Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F09188
HULL, J.A jury convicted defendant Nathan Lee Sorgenfrie of vehicular manslaughter with gross negligence. (Pen. Code, § 192, subd. (c)(1).) He was sentenced to state prison for two years.
On appeal, defendant contends the trial court abused its discretion by admitting photographs of the victim’s body, allowing the prosecutor to commit several instances of misconduct, and refusing to place him on probation. He claims he endured cumulative prejudice mandating reversal. We affirm the judgment.
FACTS AND PROCEEDINGS
In 2004, victim Sidney Foster was living with his parents in Antelope. On the evening of Sunday, June 20, he left home on a motorcycle owned by his fiancée’s brother.
At approximately this same time, defendant drove his mother to their home in Citrus Heights. He was driving a Chrysler 300. Craig Johnson, who lived next door, expressed interest in the car and spoke to defendant about it. Evidently at the mother’s suggestion, Johnson asked defendant for a ride in the car and defendant agreed. Johnson had been drinking beer and was drunk. It was dark out at the time.
Defendant drove to Roseville Road, where Johnson said, “Show me what it’s got.” Defendant “floored it” and the car reached about 80 to 90 miles per hour. As the car approached a pickup truck in the same southbound lane, defendant “started to slow down.” But then, with a “jerky motion,” he swerved suddenly to the left and accelerated “hard” to pass the truck. The Chrysler crossed a solid yellow line into the northbound lane at a curve in the road. Scared, Johnson braced himself because he could not see oncoming traffic.
Before it passed the pickup truck, the Chrysler struck Foster’s motorcycle that was traveling toward it in the northbound lane. The collision caused a bright explosion.
Sheriff’s investigating officers found Foster’s body in two pieces. The lower part of the body was on a cross street about 110 feet from the point of impact. The upper part was in a field about 150 feet from the point of impact.
Defendant told a detective that he had driven the Chrysler a total of about four hours. He said he knew the speed limit on Roseville Road was 50 miles per hour. He added that he “should go to jail because he hurt someone.”
Sacramento County Sheriff’s Deputy Granados testified as an expert in the area of accident reconstruction. Based on photographs and measurements taken at the scene, Granados determined that the motorcycle had hit the ground shortly before the Chrysler struck first Foster and then the motorcycle. Granados opined that Foster probably applied sudden “panic braking” that caused the motorcycle to tilt and fall. Given the force of the collision, the damage to the motorcycle was less severe than might be expected. That is because the Chrysler “impacted primarily the rider of the motorcycle.”
A forensic pathologist testified that Foster had died as a result of “massive blunt force injury to head, torso, extremities.” Foster had also suffered multiple bone fractures. A sample of Foster’s blood contained neither drugs nor alcohol.
A criminalist examined the Chrysler and found damage to the left side of the vehicle, a “tremendous amount of blood,” and some “smears of transferred material” that “could be from a fabric that is made from a manmade polymer or paper or plastic.” The transferred material was consistent in color with Foster’s clothing. Based on extensive damage to the Chrysler’s left front wheel as well as biological materials in the wheel area, the criminalist concluded that the wheel had come in contact with Foster. Foster was above ground level when he was hit.
Defendant testified that on the day of the incident, he drove his mother to her home in Antelope. Craig Johnson was “very excited about the car” defendant was driving, which belonged to David Moorman. Defendant gave Johnson a ride to Roseville Road, where Johnson said “something like, ‘I want to see what it’s got.’” Defendant turned onto Roseville Road and started driving. After he neared a slower car, he “looked over to the side to see if it was possible to make a pass.” He saw a light to the side of him and took his foot off of the accelerator. His air bag went off and he lost control of the car. Although he did not recall whether he had been speeding or had gone into the opposite lane, he admitted that both were possible.
Moorman testified that his Chrysler was a powerful car with a V-8 “hemi” engine.
DISCUSSION
I
Admission of Photographs of the Victim
Defendant contends the trial court abused its discretion under Evidence Code section 352 when it admitted “particularly gruesome, inflammatory, and totally unnecessary photographs” of Foster’s body.
