Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 159159
Kline, P.J.
Carmelo Salas (appellant) was convicted, following a jury trial, of two counts of second degree murder, two counts of assault by means likely to produce great bodily injury, and one count of false imprisonment. On appeal, he contends (1) the murder convictions were not supported by substantial evidence; (2) the trial court improperly instructed the jury with CALCRIM No. 520, which contained an erroneous description of implied malice; (3) the trial court erroneously instructed the jury with CALCRIM No. 224, a circumstantial evidence instruction, which was inapplicable and undermined the presumption of innocence, and defense counsel was ineffective for failing to object to the instruction; (4) the trial court improperly admitted irrelevant and prejudicial photographic evidence, and defense counsel was ineffective for failing to object to its admission; (5) the errors were cumulatively prejudicial to appellant’s right to a fair trial; and (6) the minutes from the sentencing hearing and abstract of judgment must be modified to reflect the court’s imposition of a concurrent middle term of two years for felony false imprisonment. We shall order that the sentencing minutes and the abstract of judgment be corrected to reflect a concurrent two-year middle term on the felony false imprisonment count, but shall otherwise affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by information with two counts of murder (Pen. Code, § 187, subd. (a)—counts one and two); two counts of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)—counts three and four); and one count of false imprisonment (§ 236—count five). The information alleged as to counts one through four that appellant used a deadly weapon, a car, within the meaning of section 12022, subdivision (b)(1). It also alleged, as to count three, that appellant had personally inflicted great bodily injury, within the meaning of section 12022.7, subdivision (a), and, as to count four, that he had personally inflicted great bodily injury on a child under age five, within the meaning of section 12022.7, subdivision (d).
All further statutory references are to the Penal Code unless otherwise indicated.
On September 24, 2009, the jury found appellant guilty as charged, and found true the deadly weapon and great bodily injury enhancement allegations.
On November 16, 2009, the trial court sentenced appellant to 15 years to life in prison on each of the two murder counts, and a consecutive middle term of three years on count four, assault by means likely to produce great bodily injury and five years on the related enhancement allegation of personal infliction of great bodily injury on a child under age five, for a total prison term of 38 years to life. The court also imposed three three-year concurrent terms, a total of nine years, for the other assault count, its enhancement, and the false imprisonment count.
Appellant filed a notice of appeal on December 17, 2009.
FACTUAL BACKGROUND
Appellant’s nephew, Juan Carlos Salas (Juan), who was 17 years old at the time of the offenses, testified that, in late 2007, he was living near International Boulevard in Oakland at the home of appellant, appellant’s girlfriend, Antonia, and their two young children. He had lived with them for two or three months. Juan was very close to appellant, who was like a father to him. In November 2007, Antonia was having a relationship with appellant’s younger brother, Santos Salas (Santos). At some point, appellant moved out of the house, but still came over to visit. Appellant asked Juan several times about the relationship between Antonia and Santos. Juan knew about the relationship, but did not want to talk about it with appellant, so he told him he did not know anything. Appellant said he knew Juan knew something.
On Thanksgiving Day, November 22, 2007, Juan left his grandmother’s house shortly before 7:00 p.m. and walked to Antonia’s house because he wanted to spend Thanksgiving with his cousins. When he arrived, he saw appellant and Antonia talking. Appellant was on his knees, asking if he could take the truck, a black Ford Expedition, and Antonia said no. Their conversation continued for five to ten minutes, until Antonia eventually said okay and gave him the keys. Juan hid from appellant because appellant was drunk and because he did not want to talk to appellant about Antonia and Santos’s relationship. He could tell appellant was drunk by the way he was talking and the way he was acting. According to Juan, when appellant is sober he is “a nice guy. He’s a great guy.” When he drinks, he doesn’t “care about anything, ” including anything that might happen to him.
Appellant backed the truck out of the driveway, but then stopped after he looked over and saw Juan. Juan felt scared when appellant got out of the truck, walked over, and said he needed to talk to Juan. Juan said, no, he did not want to go. Appellant grabbed him by the shirt and said, “We need to talk.” He also said he would hit Juan if he did not come along. Appellant pulled him by his shirt to the truck, opened the door, and said to get in. Juan felt he had to go with appellant, so he got into the truck.
Appellant drove up International and made a right on 89th Avenue, at which point he said he knew Juan knew something about Antonia and Santos. Appellant then started speeding. Juan knew that the speed limit on 89th Avenue was 15 miles per hour. Juan was scared and tried to put on his seatbelt, but appellant grabbed his arm and said, “No, if I die, you die with me.” Juan testified that he could not tell how fast appellant was going, but said he had told the police that he estimated appellant was driving about 80 miles per hour. At the preliminary hearing he gave the estimate of 60 to 70 miles per hour. Appellant did not stop at the stop signs at the intersections of 89th Avenue and A, B, or D Streets, and he did not slow down for the various speed bumps.
