Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA357550, Craig E. Veals, Judge.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Jose Luis Vargas appeals from the judgment entered following a jury trial in which he was convicted of two counts of second degree murder and two counts of gross vehicular manslaughter while intoxicated, with findings that he had two prior convictions for driving under the influence. Defendant contends the trial court committed several evidentiary errors, and that these errors rose to the level of a due process violation. We affirm.
BACKGROUND
About 1:00 a.m. on December 8, 2007, defendant was driving his gray Acura east on Sunset Boulevard in Hollywood. Sam Cassel was driving his silver Honda north on Gower Street. Defendant’s car struck Cassel’s car in the intersection of Sunset and Gower and pushed it into a Ford stopped at a red traffic light on westbound Sunset. Cassel and his passenger, Rhiannon Meier, suffered fatal internal injuries. Defendant was taken to a hospital for examination. A blood sample drawn at 2:00 a.m. revealed that defendant’s blood-alcohol level was 0.24 percent.
Former Los Angeles Police Department (LAPD) Detective Russ Pungrchar saw the accident and saw defendant run a red light. Before the collision, Pungrchar was driving east on Sunset, approaching Gower. In his rearview mirror he saw defendant’s car speeding toward him. Pungrchar feared that defendant’s car would strike his, so he pulled over to the south curb about two car lengths from Gower. Defendant’s car passed Pungrchar’s, ran the red light at Gower, and struck the driver’s side of a silver Honda that was northbound on Gower. Pungrchar attempted to render aid at the collision site. He testified that Meier and Cassel were both unconscious, and Meier had been partially ejected from the Honda. When the police arrived, Pungrchar directed them to defendant, told an officer who he was and what he saw, then departed. Officer Jesus Castillo, who, with his partner, was the first on the scene, did not remember speaking to Pungrchar or hearing any witness say he was a former LAPD officer. Pungrchar contacted the investigating officer, Zachary Hutchings, two days after the accident.
Pedestrians Adam Smith, Anthony and Sandra Barber, and Brianna Milton were in the crosswalk, near the south curb of Sunset, when the cars collided. Smith testified that before the collision he and his three companions were walking south along the east side of Gower. When they reached Sunset, the light was red for traffic on Gower, so Smith’s group stopped and waited for the pedestrian crossing signal. When the light for traffic on Gower turned green and the pedestrian crossing signal turned to “walk, ” Smith’s group crossed from the north side of Sunset to the south side, with the Barbers in the lead and Smith and Milton trailing them. Smith recalled that when he and Milton were more than halfway across Sunset, the pedestrian crossing signal indicated eight seconds remaining to cross. He then heard a loud noise behind him and to his right. The sound moved from west to east. Smith turned and saw two cars. He ran up to the cars to check on the occupants. He saw four or five other people help defendant out of his car and set him on the sidewalk. Defendant appeared to be drifting in and out of consciousness. Smith tried to leave his contact information with the police, but they were busy. He phoned Hutchings when he saw a newspaper report on the accident that listed Hutchings’s name and number.
Anthony Barber testified that when his group reached Sunset, the light was red for traffic on Gower. Barber pressed the button for the pedestrian crossing signal and the group waited. When the light for traffic on Gower turned green and the crossing signal turned to “walk, ” the group crossed Sunset. Barber recalled that when he was about a step away from the curb on the south side of Sunset, the light for traffic on Gower was still green and the pedestrian crossing signal indicated five seconds remaining to cross. Barber heard a loud screeching noise to his right. He turned and saw headlights coming east on Sunset and yelled, “Run.” Barber observed that the traffic lights for both eastbound and westbound traffic on Sunset were red. He saw defendant’s gray Acura run the red light and hit the other car. Barber did not try to talk to any of the police officers at the scene. Hutchings testified that Barber said he did not see which direction either car was going and did not say that he saw defendant run a red light.
