Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County No. FMB006847, Bryan Foster, Judge.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
On October 16, 2006, the District Attorney of San Bernardino County charged Joseph Allen Tidwell with second degree murder and gross vehicular manslaughter in the July 17, 2004 deaths of Scott Timothy Johnston and Philip Newton Calvert. He was also charged with driving while intoxicated and proximately causing great bodily injury to Johnston, Calvert, Robert Blanck, Shane Elliott, Michelle Gonzalez, and David Atchley. Several sentencing enhancements were alleged, including enhancements for causing great bodily injury and/or personally causing great bodily injury, having prior violent or serious felony convictions, and the service of prior prison terms. In addition, after a search of Tidwell’s residence, he was also charged with unlawful possession of methamphetamine, cocaine, heroin, a smoking device and hypodermic syringes.
On November 20, 2006, a jury convicted Tidwell on all counts and found true all sentencing enhancement allegations. The court found true two prior prison term enhancements. On January 4, 2007, the trial court sentenced Tidwell to a total indeterminate term of 30 years to life, consisting of two consecutive indeterminate terms of 15 years to life, and a consecutive determinate term of 15 years, eight months. Tidwell’s motion for a new trial was denied and he filed a timely appeal.
Tidwell raises the following issues on appeal: (1) The trial court erroneously denied his motion for a change of venue; (2) Penal Code section 22 violates his constitutional rights to due process of law and a fair trial by excluding relevant exculpatory evidence of voluntary intoxication; (3) there was insufficient evidence he possessed a usable amount of methamphetamine and/or heroin, (4) the court’s modification of CALCRIM No. 2304, the standard jury instruction on possession of a controlled substance, constituted prejudicial error; (5) the court abused its discretion by admitting three specific photographs; (6) the court improperly modified CALCRIM No. 590, the standard instruction for gross vehicular manslaughter while intoxicated, to include driving while addicted to a drug; (7) the court’s imposition of the upper term on several counts violated his constitutional right to a jury trial; and, (8) the conviction for driving under the influence causing injury must be reversed because it is a lesser included offense of gross vehicular manslaughter while intoxicated. We find no merit in any of Tidwell’s contentions and affirm the judgment.
All further undesignated statutory references are to the Penal Code.
I
FACTS
Shortly before dawn on July 17, 2004, Joseph Allen Tidwell’s Ford Ranger pickup truck suddenly veered from the westbound lanes of State Route 62 near the town of Morongo Valley into the oncoming eastbound lanes and collided with the front end of the San Gorgonio Search and Rescue Team’s Chevrolet Suburban. The impact killed two of the five occupants of the Suburban and injured the other three as the team was on its way to the Joshua Tree National Park to rescue a lost hiker. Michelle Gonzalez, Tidwell’s passenger, also suffered serious injuries.
When first contacted by California Highway Patrol Officer Scott Johnson, Tidwell said that he must have fallen asleep at the wheel. Later, he said that one of his tires must have blown out. Tidwell denied being under the influence of alcohol or drugs, but he seemed lethargic and his speech was slurred. Johnson, a certified drug recognition expert, associated Tidwell’s behavior with drug use, specifically heroin and methamphetamines. Officers found a hypodermic syringe and a glass pipe inside Tidwell’s truck.
Tidwell was examined by an emergency room physician at a nearby hospital. The physician noted that although Tidwell had suffered no injuries as a result of the crash, he did have three healed abscesses on his arm. That particular type of wound is consistent with recent intravenous drug use, and Tidwell told the doctor that he was withdrawing from heroin. Tidwell admitted to Johnson that he had last ingested methamphetamine two or three days before the crash and heroin within 24 hours. Blood and urine samples collected during Tidwell’s relatively brief hospitalization tested positive for amphetamine and opiates at levels consistent with functional impairment.
