Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA047853 Robert J. Schuit, Judge.
Law Offices of Dennis A. Fischer, Dennis A. Fischer and John M. Bishop for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Eugene H. Ward appeals from the judgment entered following his conviction on two counts of second degree murder and additional crimes arising out of Ward’s operation of a vehicle while intoxicated. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Ward was charged by information with two counts of second degree murder (Pen. Code, § 187, subd. (a)) (counts 1 and 2 for victims Kevin Whitteker and Wallace Tauch); two counts of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) (counts 3 and 4 for victims Whitteker and Tauch); one count of driving under the influence of alcohol and causing injury (Veh. Code, § 23153, subd. (a)) (count 5 for victim Ana Ayala); one count of driving with a blood alcohol level of .08 percent or higher and causing injury (Veh. Code, § 23153, subd. (b)) (count 6 for victim Ayala); and one count of leaving the scene of an accident resulting in injury (Veh. Code, § 20001, subd. (a)) (count 7). In connection with counts 5 and 6 the information specially alleged Ward had a blood alcohol level of .20 percent or higher (former Veh. Code, § 23578) and had caused bodily injury to victim Gloria Guerrera (Veh. Code, § 23558). Ward pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code unless otherwise indicated.
Vehicle Code section 23578 was amended effective January 1, 2006 to lower the triggering blood alcohol level to .15 percent. (Stats. 2005, ch. 89, § 1.)
2. Summary of the Evidence Presented at Trial
a. The People’s evidence
Shortly after 4:00 a.m. on April 11, 2004 Gloria Guerrera was driving southbound on the San Diego Freeway in the San Fernando Valley with her daughter-in-law, Ana Ayala, who was sleeping in the front passenger seat. Guerrera testified she saw Ward’s truck parked with its lights off in the far right lane as she approached the exit she intended to take. Guerrera moved into the lane to her left; however, Ward’s truck suddenly backed up and collided with the right side of her car. Guerrera’s car spun around several times and was hit by two other cars. After her car stopped, Guerrera helped Ayala out of the car. They approached Ward’s truck, which was pointing at an angle in the southbound direction. When they got within five feet of the truck, Ward made a partial U-turn and quickly drove away in the carpool lane. Ward, however, was traveling northbound -- the wrong direction.
Guerrera and Ayala were taken to the hospital. Guerrera required three stitches to close a gash on her neck and also suffered bruises to her chest, arm, stomach and legs. She was unable to work after the collision and was in pain for two years until the time of trial. Ayala suffered injuries to her face, hip, side and nose and was in pain for about six months.
Several other drivers on the freeway that morning testified Ward almost hit them or others as he sped by traveling northbound on the southbound side of the freeway. For example, Anthony Jones honked his horn and flashed his high beams and had to swerve to avoid hitting Ward, who passed within 10 feet of his car. Adraian Weatherstone, who was riding a motorcycle, flashed his high beams at Ward, but the truck did not deviate from its course and passed within an arm’s length as Weatherstone changed lanes. Delmus Harris, also on a motorcycle, had to maneuver out of the way of the oncoming truck to avoid getting hit as Ward passed at a speed he estimated at 80 miles per hour or more without slowing down or taking evasive action. Los Angeles Police Sergeant Russell Kilby, in uniform and driving his police motorcycle to work, missed colliding with Ward by about two feet.
After traveling approximately five miles from the site of the impact with Guerrera’s car, Ward finally collided head-on with a car driven by Kevin Whitteker, which quickly became engulfed in flames. Whitteker and his passenger, Wallace Tauch, both died almost immediately from multiple injuries.
Los Angeles Police Officer Richard Todd was driving his police motorcycle on the freeway when he saw Ward’s truck and Whitteker’s car on fire in the middle of the freeway. He reported the collision by radio and parked his motorcycle. He found Ward, on fire from the waist down, lying motionless about a foot away from the passenger door of his truck. Todd and a civilian pulled Ward to the shoulder of the freeway, and Todd used the civilian’s sweater to put out the fire. Todd, who described Ward as “in like a dreamlike state with a smile on his face” and his eyes closed, asked Ward if anyone else was in the vehicle; Ward said there was not. Ward also told Todd there was a fire in response to Todd’s question as to what happened.
Los Angeles Fire Department paramedic Glen Kratkin and his partner arrived at the scene of the accident and began treating Ward. Kratkin testified he asked Ward questions about his medical history, allergies and the pain he was experiencing, as well as his name, address, birth date, telephone number and orientation questions, such as the time and date, which Ward correctly answered. Kratkin also asked Ward, whose breath had a strong odor of alcohol, if he had taken any drugs or had had anything to drink. Ward responded he had drunk bourbon earlier, but not for a couple of hours. Kratkin determined Ward was fully conscious based upon the Glasgow Coma Scale, which considers a patient’s response to the orientation questions as well as eye movement and motor control.
While paramedics were treating Ward, California Highway Patrol Officer Kelly Valdez tested Ward for alcohol consumption using a preliminary alcohol screening (PAS) device. Valdez testified he set the PAS device for manual operation, which permits utilization of the device when a suspect is unable to give a strong breath sample. (The normal instruction when administering the PAS test is to take a deep breath and blow into the device as hard as possible.) After blowing a small, weak sample into the machine at 4:41 a.m., the PAS device had a reading of .162 percent blood alcohol content. After blowing another small, weak sample at 4:43 a.m., the PAS device had a reading of .145 percent. Because the difference between the two readings was less than .02, Valdez did not take a third sample. Ward was placed under arrest and transported to the hospital for treatment.
A PAS device is a portable, handheld breath testing machine generally utilized during the investigative stage of a driving under the influence case. (See People v. Williams (2002) 28 Cal.4th 408, 411-412; People v. Bury (1996) 41 Cal.App.4th 1194, 1198.)
Ward suffered second and third degree burns and a fractured right femur.
