Filed 4/27/16 P. v. Rinke CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E063656

v.                                                                      (Super.Ct.No. FSB1201172)

JESSE TYLER RINKE,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. William Jefferson

Powell IV, Judge. Modified and affirmed with directions.

         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

and Eric A. Swenson, Kristine A. Gutierrez and Kristen Hernandez, Deputy Attorneys

General, for Plaintiff and Respondent.

         Defendant and appellant Jesse Tyler Rinke stole a vehicle and then fled from law

enforcement. During the pursuit, defendant entered a freeway driving into oncoming
                                                             1
traffic and collided with a motorcycle, causing the motorcyclist’s death. Following a jury

trial, defendant was convicted of second degree murder and evading an officer causing

death. On appeal, defendant contends that (1) the evidence is insufficient to prove the

elements of felony evading causing death; (2) the sentence imposed on the felony

evading causing death should be stayed pursuant to Penal Code section 654; (3) the trial

court erred in admitting evidence of his prior felony evading conviction under Evidence

Code sections 1101, subdivision (b), and 352; (4) the trial court abused its discretion in

admitting a photograph of the deceased victim; and (5) the trial court erred in imposing a

one-year sentence for a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).

We agree that the challenged one-year sentence must be stricken. In all other respects,

we affirm the judgment.

                   I. PROCEDURAL BACKGROUND AND FACTS

A. The Charges.

       The San Bernardino County District Attorney filed a first amended information

charging defendant with murder (Pen. Code, § 187, subd. (a); count 1), vehicular

manslaughter (Pen. Code, § 192, subd. (c)(1); count 2), evading an officer causing death

(Veh. Code, § 2800.3, subd. (b); count 3), and unlawful driving or taking of a vehicle

(Veh. Code, § 10851, subd. (a); count 4). As to count 2, the information alleged that after

committing the offense, defendant fled the scene of the crime (Veh. Code, § 20001, subd.

(c)). The information also alleged that defendant suffered a conviction in case No.

FSB055041 (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), a serious felony

conviction in case No. FSB055041 (Pen. Code, § 667, subd. (a)(1)), and two prison

                                             2
convictions, one in case No. FSB055041, and one in case No. FSB054533 (Pen. Code,

§ 667.5, subd. (b)).

B. The People’s Case.

       On January 22, 2011, in San Bernardino County, defendant stole Winston John

Martin, Jr.’s truck, which led to pursuit by San Bernardino Police Officer Jesse Joyce in

his marked patrol vehicle with his lights and sirens activated. Defendant pulled over.

Officer Joyce and defendant made eye contact through their car mirrors. When Officer

Joyce opened his car door and put his foot outside, defendant sped away. Officer Joyce

pursued defendant with the patrol vehicle’s lights and sirens on. Defendant ran through

two red lights and eventually turned onto Muscupiabe Drive. He drove over the island

and entered the freeway offramp in the wrong direction. Officer Joyce testified that he

terminated his pursuit. However, he later explained that while he did not follow

defendant onto the freeway, the officer did proceed to backtrack and enter the southbound

Interstate 215 (I-215) freeway in an effort to keep his eyes on defendant’s vehicle.

       Christopher Wilson was driving northbound on the I-215 freeway when an

ambulance driving in front of him served to the right. Wilson saw a white truck driving

against traffic coming right at him and immediately swerved to the right. From his

rearview mirror, Wilson saw the motorcyclist who was driving behind him get ejected

from his bike, project through the air, and land on the dirt shoulder. Wilson pulled over

and ran to the motorcyclist, but there was no pulse. Wilson covered the victim’s body

with a blanket and then walked over to the white truck, but the driver was gone.



                                             3
Surveillance footage from a Verizon facility located adjacent to the I-215 freeway

showed an individual running from the freeway through Verizon’s parking lot.

       Defendant called a friend for a ride. Defendant explained to the friend that he had

stolen a truck, was pursued by police, got on the freeway going the wrong direction,

fatally hit a motorcyclist, and then ran from police, using a storm drain near the freeway.

C. The Defense.

       Defendant testified that he took the truck, intending to drive it to another location.

