Opinion
G054300
05-25-2018
THE PEOPLE, Plaintiff and Respondent, v. RONALD LLOYD AVILES, Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15HF0006) OPINION Appeal from a judgment of the Superior Court of Orange County, Peter Spinetta, Judge. (Retired judge of the Contra Costa Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Ronald Lloyd Aviles was charged with one count of felony hit and run with death. (Veh. Code, § 20001, subds. (a) & (b)(2).) The first trial resulted in a hung jury and the case was retried. The jury in the second trial found defendant guilty as charged. The court suspended imposition of sentence and placed defendant on probation for three years subject to certain conditions, including that he serve one year in county jail.
All statutory references are to the Vehicle Code unless otherwise stated.
Defendant raises five issues on appeal. First, he contends the evidence was insufficient to show he had actual or constructive knowledge he had struck and injured a person. Second, he contends the court wrongly precluded him from commenting during closing argument about the People's failure to introduce the statements he made to the police when he was stopped shortly after the accident. Third, he contends the court erred by calling the victim's mother to identify the victim in a photograph taken around the time of the accident. Fourth, he contends that if the two trial court errors identified in his second and third arguments were held to be harmless, their cumulative effect was prejudicial. Fifth, and finally, he contends the court abused its discretion by not treating his felony hit-and-run conviction as a misdemeanor. (Pen. Code, § 17, subd. (b).)
We reject all of defendant's contentions and affirm the judgment.
FACTS
People's Evidence
Shortly before 3:00 a.m. on January 1, 2015, defendant, a taxi driver, was driving his taxi van when he struck and killed Travis Marton at the intersection of Newport Coast Drive and Pacific Coast Highway in Newport Beach, California. The impact caused Marton, who was six feet two inches tall, to slide up the hood of the van and smash into the windshield. Marton's head hit the driver's side A-pillar, causing it to bend. Hair follicles, i.e., small pieces of hair, and blood were found near the A-pillar. Marton's elbow or shoulder hit the lower portion of the windshield on the driver's side, shattering it and creating a large hole.
The A-pillar is the front vertical metal frame of the car bordering and supporting the windshield.
Marton was carried on the hood of the car for approximately one second. Defendant swerved to the right, causing Marton to be "whipped off" the driver's side of the van. Marton hit the driver's side rear view mirror and broke it off. After being dragged backwards for a bit, Marton landed about 150 feet from the area of impact.
Defendant did not reduce his speed or brake before the collision. When the van hit Marton, glass "just exploded all over the inside of the car," including the passenger area, floor, and trunk. The plastic molding around the A-pillar hung down toward the driver's seat. Despite the damage, defendant continued driving.
At 2:56 a.m., Newport Beach Police Officer Paul Sarris received a radio call about the body of a person, later determined to be Marton's, in the roadway at the intersection of Pacific Coast Highway and Newport Coast Drive. When he arrived at the scene, the streetlights from the intersection illuminated the roadway and Sarris could see Marton's body without the use of a flashlight. Sarris notified dispatch that Marton appeared to have been hit by a car traveling eastbound on Pacific Coast Highway toward Laguna Beach.
At the intersection of Pacific Coast Highway and Newport Coast Drive, Pacific Coast Highway runs east and west, while Newport Coast Drive runs north and south. But because many consider the ocean to be to the west, instead of to the south, witnesses sometimes referred to Pacific Coast Highway as running north and south. We have endeavored to refer consistently to Pacific Coast Highway running east and west, and Newport Coast Drive running north and south.
Michael Jeffries, a Laguna Beach police officer, was on duty in the police station when he heard the BOLO (be on the lookout) broadcast for a possible hit-and-run vehicle. Jeffries left the station and spotted defendant's van in Laguna Beach. The van had considerable damage, including a broken mirror and a shattered windshield. Defendant was stopped at a stop light and did not appear to be fleeing or hiding. When Jeffries pulled defendant over around 3:07 a.m., defendant was "quiet, [and] a little withdrawn."
Detective William Hume was the primary investigator on the case. He arrived at the scene of the collision around 4:15 a.m. to 4:30 a.m., and, together with Sarris, determined the area of impact. Looking from the area of impact, "it was like a blast zone" in that "you could see all the physical evidence that had been pushed back, including glass, vehicle debris, Mr. Marton's body." The evidence included Marton's watch and parts of defendant's taxi, including the driver's side headlight housing, plastic lens, driver's side mirror, plastic pieces, and other vehicle parts. There was also vehicle debris found past Marton's body.