At the hospital a nurse took a blood sample from Ward at 5:12 a.m. Gerald Blanton, a Los Angeles Police Department criminalist, testified he analyzed the blood sample and found the blood alcohol level was .20 percent, a level at which a person would be significantly impaired and unable to drive safely and his or her judgment could be affected. Blanton explained that, assuming Ward was in the “elimination phase” of alcohol metabolism -- that is, enough time had elapsed since he had stopped drinking such that his blood was no longer absorbing alcohol, but his liver was in the process of metabolizing it -- his blood alcohol level would have been approximately .21 percent at 4:30 a.m., when the fatal collision occurred. Blanton opined two hours after a person had stopped drinking “most, if not all, the alcohol would be absorbed and the person would have reached their peak alcohol level. It very likely would have gone by and they would be in the elimination [phase] if somebody has stopped drinking two hours earlier.” When asked about the discrepancy between the .20 blood alcohol level from the blood sample and the .16 and .14 PAS device readings obtained earlier in the morning, Blanton explained using the PAS device in manual mode “can very easily result in an underestimation of what is actually in the person’s system” if the breath is trapped too soon.
Carolyn Caudry, a drug and alcohol counselor and owner of Clear Creek Counseling in Colorado, testified Ward had been ordered to attend the counseling program at Clear Creek in October 1996 following a conviction in Colorado for “driving while abilities impaired.” Ward completed 20 hours of education and an additional 20 hours of therapy. During the program Ward was instructed about the dangers of drinking and driving, including warnings he could hurt or kill someone and information about the degrees of impairment corresponding to various blood alcohol levels. Ward was informed, “Ten alcohol equivalents in an hour gets the [blood alcohol content] up to a .20. The entire motor cortex is significantly under sedation. The midbrain is going dominant [sic]. People who are not addicted begin to pass out. If they are not passed out yet, they will need help to walk. Mood swings are very likely and the mood swings at a .20 or higher do not have any known reason. Even the person themselves will not know its coming. A person is 60 times more likely to have an accident at this level.”
b. The defense’s evidence
Ward’s primary defense was that a significant preexisting brain injury, combined with alcohol, negated the mental state required to convict him of second degree murder. Ward, who did not testify on his own behalf, presented the expert testimony of Dr. Joseph Chong-Sang Wu, director of the Brain Imaging Center at the University of California, Irvine, College of Medicine. Wu testified a positron emission tomography (PET) scan of Ward’s brain function revealed “a profound abnormality in the frontal lobe,” which is the part of the brain involved with judgment, awareness of the consequences of one’s actions and the ability to regulate improper impulses. Wu testified the abnormality, which he described as “like . . . a big hole,” when combined with the amount of alcohol Ward had consumed, “would result in a profound inability or impairment to judge or weigh the consequences of one’s actions.”
A CT scan of Ward’s brain taken on the date of the collision showed a preexisting injury to the right front lobe of Ward’s brain. Wu testified the PET scan results were a consequence of the old injury, not the collision.
Wu explained the abnormality, which Ward would not necessarily have been aware of, did not prevent Ward from functioning well, including maintaining a job, in the absence of alcohol. Ward analogized to a skater on thin ice: “The question becomes a matter of what we call cognitive reserve. In general, when people have a certain amount of reserve, kind of like a reservoir that helps to maintain the brain’s function when there’s some kind of insult or injury to the brain. And so what happens as we age is that we sort of deplete that reservoir or cognitive reserve, so that as you get older, you become more vulnerable to the effects of injury. Now, what happens, though, in someone who has suffered a significant brain injury is that you have basically depleted your life’s reservoir or cognitive reserve in a moment. And so this then becomes kind of like a person who is skating on very thin ice. You may be able to ice skate on ice as thin as a quarter of an inch, but it’s not going to be the same as skating on ice that’s 2 or 3 feet thick. And so you may be able to function superficially fine, just like someone could superficially ice skate on ice that’s a quarter-inch thick. But without that cognitive reserve, it will be like the slightest push would plunge that skater through the quarter-inch thick ice into an icy lake. And that slightest push would be buffered in most people by the thickness of the ice. . . . Alcohol is going to burn up whatever cognitive reserve one has left so that people with brain injury have reduced tolerance to alcohol, they -- they have a much greater exacerbation of their impairment, especially in the frontal lobe, when they have alcohol than a normal individual who has a normal cognitive reserve.”
Ward’s best friend, housemate and coworker, Terry Owens, testified he worked in the transportation department for film and television production, which is responsible for moving film company personnel from one location to another. Ward, whom Owens had met on a job in 1999, was a transportation captain (that is, he supervised the drivers) and had supervised from 12 to 70 drivers while working on different films with Owens. Owens described Ward as a hard worker and a detailed-oriented perfectionist. Owens said, in the more than 20 years he had been in the film industry, Ward was one of the best captains with whom he had worked. Owens also testified he and Ward usually, although not every day, had an alcoholic beverage or two, typically beer or bourbon, when they got home from work; but, during the entire time Owens had known Ward, Owens had only seen him intoxicated on one occasion. On that occasion Ward was at home and simply fell asleep.
3. The Jury’s Verdict and Sentencing
Following a jury trial Ward was found guilty on all counts, and the jury also found true the special allegations Ward’s blood alcohol level at the time the offenses were committed was .20 and he had caused bodily injury to Guerrera. At the sentencing hearing the trial court permitted members of the victims’ families and a friend of Ward’s to speak. After the prosecutor and Ward’s counsel presented their arguments -- the prosecutor urging the court to impose consecutive 15-years-to-life terms and Ward’s counsel arguing for concurrent terms on the second degree murder convictions -- the court announced its tentative decision, including consecutive terms on the two murder counts, and provided a lengthy explanation of its intended sentence. The court invited further argument from Ward’s counsel, who declined, stating, “Well, I have made my thoughts clear and feelings clear as to what the sentence should be, and I felt it should be 15 to life.” The court then sentenced Ward, who was 57 years old at the time, to an aggregate state prison term of 33 years to life: (1) 15 years to life on count 1; (2) a consecutive term of 15 years to life on count 2; (3) a consecutive term of two years (the middle term), plus one year for causing bodily injury to Guerrera, on count 5; and (4) a concurrent term of two years (the middle term) on count 7. The court also imposed, but stayed pursuant to section 654, the middle term of six years for each of counts 3 and 4 and the middle term of two years, plus one year for causing bodily injury to Guerrera, on count 6.
