Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F03553
DAVIS, J.
Defendant Tracy Hasson was found guilty by a jury of vehicular manslaughter while driving under the influence of marijuana (former Pen. Code, § 192, subd. (c)(3) [the crime of vehicular manslaughter while intoxicated is now contained in Pen. Code § 191.5, subd. (b); see Stats. 2006, ch. 91, § 1]) and transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). Defendant waived jury trial on two prior controlled substance convictions (Health & Saf. Code, § 11370.2, subd. (a)), and the trial court found the prior convictions true. Probation was denied and defendant was sentenced to state prison for a term of 11 years 8 months, including an upper term on the controlled substance offense.
Defendant appeals, contending there was insufficient evidence that he was under the influence of marijuana at the time of the accident. He also asserts the trial court erred by admitting a photograph of the victim at trial. Finally, defendant claims his sentence violated the holdings in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham).) We shall affirm.
Factual Background
On the date of the incident, defendant drove his car across double yellow lines into the oncoming traffic lane after failing to execute a curve in the road, causing a head-on collision that resulted in the death of the other vehicle’s driver. Defendant told a police officer that the accident occurred when he looked down to change the compact disk in the stereo that had recently been installed in his car. Defendant was familiar with the street on which the accident occurred, and a traffic collision investigator with the Sacramento Police Department determined there was nothing mechanically wrong with defendant’s car that contributed to the accident. The accident occurred during daylight hours.
While defendant’s injuries were being treated at a medical center after the accident, two baggies of rock cocaine were discovered in his sock. Defendant’s blood was drawn, and he tested positive for the active ingredient in marijuana (THC). A drug recognition evaluation was not performed on defendant because of his injuries, but an officer noted that defendant’s eyes were bloodshot and watery. Defendant admitted he had smoked marijuana before the accident at a friend’s house and while he was driving. According to defendant, five minutes elapsed between the time he left his friend’s house and when the accident occurred.
There is some confusion in the record as to where defendant was when he was smoking the marijuana. An officer who spoke with defendant at the hospital testified that defendant told him he had been at his cousin’s house. According to the statement taken by a second officer, defendant was at his friend’s house.
A toxicologist with the Department of Justice testified that the amount of Delta 9 THC (the active component in marijuana) in the blood stream peaks within 10 minutes of smoking marijuana and breaks down to much lower levels after 20 minutes. According to the toxicologist, the amount of THC in defendant’s system, which was higher than the amounts she usually saw in samples she tested, would cause a person to feel some effects that could include a negative impact on the ability to drive. The toxicologist testified that marijuana can affect psychomotor skills such as coordination, judgment and response time, which could impact an individual’s ability to stay within the lanes when driving. She also testified that not negotiating a curve or staying within the lane is consistent with the effects of marijuana. However, the toxicologist felt that, due to the unpredictable effects of marijuana, a scientific conclusion that an individual was under the influence of marijuana could not be based on a blood sample alone without field sobriety tests.
Discussion
I
Defendant contends that substantial evidence does not support the jury’s finding that he was under the influence of marijuana at the time of the accident. He is incorrect.
“‘Substantial evidence’ is evidence which is reasonable, credible, and of solid value, and it is such that a reasonable trier of fact could find a defendant guilty beyond a reasonable doubt.” (People v. Gallardo (1994) 22 Cal.App.4th 489, 492 (Gallardo).) “‘[W]e must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.’” (People v. Carpenter (1997) 15 Cal.4th 312, 387.) If the evidence is sufficient on each element, “the possibility that the trier of fact might reasonably have reached a different conclusion does not warrant reversal.” (People v. Taylor (2004) 119 Cal.App.4th 628, 639.)
“A person is . . . under the influence of a drug . . . when as a result of . . . using a drug . . . his . . . physical or mental abilities are impaired to such a degree that . . . he . . . no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.” (CALJIC No. 16.831; see People v. Schoonover (1970) 5 Cal.App.3d 101, 105–107.)
The evidence in the present matter established that, before the accident, defendant smoked marijuana at his friend’s house and again while driving. Defendant told a police detective that the accident occurred five minutes after he left his friend’s house. Thus, based on the toxicologist’s testimony that the amount of THC in a user’s system peaks within 10 minutes of smoking, it was reasonable for the jury to conclude that the amount of marijuana in appellant’s system was highest around the time of the accident. According to the toxicologist, a person with the level of THC that defendant had in his system would be feeling some effects and defendant’s inability to negotiate the curve in the road was consistent with the effects of marijuana use. There was no evidence that lighting or weather factored into the accident, and defendant was familiar with the road where the accident occurred. Consequently, the jury reasonably could have inferred that defendant’s judgment was impaired by marijuana when he withdrew his attention from his driving at a point when the road (with which he was familiar) curved.