John Watts was driving his Ford west along Sunset. Lee Walkup was his passenger. Watts stopped at a red light at Gower. His was the first car in his lane. Walkup noticed a “silver shimmer” pass in front of them, moving from south to north. Walkup said, “Watch out” or “Car.” Watts looked up and saw a collision in the intersection, to his left side. The light was still red for westbound traffic on Sunset. One of the cars involved in the collision struck the front of Watts’s Ford. Watts pulled into a parking lot on the corner and went to render aid. He helped pull defendant from his car and place him on the sidewalk. Watts then went to the other car. Meier’s body was slumped out onto the pavement. Cassel was still in the driver’s seat. Both appeared to be unconscious.
Officer Carrillo testified that Cassel and Meier appeared to be dead when he arrived. Carrillo asked defendant if he was hurt, and defendant replied, “Yes. I was just involved in an accident. I was driving the gray Acura Legend.” Defendant pointed to his car and attempted to walk away. Carrillo stopped him.
Carrillo also testified that an anonymous witness at the scene told him that he was driving behind the victims’ car on Gower, that traffic on Gower had a green light, and he saw defendant’s car run a red light and collide with the victims’ car.
Criminalist Tatiana Garcia opined that defendant’s blood-alcohol percentage would have been 0.25 to 0.27 at 1:00 a.m. and that his ability to drive safely would definitely have been impaired.
Officer Gary Ross conducted an independent investigation and accident reconstruction at Hutchings’s request. He opined that the Honda was northbound on Gower and the Acura was eastbound on Sunset, then the Honda was pushed east and into the Ford by impact from the Acura. The second impact caused the Honda and Acura to rotate. Ross further opined that at the time of impact the Acura was moving at about 46 to 49 miles per hour and the Honda was moving at about 35 to 40 miles per hour. The speed limit on Sunset was 35 miles per hour and on Gower it was 30 miles per hour. Nothing indicated that either car slowed before impact.
Officer Hutchings arrived at the site of the accident about 3:30 a.m. He remained there for about 90 minutes. While he was there, he observed that the traffic lights on Sunset and Gower seemed to be functioning properly. He did not request a diagnostic examination of the traffic lights. He had no information throughout the course of his investigation that the light may have been green for eastbound traffic on Sunset.
In defendant’s car Hutchings found an e-mail addressed to defendant inviting him to a December 7, 2007 holiday party given by Spot Runner at a Hollywood nightclub. The invitation included a reminder to drink responsibly and stated that “there will be cab vouchers available to ensure your safety in getting home should you need one.” Spot Runner employee Kimberly Guyver planned and coordinated the party. She testified that she e-mailed the invitation to defendant. She further testified that an announcement reiterating the availability of cab vouchers was made at the beginning of the party, and that such vouchers were actually available.
Defendant had two prior convictions for driving under the influence (DUI), one in 1998 and another in 2004.
The prosecutor introduced evidence of programs in which defendant participated as a result of his prior DUI convictions. Tina Pasco testified that defendant attended a May 7, 1998 victim impact panel conducted by Mothers Against Drunk Driving. The session included the distribution and reading of a document that asked attendees to consider that they could have killed someone while driving under the influence of alcohol, and if they again drove under the influence of alcohol and killed someone, they could be charged with second degree murder and sent to prison for a term of 15 years to life, during which they would “have to live with” being “responsible for killing a human being.”
Jerry Morris testified that he worked for a company that provided court-mandated programs for persons convicted of DUI. In 1998, defendant completed the three-month program given by Morris’s employer, which included classes and counseling, both individual and group, with the focus on instructing participants that drinking and driving is inherently dangerous and kills thousands of people every year. After his 2004 conviction, defendant completed an 18-month program given by Morris’s employer. It also consisted of classes and counseling with a focus on changing participants’ behavior by convincing them that driving under the influence was a dangerous act. At a group counseling session Morris led on November 20, 2004, defendant said that a letter from a prison inmate who had killed someone while driving under the influence resonated with him because he had nearly killed someone during his first DUI offense. A counselor’s note indicated that during a session on June 19, 2005, defendant stated that an article—the nature of which was not specified in Morris’s testimony—“‘provided him with a lot of reasons not to drink while driving.’”