CONTENTIONS
Ward contends there was insufficient evidence he possessed the requisite mental state for second degree murder, the prosecutor committed misconduct during her closing argument when she referred without evidentiary foundation to the title of an article disparaging the basis for Dr. Wu’s expert opinions, there was insufficient evidence his blood alcohol content was .20 at the time of the collision with Whitteker’s car and the trial court abused its discretion in sentencing him to consecutive terms for the second degree murder convictions.
DISCUSSION
1. Substantial Evidence Supports the Jury’s Verdict Ward Committed Second Degree Murder
a. Governing law and standard of review
There are cases in which gross vehicular manslaughter while intoxicated is insufficient to redress the harm caused by a drunk driver who, although not intending to do so, kills people. In People v. Watson (1981) 30 Cal.3d 290 the Supreme Court held vehicular homicide may be second degree murder on a theory of implied malice if “a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.] . . . Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.” (Id. at p. 296.) “Unlike gross negligence which is determined by an objective standard of a reasonable person, implied malice requires a determination that the accused actually appreciated the risk involved. [Citation.] [S]tated in more everyday language . . . the state of mind for implied malice is ‘“I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed.”’” (People v. Murray (1990) 225 Cal.App.3d 734, 746.)
Section 191.5, subdivision (a), provides, “Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.”
Ward does not dispute the evidence was sufficient to demonstrate he generally understood driving while intoxicated can pose a significant risk of bodily injury or death to others, arguably supporting an inference of implied malice absent other evidence. (See People v. Murray, supra, 225 Cal.App.3d at p. 746 [defendant “had repeated experiences of drunk driving convictions and repeated exposures to mandatory educational programs, from which the jury could infer that appellant became aware that drunk driving is dangerous to life”]; People v. McCarnes (1986) 179 Cal.App.3d 525, 532 [“[e]ven if we assume defendant did not realize after his convictions that it was dangerous to drink alcohol and drive, surely realization would have eventually arrived from his repeated exposure to the driver’s educational program” he was required to complete as a result of convictions].) Rather, Ward contends there is insufficient evidence he subjectively appreciated the risk his behavior posed at the time of the collision because Dr. Wu’s testimony Ward’s brain injury, combined with the amount of alcohol he drank, rendered him unable to weigh the consequences of his actions was unrefuted.
Ward’s brain-injury defense is grounded in section 28, which permits evidence of a mental defect “on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” Although second degree murder based on a theory of implied malice does not fall squarely within the traditional definition of a specific intent crime, the element of implied malice that requires the defendant act with knowledge of the danger to, and conscious disregard for, human life is sufficiently close that Ward’s theory -- and Dr. Wu’s testimony -- were properly considered under section 28. (See People v. Reyes (1997) 52 Cal.App.4th 975, 984-985 & fn. 6; see also People v. Whitfield (1994) 7 Cal.4th 437, 450 [former § 22, which permitted evidence of voluntary intoxication “‘when a specific intent crime is charged,’” applies to second degree murder cases, “even where the prosecution relies exclusively upon the theory that malice is implied, rather than express”].)
Following the Supreme Court’s decision in People v. Whitfield, supra, 7 Cal.4th 437, the Legislature amended section 22 to specifically exclude intoxication evidence when the murder charge is based on implied malice. (See § 22, subd. (b) [“[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated or harbored express malice aforethought”]; People v. Martin (2000) 78 Cal.App.4th 1107, 1117 [“[t]he 1995 amendment to section 22 results from a legislative determination that, for reasons of public policy, evidence of voluntary intoxication to negate culpability shall be strictly limited”]; see also People v. Timms (2007) 151 Cal.App.4th 1292, 1298 [§ 22 does not violate due process or equal protection].) Because we affirm Ward’s conviction for second degree murder based on the jury’s implied rejection of Dr. Wu’s testimony, we need not decide in this case whether section 22 prohibits or, instead, section 28 permits expert testimony that the defendant’s mental disease, defect or disorder was exacerbated by his or her consumption of alcohol and that the combined effect of that mental condition and voluntary intoxication should preclude a finding of implied malice. (Cf. People v. Velez (1985) 175 Cal.App.3d 785, 794 [defendant knowingly ingested marijuana not realizing it contained PCP, which rendered him legally unconscious, and committed brutal assault; “preclusion of voluntary intoxication as an absolute defense at common law has been justified on the theory that ‘“when a crime is committed by a party while in a fit of intoxication, the law will not allow him to avail himself of the excuse of his own gross vice and misconduct to shelter himself from the legal consequences of such crime”’”]; People v. Gallego (1990) 52 Cal.3d 115, 183-184 [trial court’s refusal to instruct on involuntary intoxication upheld when defendant had voluntarily consumed alcohol and drugs prior to killings regardless that PCP was secretly given to defendant].)
In reviewing Ward’s challenge to the sufficiency of the evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, at p. 331.)