Marton was wearing dark-washed blue jeans and a medium to dark green jacket. The color of Marton's jeans matched the blue jeans later found on defendant's van's bumper, the headlight, the hood up to the windshield, and almost "the entire side of the driver's side front quarter panel."
Hume looked at the debris and examined Marton's body to determine Marton's and defendant's paths of travel. Marton had sustained major blunt-force trauma to his right side, with significant bruising to his right hip and a major skull fracture on the right side of his head. Based on the location of Marton's injuries and the location of the initial debris, Hume and Sarris determined Marton had been walking south toward the beach when he was hit by a vehicle traveling east.
As part of his investigation, Hume determined the moon had set and went below the horizon at 2:35 a.m. He also spoke with defendant for 25 to 30 minutes. Defendant was cooperative and had no objective signs of being under the influence of alcohol or drugs. Defendant had not used his cell phone at or near the time of the collision. Nor was there any indication defendant was driving over the posted speed limit of 55 miles per hour. Both Sarris and Hume concluded defendant was not at fault for the collision.
After examining defendant's van, Hume opined defendant would not have been able to see "from a normal seated position in the driver's seat." For defendant to have been able to see, he would have needed either to stick his head out of the driver's side window or to lean over to the center of the van. Even leaning to the center of the van, it would have been difficult for defendant to see because the windshield was "so spidery and cracked."
The subject intersection is adjacent to Buck Gully Reserve. There is a deer crossing sign on Pacific Coast Highway about three miles east of the collision site for westbound traffic, and another one on Newport Coast Drive about a half a mile north of the accident site.
Defense Evidence
Forensic scientist Alicia Prater analyzed a vial of blood taken from Marton and determined his blood alcohol level was 0.24 percent. Prater testified that a person with such a high blood alcohol level would show mental and physical signs of impairment. Mentally, the person could have difficulty processing information, slowed reaction times, and trouble with his or her ability to multitask. Physically, the person could experience problems with fine and gross motor skills. Difficulties with gross motor skills could include "increased difficulty with balance and coordination," resulting in stumbling, an unsteady gait or swaying.
Defendant's girlfriend, Cindy Fergus, testified that defendant had been a taxi driver for over six years and that she had driven with defendant to the intersection of Pacific Coast Highway and Newport Coast Drive many times. Driving to the intersection from their residence in San Clemente, they would pass the deer crossing sign three miles east of the intersection. Fergus had also seen the deer crossing sign on Newport Coast Drive.
Defendant did not testify. During his closing argument, defense counsel posited that defendant believed he had hit a large animal, like a coyote or deer.
DISCUSSION
Substantial Evidence Supports the Hit-and-run Conviction
Defendant contends the evidence was insufficient to support a finding by the jury that he had actual or constructive knowledge he had struck and injured a person, an essential element of the crime of hit and run. We disagree.
Section 20001, subdivision (a) provides that "[t]he driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004." If the accident results in death or permanent, serious injury, "a person who violates [section 20001,] subdivision (a) shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than 90 days nor more than one year . . . . However, the court in the interests of justice and for reasons stated on the record, may reduce or eliminate the minimum imprisonment . . . ." (Id., subd. (b)(2).) In People v. Holford (1965) 63 Cal.2d 74 (Holford), our Supreme Court added the mens rea requirement "that defendant [must] know that the accident resulted in injury to a person or know that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person." (Id. at p. 83.)
Section 20003 requires, inter alia, that the driver provide specified information and assistance. Section 2004 sets forth the driver's duty in the event of death.
Thus, a person who leaves the scene of an accident in which he or she has been involved, with actual or constructive knowledge that a person was injured, has committed the crime of hit and run, even if the driver was not at fault in causing the accident. (People v. Braz (1998) 65 Cal.App.4th 425, 432) "Although a violation of section 20001 is popularly denominated 'hit-and-run,' the act made criminal thereunder is not the 'hitting' but the 'running.'" (People v. Corners (1985) 176 Cal.App.3d 139, 148.)