At approximately 2:00 p.m., another CHP officer performed a series of field sobriety tests on Tidwell, which he failed. In fact, Tidwell fell asleep before the officer could complete the evaluation. The officer saw the track marks on Tidwell’s arms and also noticed a burn mark on Tidwell’s lower lip, which the officer testified is consistent with someone having smoked out of a glass pipe. In the CHP officer’s opinion, Tidwell was still under the influence of drugs and unable to safely operate a motor vehicle several hours after the crash. However, the officer also stated that the single Vicodin tablet given to Tidwell by emergency room personnel could have accounted for some of his symptoms and poor performance.
Several CHP officers executed a search warrant for Tidwell’s mother’s Wonder Valley property. There were several buildings on the property, including a main “homestead-type cabin,” two out buildings, and a parked travel trailer. Inside the travel trailer, the officers found several of Tidwell’s personal items, including clothing, an identification card, an Alcoholics Anonymous (AA) handbook and attendance log, and several documents related to a substance abuse outpatient clinic. The search also yielded.03 grams of cocaine, a cut out soda can bottom, a hypodermic needle kit, two hypodermic needles, and a glass straw. A hypodermic syringe was found lying across the top of an empty soda can.
On the bottom of the soda can, the officers found a dried, brown substance, which a drug recognition expert identified as heroin residue, and according to this expert, empty soda cans are commonly used to heat heroin to a liquid state. The expert further explained the process, testifying that heroin users commonly mix heroin with water in the bottom of a soda can or metal spoon, then apply heat to the mixture. The heated liquid is then loaded into a hypodermic syringe for injection. Cotton balls are frequently used to filter the liquid solution. The searching officers also found 12 pieces of cotton, weighing.38 grams, which were saturated with a brownish substance. One piece of the cotton tested positive for methamphetamine, heroin, and cocaine. The drug expert testified that the.38 gram mixture of heroin, methamphetamine, and cocaine was a usable quantity. He also testified that the.03 grams of cocaine, which the officers had found inside a paper bindle, was also a usable quantity.
The day after the crash, CHP Officer Dennis Carr interviewed Tidwell in jail. The interview was audio and videotaped, and the recordings were played for the jury at trial. During the interview, Tidwell said that he and his girlfriend, Michelle, were driving to Indio when the left front tire, a spare tire, suddenly collapsed. He claimed this “blow out” caused him to swerve into the on coming lanes of traffic. Tidwell estimated that he was driving at between 50 and 55 miles per hour when the blow out occurred. Tidwell admitted using heroin two days before the crash, but denied ingesting any other drug. He also admitted that he had been arrested three times for driving under the influence, but he claimed that he had never been forced to participate in any classes or Alcoholics Anonymous programs as a result of these arrests. However, Tidwell did admit that he had attended some substance abuse counseling sessions. Tidwell claimed that he stayed home after ingesting heroin so that he would not be driving while under the influence, and he admitted being aware of the dangers of driving while under the influence of drugs or alcohol.
Michelle Gonzalez talked to an emergency room nurse after the accident. She admitted that she had been using heroin for a long time. She also admitted that she and Tidwell used drugs together the night before the crash. At trial, however, Gonzalez denied using heroin the night before the crash and said she did not know if Tidwell used drugs. She also testified that Tidwell’s car had a flat tire, but she could not recall exactly when this happened. She also had no recollection that a tire blew out just before the accident.
The CHP’s Major Accident Investigation Team (MAIT) conducted an in-depth examination of the accident scene. The team estimated that the rescue team’s Suburban had been traveling at approximately 67 miles per hour, and Tidwell’s truck at approximately 50 miles per hour, when the collision occurred. They also concluded that both vehicles had been in good working order before the collision. They found no evidence that would support Tidwell’s claim that a tire blow out occurred just before the collision.
At trial, Tidwell’s counsel argued that his client had not understood how serious driving while under the influence of a controlled substance could be, and counsel established that a change in the law in 1991 added a routine advisement of the dangers of this practice to the paperwork received by those who pled or were found guilty of the offense. Philip Nau, an eyewitness to the crash and Tidwell’s jail cellmate for a time, testified that he had seen a Suburban traveling at a high rate of speed on Highway 62 during the early morning of July 14, 2005. He said that he lost sight of the Suburban for a time, but later saw that it had been involved in the collision with Tidwell’s truck. He helped Tidwell out of his pickup truck and heard him say, “Michelle, I’m sorry.” He also helped Gonzalez unbuckle her seatbelt before emergency personnel arrived at the scene.