When Officer Joyce pulled him over, defendant thought that he could not go back to jail,

so he sped away. Defendant planned to “make a couple turns, evacuate the vehicle, and

run.” Defendant denied intending to hurt anyone. When he entered the offramp to the

freeway, defendant admitted seeing one-way signs and knowing it was a one-way road;

however, he claimed that he believed it was a road that led to industrial buildings. He

claimed he was not familiar with the area; however, he had lived in the area for some

time and had gone to high school near the area of the pursuit. Defendant acknowledged

that a one-way sign meant it would be illegal to drive the wrong way on a street. To get

to the offramp, defendant had to drive over a raised center divider and cross a lane with

traffic coming in the opposition direction.

       Defendant testified that when he got on the freeway, he changed lanes so that he

was driving in the lane that was closest to a wall. Defendant admitted that by doing this,

the only option for vehicles traveling in that lane was to swerve into the lane to the right

of them, putting them in front of oncoming traffic and in danger of being hit by other

vehicles coming in that direction. Defendant recognized that the motorcyclist did not

                                              4
have the same option. By getting onto the freeway in the wrong direction, changing

lanes, heading directly towards the motorcyclist, defendant admitted he basically

cornered the motorcyclist and put him in a situation where he could not get out of

defendant’s way.

       Defendant testified that after the collision, he exited the truck and ran to get away

from the area. He claimed he did not realize the severity of the collision until he read the

newspaper the next day.

D. The Verdict and Sentence.

       A jury convicted defendant on all counts and allegations. Defendant admitted the

prior allegations. The trial court sentenced defendant to an indeterminate term of 30

years to life on count 1, and a consecutive determinate term of 27 years on count 3.

Pursuant to Penal Code section 654, the trial court stayed the sentences on counts 2 and 4,

and the attendant enhancements.

                                     II. DISCUSSION

A. The Evidence Supports Defendant’s Conviction of Evading an Officer Causing

Death.

       Defendant contends there is insufficient evidence to support his conviction of

evading a pursuing officer and causing the death of the victim, because the evidence

shows that Officer Joyce was no longer actively pursuing defendant at the time of the

collision.




                                              5
       1. Standard of Review

       In considering a challenge to the sufficiency of the evidence, “we review the entire

record in the light most favorable to the judgment to determine whether it contains

substantial evidence—that is, evidence that is reasonable, credible, and of solid value—

from which a reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt. [Citation.] We presume every fact in support of the judgment the trier of fact

could have reasonably deduced from the evidence. [Citation.] . . . ‘A reviewing court

neither reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People

v. Albillar (2010) 51 Cal.4th 47, 60.)

       2. Analysis

       Subdivision (b) of Vehicle Code section 2800.3 provides: “Whenever willful

flight or attempt to elude a pursuing peace officer in violation of Section 2800.1

proximately causes death to a person, the person driving the pursued vehicle, upon

conviction, shall be punished by imprisonment in the state prison for a term of 4, 6, or 10

years.” Vehicle Code section 2800.1, subdivision (a) provides: “Any person who, while

operating a motor vehicle and with the intent to evade, willfully flees or otherwise

attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor

punishable by imprisonment in a county jail for not more than one year if all of the

following conditions exist: [¶] (1) The peace officer’s motor vehicle is exhibiting at

least one lighted red lamp visible from the front and the person either sees or reasonably

should have seen the lamp. [¶] (2) The peace officer’s motor vehicle is sounding a siren

as may be reasonably necessary. [¶] (3) The peace officer’s motor vehicle is

                                             6
distinctively marked. [¶] (4) The peace officer’s motor vehicle is operated by a peace

officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of

the Penal Code, and that peace officer is wearing a distinctive uniform.”

       Here, by his own admission, defendant knew he was being pursued by Officer

Joyce and admitted that he acted in an attempt to avoid capture. The fact that Officer

Joyce, moments before the crash, terminated the pursuit (by not following defendant onto

the freeway) does not change our conclusion that all of the elements necessary to support

a conviction of felony evading an officer exist, particularly given the evidence

summarized above. At most, Officer Joyce’s decision not to follow defendant onto the

freeway created an evidentiary conflict that the jury resolved against defendant. (See

People v. Maury (2003) 30 Cal.4th 342, 403.) In any event, we note from the record that

defendant himself still believed he was being pursued by Officer Joyce at the time of the

collision, inasmuch as he was driving into oncoming traffic on a freeway to escape the

police, and he testified that his goal was to elude capture. Moreover, Officer Joyce did

continue to pursue defendant by backtracking and entering the southbound I-215 in an

effort to keep his eyes on defendant’s vehicle. Within one minute, the officer heard a

radio call that an accident occurred.