“Substantial evidence” in this context means “evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849.) “Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
b. The jury was entitled to reject Ward’s expert’s testimony he was unable to appreciate the risk his drunk driving posed
As long as it did not do so arbitrarily, the jury -- as it was instructed -- was entitled to entirely reject Dr. Wu’s testimony concerning the likely consequences of Ward’s preexisting brain injury, even though the prosecution did not call any opposing expert and Wu’s testimony was not contradicted. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 [“As a general rule, ‘[p]rovided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]’ [Citation.] This rule is applied equally to expert witnesses.”]; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632-633 [same]; People v. Murray, supra, 225 Cal.App.3d at p. 748 [jury was entitled to reject medical expert’s testimony brain injury magnified effects of intoxication on defendant convicted of second degree murder in alcohol-related collision].) Although Wu testified Ward’s brain injury was “one of the most dramatic decreases in front lobe activity of any of the 5,000 cases [he] had seen,” Wu’s testimony regarding the consequences of that injury was not unassailable. Consistent with sections 28 and 29, Wu was not permitted to testify Ward in fact did not have the required mental state, but instead was limited to opining generally about people with brain injuries like Ward’s. (See People v. Coddington (2000) 23 Cal.4th 529, 582 [“[s]ections 28 and 29 permit introduction of evidence of mental illness when relevant to whether a defendant actually formed a mental state that is an element of a charged offense, but do not permit an expert to offer an opinion on whether a defendant had the mental capacity to form a specific mental state or whether the defendant actually harbored such a mental state”], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Wu testified, “[I]n terms of specific behavior, specific time, I can’t make any . . . prediction at a specific time. I can say in general that a patient with a significant brain injury is going to have a significantly higher likelihood of impairment in executive function, proper judgment, the ability to concentrate, especially when stressed, than someone without a brain injury.” This limitation on Wu’s testimony to generalities, in conjunction with his concession Ward’s brain may have compensated for the old damage and he was unaware of the extent to which his brain may have done so, provided a basis upon which the jury could have reasonably concluded Ward was unlike the general brain injury patient Wu described.
The jury was instructed in accordance with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 332, “Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept [them] as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
Although section 28 permits evidence of a mental defect on the issue of specific intent, section 29 provides an expert testifying about a defendant’s mental condition “shall not testify as to whether the defendant had or did not have the required mental states.”
Indeed, the jury likely found Dr. Wu’s testimony -- which described a person with Ward’s brain injury in extreme terms -- difficult to reconcile with the lay witness testimony presented, even though not clearly contradictory. Paramedic Kratkin testified Ward was able to answer questions about the accident, his medical history, his birth date and address without difficulty and was conscious based upon the Glasgow Coma Scale. Kratkin also testified Ward had full use of his motor skills and extremities. Although Fire Captain Frank Larez, testified Ward appeared confused after the collision, he stated Ward admitted he had been drinking. The jury may have concluded Ward’s ability to answer questions immediately after the collision, even if he was slightly confused according to Larez, demonstrated he did not “have a profound and catastrophic collapse of [his] cognitive function” as Wu testified people with Ward’s kind of brain injury have when they drink alcohol.
Ward argues Dr. Wu testified his opinion of Ward’s inability to weigh the consequences of his actions was not undermined by Ward’s apparent ability to answer questions after the collision. (See People v. Marshall (1997) 15 Cal.4th 1, 31-32 [evidence sufficient defendant was competent to stand trial when defense experts testified their opinions would be affected by testimony the defendant acted normally outside setting of psychiatric interview and lay witnesses testified to such normal behavior].) Wu was asked, “After the accident that I’ve described for you, a person with this type of injury is described to have been in a dream like state and could answer questions such as, were you the driver of the car, were other people in the car. Also a person -- this person also sustained on 40 to 50 percent of their body third-degree burns. What type of reactions, given the alcohol and the . . . preexisting brain injury, what type of reaction would you expect from a person that has sustained what I just described for you?” Wu responded, “Well, I would expect that such an individual would have an impaired ability to be able to fully process and comprehend the significance of what was going on, that such an individual would have been profoundly impaired, this combination of this old brain injury with the alcohol.” This testimony does not so persuasively account for Ward’s ability to answer questions after the collision that it necessarily precludes the jury’s right to reject Wu’s opinion. To the contrary, it is reasonably inferable from this testimony that Ward should not have been able to answer these questions if he were so “profoundly impaired”; and the jury may have concluded shock or other physical consequences of the fiery collision were as likely an explanation for his “dream like state.”
Moreover, Terry Owens had testified Ward usually had one or two drinks -- sometimes bourbon -- after work without, to use Dr. Wu’s analogy, constituting the “slightest push” that would plunge Ward through the thin ice created by his brain injury. If Ward really had the “most dramatic decrease in front lobe activity of any of the 5,000 cases [he] had seen,” and a reduced tolerance to alcohol, the jury may have reasonably believed Ward would have previously exhibited at least some signs of the effects of the brain injury in response to his regular consumption of alcohol. Indeed, this was not a borderline case. Ward’s blood alcohol level was .20 percent, reflecting, as Ward was instructed in alcohol education counseling, “ten alcohol equivalents in an hour” that would render a person, whose “entire motor cortex [would be] significantly under sedation,” “60 times more likely to have an accident.” The jury could have reasonably concluded the sheer magnitude of Ward’s intoxication alone explained why he would drive the wrong way down the freeway, ignoring the attempts by other drivers to get his attention, not a collapse of his cognitive functioning occasioned by the combination of his brain injury and alcohol. (Cf. People v. Murray, supra, 225 Cal.App.3d at p. 747 [rejecting defendant’s argument “no person would knowingly and intentionally drive the wrong way on the freeway, thus [defendant] must not have been aware of the risk].) Thus, the jury’s rejection of Wu’s testimony was neither arbitrary nor unreasonable. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 [appellate courts do not reweigh the evidence; that function is exclusively for the jury].)