As they approached D Street, Juan saw headlights and said, “Stop” to appellant because he saw another car coming. Appellant did not stop, brake, or slow down. Appellant just kept going, and Juan held onto the door. Appellant’s truck hit a Mustang and eventually came to a stop. Juan got out of the truck, feeling dizzy and out of breath, and screamed for help. There were a lot of people present, and someone hit Juan in the face, but then a friend of Juan’s who lived nearby said Juan “didn’t do it.”
Juan ran up 89th Street back to Antonia’s house, where he passed out. Juan later called his grandmother, who took him to San Leandro to be with other family. At some point, Juan’s mother called the police and Juan met police officers at a relative’s house. Juan had a cut near the corner of his right eye, which he had received during the crash, and was taken to the hospital.
Laura Herrera testified that, on Thanksgiving Day, November 22, 2007, she had two daughters: Jacqueline who was four years and eleven months old, and Evelyn, who was three years and five months old. She also had a niece, Stephanie, who was fourteen years and eleven months old. That day, Herrera was planning to have Thanksgiving dinner at the home of her older sister, Sandra, who was also Stephanie’s mother. Both women lived in Oakland; Herrera lived on D Street and Sandra lived on 77th Avenue.
Herrera made cheesecake for the meal, and at about 7:15 or 7:20 p.m., she left in her 2002 Mustang convertible, together with Jacqueline, Evelyn, and Stephanie, to go to her sister’s house. Stephanie and Jacqueline each held a cheesecake; Stephanie sat next to Herrera on the front passenger side of the car, while Evelyn was seated behind Herrera, and Jacqueline was seated behind Stephanie on the passenger side. Both of her daughters were strapped into booster seats, and Stephanie also had her seatbelt on. Herrera drove on D Street toward 77th Avenue. She had driven that route many times before. Where D Street meets 89th Avenue, there is no stop sign for drivers on D Street, but there is one for drivers on 89th Avenue. Herrera had not had anything to drink and had not taken any medication prior to driving. It was getting dark outside and she had her headlights on. She drove approximately 25 or 30 miles per hour.
Herrera could remember that, when she reached the intersection of D Street and 89th Avenue, she saw a black truck approaching very fast, but she did not remember anything else until after she woke up in the hospital. The car was coming so fast, she did not have time to brake or turn. Jacqueline and Stephanie died in the crash. Herrera suffered a fractured pelvis, a broken rib, a broken neck, and a broken arm, and was in the hospital for 22 to 26 days. She was then in a wheelchair for some months. She received physical therapy because she had a plate in her arm and could not move her right hand, and also to help her to walk again. Evelyn had scars from surgery, including a scar that extends up from her eye to her forehead and another one across the back of her head. Evelyn also had months of physical therapy to help her to walk normally again, and had suffered hearing loss in one ear.
Eddie Evans, testified that, on November 22, 2007, he was 13 years old and lived at the corner of 89th Avenue and D Street. At about 7:00 that night, he was eating Thanksgiving dinner with his grandmother and family when he heard a boom. He and his family went outside, where he saw three cars that had been in a crash. Two were trucks and one was a Mustang. He went over to the Mustang, which had hit a neighbor’s house. People were trying to help people get out of the car. The driver’s side rear area was on fire and people got a water hose, which put out the fire. Evans’s aunt Diane took a girl out of the car. There was also a lady “hanging” “over the car” on the passenger side and people used a little knife to cut her seatbelt.
Evans also saw the driver of the black truck, who got out of his vehicle and tried to run down the street. A bunch of people grabbed him and punched him in the face, but he then ran away. Evans identified appellant at trial as the driver. Evans also saw the passenger, whom he recognized as someone who used to live across the street from him, get out of the truck. People grabbed the passenger and someone hit him in the face. Evans heard him say that his uncle tried to kill him. Evans repeated what the passenger had said and also said, “he didn’t do it.” The people then let him go. When the police arrived, Evans identified a photograph of appellant as the driver of the truck.
Ronnie Carr testified that, at the time of the crash, he was at his grandmother’s house on 89th Avenue near E Street. He heard a loud boom and he and his brother ran outside and down to D Street, where he saw a crushed Mustang “with a lady hanging out of it upside down by her feet, unconscious.” He also saw an empty black Expedition and an empty white Yukon. There was a fire in the Mustang; someone got a hose and Carr put the fire out. He saw people holding two guys, and Carr heard a youngster screaming, “Oh, he was trying to kill me, he was trying to kill me.”
Carr checked the pulse of the baby on the left side of the back seat. He felt a pulse, and his brother was able to get the baby out of the car. A lady named Theresa was able to get the baby to start breathing. Carr then tried to get to the baby on the right side of the back seat. She was pinned in the car and when he lifted her head, he saw a slit and blood and knew there was nothing he could do. At that point, the driver woke up and was trying to look behind her in the car; she seemed dazed.
Ronnie Carr’s girlfriend, Priscilla Correa, testified that she was with him at his grandmother’s house that night. She went outside with the others after the crash. People grabbed a man who had been in the SUV and she heard him say he wasn’t driving; his uncle was driving and was trying to kill him.