       In short, the evidence was sufficient to show that defendant was being “pursued”

at the time of the collision for purposes of Vehicle Code section 2800.3, subdivision (b).

B. Penal Code Section 654 Does Not Apply to Count 3.

       The trial court imposed a consecutive sentence on count 3, felony evading an

officer. On appeal, defendant contends that this sentence should have been stayed under

                                             7
Penal Code section 654, because the facts underlying it overlap with the facts for the

second degree murder conviction, such that both counts were committed pursuant to the

same criminal objective. We disagree.

       1. Applicable Law

       Under Penal Code section 654, a defendant may be punished only once for an act

or omission that is punishable in different ways by different provisions of law. (People v.

Jones (2012) 54 Cal.4th 350, 353.) Where violations of different provisions of law are

premised on multiple acts, a course of conduct is implicated, and the intent and objective

test governs in determining whether Penal Code section 654 applies. (Jones, supra, at

p. 359.) “If [the defendant] entertained multiple criminal objectives which were

independent of and not merely incidental to each other, he may be punished for

independent violations committed in pursuit of each objective even though the violations

shared common acts or were parts of an otherwise indivisible course of conduct.”

(People v. Beamon (1973) 8 Cal.3d 625, 639; see People v. Perez (1979) 23 Cal.3d 545,

551.) “‘The defendant’s intent and objective are factual questions for the trial court; [to

permit multiple punishments,] there must be evidence to support a finding the defendant

formed a separate intent and objective for each offense for which he was sentenced.’”

(People v. Coleman (1989) 48 Cal.3d 112, 162.) A trial court’s implied finding that a

defendant harbored a separate intent and objective for each offense is a question of fact

and will be upheld on appeal if it is supported by substantial evidence. (E.g., People v.

Islas (2012) 210 Cal.App.4th 116, 129.)



                                             8
       2. Analysis

       Here, evading pursuing police was not necessary or incidental to defendant’s

conviction of second degree murder. When defendant fled after being stopped by Officer

Joyce, his initial intent was to evade the officer. He testified that in speeding away, he

planned to “make a couple turns, evacuate the vehicle, and run.” However, at some

point, defendant decided to enter the freeway and drive into oncoming traffic. As the

record shows, his efforts to evade Officer Joyce were temporarily successful, since they

prevented the officer from directly following defendant onto the freeway. Yet despite the

fact that Officer Joyce declined to follow defendant onto the freeway, defendant chose to

continue to drive into the oncoming traffic. He also chose to drive in the lane that was

closest to a wall, forcing vehicles traveling in that lane to swerve into the lane to the right

of them, putting them in front of oncoming traffic and putting them in danger of being hit

by other vehicles coming in that direction. As for the victim who was on a motorcycle,

defendant admitted that he basically cornered the victim, putting him in a situation where

he could not get out of defendant’s way.

       Defendant’s conduct of driving on the freeway into oncoming traffic shows a

separate intent from evading the police—the intent to continue a course of reckless

driving without regard for the safety of others. “[A]t some point the means to achieve an

objective may become so extreme they can no longer be termed ‘incidental’ and must be

considered to express a different and a more sinister goal than mere successful

commission of the original crime.” (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.)

Indeed, it was defendant’s action of driving onto the freeway into oncoming traffic that

                                               9
supported the jury’s finding of implied malice. Evading Officer Joyce was not the means

of perpetrating the crime of second degree murder. Thus, substantial evidence supports

the trial court’s imposition of separate sentences for both defendant’s second degree

murder conviction and his evading an officer causing death conviction.

C. Admission of Prior Uncharged Conduct Was Proper.

       Defendant challenges the trial court’s decision to allow the prosecution to

introduce evidence of his 2006 charge of felony evading. He argues that because it is

common knowledge that evading the police is dangerous, the evidence “did not establish

that [defendant] was more aware of the extreme danger of evading the police as a result

of the prior conviction, or that he was anymore [sic] aware of the danger of evading the

police than any other person.” He further asserts that the evidence was unduly

prejudicial.