In assessing defendant's argument that the evidence was insufficient to support a finding that he possessed the requisite actual or constructive knowledge, we apply the well-worn substantial evidence standard of review. "The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, 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.' [Citation.] [¶] . . . [Citation.] . . . [Citation.] But it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury." (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) We do not reweigh the evidence. Even if the circumstances "might reasonably be reconciled with a contrary finding[, this] would not warrant reversal of the judgment." (People v. Proctor (1992) 4 Cal.4th 499, 529.)
"The question of knowledge [is] a factual question for the determination of the" trier of fact. (People v. Wolf (1978) 78 Cal.App.3d 735, 740 (Wolf).) Knowledge must generally be proved by demonstrating that the surrounding facts and circumstances indicate the driver had the requisite knowledge. (Ibid.) The driver's constructive knowledge of the injury to the victim is sufficient to support a conviction because a "driver who leaves the scene of the accident seldom possesses actual knowledge of injury; by leaving the scene he forecloses any opportunity to acquire such actual knowledge." (Holford, supra, 63 Cal.2d at p. 80.) Thus, "criminal liability attaches to a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person." (Ibid.)
To determine whether the evidence supports a finding of knowledge, "a number of decisions look to the actual circumstances of the accident." (People v. Harbert (2009) 170 Cal.App.4th 42, 55 (Harbert).) "A pedestrian struck with sufficient force that he or she reaches the hood or windshield is treated as virtually unignorable. [Citations.] The extent of damage to the defendant's vehicle is routinely treated as particularly probative. [Citations.] A collision with the speed and force to cause death invariably draws comment." (Id. at p. 56.) The jury may also consider "defendant's conduct after his [vehicle] collided with the victim." (Ibid.)
In Wolf, supra, 78 Cal.App.3d 735, the defendant hit the victim, but claimed he believed a rock had struck his windshield. (Id. at p. 739.) The appellate court found the evidence supported a finding that the defendant actually knew of the injury or that he should have reasonably anticipated that the accident resulted in injury to a person. (Id. at pp. 739-740.) "The type of damage to the car, the sound of the impact (as described by the prosecution witness) and the fact that defendant was at that moment driving partially off the roadway and that he was driving with his lights on support the conclusion that he knew a person was involved. In addition to the physical evidence inferably establishing that the body of the victim contacted the very front of the car, extended over the fender in a manner to dent the hood and break the windshield then strike the mirror and brush the door, there is testimony that the lights from the car would have illuminated the area so as to make an object discernible." (Id. at p. 740.)
The facts of People v. Kuhn (1956) 139 Cal.App.2d 109, are similar to those in this case. There, the defendant hit a six foot four inch tall man at 11:45 p.m. as the man walked along the shoulder of a highway "unilluminated by any artificial light, at a point one-fourth of a mile north of the business district." (Id. at p. 110.) When stopped by a police officer, the defendant told him he thought he had hit "a guard rail or post." (Id. at p. 111.) At trial, the defendant testified (id. at p. 110) he felt a bump or jar and stopped to look at his right front spring "but he thought nothing of it and then proceeded on at a slow speed and was subsequently stopped by the officers" (id. at p. 112). Other occupants of his car testified they thought they hit a "chuckhole and that they had broken a spring." (Ibid.) Rejecting the defendant's claim the evidence was insufficient to show he knew he struck and injured a person, the Kuhn court stated: "It is more probable that the impact was not a light one; that not only did the right front fender and hood strike the pedestrian, but that the bumper also was involved in the impact, judging from the nature of the injury inflicted on the pedestrian, i.e., a fracture and laceration between the knee and the ankle. The evidence of the path of the injured man's body and particularly of the uplifted somersaulting body, renders it unlikely that the defendant was ignorant of the object which he hit. There was sufficient evidence to support the court's finding that the defendant's automobile violently struck a pedestrian, throwing him into the air, that these facts were known to defendant at the time, and that he deliberately refrained from attempting to aid the injured pedestrian." (Ibid., italics added.)
People v. Dallas (1941) 42 Cal.App.2d 596, disapproved on other grounds in In re Wright (1967) 65 Cal.2d 650, 654, footnote 3, is also instructive. There, the court rejected the defendant's claim he did not know what he had hit, stating "[i]t seems impossible that the defendant and his companions could have failed to see the body of the deceased as it was hurled over the hood of their machine. The force of the blow, the sound of the contact with the body, the crashing of the lamp and the sight of the form as it was thrown over the hood of their machine to the left side of the highway must have warned them of the nature of the accident." (Dallas, at pp. 601-602.)