II
DISCUSSION
(1) Motion for Change of Venue
Prior to jury selection, Tidwell moved for a change of venue from San Bernardino County to another county in California on the ground that pretrial publicity made it impossible for him to receive a fair trial in the Joshua Tree Superior Court. The trial court denied the motion before summoning the venire, but stated that the denial was without prejudice to the defense, “if we find in fact that we’re not able to obtain an[] unbiased jury.” During voir dire, the court questioned the panel about their knowledge of the case and later admonished panel members to decide the case based on the facts adduced at trial. Nevertheless, counsel renewed his motion for a change of venue several times during jury selection.
Defense counsel also submitted a set of potential voir dire questions that addressed pretrial publicity and the prospective jurors’ ability to decide the case based solely on evidence introduced during the trial. The prosecutor submitted a juror questionnaire that asked if the jurors had “heard, seen or read anything,” or knew anyone involved in this case. The questionnaire provided the following information about the case: “The alleged crime in this case occurred on July 17, 2004. Five members of a San Bernardino County Search and Rescue Team were driving on Highway 62 in the Morongo Valley on their way to a search for a missing hiker in the monument. As they were driving, they had a head-on collision with the Defendant’s vehicle. The impact killed two members of the team and injured four other people.” The court declined to use the questionnaire, but did incorporate the questionnaire’s description of the incident and some of counsel’s suggested questions into its voir dire.
On appeal, Tidwell contends the trial court’s ruling violated his Fifth Amendment right to a fair trial, his Fourteenth Amendment rights to due process, and his Sixth Amendment right to an impartial jury. The Attorney General argues Tidwell waived the issue by failing to renew his motion after jury selection. However, the Attorney General’s waiver argument is specious. As noted above, Tidwell’s trial counsel repeatedly renewed his motion for change of venue during and after voir dire.
As to the merits of Tidwell’s claim, under the Penal Code, a change of venue shall be ordered “when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” (§ 1033, subd. (a).) “Under section 1033 a criminal defendant may make a motion for change of venue based on pretrial publicity and its effect on the community from which the jurors for his trial are drawn. [Citations.] [¶] In passing on such a motion, the trial court looks to the following factors, among others: the nature and gravity of the offense, the size of the community, the status of the defendant, the popularity and prominence of the victim, and of course the nature and extent of the publicity. [Citations.] [¶] The ultimate question that the trial court must resolve, however, is whether on the peculiar facts of the individual case [citation] there is a reasonable likelihood that the jurors who will be, or have been, chosen for the defendant’s trial have formed such fixed opinions as a result of pretrial publicity that they cannot make the determinations required of them with impartiality. [Citation.] The phrase ‘reasonable likelihood,’ we have explained, means something less than ‘more probable than not.’ [Citation.] But in view of the plain meaning of its words it must also mean something more than merely ‘possible.’ [¶] Finally, as the moving party the criminal defendant seeking change of venue bears the burden of proof. [Citation.]” (People v. Bonin (1988) 46 Cal.3d 659, 672-673, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
“‘On appeal, the defendant must show that denial of the venue motion was error (i.e., that it was reasonably likely a fair trial could not be had at the time the motion was made) and that the error was prejudicial (i.e., that it was reasonably likely a fair trial was not in fact had).’ [Citation.] In this context, ‘reasonably likely’ ‘“means something less than ‘more probable than not’” and “something more than merely ‘possible.’” [Citation.]’ [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 523.)
Here, the record does not support a finding of error, let alone prejudicial error. Defense counsel failed to submit exhibits in conjunction with his motion and no other evidence was presented before, during, or after voir dire that demonstrated the nature and extent of any pretrial publicity. Instead, appellate counsel relies on the court’s references to pretrial publicity and various statements made by members of the venire during voir dire.