The jury convicted defendant of two counts of second degree murder and two counts of gross vehicular manslaughter while intoxicated, with findings that he had two prior DUI convictions. The court sentenced defendant to prison for 30 years to life.
DISCUSSION
1. Exclusion of evidence of Cassel’s blood-alcohol concentration
Before trial, the prosecution sought to exclude evidence that the coroner measured Cassel’s blood-alcohol concentration in the range of 0.08 to 0.10. Defendant opposed the motion, and the trial court conducted two hearings on the matter. The prosecutor argued such evidence was really in the nature of contributory negligence of the victim and was irrelevant. Defendant denied he was seeking to establish contributory negligence and argued that the evidence was relevant to establish causation, in that it proved that Cassel, not defendant, was the driver who ran a red light and caused the fatal accident.
During the extensive arguments on the issue, the trial court repeatedly stated that it understood that defendant was attempting to use the evidence to establish that Cassel ran a red light and caused the accident. For example, the court stated, “Your point is that, yes, it could very well be that your client had previous DUIs and that he was driving under the influence on this occasion; plus, he might very well have been speeding, too, but it was through a green, not a red light. And the accident would not have occurred or at least on this level he would not have committed any wrongdoing but for that the alleged victim ran the light.” The court continued, “Yes, [defendant] was speeding perhaps. Yes, he had been drinking perhaps. But all of that to the side, we would not be here with this charge, the charge of murder, but for the fact that the alleged victim ran the red light.”
The court acknowledged the importance to the defense of evidence that Cassel, not defendant, ran a red light, but noted that, without resort to speculation, evidence that Cassel was under the influence of alcohol did not tend to prove that the victim ran a red light. The court noted that Cassel was not on trial for driving under the influence, and evidence that he had done so was not relevant to defendant’s guilt. The court agreed to hear further argument and receive additional points and authorities on the issue, but tentatively excluded evidence of Cassel’s blood-alcohol concentration as irrelevant. Just before the initial hearing on the motion concluded, defendant altered his position on the issue, stating, “All I’m asking, Your Honor, is that if we introduce evidence of that individual running a red light that, I believe, based on that, if evidence was introduced, the fact that that person was also intoxicated at the time should be allowed in. I’m not using it to bootstrap the opposite. My point is once you establish that that person ran the red light, then the information becomes relevant.” The court rejected this theory of relevance and stated that Cassel’s blood-alcohol concentration was really only relevant to contributory negligence, which was itself irrelevant.
At the conclusion of the continued hearing on the motion to exclude, the court ruled that evidence of Cassel’s blood-alcohol concentration was irrelevant. The court also ruled that the prosecutor could not argue that defendant’s intoxication caused him to run a red light.
Defendant contends that the trial court misinterpreted his theory of admissibility regarding Cassel’s blood-alcohol concentration as an attempt to establish contributory negligence and that the court erred by excluding the evidence. He further argues that the exclusion of this evidence violated due process by depriving him of his right to present a defense.
The record disproves defendant’s contention that the trial court misinterpreted his theory of admissibility. The court’s statements reveal it understood defendant’s theory of admissibility perfectly, but found defendant’s reasoning flawed.
Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact of consequence to the determination of an action. (Evid. Code, § 210.) We review any ruling on the admissibility of evidence for abuse of discretion. (Peoplev.Guerra (2006) 37 Cal.4th 1067, 1113.)