Prior to trial, the prosecution pre-marked 29 photographs for identification. At a hearing, defendant’s counsel told the court: “There are some photographs of the deceased at the scene and subsequent upon [sic] he was basically cut in two by the force of the collision, and I am looking to exclude those photographs from the jury because there is no argument that he is deceased. Once again, I think they are more prejudicial than probative and inflammatory.” The prosecutor countered that the defense intended to contest whether defendant had been speeding, and the photographs “vividly demonstrate what the defendant did and that is why we are here.”
During trial, Deputy Granados identified People’s Exhibits 27, 28 and 29. People’s 27 was a “color photo of victim’s body at roadside.” People’s 28 was a “color photo of victim’s upper torso.” People’s 29 was a “color photo of victim’s lower torso.” On appeal, defendant challenges only the admission of People’s 28 and 29. He has not renewed the objection to People’s 27.
After the close of evidence, defense counsel renewed his objection to the three exhibits “on 352 grounds” because “Mr. Foster being deceased isn’t really an issue in this case and the photographs are more prejudicial than probative.”
After hearing from both parties, the trial court ruled: “This is a close issue. I have reviewed this carefully. It is relevant to [the prosecutor’s] argument in connection with the predicate infraction of violation of [the basic speed law]. I do think People’s 29 and People’s 28 are graphic evidence of that. [¶] Plainly, there is a concern about the potential prejudicial implications or risks, undue prejudicial [sic], because all evidence that is probative is inherently prejudicial. But as the defendant will understandably be arguing that--I assume anyway--and correct me if I’m wrong on this, [defense counsel], that a version that the jury could adopt, accept, conclude[,] amounts to fact on this is that Mr. Foster, by his own actions, independent of the defendant’s actions, simply laid the bike down and was driven over in the defendant’s own lane and that the defendant did not cross the line and so forth. Then in a predicate offense in that particular construction of the defendant’s argument that the People would be necessarily relying on would be the defendant’s speed. And since these exhibits are probative on that point, in the Court’s judgment, and having weighed all the 352 considerations, I will admit them over the defendant’s objection.”
The admissibility of the photographs “has two components: (1) whether the challenged evidence satisfied the ‘relevancy’ requirement set forth in Evidence Code section 210, and (2) if the evidence was relevant, whether the trial court abused its discretion under Evidence Code section 352 in finding that the probative value of the photograph was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. . . . [¶] . . . [¶] The rules pertaining to the admissibility of photographic evidence are well settled. Only relevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. [Citations.] 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. [Citations.]” (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)
In this case, the photographs had a tendency to prove logically, naturally and by reasonable inference that defendant was traveling at great speed. The issue was disputed, in that defendant claimed not to remember his speed and conceded only that it was “possible” that witnesses who had claimed he had been speeding were correct. Traveling at great speed was of consequence to the determination of the action, because it tended to prove the predicate violation of the basic speed law. (People v. Scheid, supra, 16 Cal.4th at pp. 13-14.)
Defendant claims the photographs were not probative of speed because, in a head-on collision, speed is the sum of both vehicles’ speeds, and the trial court excluded evidence of Foster’s speed. Thus, defendant argues “the evidence as to the combined force of the two vehicles is necessarily incomplete.” However, the jury did not need to determine defendant’s speed with precision in order to infer, based partly upon the photographic evidence of Foster’s extreme injuries, that defendant had been speeding in his Chrysler.
Defendant insists that “[t]he severity of the injury was caused by [Foster’s] lower body being pulled into the wheel well area of the car.” He claims there “was no evidence presented by the experts that speed was a factor.” However, the jury could deduce that this mode of injury required great force, which necessarily resulted from the speed of the oncoming vehicles.
Defendant claims the photographs were “irrelevant” to the issue whether he was speeding, because other evidence that he was speeding went “uncontradicted.” That is not correct.
