screw to' be tolerated." (People v. Wade (1989) 208 Cal.App.3d 304, 308.) In Schmerber v. California (1966) 384 U.S. 757, 770-772 (Schmerber), the United States Supreme Court concluded that warrantless extraction of blood from a person arrested for driving under the influence of alcohol did not constitute an unconstitutional search and seizure. The Schmerber court reasoned that the blood test was a highly effective means of determining the degree to which the arrestee was under the influence of alcohol, and the test was now commonplace and for most people involved "virtually no risk, trauma, or pain." (Id. at p. 771.) The court noted that the record showed that "the test was performed in a reasonable manner"; i.e., the blood was taken "by a physician in a hospital environment according to accepted medical practices." (Ibid.) The court cautioned that the constitutionality of a blood test might be questioned if it were "made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse" because to "tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain." (Id. at pp. 771-772.)
Subsequent to Schmerber, the courts have evaluated whether deviations from the scenario presented in Schmerber—i.e., a blood draw by a physician in a hospital—created an undue risk of harm to the arrestee so as to render the blood extraction unconstitutional. In these decisions, the courts concluded that a blood test was not unconstitutional even though the person drawing the blood may not have been authorized to perform the extraction under applicable statutory provisions, and even though the blood was drawn at a jail rather than at a medical facility. (See People v. Ford (1992) 4 Cal.App.4th 32, 34-37; People v. Esayian (2003) 112 Cal.App.4th 1031, 1035, 1037-1041; People v. McHugh (2004) 119 Cal.App.4th 202, 207-208, 213-214; People v. Mateljan (2005) 129 Cal.App.4th 367, 371-372, 376.) These decisions emphasize that the key inquiry is whether "the manner in which the sample was obtained deviated so far from the medical practices found to be reasonable in Schmerber as to render the seizure constitutionally impermissible." (People v. Ford, supra, 4 Cal.App.4th at p. 37; People v. Esayian, supra, 112 Cal.App.4th at p. 1039.) Under this standard, the court considers the overall reasonableness of the blood withdrawal to determine whether "the test conditions subjected [the arrestee] to 'an unjustified element of personal risk of infection or pain.' " (People v. Ford, supra, 4 Cal.App.4th at p. 38; see also People v. Mateljan, supra, 129 Cal.App.4th at p. 376 [court evaluates whether "draws were performed in a manner which . . . create[d] undue harm or risk . . ."]; People v. Sugarman (2002) 96 Cal.App.4th 210, 216 [court inquires whether defendant was exposed "to an unreasonable risk of infection or pain"].)
When challenged by the defense, the prosecution has the burden to prove that blood was drawn in a constitutionally permissible manner. (People v. Esayian, supra, 112 Cal.App.4th at p. 1040; see People v. Williams (1999) 20 Cal.4th 119, 130.) On appeal from a denial of a motion to suppress, we defer to the trial court's factual determinations if supported by substantial evidence, and independently review whether the facts show a constitutionally permissible search and seizure. (People v. Esayian, supra, 112 Cal.App.4th at p. 1038.)
Here, the prosecution presented no evidence regarding lab employee Bramley's qualifications to draw blood, and the evidence showed that he failed to follow the Medical Center's protocol by inserting the needle more than three times without seeking assistance and by repeatedly using the same needle. He may also have deviated from proper procedure by failing to cleanse Beach's arm each time he inserted the needle (although this fact was not firmly established). However, these facts—which indicate the violation of hospital rules and the possible violation of statutory rules—do not alone establish a constitutional violation. Rather, the pivotal inquiry is whether Beach was subjected to an undue amount of pain or risk of infection so as to have suffered a violation of her constitutional rights.
Based on Beach's complaints to Bramley and Officer Goudie's observations, it is likely that Bramley caused Beach to experience discomfort during the repeated needle adjustments and insertions. However, Alarcon, who had training and long experience with blood draws, testified that it was not unusual for medical personnel to have difficulty with a blood draw, and that she herself had experienced this problem. Officer Goudie was paying attention to Bramley's attempts to extract the blood, and intervened to protect Beach when she felt cause to do so. Alarcon was available to provide assistance and did so. Bramley provided Beach with initial protection against infection by cleansing her arm before the first needle insertion, and Alarcon cleansed her arm and used a new needle before the final, successful attempt. Given the protective measures taken by Bramley and Alarcon, the record supports a finding that there was no serious risk of infection. Further, the record supports a finding that any pain experienced by Beach was short-lived, given that Alarcon successfully withdrew the blood on her first attempt with no complaint from Beach.