Defendant contends that factors such as weather, lighting and the condition of his car could be used to establish negligent driving but were “not relevant factors tending to prove intoxication.” He does not point to any authority to support this proposition, and we can conceive of no legal basis for precluding consideration of this evidence on both issues. Such evidence, while not sufficient standing alone to establish either negligence or that defendant was under the influence, demonstrated that other factors commonly contributing to an accident were not present.
Defendant contends that evidence of his use of marijuana prior to the accident was insufficient to establish he was under the influence in light of the toxicologist’s inability to opine that defendant was impaired by the marijuana in his system. Defendant suggests the jury was not entitled to conclude that he was under the influence when the toxicologist was unable to make this determination.
However, “[t]he jury is not bound to accept the opinion of any expert as conclusive” and may “disregard any such opinion, if it shall be found by them to be unreasonable.” (Pen. Code, § 1127b.) Consequently, the jury could determine that defendant was under the influence of marijuana at the time of the accident despite the toxicologist’s reluctance to reach this conclusion. As discussed previously, the evidence taken as a whole was sufficient to establish this element of the offense.
Defendant cites two cases that he maintains support a contrary conclusion--Gallardo, supra, 22 Cal.App.4th 489 and People v. Andersen (1994) 26 Cal.App.4th 1241 (Andersen). However, both of these cases stand for the proposition that, even in the absence of blood test results definitively establishing that a defendant was driving under the influence, such evidence may be sufficient when combined with other corroborating evidence.
In Gallardo, the evidence was held sufficient to establish that the defendant was under the influence of alcohol even though his blood alcohol level was below the presumptive level because there was additional corroborating evidence, including the defendant’s conduct before and after the accident and visible symptoms such as bloodshot eyes and difficulty balancing. (Gallardo, supra, 22 Cal.App.4th at pp. 492-494.)
In Andersen, the appellate court concluded there was ample evidence that the defendant was driving under the influence of methamphetamine and alcohol when the defendant tested positive for methamphetamine and had a blood-alcohol level of .022 percent after an accident in which he used the shoulder of the freeway to attempt to pass a truck, colliding with a vehicle that was parked there. (Id. at pp. 1252, 1253.) As in the present matter, field sobriety tests could not be administered to the defendant due to his injuries. Also similar to the present matter, the expert in Andersen testified that the amount of methamphetamine in the defendant’s system was higher than in the average sample and the defendant’s driving was consistent with someone who was impaired by methamphetamine and alcohol. (Id. at p. 1247.)
Defendant contends the circumstances in his matter are distinguishable from Gallardo because the only corroborating evidence was that his eyes were bloodshot and watery. To the contrary, the timing of defendant’s use of marijuana, the manner in which the accident occurred and defendant’s avowed familiarity with the roadway corroborate that he was under the influence of marijuana at the time of the accident.
For similar reasons, we reject defendant’s attempt to distinguish Andersen on the basis that his driving preceding the accident was not sufficiently erratic to corroborate that he was under the influence of marijuana. The issue is whether defendant’s driving pattern corroborated that he was under the influence of marijuana, which it did.
The jurors were not bound to accept the toxicologist’s opinion regarding whether defendant was under the influence of marijuana at the time of the accident. Substantial evidence supports their conclusion that he was. For this reason, we also reject defendant’s claim that the failure of proof on this issue deprived him of due process.
II
Defendant next contends that the trial court erred by admitting a photograph of the victim taken prior to the accident. We conclude any error was harmless.
The prosecuting attorney moved to admit a color photograph of the victim “to establish that a human being died in this case.” Defense counsel objected, noting there was no issue whether someone had died in the car accident and arguing that the photograph was not “relevant to personalize the person that died.” The trial court ruled the photograph would be admitted because it “gives a face to the element, the death of another person” and it did not appear that any prejudice would result from its admission.
Numerous cases have recognized that it is error to admit a photograph of the victim unless it is relevant to a contested issue at trial. (See People v. Anderson (1990) 52 Cal.3d 453, 474-475 (Anderson); People v. Hovey (1988) 44 Cal.3d 543, 571 (Hovey); People v. Hendricks (1987) 43 Cal.3d 584, 594-595; see People v. Ramos (1997) 15 Cal.4th 1133, 1170.) Such relevancy was not established in the present case.