Relying in large part on People v. Bassett (1968) 69 Cal.2d 122 (Bassett) and People v. Samuel (1981) 29 Cal.3d 489 (Samuel) Ward essentially argues the uncontradicted testimony of one expert that negates an element of a crime may demonstrate the prosecution’s inability to prove that element beyond a reasonable doubt and therefore establish the lack of substantial evidence to support a verdict in the prosecution’s favor. In those cases, however, there was overwhelming evidence defendants had long histories of severe, overt mental illness. In Samuel, supra, 29 Cal.3d at page 498, a case in which the Supreme Court held the verdict of competence to stand trial was not supported by the evidence, Samuel had begun exhibiting “clear signs of mental disorder” when he was eight or nine years old, including suffering from “catatonic episodes during which he lay motionless in his bed for days. He also began hearing disembodied voices, a common symptom of schizophrenia.” As Samuel aged, his psychological problems increased and he spent most of his time in jail or in mental institutions. (Id. at p. 498-499.) When he was jailed for the robbery conviction that was the subject of his appeal, “he exhibited ‘overtly and in a sense grossly psychotic’ behavior,” including huddling in the corner, talking to the wall or the light and rolling in his feces. (Ibid.) At his competency hearing, “In all, five court-appointed psychiatrists, three psychologists, a medical doctor, a nurse, and three psychiatric technicians testified on Samuel’s behalf. In addition, four psychiatric reports were admitted into evidence. Without exception, each witness and every report concluded that throughout the period during which the declarant observed the defendant, the latter was incompetent to stand trial. In response, the prosecution offered no expert testimony whatever and only two lay witnesses, neither of whom contradicted any of the defense testimony.” (Id. at pp. 497-498.) It was on this record the Court set aside the verdict, holding “the jury could not reasonably reject the persuasive and virtually uncontradicted defense evidence proving Samuel’s mental incompetence to stand trial.” (Id. at p. 506.)
It is also significant in analyzing Samuel that it involved a competency hearing. As the Supreme Court observed, “[A]lthough we must always take care to avoid encroaching on the proper province of the jury, in this case there are three reasons why we are less hesitant than usual to subject the verdict to close scrutiny. [¶] First, the right to a jury in section 1368 hearings is a creature of statute, rather than a mandate of our Constitution as is the jury right at trial. [Citation.] Thus there is no constitutional right, either of the People or of defendant, involved. [¶] . . . [¶] Third, in reversing a finding of competence, we do not necessarily affect the question of guilt or the penalty to be imposed. We merely assure that the accused will not be put to trial until he is able to understand his predicament and rationally assist his attorney in presenting his defense.” (Samuel, supra, 29 Cal.3d at pp. 505-506.)
Similarly, in Bassett, supra, 69 Cal.2d 122, Bassett, who murdered his mother and father when he was 18 years old, suffered from paranoid schizophrenia and had been having delusions and hallucinations since age 10 or 11. (Id. at pp. 133-134.) When Bassett was examined by psychiatrists after the murders, he appeared to be suffering from severe delusions and hallucinations. (Id. at p. 135.) Although, unlike in Samuel and the case at bar, the prosecution presented expert witness testimony to refute Bassett’s psychiatrists’ testimony he lacked the mental capacity to entertain the state of mind necessary to be found guilty of first degree murder, the Supreme Court held the prosecution had not met its burden of proof. The Court found two of the prosecution’s psychiatrists’ testimony was insubstantial because they adduced no reasoning in support of their conclusions and never “attempted to refute the mass of defense evidence” to the contrary. (Id. at pp. 144-145.) The third psychiatrist’s testimony did not constitute substantial evidence because his testimony revealed he misapprehended the term “premeditation.” (Id. at pp. 147-148.)
In contrast, in the case at bar there was no evidence Ward had an extended history of obvious mental illness as a result of his brain injury. Quite the contrary, although there was evidence -- even substantial evidence -- he had long had a brain injury, there was no evidence that injury had ever affected him, either before or after the fatal collision. Dr. Wu’s testimony, at best, was that Ward likely experienced a collapse of his cognitive function, but there was no evidence he had ever had such a collapse or adverse effect from his brain injury. Intoxication alone was an equally viable explanation for Ward’s behavior. Thus, Wu’s testimony did not merit the same persuasive force as the defense experts’ testimony in Bassett and Samuel.
Explaining in Samuel why the experts’ testimony was “entitled to great weight,” the Court stated, “[T]he experts were called upon to address a question the answer to which normally turns on an analysis of the defendant’s intelligence, ability to communicate, and emotional and mental stability -- human characteristics of central concern to psychiatrists and psychologists. In addition, the experts were able to observe defendant over a long period of time, and to gauge his progress toward competency. They were not speculating about his state of mind at some time in the past; they were assessing his present mental abilities on the basis of thorough observation and examination continuing up to the very week of the hearing.” (Samuel, supra, 29 Cal.3d at pp. 502-503.) Here, Wu was essentially speculating about Ward’s state of mind at the time of the collision.
Apparently having rejected Dr. Wu’s testimony, there was ample evidence, including the testimony about Ward’s initial collision with Guerrera and the many drivers who honked and flashed their headlights at Ward as he proceeded northbound on the southbound side of the San Diego Freeway, to support the jury’s finding Ward knew he was driving dangerously, but consciously and wantonly disregarded the risk his driving posed to life. (See People v. Olivas (1985) 172 Cal.App.3d 984, 989 [“[Defendant] was aware of . . . risk . . . as shown by his collision with one car, his near collision with two other cars, and his deliberate avoidance of two pursuing police cars. He chose to continue his extremely dangerous driving even after the danger to the lives of others was demonstrated.”]; cf. People v. Watson, supra, 30 Cal.3d at p. 301 [defendant nearly collided with another vehicle and skidded to a stop before resuming driving that led to a fatal collision, among other factors, “suggesting an actual awareness of the great risk of harm which he had created”]; People v. Murray, supra, 225 Cal.App.3d at p. 747 [jury was entitled to infer defendant knowingly and intentionally drove wrong way on freeway from facts including there were headlights coming towards him and his pattern of driving].)