Viewing this case in light of the above authorities, substantial evidence supports the jury's conclusion defendant had actual or constructive knowledge that he struck and injured a person. The record contains evidence the area of impact was sufficiently illuminated to allow defendant to have determined he had hit a person. The streetlights at the area of contact sufficiently illuminated the intersection to allow Sarris to see Marton's body in the roadway without the use of a flashlight, and defendant presumably had his headlights on given the early morning hours and the setting of the moon. The physical evidence showed Marton hit the front of defendant's van, fell onto the hood of the van directly in front of the driver's seat, and then slammed into the windshield, shattering it and creating a large hole in it. Marton's body stayed on the hood for approximately one second before being "whipped off" the driver's side of the car and breaking off the side mirror. Given this evidence and the fact a six foot two-inch-tall man looks nothing like a deer or coyote, the jury could reasonably have rejected defendant's claim he did not comprehend he had hit a person.
Ignoring the above evidence, defendant nevertheless maintains he had no reason to think he had struck a person as opposed to an animal, such as a deer, because the accident occurred at 3:00 a.m., in an area with deer crossing signs and a single street light out, with a drunk victim who was likely staggering. But instead of stopping and checking to see what he had struck, he continued to drive to Laguna Beach despite not being able to see through the front windshield. Although flight alone is not sufficient to establish guilt, flight immediately following an accident is a circumstance that may be considered as tending to show consciousness of guilt. (Pen. Code, § 1127c; Harbert, supra, 170 Cal.App.4th at p. 56 [jury may consider "defendant's conduct after his [vehicle] collided with the victim"]; Karl v. C.A. Reed Lumber Co. (1969) 275 Cal.App.2d 358, 362.)
Defendant claims his inability to comprehend he had struck a person was probably because he was stunned or "in shock." A reasonable jury could conclude otherwise. Defendant managed to drive to Laguna Beach in rather precarious circumstances—the smashed windshield made it extremely difficult to see where he was going. The jury could reasonably have inferred it was infeasible to navigate the vehicle in this manner while in a state of shock. We also note defendant showed no outward signs of shock, as Jeffries described defendant's demeanor during the traffic stop as "quiet, [and] a little withdrawn."
Defendant's arguments amount to a request that we reweigh the evidence and substitute our judgment for that of the jury. We cannot do this, as we resolve neither credibility issues nor evidentiary conflicts. (People v. Friend (2009) 47 Cal.4th 1, 41; People v. Cortes (1999) 71 Cal.App.4th 62, 81 [where an appellant "merely reargues the evidence in a way more appropriate for trial than for appeal," we are bound by the trier of fact's determination].) Based on the evidence presented, a reasonable jury could have found beyond a reasonable doubt that defendant had actual or constructive knowledge he had hit a person with his van and that it was of such a nature as to result in physical injury to that person. Sufficient evidence supports the conviction.
Limitation on Defense Counsel's Closing Argument
Defendant argues the court abused its discretion by precluding his counsel from commenting during closing arguments on the People's failure to introduce defendant's response to a question from Detective Hume.
When Detective Hume asked defendant why he did not stop at the scene, defendant said that he thought he hit a deer. The People moved in limine to exclude defendant's statement. In granting the motion, the court ruled that if defendant was not going to testify, "the defense will not be able to introduce evidence of the contents of the statements that the defendant made to the police officers and/or others to the effect that he hit a deer, and will not do so directly or indirectly by suggestion or innuendo." The court allowed defense counsel to ask officers whether defendant was questioned about the accident, about why he left the scene, and whether he was cooperative. But the court made clear defense counsel could not reveal the contents of what the defendant said or at any point during opening or closing argument suggest "that the People are somehow responsible for the jury not being able to hear the contents of those responses."
Defendant contends this ruling violated his constitutional right to have his counsel present closing argument. "Criminal defendants enjoy a constitutional right to have counsel present closing argument to the trier of fact." (People v. Simon (2016) 1 Cal.5th 98, 147; see Herring v. New York (1975) 422 U.S. 853, 858 ["There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial"].) This includes the right to comment on the opposing party's failure to introduce material evidence or to call logical witnesses. (People v. Wilson (2005) 36 Cal.4th 309, 338.)