“Although it is true that the prosecution could have relied upon other evidence to establish the matter at issue, ‘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 1, 16; see also People v. Anderson [2001] 25 Cal.4th 543, 592 [‘[P]hotos are not cumulative simply because they illustrate evidence presented by other means’]; In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843 [‘Evidence may be relevant even though it is cumulative; thus, the only ban on cumulative evidence is found in Evidence Code section 352’].) Nor were the photographs somehow rendered irrelevant simply because defendant did not dispute the cause of death or the nature and extent of the victim’s injuries. (See People v. Box (2000) 23 Cal.4th 1153, 1199; People v. Smithey (1999) 20 Cal.4th 936, 973–974.) Moreover, ‘the jury was entitled to see the physical details of the crime scene and the injuries defendant inflicted on his victim[].’ [Citations.]” (People v. Heard (2003) 31 Cal.4th 946, 975.)
Because the photographs had probative value for the reasons we have explained, we reject defendant’s claim that they served no purpose, other than to supply a blatant appeal to the jury’s emotions.
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Defendant has not attempted to show that the trial court’s thoughtful balancing of probative value and prejudice following the close of evidence was arbitrary, capricious or patently absurd. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) Admission of the photographs was not an abuse of discretion.
II
Prosecutorial Misconduct
Defendant contends the trial court “committed prejudicial error when it allowed the prosecutor to commit numerous acts of misconduct.” Although so stated, defendant does not argue “that the trial court violated its statutory duty to control the proceedings, evidence, and argument ([Pen. Code,] § 1044) by failing to intervene sua sponte” in the alleged acts of prosecutorial misconduct. (People v. Arias (1996) 13 Cal.4th 92, 159, fn. omitted.) We therefore view defendant’s argument as a claim of prosecutorial misconduct.
Defendant argues that the prosecutor appealed to the jury’s sympathy, passion and emotion; made an improper appeal for jury nullification; and referred to facts not in evidence. The People respond that defendant has forfeited his claims by failing to request an admonition or a curative instruction. (People v. Hill (1998) 17 Cal.4th 800, 820.) The People have the better argument.
In closing argument, the prosecutor addressed the jury as follows: “I have to show you a difficult photo, folks. He wants you to think he wasn’t speeding. I apologize for having to show you this part. This doesn’t happen when somebody is going 40 miles an hour. Somebody doesn’t get knocked 150 feet if you are going 40 miles an hour. This is what happens when you stand--if you were to stand in the road with a gun in his hand and fire a gun down the wrong lane of travel taking a chance at somebody else’s life. That is the kind of risk that he took, because just as sure as he fired a bullet out of his gun, that is what he--his car was doing when he got into that lane.
“That is not misdemeanor negligence. That was intentionally reckless. Dangerous by everybody who testified about it that that’s what he did.
“But there still will be some of you who are going to feel sorry for the defendant. It’s human nature. We are a sympathetic people. That is what we do. I don’t know why you would, but you will. But when you start to think of yourself being sympathetic, when you start to call this an accident instead of a crime, remember the lies.
“And some of you are going to feel sympathetic because [defendant] doesn’t look like how we want our criminals to look. Face it, if the defendant in this case looked like a member of the Hells Angels you would be back with a guilty verdict like that, because subconsciously you want your criminals to look like criminals. But he looks like the guy who lives next door. He doesn’t look threatening to you.
“But we’re not here to judge whether or not [defendant] is a good or bad person. We are here to determine if something went a certain way on a certain date. And that sympathy factor may cause some of you to want to give him a misdemeanor and say, well, he’s learned his lesson. It will never happen again and he seems like a nice guy. But that would not be justice based on these facts.
“There is a reason why the statute that depicts justice, the lady holding the scales, why that lady is blindfolded. And that is because justice is supposed to be the same for everyone. And justice is not just for the defendant, it’s for me and you and the Judge and the court reporter and the defendant and the Foster family. Everybody is entitled to justice.
“So I’ll make your job easy for you on that felony versus misdemeanor thing, I would rather see you give the defendant a not guilty than give him a misdemeanor, because a misdemeanor would be so inappropriate based on this evidence as to be shockingly inappropriate. Walk him out of the courtroom before you give him a misdemeanor.
“Don’t worry about me, I will move on to the next case. Don’t worry about the Foster family, you can’t do anymore to them than what the defendant has already done. The facts are overwhelming in this case. And that is why you should find it as such.