2. The Prosecutor Did Not Commit Misconduct During Closing Argument
We review a trial court’s ruling regarding prosecutorial misconduct for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) “‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s . . . intemperate behavior violates the federal Constitution only when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’” (People v. Navarette (2003) 30 Cal.4th 458, 506; accord, People v. Morales (2001) 25 Cal.4th 34, 44.) Improper prosecutorial conduct includes suggesting the existence of facts outside the record or otherwise arguing facts beyond the evidence before the jury. (People v. Valdez (2004) 32 Cal.4th 73, 133 [“counsel may not assume or state facts not in evidence [citation] or mischaracterize the evidence”]; People v. Benson (1990) 52 Cal.3d 754, 794 [“prosecutor may not go beyond the evidence in his argument to the jury”]; People v. Woods (2006) 146 Cal.App.4th 106, 113 [“prosecutor may not suggest the existence of ‘“facts’” outside of the record by arguing matters not in evidence”].) A single instance of technical misstatement by the prosecutor in closing argument does not support a finding of a pattern of egregious behavior warranting reversal. (People v. Frye (1998) 18 Cal.4th 894, 979.)
Ward argues the prosecutor committed misconduct in her closing argument when she referred to the title of an article disparaging the use of PET scans that had no evidentiary foundation. The article had been initially raised by the prosecutor in her cross-examination of Dr. Wu:
“Q: Well, let me ask you. Some experts have actually written that using brain imaging in these circumstances is simply junk science, right?
“A: I’m not sure who you’re referring to.
“Q: I’ll tell you. I’m actually referring to S.A. Ornish . . . in an article called ‘[A] Blizzard of Lies, Bogus Psychiatric Defenses,’ published in the American Journal of Forensic Psychiatry in 2001. Are you familiar with that?
“A: I’m not familiar with that particular article.”
During her closing argument the prosecutor stated, “[Dr. Wu is] a professional defense expert. That is what he is. He is biased, and he practices this bogus, bogus, psychiatry. Let me get this correct. A Blizzard of Lies, Bogus Psychiatric Defenses.” The court overruled defense counsel’s objection there was no evidence of the article, stating, “You can talk about that . . . when you address the jurors.”
Although generally counsel must also request a jury admonition to preserve a claim of prosecutorial misconduct on appeal (People v. Bonilla (2007) 41 Cal.4th 313, 336), in light of the trial court’s considered denial of defense counsel’s objection, the issue has been sufficiently preserved for our review. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795 [defendant, whose objection was “summarily overruled,” “had no opportunity to request the jury be admonished, and its timely objection was thus sufficient to preserve the issue for our review”]; People v. Hall (2000) 82 Cal.App.4th 813, 817 [failure to request admonition when trial court finds objection meritless does not forfeit issue].)
The prosecutor’s single reference to the title of the article, although arguably improper because of the lack of evidentiary foundation, did not amount to prejudicial misconduct under either the federal or state standard. Unlike the prosecutor in People v. Hill (1998) 17 Cal.4th 800, 827-829, who repeatedly argued facts not in evidence, the prosecutor’s brief comment did not pervade the trial and was not part of a pattern of egregious misconduct. (Id. at p. 847 [“sheer number of instances of prosecutorial misconduct, together with the other trial errors, is profoundly troubling”].) Indeed, perhaps because he failed to object to it, Ward concedes he is not challenging as misconduct the prosecutor’s earlier comment that “[t]his so-called expert that wasn’t even familiar with this article in his own field about how P.E.T. scans are considered junk science.” It is hard to imagine how simply mentioning the title of the Ornish article to further the point raises the prosecutor’s argument to misconduct or is the functionally equivalent, as Ward suggests, of depriving him of the right to confront and cross-examine the article’s author. (See People v. Hall (2000) 82 Cal.App.4th 813, 817.) Moreover, the trial court clearly instructed the jury, at the beginning of the case and again before closing argument, that statements made by the attorneys during trial are not evidence. It is presumed the jury followed that instruction. (See People v. Boyette (2002) 29 Cal.4th 381, 436 [alleged prosecutorial misconduct not prejudicial when trial court properly instructed on the law because jury presumed to have followed instructions]; People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 [“[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade”].)
There was some evidentiary support for the general proposition the forensic use of PET scans was open to question. Dr. Wu stated on redirect examination that he had “read about that there were authors skeptical of the [PET] scan,” but explained, in response to a question, “would it be a fair statement that skeptics exist in every field,” that “Yes. I mean, there are some people who question whether the world is round.” Additionally, Wu had earlier stated he had “encountered some opposing expert witnesses that have differing views” about the use of PET scans in the courtroom.
3. Substantial Evidence Supports the Jury’s Finding Ward Had a Blood Alcohol Level in Excess of .20 When the Offenses Occurred
As of the date of Ward’s collision, former Vehicle Code section 23578 provided, “In addition to any other provision of this code, if any person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.20 percent or more, by weight, or the refusal of the person to take a chemical test as a special factor which may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.” In connection with its guilty verdicts on counts 5 and 6, the jury found true the special allegation Ward had a blood alcohol level of .20 percent or higher within the meaning of Vehicle Code section 23578. The trial court expressly noted its consideration of that finding as an aggravating factor in imposing consecutive sentences for the two second degree murder convictions.
Ward contends there is insufficient evidence his blood alcohol level was .20 percent or higher at the time of the collision because criminalist Blanton conceded on cross-examination he could not be certain what Ward’s blood alcohol level was at that time or whether Ward was, in fact, in the elimination phase as he had assumed in calculating a blood alcohol level of .21 percent at 4:30 a.m. based upon the .20 percent level at 5:12 a.m. Blanton also testified, if Ward’s blood alcohol level was actually rising, then Blanton would not be able to extrapolate Ward’s blood alcohol level at 4:30 a.m from the blood sample taken at 5:12 a.m. Ward argues the jury’s finding thus impermissibly rested on speculation. (See People v. Morris (1988) 46 Cal.3d 1, 21 [“‘[a] finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence’”], overruled on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5 & 6.)