Oakland firefighter and paramedic Solomon Tucker testified that he was called to the scene at about 7:00 p.m. on November 22, 2007. He saw a Mustang convertible on the lawn of a home, almost into the building. There was also a white SUV on the lawn and a dark SUV straddling the street and the sidewalk. There was a large crowd of people in the area. One group was attempting to assist the driver of the Mustang, who was in an awkward position and hysterical, and another group was attending to another person who had been removed from the same vehicle. A third group of people was holding some men who might have been involved in the accident. A woman was using a hose to try to put out a fire under the hood of the car.
Tucker began attending to the people in the Mustang. In addition to the woman who was conscious and distraught, there was a teenage to young adult female in the front passenger seat who appeared to have a broken neck and was dead. He also found a child in a car seat, hidden under part of the damaged car. He could only see her torso, and noted that her abdomen was moving as if struggling to get a breath. She was completely pinned in, with the seat held down by the front passenger seat. Paramedics were eventually able to cut the child out of her seatbelt and remove her from the car. About four or five minutes had passed, and the child was dead by then. She had a severe depression skull fracture and several long bone and rib fractures.
With respect to the driver, the lower part of her body was facing forward; her upper torso was turned completely around facing the back of the car. She would not answer questions about her own status, but only wanted to know about her children. She was eventually removed from the car. There was also a child that was being dealt with across the street; she was crying and attempting to sit up.
A forensic pathologist, Thomas Rogers, testified as an expert regarding the cause of death of Jacqueline and Stephanie. He performed autopsies on them on November 23, 2007. Externally, Jacqueline had suffered blunt injuries to many parts of her body, including numerous scrapes, lacerations, and bruises. Internally, there was bruising to her liver and both lungs, skull fractures and lacerations in the membrane lining the brain, and “tremendous disruption of the brain.” The cause of Jacqueline’s death was multiple blunt injuries.
Externally, Stephanie had suffered blunt injuries to various parts of her body. Internally, she had suffered lacerations to the diaphragm and spleen, and bruising of the lungs. There was bleeding inside the abdominal and chest cavities, and on the surface of the brain. There were two pelvic fractures, multiple rib fractures, a fracture to the collar bone, and her neck was broken. The cause of Stephanie’s death was multiple blunt injuries.
Oakland Police Officer Gregory Bellusa testified that he arrived at the intersection of 89th Avenue and D Street, two-lane streets in a residential area, at 9:22 p.m. on November 22, 2007. At that intersection, there are stop signs for cars on 89th Avenue only; there are no stop signs for cars on D Street. For cars driving on 89th Avenue, there are also stop signs at A and B Streets. The speed limit in this residential area is 25 miles per hour, with signs recommending that drivers go 15 miles per hour over the speed bumps on 89th Avenue. There are two speed bumps on 89th Avenue between International Boulevard and A Street and two more speed bumps between B and D Streets.
There is no “C Street” between B Street and D Street at that intersection.
There were three damaged vehicles at the scene. When Bellusa saw the level of damage to the Ford Mustang, with the passenger door pushed all the way over to the central console, he knew from experience that there were high levels of speed involved in the collision. The Ford Expedition at the scene was also significantly damaged and appeared to have rolled over after the collision, ending up back on its wheels, which, based on his training and experience, further indicated that there were high speeds involved in the collision. The damage to the vehicles indicated that the front end of the Expedition had collided with the passenger side of the Mustang at close to a 90 degree angle. The third vehicle, a Chevy Tahoe, had damage to the front end of the vehicle that matched damage to the left rear of the Mustang. He was able to determine that no one had been inside the Chevy Tahoe prior to the crash.
Bellusa examined the intersection that night, looking for pre-impact and post-impact skid marks, as well as other evidence to help police determine exactly what had happened. He noticed that there were no pre-impact skid or gouge marks, but there were such marks, post-impact. This indicated that there was “no evidence of hard braking that occurred prior to the impact.” As a result of the collision, the center part of the Mustang was pushed down; it touched the ground and caused gouge marks in the ground. This also indicated that high speeds were involved in the collision. From the evidence, Bellusa believed that the Mustang was struck by the Ford Expedition, which caused the Ford Mustang to slide sideways into the path of the parked Chevy Tahoe; the impact was so strong that it pushed the Tahoe back 22 feet. Officer Bellusa described photographs of the scene during his testimony.
DISCUSSION
I. Substantial Evidence of Second Degree Murder
Appellant contends the murder convictions were not supported by substantial evidence. In particular, he argues that there was insufficient evidence that he acted with implied malice.
Neither party avers that the murder verdicts in this case could have been based on a finding of express malice.
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)
“The same standard applies to the review of circumstantial evidence. [Citations.] [¶] ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]’ [Citation.]” (People v. Contreras (1994) 26 Cal.App.4th 944, 956 (Contreras).)
“Murder is the unlawful killing of a human being... with malice aforethought.” (§ 187, subd. (a).) Malice is implied “when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.) Manslaughter, by contrast, is the unlawful killing of a human being without malice. (§§ 191.5, subd. (a), 192.)