Nevertheless, with respect to the first factor, we agree the charged crimes were serious and apparently attracted some media attention, but this case did not involve the type of sensational facts that would necessitate a change of venue. (See People v. Pride (1992) 3 Cal.4th 195, 224.) Tidwell argues that the nature of the charges, i.e., deaths that occur as the result of driving while under the influence, standing alone constitutes an offense that is “more disturbing than non-vehicular murders.” He points to some comments made by prospective jurors to the effect that these jurors had “strong” feelings about this particular type of offense, or that intoxicated drivers were not severely punished. However, sadly, we find nothing extraordinary about this case such that it would have attracted an unusual amount of media attention, or resulted in the kind of infamy that would make it impossible for Tidwell to obtain a fair trial.
As for the second factor, the size of the community, Tidwell argues that the relatively small area served by the Joshua Tree Judicial District, and the apparent familiarity of everyone involved in the trial with the crash site, as factors that support a change of venue to another court in San Bernardino County. Tidwell refers us to the “Village of Joshua Tree’s website” to support his assertion. However, this resource was not brought to the attention of the trial court, and statements from the court and individual members of the venire are insufficient to have necessitated a change of venue. Thus, the evidence in the record fails to establish that the size of the community could have, or actually did have, any impact on the outcome of Tidwell’s trial.
With respect to the third and fourth factors, we find Tidwell’s argument on these points similarly unavailing. Relying on Martinez v. Superior Court (1981) 29 Cal.3d 574, Tidwell suggests that his status as a heroin addict militates in favor of a change of venue. We disagree. There is no evidence that drug addiction by itself engenders any particular public response. In any event, Tidwell failed to present any evidence that the media portrayed him in terms likely to evoke animosity. Furthermore, assuming he had demonstrated that the media generated some sympathy and concern for the victims by highlighting their membership in a search and rescue team, that emotion would not be peculiar to San Bernardino County, or the Joshua Tree Superior Court for that matter. Contrary to Tidwell’s assertions, we believe most residents of this state have some awareness and understanding of the work performed by members of county search and rescue teams, and there is no evidence the jurors in this case had a particular affinity for the San Gorgonio Search and Rescue Team.
Our consideration of the final factor, the nature and extent of publicity, is somewhat hampered by the fact that trial counsel failed to submit evidence in support of his motion. We acknowledge that the trial court mentioned that “the incident” had been in the newspaper, and that several jurors indicated some familiarity with the case. However, without supporting evidence, we are hard pressed to determine the nature and extent of this publicity with any exactitude.
However, even assuming the case received a substantial amount of publicity, this factor alone is not determinative. (People v. Jennings (1991) 53 Cal.3d 334, 362.) Furthermore, even in cases where there has been extensive, media coverage the prejudicial effect of this coverage is presumed to diminish over time. (People v. Bonin, supra, 46 Cal.3d at pp. 677-678.) With over two years between the collision and Tidwell’s trial, pretrial prejudice was greatly diminished. And, even assuming there was renewed publicity surrounding the trial, there is no showing that the media portrayed the incident in such a way that it became well-known or significant to the average community member. (See Maine v. Superior Court (1968) 68 Cal.2d 375, 385 [“popular teenage couple”]; Fain v. Superior Court (1970) 2 Cal.3d 46, 59 [“popular athlete”]; Frazier v. Superior Court (1971) 5 Cal.3d 287 [prominent surgeon and family].) In conclusion, the trial court correctly denied Tidwell’s change of venue motion, and the court’s ruling did not violate his constitutional rights to due process and a fair trial.
Appellate counsel invites this court to view an article from the October 28, 2006 edition of the Hi-Desert Star, which is apparently a daily newspaper that primarily covers news in the Yucca Valley and Joshua Tree. Counsel’s reference to this periodical is made in another section of his opening brief and cited to support a different appellate issue. Because this article was not presented to the trial court and therefore not part of the appellate record, we have not considered it for any purpose. Generally, the appellate courts are “not the forum in which to develop an additional factual record, particularly in criminal cases when a jury trial has not been waived. [Citations.]” (People v. Peevy (1998) 17 Cal.4th 1184, 1207-1208.)