Considering the totality of the circumstances, and drawing all factual inferences in favor of the trial court's ruling, we conclude the deficiencies in the blood draw did not rise to the level of a Fourth Amendment violation. Of particular significance, the blood draw here was performed at a medical facility. This fact places this case outside the category targeted for caution in Schmerber—i.e., blood extractions performed by the police at the police station. The performance of a blood draw at a medical facility carries an inherent assurance of sanitation and medical oversight not present at a non medical facility.
Although the evidence showed the blood draw was far from ideal, we are satisfied it did not subject Beach to undue harm or risk of harm so as to violate her Fourth Amendment right to be free from an unreasonable search and seizure.
II. Unanimity Instruction
Beach argues the trial court was required to instruct the jury that it had to unanimously agree on the basis for the intoxication element of the gross vehicular manslaughter charges—i.e., whether she was driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) or whether she was driving with a blood alcohol level of at least .08 percent (Veh. Code, § 23152, subd. (b)).
Section 191.5, subdivision (a) provides that the crime of gross vehicular manslaughter while intoxicated is committed when the defendant (1) drives a vehicle in violation of Vehicle Code sections 23140, 23152, or 23153 ("the first prong"), and (2) engages in gross negligence while committing an unlawful act not amounting to a felony, or a lawful act that might produce death ("the second prong"). Regarding the first prong of the section 191.5 offense, the prosecution's theory was that Beach violated Vehicle Code section 23152, which makes it unlawful for a person to drive (1) while under the influence of alcohol (Veh. Code, § 23152, subd. (a)), or (2) with a blood alcohol level of at least .08 percent (Veh. Code, § 23152, subd. (b)). Regarding the second prong of the section 191.5 offense, the prosecution's theory was that Beach committed one or more of the following unlawful acts with gross negligence: driving at a speed greater than posted (Veh. Code, § 22356); violating the basic speed law by driving at a speed greater than reasonable or prudent under the conditions (Veh. Code, § 22350); and failing to drive within a lane (Veh. Code, § 21658, subd. (a)).
Based on the prosecution's theories of culpability, the jury was instructed that the prosecution had to prove that Beach (1) "drove under the influence of an alcoholic beverage [causing impairment] or drove while having a blood alcohol level of 0.08 or higher," and (2) committed one or more of the specified Vehicle Code violations with gross negligence (i.e., speed greater than posted limit; violation of basic speed law; and/or failure to drive within lane). As to the first prong, the verdict forms contained a general statement allowing the jury to find Beach guilty of the offense of gross vehicular manslaughter while intoxicated. As to the second prong, the verdict forms listed the three Vehicle Code sections and required the jury to select one or more of these sections. The jury was also instructed that it had to unanimously agree which Vehicle Code section was violated by Beach to establish the second prong.
Beach argues that the trial court was also required to give a unanimity instruction to ensure that the jurors all agreed that she committed the same act to establish the first prong of the offense—i.e., that they unanimously find she (1) drove while under the influence of alcohol, or (2) drove with a .08 or greater blood alcohol level.
A defendant's constitutional right to a unanimous jury verdict requires that when the evidence shows more than one unlawful act that could support a single charged offense, the prosecution must either elect which act to rely upon or the trial court must sua sponte give a unanimity instruction telling the jurors they must unanimously agree which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity instruction is designed to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agreed the defendant committed. (Ibid.)
However, no unanimity instruction is required when the prosecution presents multiple theories regarding one discrete criminal act or event. (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135; People v. Carlin (2007) 150 Cal.App.4th 322, 347.) In Russo, the California Supreme Court explained the distinction between multiple theories (not requiring a unanimity instruction) and multiple acts (requiring a unanimity instruction): "[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or . . . the 'theory' whereby the defendant is guilty. . . . [¶] . . . [¶] . . . The jury must agree on a 'particular crime' [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Id. at pp. 1132, 1134-1135.)