“It was a great day--you can tell by the look on his face that this was a great day. He had been in Tahoe. He had been planning his wedding and he didn’t know what was going to happen to him in just a few hours.
“The problem with doing death cases is that you never know your victim. Years ago, when I did child abuse cases for six straight years, I would always have a victim. I would have someone come in and you would see a little girl or boy and you would understand the devastation that was caused to that person, because you had somebody identifiable and to think about. But when you do cases like this or murder cases, you never know your victim.
“So it’s easy for the jury to feel sympathy for the defendant and not the victim, because they didn’t know the victim. So folks, remember this picture. Remember there was a person behind this and there was a person who suffered the consequence for what he did. He was a son, he was a fiance, he was a brother. He was a brother and he was a man. And his life was ended because the defendant decided to take a chance. He wanted to take--to show off his car and he didn’t care who paid the price for his mistake.
“So your job is to go into that jury room and consider the evidence, come back and look the defendant in the eye and say, we know what you did. And what you did caused [sic] the life of Sidney Wade Foster. We hold you accountable. You are guilty of vehicular manslaughter.”
During these remarks, defense counsel neither objected nor requested an admonition or curative instruction.
After the jury retired to deliberate, defense counsel made a motion for mistrial based in part on the prosecutor’s argument that the victim’s death was caused by speed, even though evidence of the victim’s speed had been excluded. Defense counsel also asserted that the trial court had misspoken when discussing the lesser included offense of misdemeanor manslaughter. Finally, defense counsel argued that the prosecutor had improperly “argued jury nullification to the jury,” by telling it to “ignore the misdemeanor manslaughter, I don’t want it.” The motion was denied.
“‘“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution 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.’”’ [Citation.]” [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 951.)
“Generally, ‘“a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.”’ [Citation.]” (People v. McDermott (2002) 28 Cal.4th 946, 1001.)
Sympathy
Defendant never objected, either “‘“in a timely fashion”’” (People v. McDermott, supra, 28 Cal.4th at p. 1001) during the prosecutor’s summation or later in his mistrial motion, that the prosecutor had made “unfair appeals to sympathy, passion or emotion.” (See id. at p. 1001.) An admonishment to not construe the prosecutor’s remarks as appeals to sympathy, passion or emotion would have cured any impropriety. (Ibid.) Thus, the claim of unfair appeals is not properly before us.
In any event, the prosecutor’s argument was intended, not to engender sympathy for the victim, but to advisethe jury against feeling sympathy for defendant because he had become familiar to them during trial in a manner that the deceased victim necessarily had not. By describing the victim as “a person who suffered the consequence” and as “a son,” “a fiance,” “a brother” and “a man,” who had experienced a “great day” preparing for his wedding, the prosecutor sought to make the victim more familiar to the jury and thus to avoid unwarranted sympathy toward defendant. This claim of misconduct has no merit.
“Jury Nullification”
The trial court instructed the jury on the lesser included misdemeanor offense of vehicular manslaughter with ordinary negligence. (Pen. Code, § 192, subd. (c)(2).) The reason it did so is familiar. “‘“The trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.”’ [Citation.] As [our Supreme Court has] explained, instructing on lesser included offenses shown by the evidence avoids forcing the jury into an ‘unwarranted all-or-nothing choice’ [citations] that could lead to an unwarranted conviction. [Citations.]” (People v. Hughes (2002) 27 Cal.4th 287, 365, italics added.) Lesser included offense instructions benefit the prosecution as well as the defense, because an all-or-nothing choice could lead to an unwarranted acquittal as well as an unwarranted conviction. (See People v. Woods (1992) 8 Cal.App.4th 1570, 1589.)
By telling the jury he “would rather see you give the defendant a not guilty than give him a misdemeanor,” and by urging them to “[w]alk him out of the courtroom before you give him a misdemeanor,” the prosecutor arguably urged the jury to make the all-or-nothing choice that its instructions were designed to avoid. Defendant terms the prosecutor’s argument an appeal for “jury nullification.”