(2) Voluntary Intoxication and CALCRIM No. 3426
The prosecution moved pretrial to exclude any evidence of voluntary intoxication, relying on section 22. Defense counsel requested CALCRIM No. 3426, the standard instruction on evidence of voluntary intoxication, notwithstanding his acknowledgement that the request was “going to be rejected....”
Section 22 provides: “(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. [¶] (b) Evidence 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. [¶] (c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance.” CALCRIM No. 3426 defines voluntary intoxication and explains to the jury how to consider evidence of voluntary intoxication as it relates to the mental state required for certain crimes.
On appeal, Tidwell contends his constitutional rights to due process and to present a defense were compromised by the trial court’s failure to give CALCRIM No. 3426, and that section 22, subdivision (b) is unconstitutional. He asserts that in determining whether he acted with conscious disregard for human life, the jury should have been able to consider evidence of his voluntary intoxication. Thus, according to Tidwell, section 22, subdivision (b) is merely a rule “designed to keep out relevant, exculpatory evidence,” and which “offends due process.”
Tidwell’s arguments with respect to the constitutionality of section 22 have been repeatedly rejected. (See People v. Timms (2007) 151 Cal.App.4th 1292, 1300-1301 (Timms); People v. Martin (2000) 78 Cal.App.4th 1107, 1117.) Tidwell challenges the reasoning of these cases, but we find them persuasive. As stated by the Timms court, “section 22 is part of California’s history of limiting the exculpatory effect of voluntary intoxication and other capacity evidence. [Citation.] Section 22 does not appear in the Evidence Code, it appears in the Penal Code under the “Preliminary Provisions,” along with statutes defining and setting forth the kinds and degrees of crimes and their punishment (§§ 16-19.8), the requirement of act and intent or negligence (§ 20), the elements of attempt (§ 21a), etc. Since 1872, the first sentence of section 22 (now at subdivision (a)) has declared the policy of this state that an act is not less criminal because the actor committed it while voluntarily intoxicated. This means that, with respect to the same conduct, an intoxicated person shoulders the same criminal responsibility as a sober person. The next sentence declares the substantive law that voluntary intoxication is not available to a defendant as a basis for a diminished capacity defense. Subdivision (b) establishes, and limits, the exculpatory effect of voluntary intoxication on the required mental state for a particular crime. It permits evidence of voluntary intoxication for limited exculpatory purposes on the issue of specific intent or, in murder cases, deliberation, premeditation and express malice aforethought. The absence of implied malice from the exceptions listed in subdivision (b) is itself a policy statement that murder under an implied malice theory comes within the general rule of subdivision (a) such that voluntary intoxication can serve no defensive purpose. In other words, section 22, subdivision (b) is not ‘merely an evidentiary prescription’; rather, it ‘embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions.’ [Citation.]” In short, voluntary intoxication is irrelevant to proof of the mental state of implied malice or conscious disregard. Therefore, it does not lessen the prosecution’s burden of proof or prevent a defendant from presenting all relevant defensive evidence. (People v. Timms, supra, 151 Cal.App.4th at pp. 1300-1301, italics added.)
We also reject Tidwell’s constitutional challenge to section 22, and agree with the trial court’s determination that evidence of voluntary intoxication was not relevant in this case because it involved an implied malice murder. Therefore, the court had no duty to give CALCRIM No. 3426, and the failure to give this instruction did not result in a violation of Tidwell’s constitutional rights.
(3) Sufficiency of the Evidence to Support Convictions for Drug Possession
Tidwell challenges the sufficiency of the evidence to support his conviction on count 6, possession of heroin, and count 7, possession of methamphetamine. To succeed in a challenge to the sufficiency of the evidence, Tidwell must establish that no rational jury could have concluded as it did. To this end, we are required to evaluate the evidence in the light most favorable to the judgment, presuming every fact in support of that judgment which could have been reasonably deduced from the evidence. (People v. Millwee (1998) 18 Cal.4th 96, 132; People v. Stanley (1995) 10 Cal.4th 764, 792-793.) We may not reweigh the evidence or make findings of credibility, for these are within the province of the jury. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must only decide whether substantial evidence exists to support the inference of guilt drawn by the trier of fact, and substantial evidence includes circumstantial evidence and the reasonable inferences drawn from this evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Consequently, the test on appeal is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury’s conclusions. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1161-1162.)