Blanton analogized rising blood alcohol to “a sink that has a slow drain. Faucet is alcohol coming in. If you turn it on very slowly it can keep up. If you turn it on all the way, a lot of alcohol will be coming into the sink, couldn’t drain in time. You start to have a back up. That is what is happening when you drink alcohol faster than your body can get rid of it.”
Blanton’s concession he lacked certainty as to Ward’s blood alcohol level does not render his testimony speculative or insufficient to support the jury’s findings. Blanton testified many people stop drinking at their peak alcohol level -- their body from that point on is eliminating alcohol faster than it is being consumed and absorbed into their system. Although acknowledging a person’s alcohol level can increase after he or she stops drinking, Blanton explained a very large increase after the person has stopped drinking is unusual, but might occur if he or she had been playing a drinking game or otherwise had been drinking a large amount of alcohol very quickly.
Blanton’s assumption Ward was in the elimination phase when the collision occurred was supported by sufficient evidence: Paramedic Kratkin testified Ward had told him he had not consumed alcohol for a couple of hours, testimony that was credible and of solid value. Blanton explained that after two hours a person who had consumed alcohol would “very likely” be in the elimination phase, most, if not all of the alcohol, having been absorbed. (See People v. Thompson (2006) 38 Cal.4th 811, 825 [“[i]t is beyond dispute that ‘the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system’”].) The fact Blanton did not have any documents or reports that substantiated Ward was in the elimination phase does not undermine the assumption, based upon Ward’s statement to paramedics he had stopped drinking two hours earlier, he was in the elimination phase.
The prosecutor’s statement during closing argument “even our own expert, Mr. Blanton, conceded that the defendant may not have been .20 at the time of the accident,” was not, as Ward argues, a binding concession the evidence was insufficient. It was simply an acknowledgement Blanton, who was not the ultimate fact finder, could not conclusively state what Ward’s blood alcohol content was at the time of the accident. As the prosecutor explained, “So if you do not find this allegation, the blood of .20 percent or higher, by all means, you can find it not true. That is what you are here for. You are the judges of those facts.” It was up to the jury to determine, based upon the evidence admitted at trial, whether Blanton’s assumption Ward was in the elimination phase was accurate and whether Blanton’s analysis based on the assumption established beyond a reasonable doubt Ward’s blood alcohol level was at least .20 when he crashed his truck into Whitteker’s car. Clearly, the jury found it was; and the evidence, considered in the light most favorable to the judgment, supports that finding.
The prosecutor’s explanation was consistent with the instruction to the jury on evaluating an expert’s response to a hypothetical question: “An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert’s opinion.”
4. Ward Has Forfeited His Claim of Sentencing Error, Which, In Any Event, Is Without Merit
At the sentencing hearing counsel for Ward, relying on the criteria identified in California Rules of Court, rule 4.425(a), urged the court to impose concurrent life terms for the two murder convictions because, even though there were two victims, the crimes were the result of “a single period of aberrant behavior on behalf of Mr. Ward.” After both counsel had addressed the sentencing issue, the trial court, expressly noting its intention to avoid dual use of any sentencing factor, imposed consecutive l5-year-to-life terms for the two murders, explaining, “The defendant engaged in violent conduct which indicates a serious danger to society. This is particularly true in light of the defendant’s conduct in leaving the scene of the accident, the initial accident, and driving for a considerable distance on the freeway on the wrong side despite being warned by others of the danger that he was causing. . . . The defendant’s prior convictions as an adult are of increasing seriousness. The court notes the prior conviction in Colorado which was testified to during our trial. The court is also aware of and mindful under [rule] 4.421(c) the defendant’s blood alcohol level at the time that he committed the offense. You can commit this offense at a .08. The defendant, of course, according to the jury, committed at least a .20. And the court is mindful of that as well, and the court feels that is an aggravating factor as well. For those reasons, the court chooses to sentence the defendant to count 2 consecutively to count 1.” Ward contends this decision by the trial court to sentence him to consecutive terms for the murders of Whitteker and Tauch was an abuse of discretion.
California Rules of Court, rule 4.425(a) provides, “Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) Criteria relating to crimes [¶] Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. ”
a. Ward has forfeited his claim of sentencing error
Ward’s challenge to the trial court’s decision to impose consecutive life terms for the two murder convictions focuses on the court’s purported failure to properly consider the criteria enumerated in rule 4.425(a) and its undue -- and unwarranted -- emphasis on the aggravating circumstances it recited. By failing to challenge the manner in which the trial court weighed the factors in exercising its discretion to impose consecutive terms or the evidentiary basis for the court’s decision at the time of sentence, however, Ward has forfeited his argument on appeal: “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).)
Acknowledging this general rule of forfeiture, Ward nonetheless observes a defendant need not object to preserve for appeal the argument a conviction is not supported by sufficient evidence. (People v. Neal (1993) 19 Cal.App.4th 1114, 1121.) Ward contends this exception should be equally applicable to his claim of sentencing error, which he characterizes as both an abuse of discretion and based on insufficiency of the evidence. No such exception exists in an appeal from the trial court’s sentencing determination. (See Scott, supra, 9 Cal.4th at pp. 353-354 [forfeiture doctrine applies to cases “in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it . . . misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons”; “the ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal”].)
