Filed 4/30/18 P. v. Yohn CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
ALEXANDER D. YOHN,
Defendant and Appellant.

A149361

(Alameda County
Super. Ct. No. CH-56830)


While being pursued by the police, defendant Alexander D. Yohn, who was highly intoxicated, ran a red light and struck and killed motorcyclist Andrew Silva. As a result, a jury convicted defendant of second degree murder and gross vehicular manslaughter while intoxicated. (Pen. Code, §§ 187, subd. (a) and 191.5, subd. (a).) Defendant contends on appeal that the trial court erred by admitting photographs of the victim’s injuries over defendant’s Evidence Code section 352 objections, and that the error had the effect of violating his right to due process of law. We conclude that the trial court did not abuse its discretion in admitting this evidence and affirm the judgment.
FACTUAL BACKGROUND
On the evening of March 24, 2014, defendant drove from Emeryville to Fremont to meet a woman for a first date. He stopped off at a bar and had a drink, before driving to another bar where he met the woman for their date. Defendant was eventually kicked out of the second bar by a bouncer for being drunk. Defendant got back in his car and drove to a parking lot across the street from the second bar, speeding and swerving into a parking space. The woman left the second bar with defendant and moved her car, too. But after she saw the way defendant drove into the parking lot, she told him that he was not okay to drive, and she removed his keys from the ignition to try to prevent him from driving. Defendant resisted, and continued to try to get his keys from the woman; he called her “bitch” multiple times and raised his voice. After the woman prevailed on him to call someone to pick him up, defendant eventually called someone to give him a ride home. The woman spoke first to a man and then to another person on defendant’s cell phone; the second person to whom the woman spoke seemed to agree to give defendant a ride home. The woman followed up with a confirming text message to the phone number she had been talking to, with the address where defendant could be retrieved. She then waited with defendant for about 5 to 10 minutes for someone to arrive, but feared defendant would physically harm her. He repeatedly called her a “bitch” and raised his voice. Eventually she left defendant’s car keys on the passenger seat of defendant’s car, and drove her own car home.
Defendant did not wait for a ride. He drove to a Taco Bell, and ordered food at the drive-thru window. His conduct alarmed the supervising manager at the Taco Bell. Defendant was swaying in his seat uncontrollably, not speaking in full sentences, and had a red face and bloodshot eyes. He was unable to pay for his order, handing over an insufficient amount of cash, a debit card, a medical card and eventually his entire wallet, which he ultimately left behind. The supervising manager, who was taking defendant’s order, thought defendant was intoxicated and called 911 and gave the operator defendant’s license plate number. The 911 call was played for the jury. The supervising manager did not believe defendant was well enough to walk on his own, let alone drive a car, and she did not want defendant to hurt anyone. After the manager called 911, she tried to keep defendant at the Taco Bell until the police arrived, but defendant sped off just as they arrived.
With the police car trying to catch up to him, defendant drove at up to 80 miles per hour, twice the speed limit. He ran one red light, and then another, just as Andrew Silva was driving through an intersection on a motorcycle. Defendant crashed into Mr. Silva, throwing him in midair and into a pole. Mr. Silva died from multiple blunt force injuries upon impact at the scene.
Meanwhile, defendant kept driving and crashed into a wood pole, and then got out of his car and fled to a field nearby. A police officer chased after him, and defendant stopped only when an officer threatened to use a Taser on him.
Defendant’s blood alcohol content, measured one hour after the crash, was 0.23 percent. A forensic toxicologist testified that a blood alcohol content this high meant defendant had consumed about 15 drinks within a couple of hours before the crash. Lab results also showed that defendant had an opiate in his system (suboxone, used for his heroin addiction), and the toxicologist testified that the combination of alcohol and the opiate would intensity the effects of the two substances. There was a warning to this effect on the prescription bottle for suboxone, which was recovered from defendant’s bedroom the day after the crash.
This was not defendant’s first alcohol related crash. In 2010, he was convicted in Minnesota of driving under the influence, with a blood alcohol content of 0.14. In that crash, he collided with a parked car. After that conviction, and incident to his probation, he attended a 12-hour course over a six-week period on the consequences of drinking and driving.
DISCUSSION
The Evidentiary Rulings
In pretrial motions, the prosecution moved to introduce certain photographs from the autopsy of Mr. Silva, and the defense cross-moved to exclude them under Evidence Code section 352 on the ground that the photographs were gruesome, unnecessary because the injuries and death of the victim were not disputed, and would only inflame the passion of the jury and prejudice the defendant. The trial court held a hearing on whether to admit the photographs, which we describe in some detail, since the sole issue on appeal is whether the trial court erred by admitting some of the photographs.