In People v. Watson (1981) 30 Cal.3d 290 (Watson), our Supreme Court distinguished vehicular manslaughter, which requires gross negligence, from murder, which requires implied malice, in the context of a vehicular homicide case. While gross negligence “has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences, ” malice, on the other hand, “may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life.” (Id. at p. 296; accord, People v. Knoller (2007) 41 Cal.4th 139, 156 [“a conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life”].)
“The distinction between ‘conscious disregard for life’ and ‘conscious indifference to the consequences’ is subtle but nevertheless logical. Phrased in everyday language, the state of mind of a person who acts with conscious disregard for life is, ‘I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed.’ The state of mind of the person who acts with conscious indifference to the consequences is simply, ‘I don’t care what happens.’ It makes sense to hold the former more culpable than the latter, since only the former is actually aware of the risk created.” (People v. Olivas (1985) 172 Cal.App.3d 984, 987-988.)
The two offenses also utilize different tests to determine the required mental states. “A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.] However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]” (Watson, supra, 30 Cal.3d at pp. 296-297 .)
“[O]ur courts have recognized that there is no particular formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach. [Citations.]” (People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 698 (Costa).)
In the present case, appellant asserts that the evidence in the record—much of it circumstantial—does not demonstrate that he had the mental state required for a finding of implied malice. In support of this claim, he attempts to distinguish a number of cases, several of them involving flight from pursuing police officers and/or driving under the influence, in which substantial evidence of implied malice was found. (See, e.g., People v. Autry (1995) 37 Cal.App.4th 351, 358 [citing cases]; but see Contreras, supra, 26 Cal.App.4th at p. 955 [“the absence of intoxication or high speed flight from pursuing officers does not preclude a finding of malice”].)
Appellant argues that even in implied malice vehicular homicide cases not involving alcohol or a chase, there was “evidence tending to support an inference the defendant had notice of the danger of his driving prior to the impact causing death and the inferential disregard in his continuing to act despite that notice.” (See Costa, supra, 183 Cal.App.4th at p. 701 [where defendant had been warned about dangerous condition of his brakes; winding, steep road ahead; and fact that his semi-trailer truck would be on road with many rush hour drivers, “there was sufficient evidence suggesting actual awareness of the great risk of harm posed by continuing to drive the truck down the Highway”]; Contreras, supra, 26 Cal.App.4th at p. 957 [where evidence showed defendant “knew the truck’s brakes were defective at the time of the fatal crash and that he drove recklessly, racing at high speed in a residential area, anyway, ” jury could rationally conclude evidence demonstrated conscious disregard for life]; People v. Jarmon (1992) 2 Cal.App.4th 1345, 1349-1350 [where defendant, driving under the influence of PCP and alcohol, sped at 50 to 80 miles per hour through heavy traffic on city streets, sideswiped several cars, and then applied his brakes only a split second before fatal crash, substantial evidence of implied malice was found].)
According to appellant, evidence of implied malice is lacking in the present case because there is no evidence that he had any prior warning about the danger of his conduct. We disagree, and conclude that there is substantial evidence that appellant “acted with conscious disregard of the danger to human life.” (People v. Knoller, supra, 41 Cal.4th at p. 156.)
Appellant, who was upset about the relationship between Antonia and his brother, forced 17-year-old Juan into a large SUV, and began driving in a residential neighborhood—with a speed limit of 25 miles per hour—at an estimated 60 to 80 miles per hour. Juan believed that appellant was drunk and, when he drank, he didn’t “care about anything.” Appellant repeatedly ignored speed bumps and stop signs and, when Juan attempted to put on his seatbelt, said, “No, if I die, you die with me.” Shortly thereafter, appellant ignored Juan’s plea to “stop” when Juan saw approaching headlights, but instead kept driving at the same rate of speed until he hit the Mustang. From the damage to the vehicles, an officer knew that high levels of speed were involved in the collision. There was also no evidence that appellant braked prior to the impact.
In addition, according to several witnesses, Juan said after the crash that his uncle was trying to kill him.
In light of all of this evidence of appellant’s words and actions shortly before the collision, there was evidence of more than mere “irresponsibility or even recklessness, ” as appellant argues. Rather, the evidence shows that appellant, “knowing that his conduct [endangered] the life of another, nonetheless [acted] deliberately with conscious disregard for life.” (Watson, supra, 30 Cal.3d at p. 296.)
While some details differ, this case is comparable to People v. Moore (2010) 187 Cal.App.4th 937, 941, in which the appellate court rejected the defendant’s claim that the evidence did not show that he had a subjective awareness of the risk involved. As the court explained: “Here Moore drove 70 miles per hour in a 35-mile-per-hour zone, crossed into the opposing traffic lane, caused oncoming drivers to avoid him, ran a red light and struck a car in the intersection without even attempting to apply his brakes. His actions went well beyond gross negligence. He acted with wanton disregard of the near certainty that someone would be killed.