Applying these guidelines, the Russo court concluded that no unanimity instruction was required to ensure that the jury unanimously agreed on which overt act the defendant committed to show a conspiracy. (People v. Russo, supra, 25 Cal.4th at pp. 1133-1136.) The court reasoned that the evidence did not show the possibility of two discrete conspiracies, but rather showed one conspiracy based on one agreement. (Id. at p. 1135.) Although the jurors may have disagreed as to how the defendant committed the conspiracy based on multiple overt acts, there was no danger "that some jurors would think she was guilty of one conspiracy and others would think she was guilty of a different one." (Ibid.)
Closer to the facts of this case, in People v. Mitchell (1986) 188 Cal.App.3d 216, 220-222, this court concluded the jury did not need to unanimously agree whether the defendant committed the offense of driving under the influence by driving at an unsafe speed or by engaging in a speed contest. We reasoned that the charges of violating the basic speed law and engaging in a speed contest were merely alternative theories to prove a necessary element of the single act of drunk driving. (Id. at pp. 221-222; accord People v. Leffel (1988) 203 Cal.App.3d 575, 586-587 [jury need not unanimously agree whether defendant committed vehicular manslaughter by exceeding maximum speed limit, driving faster than posted limit or than safe, driving recklessly, or failing to drive on right half of roadway].)
We note that in People v. Gary (1987) 189 Cal.App.3d 1212, 1216, 1218, the court concluded (contrary to our holding in Mitchell) that a unanimity instruction was required to ensure that the jury unanimously agreed whether the defendant committed a driving while intoxicated offense by driving the wrong way on a one-way street, by failing to drive on the roadway, or by speeding. The Gary court reasoned that the instruction was required because different acts could constitute the same element of the offense. (Id. at p. 1218.) Subsequent to the Gary decision, the California Supreme Court in Russo rejected the argument that jury unanimity was required on the overt act for conspiracy because the overt act was an element of the offense. (People v. Russo, supra, 25 Cal.4th. at p. 1134.) The Russo court stated: "We believe that asking whether the overt act is an 'element' of the crime is not helpful in deciding this question." (Ibid.) Under Russo, the appropriate inquiry is not whether there are multiple acts that can support a single element, but rather whether there are multiple instances of the same crime charged as a single offense. (Id. at pp. 1134-1135.) Russo has implicitly disapproved of the analysis (and hence the holding) in Gary.
Here, the facts supporting Beach's guilt showed one criminal event of driving while intoxicated resulting in death. Beach did not engage in two distinct instances of driving while intoxicated. The jury had to unanimously agree that she committed the offense of driving while intoxicated, but did not need to unanimously agree whether she did so by being under the influence of alcohol causing impairment, or being under the influence based on a blood alcohol level of .08 percent or greater.
Beach was charged with two counts of gross vehicular manslaughter while intoxicated because there were two victims. Each count involved only one act of driving while intoxicated.
To support her argument, Beach cites the fact that the jury was instructed that it had to unanimously agree which of the three Vehicle Code sections she violated to support the second prong of the section 191.5 offense. Even though the instruction (and the verdict form) ensured that the jury would unanimously agree on which theory supported a finding of guilt for the second prong, there was no constitutional requirement that it do so. (People v. Mitchell, supra, 188 Cal.App.3d at pp. 220-222; People v. Leffel, supra, 203 Cal.App.3d at pp. 586-587.) As stated, the evidence reflected a single criminal event of driving while intoxicated, and the jury needed only to unanimously agree that she committed this offense.
Beach also asserts the unanimity instruction was required because driving while under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and driving with a blood-alcohol level of at least .08 (Veh. Code, § 23152, subd. (b)) are distinct offenses. The courts have recognized that jury unanimity "typically applies to acts that could have been charged as separate offenses." (People v. Beardslee (1991) 53 Cal.3d 68, 92; People v. Jenkins (2000) 22 Cal.4th 900, 1025; see, e.g., People v. Wolfe (2003) 114 Cal.App.4th 177, 184-185 [jury unanimity required when evidence showed defendant could be guilty of unlawful firearm possession based on more than one firearm found on different dates and in different locations].) The reference to acts that could have been charged as "separate offenses" means more than one act that could have been charged as multiple counts of the same offense, thus creating a danger that the jury will convict the defendant of the charged offense without unanimously agreeing which act constituted the offense. Beach's argument in this regard points to multiple code provisions that could be applied to a single criminal act, not multiple acts that could support multiple counts of the same offense. Because the facts involved one criminal event of driving while intoxicated, the jury was not required to unanimously agree on which of the two theories of liability established the intoxication element. Accordingly, the unanimity instruction was not required.