Defendant’s final theory of admissibility at trial was that if he introduced evidence that Cassel ran a red light, he should be permitted to introduce evidence of Cassel’s blood-alcohol concentration. Defendant failed to introduce any evidence tending to show that the light for cars driving on Gower was red or that the light for cars driving on Sunset was green. Indeed, the overwhelming and uncontradicted evidence established that eastbound and westbound traffic on Sunset had a red light. Thus, defendant did not satisfy his own threshold for admissibility of evidence of Cassel’s blood-alcohol concentration. In light of the overwhelming evidence that defendant, not Cassel, ran a red light, evidence of Cassel’s blood-alcohol concentration was not relevant to prove or disprove any disputed fact of consequence. Indeed, inferring that Cassel ran a red light merely from his blood-alcohol concentration would require speculation as well as a complete disregard of all of the evidence showing that the light was red for defendant. Nor was Cassel’s blood-alcohol concentration relevant to any other issue. In contrast, evidence of defendant’s blood-alcohol concentration was relevant to prove implied malice, for purposes of the murder charges, and that defendant was driving under the influence in violation of Vehicle Code section 23152 or 23153, for purposes of the gross vehicular manslaughter while intoxicated charges and the several lesser included offenses upon which the court instructed. (Peoplev.Talamantes (1992) 11 Cal.App.4th 968, 973; Pen. Code, § 191.5.) As the trial court aptly noted, Cassel was not charged in this case, defendant was.
Proper application of the rules of evidence does not impermissibly infringe upon the defendant’s right to present a defense. (People v. Thornton (2007) 41 Cal.4th 391, 443.) A defendant “‘does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible’” under the rules of evidence. (Montana v. Egelhoff (1996) 518 U.S. 37, 42 [116 S.Ct. 2013].)
Exclusion of the irrelevant and thus inadmissible evidence of Cassel’s blood-alcohol concentration did not violate defendant’s right to present a defense. Absent speculation, the evidence had no tendency to establish that Cassel, not defendant, ran a red light, and its exclusion thus did not hinder defendant’s effort to establish a defense.
2. Exclusion of evidence of defendant’s alcoholism
While cross-examining Morris, defendant asked, “And in one of those sessions you had, Mr. Vargas discussed with you about how he has been drinking since he is [sic] ten years old and he has a family of alcoholics?” The prosecutor objected on the grounds of relevance and hearsay. Outside the presence of the jury, the prosecutor added an objection under Evidence Code section 352. Defendant argued that the court had already ruled that Morris’s notes were a business record, the rule of completeness required that defendant be allowed to delve into additional statements he had made to counselors other than the ones the prosecutor had introduced, and that defendant’s alcoholism was relevant as to whether defendant appreciated the risk of driving under the influence of alcohol, which was, in turn, relevant to the murder charges. Defendant explained, “[B]ecause of the disease of alcoholism and the manner in which he drinks and the denial that goes with alcoholism, which I believe this counselor will attest to, one of the things I believe I want to introduce is this person would not appreciate the risk. Being told in and of itself doesn’t mean he appreciates the risk.”
The court observed that eliciting the testimony from Morris presented hearsay issues and, “[W]hat you are trying to do is get into his head and explain why he did this thing without his having to suffer the inconvenience, as it were, of testifying.” The court further noted that admitting the evidence might benefit the prosecution, at defendant’s expense. Ultimately, the court ruled that evidence of defendant’s alcoholism was irrelevant but invited defense counsel to present additional points and authorities when trial resumed the following week. As far as the record reveals, defense counsel did not attempt to revisit the issue, and Morris provided no additional testimony.
Defendant contends that the trial court erred because defendant’s “chronic history of alcoholism and how that can affect an alcoholic’s appreciation for the dangers of drinking and driving” was both relevant and “fell within the provisions of Evidence Code section 356.” He argues he was not attempting to have the jury consider the effects of intoxication to negate implied malice but instead sought to show “the effects of the disease of alcoholism over time which clouded his judgment in equating drinking and driving with potentially lethal behavior.” He further argues that the exclusion of this evidence violated due process by depriving him of his right to present a defense, and that Penal Code section 22 violates his rights to due process and equal protection. (Undesignated statutory references are to the Penal Code.)