The prosecutor originally asked for seven autopsy photographs to be admitted in evidence. In a chambers discussion with counsel before the hearing on the motions in limine, the trial court excluded two of them. As for the five photographs at issue, the prosecution contended that they showed the impact and cause of Mr. Silva’s death and would accompany a pathologist testifying about Mr. Silva’s injuries.
The court scrutinized the five photographs one by one at the hearing. The first photograph (identified in the hearing as Exhibit G) showed the victim’s face and torso. The court concluded it was “very very probative” of the speed with which defendant hit the victim and thus the defendant’s recklessness or conscious disregard for human life and gross negligent conduct.
The second photograph (Exhibit H) showed the victim’s left hand and wrist, and in the court’s words, “what appears to be an injury with a bone protruding from the injury.” Defense counsel argued again that the cause of death wasn’t “really an issue,” that the victim died of blunt injuries, and this photograph was gruesome and unnecessary because it did not “show anything on his torso.” The court admitted Exhibit H, stating that it was probative on the same two issues as Exhibit G and noted that Exhibit H was a “split injury. It’s been cleaned up, no blood.”
The third photograph (Exhibit I) showed right elbow injury. The defense questioned the “value of this photo” and whether it was “necessary to show there’s an abrasion on his elbow.” The court admitted Exhibit I, stating it depicted an injury that was not shown in the other two photographs, and again was relevant to the “two important elements” of counts 1 and 2.
The next photograph (Exhibit J) depicted the left side of the torso of the victim. Defense counsel stated that given the court’s prior rulings he would not object to the photograph, stating “I don’t think this is particularly offensive.”
The fifth photograph (Exhibit K) showed what the court described as “the right lower part of the body, particularly serious injury, and looks like part of the lower leg was severed.” Defense counsel described the photograph as gruesome. Although defense counsel had “no objection” to testimony about the fact that the victim’s leg was “basically . . . torn off in the crash” and that other parts of the victim’s leg “were spread on the pavement in some places,” he contended that “I can’t imagine that this [photograph] wouldn’t have some incendiary effect on the jury.” The prosecutor argued that the photograph was relevant to show how the victim was driving and the extreme speed of the impact. Defense counsel countered that the photographs from the collision merely confirmed the uncontested fact the victim was driving through the intersection with a green light. The court admitted the photograph, noting that it was relevant to the issue of extreme speed and the same elements described earlier as to counts 1 and 2 concerning recklessness and disregard for human life. The court acknowledged that it “is a difficult photograph” because of the injuries it showed, but that “it’s been cleaned up. The injuries have been cleaned up. There’s no blood that’s visible.”
After the prosecution presented its case, and outside the presence of the jury, as the prosecutor was formally moving exhibits in evidence, defense counsel again objected to the autopsy photographs. After considering the restated arguments of counsel, the trial court overruled the objections, finding the photographs relevant, not cumulative, corroborated testimony, and not unduly gruesome. The court stated, “[T]his is consistent and corroborates other testimony with which –the speed which he was driving, the impact, and the results of the impact are consistent with him driving at a speed far above the speed limit or what would have been safe for the circumstances. And . . . I find they’re not cumulative because you can see from my description and the photos themselves is they are very different parts of the [victim’s] body.” As to the prejudice, the court continued, “They—there’s no blood, even though one—I think the one which shows the face, right side of upper body, it had been indicated by [the forensic pathologist] as not being cleaned up. His body is more dirty, and there’s no blood that’s present. So I find those to be clearly relevant and not unduly gruesome in any way. [¶] That’s necessary for the jury to understand. This is a case involving a homicide, and this is what logically the jury has to see, the results of this kind of driving, to understand what the results of the driving or the drinking really was as well as the results of the driving.”
Legal Background
As our Supreme Court wrote in People v. Howard (2010) 51 Cal.4th 15, 33, “ ‘ “The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The court’s exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.]” [Citation.]’ . . . Autopsy photographs are routinely admitted to establish the nature and placement of the victim’s wounds and to clarify the testimony of prosecution witnesses regarding the crime scene and the autopsy, even if other evidence may serve the same purposes. [Citation.]” Even “ ‘gruesome’ ” autopsy photographs may be admitted if they clarify the testimony of a medical examiner. (People v. Gonzales (2012) 54 Cal.4th 1234, 1272.) Autopsy photographs of murder victims are “always relevant at trial to prove how the crime occurred; the prosecution need not prove these details solely through witness testimony”; further, they may “also be relevant to prove that the killers acted with malice.” (People v. Carey (2007) 41 Cal.4th 109, 127; accord People v. Watson (2008) 43 Cal.4th 652, 684 [autopsy and crime scene photographs are not made inadmissible by prosecutor’s ability to prove motive, intent and cause of death through other evidence; not inadmissible because offered to prove an issue not in dispute; and are even admissible if repetitive of other evidence, so long as probative value is not substantially outweighed by prejudicial effect].) And, “[a]s is usually the case in a murder,” these types of photographs are by their nature “unpleasant.” (People v. Bryant (2014) 60 Cal.4th 335, 423 [no error in admitting crime scene and autopsy photographs of victims].)