“Whether Moore was subjectively aware of the risk is best answered by the question: how could he not be? It takes no leap of logic for the jury to conclude that because anyone would be aware of the risk, Moore was aware of the risk.”
Similarly, in the present case, the evidence that appellant was aware of the risk to human life and consciously disregarded that risk is extremely strong. Substantial evidence supports his conviction of second degree murder. (See People v. Guerra, supra, 37 Cal.4th at p. 1129; Contreras, supra, 26 Cal.App.4th at p. 956.)
II. CALCRIM No. 520
Appellant contends the trial court improperly instructed the jury with CALCRIM No. 520, which contained an erroneous description of implied malice.
The trial court instructed the jury, pursuant to CALCRIM No. 520, that, to be found guilty of murder, the prosecution “must prove that, one, the defendant committed an act that caused the death of another person, and two, when the defendant acted, he had a state of mind called malice aforethought. There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish a state of mind required for murder. The defendant acted with express malice if he unlawfully intended to kill. He acted with implied malice if, one, he intentionally committed an act, two, the natural and probable consequences of the act were dangerous to human life, three, at the time he acted, he knew his act was dangerous to human life, and four, he deliberately acted with conscience [sic] disregard for human life. Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death [is] committed. It does not require deliberation or the passage of any particular period of time.” (Italics added.)
As we shall discuss, post, appellant objects to the italicized portion of the instruction.
“Implied malice... has both a physical and a mental component.” (People v. Patterson (1989) 49 Cal.3d 615, 626.) Appellant asserts that CALCRIM No. 520 does not properly set forth the physical component of implied malice, which “is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life.’ [Citation.]” (People v. Patterson, at p. 626, quoting Watson, supra, 30 Cal.3d at p. 300.) Specifically, he appears to claim that the use of the word “were” rather than the word “are” in the portion of the instruction describing the physical component of implied malice erroneously changed the definition because “[u]se of the present tense denotes the requirement that [the] character of the consequences of the act is timeless, ” while “were” is “backward looking, [implying] that the jury must find only that the actual consequences of appellant’s act were shown to be dangerous to human life....” As a result, according to appellant, “the jury was not called upon to make the finding required under Watson, that the consequences of appellant’s conduct are inherently dangerous to human life.”
In a criminal case, a trial court is required to instruct the jury, sua sponte, on the general principles of law that are relevant to the issues raised by the evidence and necessary to the jury’s understanding of the case. (People v. Martinez (2010) 47 Cal.4th 911, 953.) In reviewing a purportedly erroneous instruction, “ ‘we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.] In conducting this inquiry, we are mindful that ‘ “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” ’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord, People v. Castillo (1997) 16 Cal.4th 1009, 1016 [correctness of jury instructions is to be determined from entire charge of court, not from consideration of parts of an instruction or a particular instruction].)
In the present case, as respondent observes, appellant’s contention is so subtle as to perhaps fairly be described as “technical hairsplitting.” (Boyde v. California (1990) 494 U.S. 370, 380-381.) This is especially so given that the next phrase of CALCRIM No. 520, as given by the court, sets forth the requirement that, “at the time he acted, he knew his act was dangerous to human life.” (Italics added.) If appellant was required to know—at the time he acted—that his act was dangerous to human life, it stands to reason that the jury would also understand that the natural and probable consequences of that act were to be determined as of that same time. (See People v. Castillo, supra, 16 Cal.4th at p. 1016.) The jury was instructed to “[p]ay careful attention to all of these instructions and consider them together.” (CALCRIM No. 200.) Accordingly, we conclude there is no reasonable likelihood that the jury applied CALCRIM No. 520 in a way that violates the Constitution. (See People v. Frye, supra, 18 Cal.4th at p. 957.)
We also observe that CALCRIM No. 520 was cited with general approval in People v. Knoller, supra, 41 Cal.4th at p. 152.)
Finally, even had appellant demonstrated error, he could not have been prejudiced by the instruction’s use of the word “were” under any standard of error. (See People v. Magee (2003) 107 Cal.App.4th 188, 193-194 [constitutional errors such as giving improper jury instructions on an element of an offense are subject to harmless error analysis], citing Chapman v. California (1967) 386 U.S. 18, 24.) Appellant’s actions—driving a large SUV through a residential neighborhood at speeds of up to 80 miles per hour, without even slowing down at stop signs—plainly were inherently dangerous to human life, regardless of any resulting harm. (See ibid.)
III.
Appellant contends the trial court erroneously instructed the jury with CALCRIM No. 224, regarding circumstantial evidence, because the instruction was (1) inapplicable and (2) undermined the presumption of innocence.
During trial, defense counsel requested that the trial court instruct the jury with CALCRIM No. 224, regarding the use of circumstantial evidence generally, as well as with CALCRIM No. 225, regarding circumstantial evidence of intent. The trial court denied the request to give both instructions, explaining: “I am just going to give 224 based on the comments on the notes in CALCRIM[.] I would note that there are multiple counts here, some of which are general intent crimes. Secondly, I think that there are circumstantial evidence that there’s on the rate of speed which [sic] and also circumstantial evidence as to whether the breaks [sic] were applied before the collision which would indicate that we have a combination of circumstantial evidence in this particular case[.]”