Tidwell acknowledges the prosecution presented substantial evidence of cocaine possession. Nevertheless, he contends the prosecution failed to present evidence he possessed a usable amount of a heroin and/or methamphetamine. We disagree.
“The essential elements of possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially.’ [Citations.]” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242 (Palaschak).) A usable amount of a controlled substance is an amount sufficient to be manipulated and consumed in any manner customarily employed by users of the substance, although it need not be sufficient to cause a narcotic effect. (People v. Rubacalba (1993) 6 Cal.4th 62, 66.)
The record reflects that a search of Tidwell’s residence yielded 12 pieces of cotton, or cotton balls, which were soaked with a brownish substance. The total weight of the saturated cotton balls was.38 grams, and the brownish substance tested positive for heroin, methamphetamine, and cocaine. Expert testimony established that drug users commonly mix methamphetamine or cocaine with heroin, and that the mixture is referred to as a “speedball.” Another expert testified that cotton balls are commonly used to filter the liquid heroin mixture for injection. The cotton balls are saved, reused, and re-filtered for additional injections.
A toxicologist testified that the brownish substance on the cotton balls seized from Tidwell’s residence was sufficient to be manipulated between the fingers. Therefore, it was sufficient for use. Furthermore, Tidwell’s blood samples tested positive for heroin and methamphetamine, and the blood levels of these drugs indicated that even two hours after the crash, Tidwell was still under their influence to the point of impairment. Evidence of recent use can be used as circumstantial evidence of possession. (Palaschak, supra, 9 Cal.4th at pp. 1240-1241.) Based on these facts, we conclude substantial evidence supports the jury’s verdict on counts 6 and 7.
(4) Jury Instruction on “Usable Amount”
In conjunction with his challenge to the sufficiency of the evidence to prove possession of methamphetamine and heroin, Tidwell also asserts CALCRIM No. 2304, a standard instruction on possession of controlled substances, violates his constitutional rights to a fair trial and due process because the instruction as given failed to require the jury to determine if he possessed a usable quantity of each individual drug. Specifically, he contends the instruction is “clearly intended” to be “given for one count of controlled substance possession at a time.” Essentially, he contends the instruction mislead the jury to believe that it could convict on counts 6 and 7 if the prosecution proved beyond a reasonable doubt that he possessed “a usable amount of a three-drug combination of heroin, methamphetamine, and cocaine.”
“[W]e review an assertedly erroneous instruction not in isolation, but in the context of the entire charge. [Citation.]” (People v. Johnson (1992) 3 Cal.4th 1183, 1250.) Here, the court identified the charges for the jury and told them that a conviction of any crime required proof beyond a reasonable doubt of each and every element of the offense. (CALCRIM No. 220.). The instruction on simple possession of a controlled substance, CALCRIM No. 2304, explained that Tidwell was charged, in counts 6, 7, and 8, with “possessing Heroin, Methamphetamine, and Cocaine.” The instruction properly defined usable amount as “a quantity that is enough to be used by someone as a controlled substance, and stated that while “[u]seless traces or debris are not useable amounts[,]” the prosecution need not prove the amount possessed would “be enough, in either amount or strength, to affect the user.” (CALCRIM No. 2304.) In light of the whole charge of jury instructions, the court’s instruction on simple possession of methamphetamine, heroin, and cocaine was legally adequate. If Tidwell believed these “instructions were incomplete or needed elaboration, it was his obligation to request additional or clarifying instructions. [Citation.] His failure to do so waives the claim in this court. [Citation.].” (People v. Dennis, supra, 17 Cal.4th at p. 514.)