Defendant was charged with second degree murder, and the prosecution needed to prove the necessary element of implied malice. This is what the prosecutor argued to the jury at the close of the case: “In this case, the only malice, the evidence has been presented to you, is implied malice.” Thus the jury was instructed per CALCRIM No. 520 that to find the defendant acted with implied malice it had to find that he intentionally committed an act, the natural and probable consequences of which were dangerous to human life, that at the time defendant acted he knew the act was dangerous to human life, and that he deliberately acted with conscious disregard for life. ~(3 RT 1169)~ The case law is clear that driving while intoxicated can be the basis for a second degree murder conviction if implied malice is proven. (See, e.g., People v. Watson (1981) 30 Cal.3d 290, 300-301 (Watson) [in homicide cases involving driving under the influence of alcohol. where facts support implied malice a defendant can be charged with second degree murder]; People v. Ferguson (2011) 194 Cal.App.4th 1070, 1080; People v. Hicks (2017) 4 Cal.5th 203 [affirming second degree murder conviction for driving while intoxicated on marijuana and PCP].) Appellate opinions that have upheld murder convictions of this type “ ‘have relied on some or all of the following factors’ that were present in Watson: ‘(1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.’ [Citation.]” (People v. Wolfe (2018) 20 Cal.App.5th 673, 682-683.)
None of these legal principles are disputed by defendant, and so it remains for us to determine whether the trial court abused its discretion in admitting these five photographs. In his brief on appeal, defendant focuses on the “two photos on which defense counsel focused his section 352 objection” which we take to refer to Exhibit H showing the victim’s left hand and wrist with the bone protruding from the injury and Exhibit K depicting the lower part of the victim’s right side where his lower leg was severed. Defendant’s argument is that these photographs—which he describes as graphically showing the extreme injuries suffered by the victim as a consequence of defendant’s acts—had little or no probative value on whether defendant knew that driving while extremely intoxicated, speeding, and running red lights was dangerous to human life and whether he deliberately acted with conscious disregard for life. Defendant contends that if the required mental state (knowledge and conscious disregard) was present, it was already in existence at the time that the crash killed the victim, and the photographs should have been excluded. Defendant further argues that the photographs had no probative value on the issue of the high rate of speed, because in a collision between an automobile and an exposed and unprotected driver of a motorcycle, injuries of the type shown in the photographs could have occurred at even less than the legal speed limit (40 miles per hour) in this case. Balanced against his assessment of low or no probative value, defendant asserts that the prejudice of seeing a protruding bone and a severed limb had “extraordinary potential to shock the jurors” and caused them to have “emotional reactions and bias” against the defendant.
The Attorney General contends that the court properly exercised its discretion in admitting these photographs. We agree. The severity of the fatal collision caused by defendant, who knew he was driving in a highly intoxicated state, is probative of implied malice. It showed the risk to life in defendant’s actions and his conscious disregard of it. And it was the prosecutor’s burden to prove implied malice. Even if defendant had been willing to stipulate to the extent of Mr. Silva’s injuries and the cause of his death, the prosecutor was not required to agree to it. (See People v. Johnson (2015) 61 Cal.4th 734, 767 [“[e]ven if defendant was willing to stipulate to the victims’ causes of death, their injuries, or their identities” prosecutor not required to “ ‘ “accept antiseptic stipulations in lieu of photographic evidence” ’ ”].)
Further, it is readily apparent that the trial judge carefully considered whether to admit these photographs under Evidence Code section 352. The trial judge excluded two of the seven photographs that the prosecutor sought to admit. Although observing that some of the photographs were “difficult,” he carefully scrutinized what was in the images and noted that two of the admitted photographs (Exhibits H and K, which most concerned defendant) had been cleaned up and showed no blood. He specifically considered whether photographs would corroborate testimony and whether they might be duplicative of other photographs, which appeared to be part of the reason for excluding two autopsy photographs. The trial judge conducted a thorough hearing on the issue before trial, and then allowed defense counsel to make objections again after the close of the prosecution’s case before the photographs were moved in evidence. The trial court could reasonably conclude after weighing the probative value of the photographs and danger of undue prejudice that the photographs were admissible. We find no error.
DISPOSITION
The judgment is affirmed.













_________________________
Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.