However, it has also been recognized that such error may be deemed harmless if the photograph is “‘an “ordinary” one not likely to produce a prejudicial impact.’” (Anderson, supra, 52 Cal.3d at p. 475, citing Hovey, supra, 44 Cal.3d at p. 571.) Nothing about the photograph in question (described as a color photograph of the victim sitting in a tree), nor the manner in which it was displayed by the prosecution, reflects any likelihood of prejudice. It appears the photograph was displayed briefly during closing argument and without appeal to the jury’s sympathies. The prosecuting attorney stated simply: “This is [the victim]. She died in this accident.” The court instructed the jury not to be swayed by sympathy or prejudice, and defendant’s trial attorney addressed the jury on this issue during closing argument.
Under such circumstances, we conclude that defendant was not prejudiced by the brief display of a photograph of the victim.
Neither party has sought to have the photograph made part of the record on appeal. However, a page containing black and white copies of photographs of the victim, including one that meets the description of the photograph in question, is attached to the probation report that is part of the record on appeal.
III
Finally, in supplemental briefing, defendant claims that imposition of an upper term sentence violated his right to a jury trial as set forth in Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. In light of the recent California Supreme Court decision in People v. Black (2007) 41 Cal.4th 799 (Black II), we disagree.
Initially, we reject the People’s contention that defendant has forfeited his claim by failing to object on this basis in the trial court. “Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237.) At the time of defendant’s sentencing, People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I), later vacated sub nom. Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36], had upheld the California sentencing scheme under Blakely, and Cunningham had yet to be decided. As Black I was still binding precedent at the time of defendant’s sentencing, an objection based on Blakely would have been futile and, consequently, was not required to preserve the issue. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
We turn to the merits of defendant’s claim. In Blakely, the United States Supreme Court, citing Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), held that any circumstance “‘[o]ther than the fact of a prior conviction’” (Blakely, supra, 542 U.S. at p. 301) that is relied on by a trial court to increase the penalty for a crime beyond the statutory maximum must be tried before a jury and proved beyond a reasonable doubt. (Id. at pp. 301, 303.) Although the California Supreme Court held in Black I that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law” does not violate Blakely, the United States Supreme Court rejected this holding in Cunningham and concluded that the middle term is the statutory maximum under California’s determinate sentencing scheme. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 876].)
However, subsequent to Cunningham, the California Supreme Court held in Black II that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) This is so because “[u]nder California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make [a] defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813.)
Defendant’s criminal history was chronicled in his probation report: (1) in 1991, defendant was placed on five years probation for possession for sale of rock cocaine (Health & Saf. Code, § 11351.5); (2) in 1993, defendant again possessed rock cocaine for sale and was placed on five years probation; (3) in 1996, defendant was placed on three years probation for falsely identifying himself to a peace officer (Pen. Code, § 148.9, subd. (a)); (4) in 1998, defendant was placed on four years probation for being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)); (5) on the same date that defendant was sentenced for the preceding firearm offense, he was placed on three years probation for spousal battery (Pen. Code, § 273.5, subd. (a)); (6) in 1999, defendant was convicted of shoplifting (Pen. Code, § 484) and was denied probation.
At defendant’s sentencing hearing, the trial court noted the one mitigating factor mentioned by defendant’s attorney--defendant’s remorsefulness--but found this did not outweigh the factors in aggravation. The court recited defendant’s criminal history and the fact that each offense was committed while defendant was on probation for the prior offense. The court concluded: “[Y]ou’ve had a number of grants of probation and that seems to have only resulted in your committing more crimes rather than using the gift of the [c]ourt in a positive way. So, because of that, I’m going to impose the upper based term, because your prior performance on probation was unsatisfactory. You do have prior convictions that are numerous.”
Defendant argues that the exception to the requirement for a jury trial on aggravating sentencing factors recognized in Apprendi and Blakely for “the fact of a prior conviction” should not extend to the factors relied on by the trial court here to impose the upper term, because such factors required the court to resolve additional issues, such as whether his prior convictions were “numerous” and whether his performance on probation was “unsatisfactory.” (Cal. Rules of Court, rule 4.421(b)(2) & (b)(5).) The court in Black II reached a contrary conclusion, concluding that the “prior conviction” exception “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black II, supra, 41 Cal.4th at p. 819.) The court concluded that, because “[t]he determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged,” they are “‘quite different from the resolution of issues submitted to a jury, and [are] more typically and appropriately undertaken by a court.’” (Id. at pp. 819-820.)
Such is the case here. A review of defendant’s criminal record reveals he has numerous criminal convictions. This fact alone was sufficient to make him legally eligible for the upper term. Accordingly, no Blakely error occurred.
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P.J., MORRISON, J.