CALCRIM No. 224, as given to the jury in this case, provides as follows: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
A. Applicability of CALCRIM No. 224
CALCRIM No. 224 “is applicable only when the prosecution substantially relies on circumstantial evidence to establish any element of the case. [Citations.] The instruction should not be given where circumstantial evidence is incidental to and corroborative of direct evidence. [Citations.] [¶] CALCRIM No. 225 is to be used in place of CALCRIM No. 224 ‘when the defendant’s specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. [Citations.]” (Samaniego, supra, 172 Cal.App.4th at pp. 1171-1172.)
In the present case, according to appellant, because the prosecution relied primarily on direct evidence to prove all aspects of its case except implied malice, the court erred in giving the more general instruction (CALCRIM No. 224), rather than CALCRIM No. 225, which focuses on intent. Respondent counters that the prosecutor relied on circumstantial evidence other than for mental state, particularly regarding the high rate of speed at which appellant was traveling, since Juan was inconsistent on that point.
As we shall discuss in part III.B., post, appellant also argues that both CALCRIM No. 224 and CALCRIM No. 225 contain language that renders them unconstitutional. However, we shall assume, for purposes of addressing his first challenge to the giving of this instruction, that either the instructions do not violate his constitutional rights and/or he is arguing that CALJIC No. 2.02 (the predecessor to CALCRIM No. 225, which does not contain the challenged language) should have been given.
We need not resolve this dispute regarding the type of circumstantial evidence the prosecution relied upon at trial given that “CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive. [Citation.]” (Samaniego, supra, 172 Cal.App.4th at p. 1172.) Thus, since CALCRIM No. 224 provided sufficient guidance to the jury, any possible error was harmless “by even the most stringent beyond a reasonable doubt standard articulated in Chapman v. California, supra, 386 U.S. at page 24.” (Samaniego, at p. 1172; accord, People v. Rodrigues (1994) 8 Cal.4th 1060, 1142 [because trial court gave more inclusive instruction—CALJIC No. 2.01, predecessor to CALCRIM No. 224)—its refusal to also instruct with CALJIC No. 2.02 (predecessor to CALCRIM No. 225) “clearly was not prejudicial error”].)
B. CALCRIM No. 224 and the Presumption of Innocence
According to appellant, CALCRIM No. 224 is constitutionally insufficient because it permits the jury to find a fact, and ultimately guilt, based on circumstantial evidence if that finding is “the only reasonable conclusion supported by the circumstantial evidence.” (CALCRIM No. 224, italics added.) Appellant asserts that “under the constitutional presumption of innocence, while doubt as to guilt need merely be ‘reasonable, conviction of guilt must be ‘rational.’ ”
In support of this premise, appellant cites Jackson v. Virginia (1979) 443 U.S. 307, 319 (Jackson), in which the United States Supreme Court held that a conviction must be upheld if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Appellant further argues that counsel should have instead requested and the court should have given CALJIC No. 2.02, the predecessor to CALCRIM No. 2.25, which permits a finding of guilt only if the proved circumstances are consistent with the theory that the defendant had the required intent and “cannot be reconciled with any other rational conclusion.” (CALJIC No. 2.02, italics added.)
In Brown v. Farwell (2008) 525 F.3d 787, 794-795, the Ninth Circuit Court of Appeals held that the Nevada Supreme Court erred when it “failed to analyze each of the essential elements of the substantive state crime. Instead, it merely recited all of the facts cumulatively without analyzing whether each or any of those facts established an essential element of the counts of conviction beyond a reasonable doubt, and that a rational juror could have so found. [Citation.] Therefore, the Nevada Supreme Court’s decision was contrary to Jackson.”
However, in McDaniel v. Brown (2010) 130 S.Ct. 665, 672, footnote 4 (McDaniel), the United States Supreme Court rejected the Ninth Circuit’s conclusion on the point relied on by appellant, explaining: “The Court of Appeals also clearly erred in concluding the Nevada Supreme Court’s decision was ‘contrary to’ Jackson. The Court of Appeals held the Nevada Supreme Court’s decision was ‘contrary to’ Jackson because the Nevada court stated a standard that turns on a ‘reasonable’ jury, not a ‘rational’ one, and that assesses whether the jury could have been convinced of a defendant’s guilt rather than whether it could have been convinced of each element of the crime. [Citation.] It is of little moment that the Nevada Supreme Court analyzed whether a ‘reasonable’ jury could be convinced of guilt beyond a reasonable doubt, rather than asking whether a ‘rational’ one could be convinced of each element of guilt; a reasonable jury could hardly be convinced of guilt unless it found each element satisfied beyond a reasonable doubt.”