III. Photographs
Beach argues the trial court abused its discretion under Evidence Code section 352 and deprived her of a fair trial by admitting photographs of the deceased victims at the accident scene.
Prior to trial, the prosecutor moved to admit photographs of the victims. Beach objected, contending the photographs were overly gruesome and would serve only to inflame the passions of the jury. At the hearing on the motion, the prosecutor agreed some of the photographs (including autopsy photographs) were too gruesome and should not be admitted. The prosecutor proffered eight photographs of the victims at the accident scene for admission. The trial court reviewed the eight photographs and, with two exceptions, concluded they were not overly gruesome. The trial court excluded two of the photographs because they showed more blood than the others.
At trial, Deputy Coroner Charles Lucas testified regarding his observations of the victims' injuries at the accident scene. During his testimony, he was shown the six photographs of the victims at the accident scene. He identified the persons in the photographs as Grun and Wilson and testified that the photographs depicted how they appeared when he observed them at the scene. The photographs were then viewed by the jurors. Thereafter, pathologist Darryl Garber, who performed the victims' autopsies, testified regarding his findings concerning the victims' injuries and causes of death.
Beach argues the photographs had slight, if any, probative value because the case involved manslaughter, not murder, and thus there was no issue regarding the defendant's malice or other such state of mind; the photographs were cumulative to detailed witness testimony; and the photographs depicted matters that were essentially uncontested. She asserts the photographs were unnecessarily gruesome and sensationalized the crime.
A trial court has broad discretion in determining whether evidence is relevant. (People v. Scheid (1997) 16 Cal.4th 1, 14 (Scheid).) Photographs of a crime scene are relevant to show that a crime was committed and to corroborate or illustrate witness testimony about the crime. (See id. at pp. 14-15, 18.) In Scheid, the court rejected the defendant's argument that a photograph of a murder victim's "bloodied, lifeless body" was irrelevant because the defendant was not at the scene during the actual shooting; the defendant was being prosecuted on a felony-murder theory and thus there was no issue of malice; and the parties were willing to stipulate as to the cause of death and the murder weapon. (Id. at pp. 14-15.) The Scheid court stated that the defendant's argument was "based upon an inappropriately narrow view of the concept of relevancy." (Id. at p. 14.) The court explained that a photograph that showed a murder had been committed was relevant even if it was cumulative to other evidence, and the only ban on cumulative evidence arose under Evidence Code section 352. (Scheid, supra, at pp. 15-16.) Further, the photograph did not lose its relevancy merely because malice was not at issue or because the defendant did not dispute the circumstances of the crime. (Id. at pp. 16-17.) The court reasoned that the prosecution was not obligated to prove details solely through witness testimony and was entitled to establish the fact that a murder had been committed "through the use of the most probative and compelling evidence available . . . ." (Ibid.)
However, even relevant evidence should be excluded under Evidence Code section 352 if the potential for prejudice outweighs probative value. " 'The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The court's exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.]' [Citation.]'' (Scheid, supra, 16 Cal.4th at p. 18.) Generally, a jury is entitled to see photographs of a murder victim even if the photographs are cumulative of testimonial evidence. (Id. at p. 19.) The courts recognize that victim photographs in homicide cases are always disturbing, but they need not be excluded unless they are "unduly gory or inflammatory." (Ibid.) For example, a court may be required to exclude photographs that depict "a close-up view of the victims' wounds"; a "revolting portraiture displaying horribly contorted facial expressions"; badly decomposed bodies; or bodies disfigured during autopsy. (Id. at pp. 19-20.) Further, inappropriate use of photographs may occur if the prosecution seeks to reinforce the potential impact of the photographs with multiple exposures of similar views, or by unduly belaboring the issue by using the photographs extensively in examining witnesses. (Id. at p. 20.)
Here, the photographs were relevant to prove the facts that a vehicular accident occurred and that the two victims were severely injured and died. The photographs corroborated the deputy coroner's descriptions of the victims at the accident scene and the pathologist's description of the victims' injuries. The photographs were used by the prosecution only briefly during Deputy Coroner Lucas's testimony.