However, assuming error, we discern no prejudice as a result of the court’s failing to separately instruct on each individual drug possession charge. As noted above, there was ample evidence Tidwell knowingly possessed a usable quantity of all three drugs, and that he was under the influence of methamphetamine and heroin when he collided with the victims’ car. Thus, any error in the court’s instructions was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 502-503.)
(5) Evidentiary Error – Photograph of Victims
During a pretrial hearing, the prosecutor sought to admit photographs of the accident scene, the two autopsies, and the victims while alive, which included individual photographs of Johnston and Calvert and one group photograph of the San Gorgonio Search and Rescue Team. Tidwell objected to the admission of the autopsy photographs, the two individual photographs, and the group photograph on grounds they were more prejudicial than probative. (Evid. Code, § 352.)
Evidence Code section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The court ordered the autopsy photographs excluded, but admitted the individual and group photographs. At trial, David Atchley, a San Gorgonio Search and Rescue Team member and crash survivor, identified Johnston and Calvert from their individual photographs, exhibits 20 and 21, respectively. He also identified the individual team members from the group photograph, exhibit 19, and testified that the photograph had been taken in June 2004 while the team was in training at the sheriff’s academy. The individual photographs depict Johnston and Calvert, both dressed in casual clothing, at some mountain top location. In the group photograph, the team members were wearing their official orange, search and rescue team shirts and casual pants.
On appeal, Tidwell contends the photographs of the victims had no probative value because trial counsel offered to stipulate to the identities of those killed or injured as a result of the crash. He also argues that the photographs were likely to “invoke emotional responses, in particular sympathy for the victims and antipathy for appellant,” and that the admission of these pictures so prejudiced him that reversal of the second degree murder convictions is the only adequate remedy. We disagree with Tidwell’s contentions.
“The admission of photographs of a murder victim lies within the sound discretion of the trial court, exercise of which will not be disturbed on appeal absent a showing of abuse, i.e., that their probative value is clearly outweighed by their prejudicial effect. [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 319.) In overruling defense counsel’s motion to exclude evidence, the court stated, “As far as the three photographs that have been submitted to the Court here, I do not find them unduly prejudicial. I do believe they have probative value so the jury has an idea of who the victims were in this case....”
Contrary to Tidwell’s contention, the photographs established the essential elements of the charges and enhancements, i.e., that Tidwell’s decision to drive while under the influence of drugs caused the death of two people and serious injury to four others. To this end, we find that the photographs were relevant, and defense counsel’s offer to stipulate to the identity of the victims did not negate the relevance of the photographs. (People v. Scheid (1997) 16 Cal.4th 1, 16-17.) Furthermore, “the prosecution in a criminal case ‘cannot be compelled to accept a stipulation if the effect would be to deprive the state’s case of its persuasiveness and forcefulness.’ [Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 182, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
With respect to the prejudice caused by the photographs, we acknowledge that the California Supreme Court has repeatedly warned prosecutors against the admission of photographs of murder victims while alive because of the risk that these photographs will “merely generated sympathy for the victims.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1230 (DeSantis).) However, in this case, as in DeSantis, the prosecution used the photographs to establish Atchley’s ability to indentify the other crash victims and to explain why they were traveling together on State Route 62 during the early morning hours of July 17, 2004. As the DeSantis court noted, “The possibility that [the photographs] generated sympathy for the victims is not enough, by itself, to compel [] exclusion....” (Ibid.)
Nevertheless, assuming error, we find no basis for a reversal of the second degree murder convictions. We have viewed the photographs. There is nothing particularly noteworthy about them. They are simple, candid shots of two men, one younger than the other, in an outdoor setting. The group photograph shows a group of men of varying ages, wearing matching orange shirts with official patches and casual pants, who are gathered together in the hallway of something that looks like an educational facility. In light of all of the evidence presented at trial, there is simply no reasonable probability that the outcome would have been more favorable to Tidwell had these photographs been excluded. (People v. DeSantis, supra, 2 Cal.4th at p. 1231; People v. Watson (1956) 46 Cal.2d 818, 836.)