Appellant claims that the court in McDaniel, supra, 130 S.Ct. 665, did not intend to expressly equate the terms “rational” and “reasonable” in this footnote, but instead sought to make the point that it was acceptable to analyze a verdict as to whether a jury “could be convinced of guilt beyond a reasonable doubt, as opposed to finding each element by that standard.” We are not persuaded by appellant’s attempt to excise the court’s “reasonable/rational” point from the remainder of its finding.
In light of the Supreme Court’s discussion in McDaniel, supra, 130 S.Ct. 665, 672, footnote 4, regarding the lack of significance in the fact that the state court used the word “reasonable” instead of “rational, ” we do not find persuasive appellant’s assertion that the court erred in giving CALCRIM No. 224 because it allows the jury to convict based on a “reasonable conclusion.” (Cf. Blacks Law Dict. (8th ed. 2004) [under definitions of “reasonable doubt, ” states: “Also termed rational doubt”].) Hence, his claim that the court erred in instructing with CALCRIM No. 224 fails on this ground as well.
Appellant argues that, to the extent defense counsel’s request that the court instruct with both CALCRIM Nos. 224 and 225 forfeits his claims on appeal, counsel’s representation was ineffective. (See Strickland v. Washington (1984) 466 U.S. 668.) Given our finding that appellant suffered no prejudice from the court instructing the jury as it did, any claim of ineffective assistance of counsel could not succeed. (See id. at p. 694.)
IV.
Appellant contends the trial court improperly admitted irrelevant and prejudicial photographic evidence.
A. Trial Court Background
Before trial, the defense moved in limine to exclude “use of photos of the decedents of the auto collision giving rise to the instant charges beyond those which are necessary to establish any relevant fact at issue.” At a hearing on the motion, the prosecutor said he intended to use a photograph of Stephanie’s body on the ground, covered by a sheet. He acknowledged that photographs of the decedents uncovered would be disturbing. Defense counsel agreed that showing Stephanie covered sounded “like a good compromise.” When defense counsel later questioned the relevance of showing Stephanie’s covered body after she had been removed from the car, the trial court stated: “Well, I think it may be relevant depending on the explanations of the witness as the witness is explaining the photograph, and what efforts they made and how Stephanie came to be in that position in the photograph. Under the facts and circumstances of the case, I think it’s relevant and I don’t find it particularly prejudicial under the circumstances, given the fact of the testimony that will be necessary in any case. And so, I would not find that it’s outweighed by any [Evidence Code section] 352 considerations. [¶] So I will allow that one photograph to be introduced.”
Defense counsel also moved to limit the number of photographs of the vehicles involved in the collision. At the hearing on the motion, defense counsel said he wanted to see how many photographs the prosecutor intended to introduce so they could discuss it, stating that at some point the photos might become redundant. The prosecutor agreed to show counsel all of the photographs he intended to introduce and counsel reserved any objections.
During the trial, the prosecutor introduced 32 photographs of the crash scene, primarily through Officer Bellusa. A photograph in which Stephanie’s body apparently can be seen on the ground, covered, was first introduced during the testimony of paramedic Solomon Tucker and later also identified by Bellusa. Bellusa also discussed a photograph of the Mustang in which one of the decedents is also depicted, covered by a white cloth.
As the prosecutor was showing photographs of the scene, he inadvertently showed a photograph of Stephanie on the ground, uncovered. Subsequently, following a sidebar discussion, the court admonished the jury not to consider that photograph: “[B]efore we go further, I want to give you an admonishment. During the time that the pictures were being shown on the screen, there was one picture that was not meant to be shown. That was a picture which showed one of the persons who was a victim in the offense in an uncovered condition. So I’m about to give you an admonition that that... through nobody’s fault was included, but your admonishment is that because of the emotional factor that that picture might have, you are to put it out of your mind, and you are not to consider it as evidence or in any way bear on the evidence in this case. So I want you to take my admonishment seriously and I trust that you will now at this point.”
Subsequently, while the parties were discussing the admissibility of various exhibits, the prosecutor informed the court that he and defense counsel had agreed to the admissibility of 32 of the 33 photographs related to the scene and the victims that were shown to the jury. The court then stated that the photograph of the uncovered victim would be removed, “and then as agreed by counsel, People’s four [the remaining photographs of the scene and the covered victim] may come into evidence.”
B. Legal Analysis
“ ‘[T]he admissibility of [photographic] evidence has two components: (1) whether the challenged evidence satisfied the “relevancy” requirement set forth in Evidence Code section 210, and (2) if the evidence was relevant, whether the trial court abused its discretion under Evidence Code section 352 in finding that the probative value of the [evidence] was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. [Citation.]” (People v. Heard (2003) 31 Cal.4th 946, 972.)
As a preliminary matter, we note that appellant did not ultimately challenge the admissibility of these photographs at trial. Although defense counsel initially moved to exclude irrelevant photos of the decedents and to limit the number of photographs of the scene admitted into evidence, he later agreed to admission of certain photographs and reserved objection, but ultimately failed to object, to admission of others. Then, after the photographs were shown to the jury, counsel agreed to their admission into evidence. We therefore conclude that appellant has forfeited this issue on appeal due to his failure to object to admission of the photographs in the trial court. (See People v. Saunders (1993) 5 Cal.4th 580, 589-590.)