We have reviewed the six photographs and, although by their nature they are unpleasant to view, they are not unduly gruesome or inflammatory. There are three photographs of each victim. The photographs of Grun consist of a photograph showing a facial injury (with his face turned towards the ground), a photograph showing a back injury, and a photograph showing a twisted leg. The photographs of Wilson consist of two photographs showing an injury to his forehead and one photograph showing his body laying on the ground next to an overturned vehicle. The photographs show a minimal amount of blood and do not contain excessive displays of the victims' injuries. Pathologist Garber's descriptions of the victims' injuries and autopsy findings were equally, if not more, disturbing as the photographs presented to the jury, thus diminishing the potential that the photographs would impermissible sway the jury. (See Scheid, supra, 16 Cal.4th at p. 20.)
Dr. Garber testified that Grun suffered extensive facial injuries (causing both eyes to rupture and fracturing his facial bones, maxillary bone, jawbone, nose, and forehead bone); extensive chest and abdominal injuries (rupturing the sac surrounding his heart, his heart, and his aorta); and a fractured thoracic spine and completely severed spinal cord. Wilson suffered cuts and bruises on his head, torso, and extremities and a ruptured lung and lacerations of the liver.
Although the photographs were relevant to an issue that was not directly disputed by Beach—i.e., the fact that there was an accident causing death to two victims—this fact still had to be proven by the prosecution. (See People v. Waidla (2000) 22 Cal.4th 690, 723 [defendant's not guilty plea puts all elements of the crime in dispute].) The photographs were not so graphic that they might overcome the jury's rationality. The trial court could reasonably conclude any potential for prejudice was minimal and there was sufficient probative value to warrant admission. Accordingly, the court did not abuse its discretion or deprive Beach of a fair trial by admitting the photographs.
IV. Consecutive Sentences
After imposing a six-year middle term sentence on count 1, the trial court imposed a two-year consecutive sentence on count 2. The court selected a consecutive sentence for count 2 based on a finding that Beach was on probation (for a reckless driving offense) at the time of the current offenses. Beach argues the trial court imposed a consecutive sentence based on a fact that was not found by the jury beyond a reasonable doubt in violation of her jury trial rights under the Apprendi rule.
Beach filed a supplemental brief raising the Apprendi issue, but the Attorney General did not file a supplemental responsive brief. We reject Beach's argument that we should deem the issue conceded by the Attorney General. (See 4 Cal. Jur.3d (2007) Appellate Review, § 256, p. 377 [appellate court has discretion to consider issue not raised by party in brief].)
A defendant has a constitutional right to have the jury, not the trial judge, decide all facts that increase the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490; Blakely v. Washington (2004) 542 U.S. 296, 301; Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860] (Cunningham).) Under Apprendi and its progeny, the statutory maximum is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the United States Supreme Court abrogated the California Supreme Court's ruling in People v. Black (2005) 35 Cal.4th 1238, 1261-1264 (Black I) that the upper term was the statutory maximum. The Cunningham court held that the statutory maximum was the middle term because under California's sentencing scheme the trial court was required to select the middle term unless it found an aggravating fact that was not an element of the offense found by the jury. (Cunningham, supra, 127 S.Ct. at pp. 868-871.)
In response to Cunningham, effective March 30, 2007, the California Legislature amended section 1170, subdivision (b) to make the middle term a discretionary rather than presumptive term. (Stats. 2007, ch. 3, § 2; see People v. Sandoval (2007) 41 Cal.4th 825, 845-847.)
Upon remand of Black I after the Cunningham decision, the California Supreme Court issued its opinion in People v. Black (2007) 41 Cal.4th 799 (Black II). In Black I, in addition to evaluating the upper term sentencing choice, our high court had concluded that a sentencing court's decision to impose consecutive rather than concurrent sentences did not implicate a defendant's Apprendi jury trial rights. (Black I, supra, 35 Cal.4th at pp. 1261-1264.) In Black II, the court re-evaluated this holding and concluded it was unaffected by Cunningham. (Black II, supra, 41 Cal.4th at pp. 820-823.) The Black II court reasoned that (1) a consecutive sentence does not equate with a lengthened sentence for an offense premised on facts that are the functional equivalent of elements of the offense, and (2) California's sentencing scheme does not create a presumption in favor of concurrent sentences so as to make a concurrent sentence the statutory maximum for purposes of triggering the Apprendi rule. (Black II, supra, at pp. 821-823.) Based on Black II, Beach's Apprendi challenge to her consecutive sentence is unavailing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., AARON, J.