The right to present closing argument, "however, is subject to certain limits. [Citation.] A trial court may impose reasonable time limits and may ensure that argument does not 'stray unduly from the mark.' [Citation.] Trial courts have broad discretion to control the duration and scope of closing arguments. [Citation.] [¶] We review a trial court's decision to limit defense counsel's closing argument for abuse of discretion." (People v. Simon, supra, 1 Cal.5th at p. 147.)
Here, the trial court did not abuse its discretion because "[a] defendant's rights to due process and to present a defense do not include a right to present to the jury a speculative, factually unfounded inference." (People v. Mincey (1992) 2 Cal.4th 408, 442; see People v. Morrison (2004) 34 Cal.4th 698, 711 ["[e]vidence is irrelevant, however, if it leads only to speculative inferences"]; People v. Kraft (2000) 23 Cal.4th 978, 1035 ["evidence leading only to speculative inferences is irrelevant"].) As the Attorney General notes, "the introduction of evidence that [defendant] made [a] prior statement to the police—without introducing the actual statement—would have been nothing more than an attempt to imply that the missing statement was exculpatory." Defendant notes that the "court did allow defense counsel to elicit evidence that [defendant] had spoken to officers when he was stopped after the accident, and that he had been questioned about the accident and why he left the scene." But evidence that defendant spoke to and was questioned by the police about the accident is not equivalent to allowing the jury to speculate that the prosecution did not offer evidence of defendant's statement because the statement was exculpatory. The court did not abuse its discretion in limiting defendant's closing argument.
In defendant's reply brief, he argues for the first time that his statement to Hume was admissible under the state of mind exception to the hearsay rule. (Evid. Code, § 1250.) But defendant does not cite any record reference showing he made that argument in the trial court, thereby forfeiting the issue, and we normally also disregard arguments made for the first time in a reply brief. (People v. Peevy (1998) 17 Cal.4th 1184, 1206.) --------
Admission of Marton's Photograph and Marton's Mother's Identification Testimony
Defendant contends the court erred in admitting into evidence a photograph of Marton while he was alive and in allowing Marton's mother to testify the person in the photograph was her son.
The People moved in limine to introduce the photograph, and that one or both of Marton's parents be allowed to identify the person in the photograph. Defendant opposed introduction of the photograph, arguing there was "no need for this obvious prejudicial photo of the decedent," as Marton's black and white Department of Motor Vehicle photo was sufficient to identify the victim without introducing a photo that was "intended to showcase him." The court reviewed the photograph and found it was not "particularly prejudicial or inflammatory in any way," as it was just a picture of the victim. After receiving clarification the photograph represented what Marton looked like at the time of the accident, the court concluded the photograph was not prejudicial nor inflammatory and denied any motion to exclude it under Evidence Code section 352, stating, "The People have a right to present to the jury evidence of the deceased . . . ."
Defense counsel also argued it was unnecessary for a parent to identify Marton in the photograph because the officers could testify the person in the photograph was the person they saw. The court asked what the prejudice to the defense was if the prosecutor limited the parents' testimony to identifying the person in the photograph as their son. Defense counsel responded that it "creates unnecessary emotion in a case where the issue is not causation. The issue is simply whether my client knew he hit a person when he fled the scene." After further deliberation, the court granted the People's request to allow a parent to testify on that single issue.
During his opening statement, the prosecutor showed the jury the photograph of Marton. Marton's mother was called as the People's first witness. Her testimony was limited to identifying the person in the photograph as her son and that the last time she saw him was the day before he was killed.
On appeal, defendant contends the court's rulings constituted an abuse of discretion because the photograph and the testimony of Marton's mother were more prejudicial than probative as they "tended to evoke an emotional bias against him" and were not relevant to the charged crime.
We review evidentiary rulings under Evidence Code sections 352 for an abuse of discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328.) "'"[A] trial court's ruling will not be disturbed, and reversal . . . is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."'" (Id. at pp. 1328-1329.)
We first address the photograph of Marton. When reviewing a trial court's decision to admit photographs of a decedent, the appellate court considers "(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 photograph was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice." (People v. Scheid (1997) 16 Cal.4th 1, 13.) "Relevant evidence is defined in Evidence Code section 210 as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' The test of relevance is whether the evidence tends '"logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence." (Id. at pp. 13-14.)