Appellant argues that, in light of this failure to object, defense counsel’s representation was inadequate. To prove ineffective assistance of counsel, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness... under prevailing professional norms.” (Strickland v. Washington, supra, 466 U.S. at p. 688.) In addition, the defendant must affirmatively establish prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed.” (Id. at p. 697.)
Here, we are quite doubtful that appellant could show that counsel’s representation was inadequate, given the relative leniency of the standards for admissibility of photographic evidence at trial. (See People v. Scheid (1997) 16 Cal.4th 1, 15-17, 19-20 [photographs that are not unduly gory or inflammatory are generally admissible to corroborate other evidence or to clarify or bolster testimony, even if cumulative]; see also People v. Heard, supra, 31 Cal.4th at pp. 973-978.) However, we need not definitively resolve that question because we conclude that appellant cannot show that he was prejudiced by admission of the photographs in question. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
In People v. Heard, supra, 31 Cal.4th 946, 972, the trial court admitted into evidence numerous photographs of the 11-year-old victim of a first degree murder and brutal sexual assault, which depicted, inter alia, the child’s head and chest injuries. Our Supreme Court found no error in the admission of these photographs and further found, in any event, that any error in their admission was harmless pursuant to People v. Watson (1956) 46 Cal.2d 818, 836. As the court explained: “The photographs at issue did not disclose to the jury any information that was not presented in detail through the testimony of witnesses. Although the photographs were unpleasant, they were not unusually disturbing or unduly gruesome and were no more inflammatory than the graphic testimony provided by a number of the prosecution’s witnesses. Under these circumstances, we conclude it is not reasonably probable that the admission of the photographs affected the jury’s verdict. [Citations.]” (People v. Heard, at p. 978.)
Similarly, in the present case, there was nothing in the photographs that the jury did not know of through other evidence. Indeed, the jury heard detailed testimony about the severe injuries to the victims, which were not shown in the two photographs of covered decedents that were admitted. Moreover, the photographs here plainly were not nearly as horrific as those found to be not unduly gruesome in People v. Heard. Hence, because he cannot show that he was prejudiced by any alleged deficiency on counsel’s part in failing to object to admission of the photographs, appellant’s ineffective assistance of counsel claim cannot succeed. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
Appellant points to the fact that one photograph depicting one of the decedents uncovered was inadvertently shown to the jury, arguing that the court’s admonition was insufficient to cure the harm. We disagree. As previously discussed, the jury heard detailed testimony about the injuries to the victims who had died and, especially in light of the court’s strong admonition to disregard the photograph, we do not believe the jury’s brief view of it could have prejudiced appellant. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
Cumulative Error
Appellant contends that, even if none of the errors in themselves require reversal, they were cumulatively prejudicial to his right to a fair trial. (See People v. Hill (1998) 17 Cal.4th 800, 844.) We have concluded that none of the alleged errors in this case were prejudicial. Nor do we find that the cumulative effect of any errors calls into doubt the jury’s verdict or undermines the fairness of the trial, particularly in light of the strong evidence of guilt. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
VII. Inaccuracy in the Sentencing Hearing Minutes and the Abstract of Judgment
Appellant contends the minutes from the sentencing hearing and the abstract of judgment must be modified to reflect the court’s imposition of a concurrent middle term of two years for felony false imprisonment. Respondent agrees.
At the sentencing hearing, the trial court imposed the middle term on count five, false imprisonment, stating: “As to count five, the defendant is sentenced to the mid term of two years which also may be served concurrently with count four.” The sentencing minutes and the abstract of judgment, however, both stated that the court imposed a three-year middle term on count five.
Given that the middle term for false imprisonment is two years (see §§ 18, 237) and that the court stated that the term would be for two years, it is apparent that the abstract of judgment and minutes incorrectly state a middle term of three years.
We therefore shall order that the sentencing minutes and the abstract of judgment be corrected to reflect a concurrent two-year middle term on count five.
DISPOSITION
The matter is remanded to the trial court with directions to correct the sentencing minutes and the abstract of judgment to reflect imposition of a concurrent two-year middle term sentence on count five. The judgment is otherwise affirmed.
We concur: Haerle, J., Lambden, J.
“Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
CALCRIM No. 225, which was not given in this case, instructs the jury as follows: “The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required.
“A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence.
Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
CALCRIM Nos. 224 and 225 are substantially the same as their predecessors, CALJIC Nos. 2.01 and 2.02. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171, fn. 12 (Samaniego).)
We also observe that appellant did not provide us with copies of the photographs at issue, which he was obligated to do if he wanted us to review them. (Cal. Rules of Court, rules 8.122, 8.224.) We therefore are only able to base our conclusion on the parties’ general descriptions of what the photographs depicted.