Defendant has presented no theory, on appeal or in the trial court, of how the purported alcoholism of members of defendant’s family tended to prove or disprove any disputed fact of consequence.
Defendant’s argument on appeal regarding how alcoholism affects “an alcoholic’s appreciation for the dangers of drinking and driving” reveals that his purpose in introducing evidence of his own alleged alcoholism would have potentially violated section 28, which bars a diminished capacity defense and precludes admission of “[e]vidence of mental disease, mental defect, or mental disorder” “to show or negate the capacity to form any mental state, including, but not limited to... knowledge, ... or malice aforethought, with which the accused committed the act.” (§ 28, subds. (a) & (b).)
Even if defendant had been able to avoid the bar of section 28, he failed to make a sufficient offer of proof demonstrating the relevance of his alleged alcoholism, in that he did not offer proof that his alleged alcoholism caused him to be subjectively unaware of the risk entailed by driving while under the influence of alcohol. He did not inform the court that he was prepared to present an expert witness who could correlate defendant’s alleged alcoholism to defendant’s lack of subjective awareness. Absent such expert testimony, admitting evidence that defendant was an alcoholic was a dead end. It had no tendency to prove that he did not subjectively appreciate the risk of driving while intoxicated. It appears that defendant hoped to use Morris as an expert witness on the effects of alcoholism in general. But no one had introduced any evidence regarding Morris’s credentials or education, let alone his expertise on alcoholism, and defendant did not inform the court that he could demonstrate such expertise on the part of Morris.
Nor was admission required by Evidence Code section 356, which provides, “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.” The purpose of this statute is to avoid creating a misleading impression. (People v. Arias (1996) 13 Cal.4th 92, 156.) The court may exclude any portions of a conversation, declaration, act, or writing that are irrelevant to the previously admitted portions. (People v. Williams (1975) 13 Cal.3d 559, 565.)
Defendant did not show that the statements he sought to introduce were part of the same act, declaration, conversation, or writing. It appears from Morris’s testimony that he dealt with defendant during a three-month program, then an 18-month program, and they may have had many “conversations” over the course of those 21 months. Indeed, the two statements the prosecutor introduced were made in separate sessions occurring nearly seven months apart: Morris testified that on November 24, 2004, defendant said that a letter from a prison inmate resonated with him because he had nearly killed someone during his first DUI offense, and on June 19, 2005, defendant stated that an unknown article “‘provided him with a lot of reasons not to drink while driving.’” Even if defendant had been able to establish that the alcoholism statement had been made during one of these two sessions, he failed to show it “fell within” “the whole on the same subject” as the two statements the prosecutor had introduced as set forth above.
For all of these reasons, the trial court did not err by excluding the proposed testimony. Nor did the exclusion of this evidence violate defendant’s right to present a defense. The evidence had no tendency to show that defendant did not actually appreciate the risk involved in driving while under the influence of alcohol.
The trial court did not refer to or rely upon section 22 when it excluded the proposed evidence. The prosecutor did not rely on section 22, and the Attorney General does not rely upon section 22. We do not rely upon section 22 in finding that the trial court properly excluded the evidence. Defendant’s arguments regarding section 22 are thus inconsequential. We merely note that other courts have rejected the same arguments, as defendant recognizes in his opening brief. (See, e.g., People v. Timms (2007) 151 Cal.App.4th 1292, 1298–1302.)
3. Admission of crime scene photographs of the victims
Before trial, the prosecutor informed the trial court that he wished to introduce one crime scene photograph of each of the deceased victims and showed the court and the defense the two photographs he had selected. Defendant objected on the grounds that the photos were irrelevant and their prejudicial effect substantially outweighed their probative value, in that the cause of death, identity, and location of the victims in the car were not at issue, the accident reconstruction expert was not present to view the bodies, and the photos were simply intended to inflame the jury. He offered to stipulate to identification and that the cause of death was a traffic accident. The prosecutor argued that the photographs were “really the best proof that we have of what happened, what the officer saw, what the witnesses saw....” The trial court added that the photos depicted “what very well can and unfortunately in this particular instance did happen as a result arguably of someone drinking and driving. [¶] So it’s a depiction of the aftermath which is, of course, an illustration to the jurors of the seriousness of the actual event. The very essence of the prosecution, really.” The court further noted that the photographs did not depict much blood and “are pretty sanitized in the scheme of things.” It agreed to admit the two photographs.