Evidence may be unduly prejudicial if it "'"uniquely tends to evoke an emotional bias against a party as an individual,"'" or if it may cause the jury to "'"'prejudg[e]' a person or cause on the basis of extraneous factors."'" (People v. Cowan (2010) 50 Cal.4th 401, 475.) A photograph of a victim is inadmissible if the sole purpose for admitting it is to garner sympathy for the victim. (People v. Kelly (1990) 51 Cal.3d 931, 963-964.) However, if the photograph is relevant for other proper purposes, its potential for garnering sympathy does not render it inadmissible. (Cowan, at p. 477.)
Here, the photograph was proffered for the purpose of identifying the victim. The Supreme Court has repeatedly upheld the admission of photographs of victims for purposes of identification, among other legitimate purposes. (E.g., People v. Tully (2012) 54 Cal.4th 952, 1020 [a photograph of the victim, a nurse, in her work clothes was properly admitted for identification]; People v. Martinez (2003) 31 Cal.4th 673, 692 [two photographs of the victim with some relatives were properly admitted for identification]; People v. Osband (1996) 13 Cal.4th 622, 676-677 [a photograph of the victim on her birthday, with Christmas presents in the background, was properly admitted for identification, even though the defendant offered to stipulate to identity]; People v. DeSantis (1992) 2 Cal.4th 1198, 1230 [a photograph of two victims—"a harmless- and congenial-appearing elderly couple"—was properly admitted for identification even when the defendant offered to stipulate to their identity].)
The charged offense requires that the accident result in death or permanent serious injury to "a person." (§ 20001, subd. (b)(2).) But defendant argues the testimony of the responding officers was sufficient to identify Marton as a person. However, "it is immaterial for purposes of determining the relevance of evidence that other evidence may establish the same point." (People v. Scheid, supra, 16 Cal.4th at p. 16.) And, as the Attorney General notes, defense counsel acknowledged a photograph of Marton would be appropriate; he just preferred Marton's black and white Department of Motor Vehicle photograph over the one the People offered.
Defendant also contends the prejudicial impact of Marton's photograph, which "showed a smiling young man in an outdoor setting . . . is obvious." As support for his position, defendant cites the trial judge from the first trial, who stated, "I'm going to exclude the family member from testifying as to who the decedent was, for I think, fairly obvious reasons; that it's going to elicit a huge amount of sympathy." All this shows is that different judges may decide this evidentiary issue differently.
Under the abuse of discretion standard, a "'"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"'" Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) Thus, to find the trial court in this case abused its discretion, we must find that no reasonable judge would have admitted the evidence. We cannot find that here as "our examination of the photograph suggests no basis on which to conclude that its admission was unduly prejudicial." (People v. Brooks (2017) 3 Cal.5th 56.)
We now turn to the testimony of Marton's mother. Her "identification was relevant to prove that [Marton] was a human being who had been alive before the [accident] had occurred and was dead afterwards." (People v. Combs (2004) 34 Cal.4th 821, 848 [testimony by sister of decedent identifying deceased from an autopsy photograph admissible to show decedent was alive before criminal act and dead afterwards].) The Combs court, however, "observed that a relative's testimony may be inadmissible to establish the identity of a murder victim if there is an offer to stipulate to the facts to be established by the testimony." (Id. at p. 848, fn. 4; see People v. Bonin (1989) 47 Cal.3d 808, 848-849.) The defendants in Combs "did not offer to stipulate to those facts." (Combs, at p. 848, fn. 4.) Neither did defendant in this case.
Moreover, Marton's mother's testimony was extremely limited and consisted solely of identifying the person in the photograph and stating the last time she saw him. The entirety of her testimony occupies less than one transcript page. The record does not disclose she displayed any emotion when identifying Marton from the photograph. (See Combs, supra, 34 Cal.4th at p. 848 [sister's testimony held "not unduly prejudicial" where it "was brief and factual, and the record does not reflect that either witness made any emotional outbursts"]; People v. Wash (1993) 6 Cal.4th 215, 247 [no reasonable probability of prejudice where "identification testimony of the relatives was factual and brief" and "[t]here were no emotional outbursts"].)
The trial court did not abuse its discretion in admitting the victim's photograph and the mother's testimony.
Cumulative Error
Defendant next contends the cumulative effect of the two trial court errors he identified above resulted in the denial of a fair trial. We reject this contention, having found no prejudicial error to cumulate. (People v. Koontz (2002) 27 Cal.4th 1041, 1094.)