People v. Butler (2003) 31 Cal.4th 1119, cited by Ward for the proposition that the insufficient evidence exception to the forfeiture doctrine is not limited to convictions, provides no assistance in the context of alleged sentencing error. In Butler the Court held the defendant did not forfeit his right to appeal the sufficiency of the evidence supporting an order requiring him to submit to an HIV blood test by failing to object. (Id. at p. 1126.) The Court, however, expressly limited its holding: “Our conclusion in this case is controlled not only by the specific terms of section 1202.1 but also by the general mandate that involuntary HIV testing is strictly limited by statute. For this reason, nothing in our analysis should be construed to undermine the forfeiture rule of People v. Scott, supra, 9 Cal.4th 331, that absent timely objection sentencing determinations are not reviewable on appeal, subject to the narrow exception articulated in People v. Smith (2001) 24 Cal.4th 849 [for unauthorized sentences or sentences entered in excess of jurisdiction].” (Id. at p. 1128, fn. 5.)
Quoting People v. Gonzalez (2003) 31 Cal.4th 745, 752 Ward also asserts his counsel’s argument before the trial court announced its tentative sentencing decision reasonably established compliance with the requirement of an objection “at any time during the sentencing hearing,” and his counsel was not required to reiterate the same grounds he had argued in response to the court’s “invitation” to counsel to provide “additional thoughts.” In Gonzalez, at pages 752 to 755, the Supreme Court held the trial court is not required to provide counsel with a tentative sentencing decision before the sentencing hearing. The Court stated, “As previously explained, the Scott rule applies when the trial court ‘clearly apprise[s]’ the parties ‘of the sentence the court intends to impose and the reasons that support any discretionary choices’ [citation], and gives the parties a chance to seek ‘clarification or change’ [citation] by objecting to errors in the sentence. The parties are given an adequate opportunity to seek such clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing. The court need not expressly describe its proposed sentence as ‘tentative’ so long as it demonstrates a willingness to consider such objections. If the court, after listening to the parties’ objections, concludes that its proposed sentence is legally sound, it may simply state that it is imposing the sentence it has just described, without reiterating the particulars of that sentence. By contrast, if the trial court finds that one of the parties has raised a meritorious objection to the proposed sentence, it should alter its sentence accordingly.” (Id. at p. 752.)
Thus, read in context it is clear the Supreme Court was describing a process in which counsel must provide specific objections to the court’s proposed sentence after it has been announced in order to preserve those objections on appeal. To permit argument before the court’s decision had been announced to serve as an objection would not further “the purpose for requiring the court to orally announce its reasons at sentencing,” which is to “encourage[] the careful exercise of discretion and decrease[] the risk of error. In the event ambiguities, errors, or omissions appear in the court’s reasoning, the parties can seek an immediate clarification or change.” (People v. Scott, supra, 9 Cal.4th at p. 351; see People v. de Soto (1997) 54 Cal.App.4th 1, 9-10 [“Scott is clear that objections must be raised contemporaneously with the pronouncement of sentence. The reason for the rule is obvious; there can be no objection before the court makes the necessary sentencing choices. . . . It is only after the sentence is pronounced and potential errors are pointed out that the court can cure the errors.”].) Indeed, Ward’s primary objection to his sentence on appeal -- that the trial court placed undue emphasis on several aggravating circumstances as permitted by rule 4.425(b), as opposed to the factors in rule 4.425(a), which Ward argues militated against consecutive terms -- could not have been made until after the court announced its proposed sentence and articulated its weighing of the sentencing factors. (In fact, Ward never made this specific objection at any time during the sentencing hearing.)
Rule 4.425(b) provides, “Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant’s prison sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences.”
b. The jury’s finding Ward’s blood alcohol level was at least .20 percent was sufficient to support the trial court’s imposition of consecutive terms
Even if Ward had not forfeited his challenge to imposition of consecutive terms, his argument the trial court abused its discretion in doing so lacks merit. As discussed, rule 4.425(a), upon which Ward relies, sets forth specific criteria affecting the decision to impose consecutive rather than concurrent sentences relating to the relationship of the crimes to each other. Rule 4.425(b), however, provides the court may consider any other factors in aggravation or mitigation except the court may not use as a circumstance in aggravation a factor that is an element of the underlying crime or that was used to impose the upper term or enhance the sentence. Pursuant to rule 4.425(b) the trial court sentenced Ward to consecutive terms relying on several specific aggravating factors, including the jury’s finding Ward had a blood alcohol level of at least .20 at the time the offenses were committed, an aggravating factor expressly identified by the Legislature in former Vehicle Code section 23578.
Ward argues the trial court abused its discretion because none of the factors identified in rule 4.425(a) was present in this case and the court thus gave undue weight to the existence of other aggravating factors. This argument -- to the extent it is anything more than the erroneous assertion consecutive sentences may not be imposed absent one of the rule 4.425(a) factors -- is simply an improper invitation to this court to reweigh the sentencing factors presented to the trial court: “‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in “qualitative as well as quantitative terms” [citation] . . . . We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.’” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; accord People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [“‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’”].)
The decision to sentence Ward to consecutive terms based upon the jury’s finding his blood alcohol level was at least .20 at the time of the fatal collision was expressly authorized by former Vehicle Code section 23578 and was neither arbitrary nor irrational. Even if some of the other factors identified by the court in explaining its decision to impose consecutive terms for the two murder counts were not properly considered, any error in this regard was plainly harmless: “A single factor in aggravation will support imposition of an upper term. [Citation.] ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434; see also People v. Black (2007) 41 Cal.4th 799, 812.) Reviewing the sentencing proceedings in this case, we are confident the trial court would have imposed the sentence it did even had it limited its consideration to the factors identified in rule 4.425(a) and Ward’s exceedingly high blood alcohol level at the time he hit Whitteker’s car. (See People v. Osband (1996) 13 Cal.4th 622, 728-729 [“Only a single aggravating factor is required to impose the upper term [citation], and the same is true of the choice to impose a consecutive sentence [citation]. In this case, the court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so. Resentencing is not required.”].)
Ward had one prior conviction for driving under the influence of alcohol. A single conviction does not support a finding the defendant’s prior convictions as an adult “are numerous or of increasing seriousness.” (Rule 4.421(b)(2).)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.
References to rule or rules are to the California Rules of Court.