Defendant contends that the trial court abused its discretion because “the prosecutor’s asserted claims of relevancy were debunked by the record” and “the trial court’s ruling appears to have been based on the importance of vividly portraying the serious consequences of drinking and driving, a kind of poster portrayal of what MADD is all about, rather than a dispassionate view of the evidence....”
A trial court has broad discretion to admit purportedly gruesome or inflammatory photographs of a victim, and the court’s decision will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. (Peoplev.Scheid (1997) 16 Cal.4th 1, 18 (Scheid).) Photographs need not be excluded as cumulative simply because other evidence was introduced to prove the same facts. (People v. Crittenden (1994) 9 Cal.4th 83, 134–135.) “[A] prosecutor is not required to rely solely on oral testimony when a visual image would enhance the jury’s understanding of the issues.” (People v. Cowan (2010) 50 Cal.4th 401, 476 (Cowan).)
We have examined the two photographs in controversy. One of them depicts Cassel reclining in a car seat. Some blood appears below his nose, on his cheeks, and on the left side of his face, as if he bled from his nose and it ran down his face, which is tilted to the left. The photograph is unpleasant, in the sense that it depicts the tangible, tragic results of defendant’s conduct, but it is not gruesome or inflammatory. Defendant’s not guilty plea put every element of the charged offenses into issue, even the elements the defendant conceded or did not actively contest. (Cowan, supra, 50 Cal.4th at p. 476.) Although we question the trial court’s expressed rationale of illustrating the “results... of someone drinking and driving” and “the seriousness of the actual event, ” we review the court’s ruling, not its rationale. (Bailon v. Appellate Division (2002) 98 Cal.App.4th 1331, 1339.) The photograph of Cassel was relevant to illustrate and corroborate the credibility of witnesses such as Pungrchar, Watts, and Carrillo, and to enhance the jury’s understanding of the crimes and their effect upon the victim. (Scheid, supra, 16 Cal.4th at pp. 15, 18.) “That the challenged photographs may not have been strictly necessary to prove the People’s case does not require that we find the trial court abused its discretion in admitting them.” (People v. Mills (2010) 48 Cal.4th 158, 191.) Defendant has not shown that the trial court abused its discretion by admitting the photograph of Cassel.
The other photograph depicts Meier lying on her back on the sidewalk. There is a smudge of blood on her left temple. Her partial nudity, a neck brace, a plastic object protruding from her mouth, and debris near her indicate prior paramedic activity. She is not in or apparently near the car in which she was riding. The photograph is not unduly gruesome or inflammatory, but we fail to see any relevance in this photograph. It did not illustrate or corroborate the testimony of witnesses to the accident or its aftermath. Unlike a coroner’s photograph, it did not depict the location or nature of the injuries inflicted by defendant that caused her death. Nevertheless, the admission of the photograph was harmless. Other than, possibly, the nature of some of the life-saving attempts made by paramedics, the photograph did not convey any new information to the jury. Defendant has not suggested any possible prejudice resulting from the jury learning about the paramedics’ activities, and we see none. Indeed, defendant only argues that the admission of the photographs was prejudicial “in combination with” defendant’s other two claims of error, which we have already rejected. In light of the overwhelming evidence establishing defendant’s guilt, we conclude that it is not reasonably probable that defendant would have obtained a more favorable result if the trial court had excluded the crime scene photograph of Meier. (Peoplev.Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., CHANEY, J.