Refusal to Reduce Felony Hit and Run Conviction to a Misdemeanor
Defendant's final contention is that the court abused its discretion in not granting his request to treat his felony conviction as a misdemeanor under Penal Code section 17, subdivisions (b)(1) and (b)(3).
Violation of section 20001, subdivision (a), is a "wobbler" offense that may be punished as either a misdemeanor or felony in the trial court's discretion. (§ 20001, subd. (b)(2).) Factors that inform the exercise of the court's discretion to reduce a wobbler offense from a felony to a misdemeanor include, "'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, [and] his traits of character as evidenced by his behavior and demeanor at the trial.'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968. 979.) "When appropriate, judges should also consider the general objectives of sentencing" (id. at p. 978), e.g., protecting society; punishing the defendant; encouraging the defendant to lead a law abiding life in the future and deterring him from future offenses; deterring others from criminal conduct by demonstrating its consequences; preventing the defendant from committing new crimes by isolating him for the period of incarceration; securing restitution for the victims of crime; and achieving uniformity in sentencing (id. at p. 978, fn. 5).
On appeal, "'[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge."'" (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
At the sentencing hearing, the court stated it had read the probation report and all of the letters attached to it from the victim's family members. The probation report included a recommendation probation be denied and sentence be imposed. At the court's invitation, defendant addressed the court and the victim's family.
Thereafter, defense counsel made his argument for a misdemeanor sentence. He noted that although the Legislature could have made hit and run with a fatality a serious crime to be punished by state prison in all cases, it did not. Instead, it made it a wobbler, allowing it to be punished "all the way from misdemeanor 90 days in jail, to four years in state prison. Counsel identified various mitigating factors: (1) defendant was not at fault; (2) his flight played no role in Marton's death as it was instantaneous; (3) other than a fine for a $26 bad check, defendant had no criminal history; (4) the probation officer believed defendant was very remorseful; (5) defendant is "a broken man" who has been through extensive counseling and is on medication; and (6) defendant "from the beginning has been very remorseful toward the family." Based on these facts, counsel argued the case was "much closer on the mitigated side, the 90 days of misdemeanor versus four years in state prison."
Counsel requested that if the court were to impose a county jail term that it not place defendant on probation because counsel did not "see the need for supervision in this case of a felony probation." According to counsel, "[t]his is a situation where my client's worse case scenario, exercised one horrible lapse of judgment in a moment of terror. That is totally unlike any kind of bad judgment that he has ever exhibited before in terms of what the court has seen and what I have seen. [¶] So, I would ask the court to impose whatever jail sentence, the term of his disposition. That is my request."
The court suspended imposition of sentence and placed defendant on probation for three years, subject to certain conditions including incarceration in county jail for one year. In arriving at the sentence, the court indicated it had been thinking about the appropriate sentence since trial concluded. It acknowledged it could sentence defendant anywhere from a minimum of 90 days to a maximum of four years. But it considered defendant's actions "inexcusable, heartless, [callous]." It agreed with the prosecutor "that it wasn't just a momentary lapse of absentee dignity. He drove away for a lengthy period of time. [¶] And he had no intent to return to the scene until he was caught by the police. It bears punishment. The fact that he was so [callous], it also merits punishment in order to make an example of him to others." The court found incarceration was required and that defendant had "to be incarcerated for more than the minimum of 90 days . . . ." But given the factors in mitigation, the court also determined state prison was not appropriate. The court acknowledged the probation report indicated defendant was "suffering emotional trauma" but stated it was not there to "render mercy" but "to try to achieve justice." "Considering all of the factors and all of the factors in mitigation," the court believed one year in county jail was "sufficient and appropriate."
Defendant contends the sentence was an abuse of discretion, claiming "felony punishment and its consequences are not appropriate . . . ." But rather than show the court's ruling was irrational or arbitrary, defendant merely recites facts from the probation report already considered by the court and repeats the same arguments he made during the sentencing hearing. This is insufficient to demonstrate the court's refusal to treat his felony conviction as a misdemeanor was irrational or arbitrary. By presenting the facts from the probation report in his opening brief, and repeating his trial court arguments, defendant asks that we substitute our judgment for that of the trial judge. Defendant has not shown the court abused its discretion.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.