Had defendant timely objected under People v. Hughes, supra, 27 Cal.4th at page 365, and “‘“requested that the jury be admonished to disregard the impropriety”’” (People v. McDermott, supra, 28 Cal.4th at p. 1001), the jury could have been reminded that the court’s instructions prevail over any contrary suggestions in the attorneys’ arguments. (CALCRIM No. 200.) Because an admonishment would have cured any possible prejudice, defendant’s untimely raising of the issue during deliberations was not sufficient to preserve the contention. Again, the claim of misconduct is not properly before us.
In any event, the prosecutor’s comments were not misconduct because they did not render the trial fundamentally unfair or involve the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Stanley, supra, 39 Cal.4th at p. 951.)
Facts Not in Evidence
The prosecutor told the jury: “I have to show you a difficult photo, folks. He wants you to think he wasn’t speeding. I apologize for having to show you this part. This doesn’t happen when somebody is going 40 miles an hour. Somebody doesn’t get knocked 150 feet if you are going 40 miles an hour.”
Defendant contends the prosecutor thus argued “that the damage done to Mr. Foster’s body was a result of excessive speed on the part of [defendant].” He claims this argument was misconduct because no evidence “indicated the damage done to Mr. Foster’s body was the product of a particular speed.”
Defendant did not timely object to the prosecutor’s statement or request that the jury be admonished to disregard the claimed impropriety. Rather, he raised the issue in his mistrial motion during jury deliberations. Asserting the claim at that point in the proceedings did not allow for a timely curative admonition to the jury. Thus, defendant may not raise the issue on appeal. (People v. McDermott, supra, 28 Cal.4th at p. 1001.)
In any event, there was no misconduct because the prosecutor did not assert facts outside the record. Rather, he was arguing reasonable inferences from the evidence at trial, as he was allowed to do. (People v. Stanley, supra, 39 Cal.4th at p. 951.) There was no prosecutorial misconduct.
III
Cumulative Error
Defendant contends the foregoing errors, even if individually harmless, cumulatively resulted in a miscarriage of justice. Because we have rejected each claim of error, we also reject the claim of cumulative prejudice.
IV
The Denial of Probation
Defendant contends the trial court abused its discretion when it denied him probation. In his opening brief he complains that the court “failed to grant probation” even though it had “no reason not to grant probation.” In his reply brief he retreats from his claim that the court had “no reason,” and complains instead that the court “did not state specifically why it denied probation, but appeared to rely on the probation report in imposing sentence.” Because the court did adopt a reason set forth in the probation report, and defendant has not identified that reason or shown why it was error, he has forfeited his contention on appeal.
The probation report stated: “The defendant is eligible for probation, however probation is not being recommended in that the nature, seriousness and circumstances of the crime as compared to other instances of the same crime warrants a state prison commitment.” (Citing Cal. Rules of Court, rule 4.414(a)(1); further references to “rules” are to the California Rules of Court.)
At the outset of the sentencing hearing, the trial court noted that the probation department “does not recommend probation in this matter” for the foregoing reason, and that probation “is recommending a low-term commitment of two years.” The court announced that its “tentative intention is to follow the recommendation of Probation and impose the two-year sentence.” The court then heard from defense counsel, members of the victim’s family, the prosecutor, defendant’s domestic partner and defendant. The court then made some concluding remarks and sentenced defendant in accordance with its tentative intention.
Thus, the trial court announced its intention to follow the recommendation, which was to deny probation because the nature, seriousness and circumstances of the crime warranted a state prison sentence. Thereafter, the court never expressed any intent to deviate from its announcement and sentenced defendant consistently therewith. On this record, we conclude the trial court denied probation pursuant to rule 4.414(a)(1).
We thus reject defendant’s claim that the trial court had “no reason not to grant probation.” Although defendant acknowledges that the court “appeared to rely on the probation report,” he does not address probation’s rule 4.414(a)(1) determination or claim that its adoption by the court is somehow incorrect or insufficient to support the denial of probation. Any such contention is forfeited. (E.g., People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4.)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., CANTIL-SAKAUYE, J.