(6) Instructional Error – Gross Vehicular Manslaughter
The trial court granted the prosecutor’s motion to modify CALCRIM No. 590, the standard instruction of gross vehicular manslaughter while intoxicated to include culpability on proof that Tidwell drove “while addicted to a drug.” Tidwell contends the modified instruction violated his constitutional rights to due process and a fair trial because “[d]riving while addicted to a drug is [] an inadequate legal theory.” We disagree.
As modified, CALCRIM No. 590 read, To “prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant drove under the influence of a drug or while addicted to a drug; [¶] 2. While driving that vehicle under the influence of a drug or while addicted to a drug, the defendant also committed an infraction; [¶] 3. The defendant committed the infraction with gross negligence; [¶] AND [¶] 4. The defendant’s grossly negligent conduct caused the death of another person.” (CALCRIM No. 590, italics added.)
Section 191.5 states, “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.” (§ 191.5, subd. (a).) Subdivision (c) of Vehicle Code section 23152, provides, “It is unlawful for any person who is addicted to the use of any drug to drive a vehicle.” Therefore, under the plain language of section 191.5, subdivision (a), a person can be convicted of gross vehicular manslaughter while intoxicated when the prosecution presents evidence he or she was driving while addicted to any drug. As Tidwell concedes, the prosecution presented substantial evidence of his “longtime addiction” at trial. Consequently, the court properly instructed the jury on a legal theory supported by facts adduced at trial.
However, assuming error, reversal is not required. Generally, when a jury’s verdict could rest on either of two theories, one legally valid the other not valid, reversal is not required unless the reviewing court is unable to determine which theory the jury accepted. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1130.) Here, the jury also found Tidwell guilty of driving under the influence causing injury. This means the jury necessarily found he drove while under the influence of drugs, not simply while addicted to drugs. Therefore, any error was harmless beyond a reasonable doubt and did not result in a violation of Tidwell’s constitutional rights.
(7) Cunningham Error
Tidwell argues that the court’s imposition of the upper term on counts 2, 4, 5, 7, and 8 violates his constitutional right to a jury trial, citing Cunningham v. California (2007) 549 U.S. 856 (Cunningham). We disagree.
According to the probation report, Tidwell had 15 prior convictions, including 4 prior felony convictions, and he has been returned to prison 13 times for parole violations. The trial court relied on Tidwell’s criminal history and recidivism to impose upper term sentences, and these factors are not subject to Cunningham. (People v. Towne (2008) 44 Cal.4th 63, 76; see also People v. Black (2007) 41 Cal.4th 799, 812 (Black II.) Moreover, evidence of Tidwell’s prior convictions for driving under the influence and his failure to complete a mandatory DUI program was presented to the jury, and he admitted two prior serious felony convictions in a bifurcated court trial. Thus, even assuming error, it was harmless beyond a reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825, 839.)
(8) Conviction on Count 5
The information charged Tidwell with driving under the influence causing injury (Veh. Code, § 23152, subd. (a)). It was alleged that he “proximately caused injury to Scott Johnston, Philip Calvert, Robert Blanck, Shane Elliott, Michelle Gonzalez, and David Atchley.” Tidwell was also charged with two counts of gross vehicular manslaughter while intoxicated. The two counts of gross vehicular manslaughter named Scott Johnston and Philip Calvert as the deceased. The jury convicted on all counts, and Tidwell contends the conviction for driving under the influence causing injury must be reversed because it is a lesser included offense to gross vehicular manslaughter while intoxicated.
With respect to Johnston and Calvert, Tidwell’s contention appears to be correct. As stated in People v. Pearson (1986) 42 Cal.3d 351, “Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses.” (Id. at p. 355.) However, as the Attorney General argues, count 5 also refers to victims Blanck, Elliott, Gonzalez, and Atchley. Therefore, the conviction on count 5 is not barred by the multiple convictions rule with respect to them.
In conclusion, we have considered Tidwell’s claims of error and determined that either there was no error, or that any error was not prejudicial and did not violate his constitutional rights.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., FYBEL, J.