       1. Additional Background Facts

       Prior to trial, the prosecution moved to admit evidence that defendant had

previously been charged with felony evading in order to show knowledge. Over

defendant’s objection, the trial court granted the motion for the limited purpose of

showing that defendant knew how extremely dangerous it was to evade the police. The

court reasoned the evidence showed that defendant had notice of the dangers of evading

police because he had engaged in such conduct previously, causing a collision resulting

in his conviction and prison sentence. Furthermore, the fact that defendant had engaged

in the same conduct in the current case showed a reckless disregard for human life, which



                                            10
goes to the intent element of murder and felony evading. The trial court concluded that

any undue prejudice was outweighed by the probative value.

       Thus, the jury heard that on March 15, 2006, Detective Robert Wilson, in a

marked patrol unit with lights and sirens activated, engaged in a high speed pursuit of

defendant, who was driving a truck. The detective followed defendant into a cul-de-sac.

Defendant admitted that he could have surrendered; however, he chose to accelerate

“head on” towards the officer’s patrol vehicle, hitting it and pushing it out of the way.

The detective continued his pursuit until defendant yielded approximately half a mile

away. Defendant was charged with felony evading, assault with a deadly weapon, and

grand theft auto. He pled guilty to assault on a peace officer.

       The jury was instructed with CALCRIM No. 375, which described the purpose for

which defendant’s prior felony evasion conduct was admitted and the standard by which

such conduct must be proved before it could be considered. The jury was informed that

the felony evading could only be used “for the limited purpose of deciding whether or

not, one, the defendant acted with the intent to evade in Count 3 or the lesser included

offense therein; and/or two, the defendant knew at the time that his actions were

dangerous to human life under Element 3 of the implied malice analysis in Count 1.”

Regarding implied malice, the jury was instructed that “[t]he defendant acted with

implied malice if, one, he intentionally committed an act; two, the natural and probable

consequences of the act were dangerous to human life; three, at the time he knew his act

was dangerous to human life; and four, he deliberately acted with conscious disregard for

human life.”

                                             11
       2. Applicable Law

       “Evidence Code section 1101, subdivision (b), permits the admission of other-

crimes evidence against a defendant ‘when relevant to prove some fact (such as motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or

accident . . .) other than his or her disposition to commit such an act.’ [Citation.]

‘[Evidence Code] [s]ection 1101 prohibits the admission of other-crimes evidence for the

purpose of showing the defendant’s bad character or criminal propensity.’ [Citation.] As

with other circumstantial evidence, its admissibility depends on the materiality of the fact

sought to be proved, the tendency of the prior crime to prove the material fact, and the

existence or absence of some other rule requiring exclusion. [Citation.]” (People v.

Whisenhunt (2008) 44 Cal.4th 174, 203.)

       “. . . The probative value of the uncharged offense evidence must be substantial

and must not be largely outweighed by the probability that its admission would create a

serious danger of undue prejudice, of confusing the issues, or of misleading the jury.

[Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371.)

       We review a trial court’s ruling under Evidence Code sections 1101, subdivision

(b), and 352 for abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.) We

generally find reversible error only if the court’s exercise of discretion was arbitrary,

capricious, and resulted in a miscarriage of justice. (People v. Williams (2009) 170

Cal.App.4th 587, 606.)




                                             12
       3. Analysis

       Here, defendant’s 2006 felony evading conduct was offered by the prosecution as

evidence that defendant was subjectively aware of the risk to human life associated with

evading police. The use of such evidence for this purpose is based upon the theory of

vehicular homicide approved in People v. Watson (1981) 30 Cal.3d 290 (Watson),

superseded by statute on another point as stated in People v. Bradford (1994) 22

Cal.App.4th 433, 439. In Watson, our state Supreme Court held that a person whose

reckless driving kills another can be charged with second degree murder if there is

sufficient evidence of implied malice. Implied malice, the court explained, can be shown

“when a person, knowing that his conduct endangers the life of another, nonetheless acts

deliberately with conscious disregard for life.” (Watson, supra, at p. 296.) The court

distinguished implied malice from gross negligence—the level of culpability required for

vehicular manslaughter. (Pen. Code, § 192, subd. (c)(1).) “A finding of gross negligence

is made by applying an objective test: if a reasonable person in defendant’s position

would have been aware of the risk involved, then defendant is presumed to have had such

an awareness. [Citation.] However, a finding of implied malice depends upon a

determination that the defendant actually appreciated the risk involved, i.e., a subjective

standard.” (Watson, supra, at pp. 296-297.)

       Since Watson, numerous courts have upheld the use of evidence of prior driving

conduct to show implied malice in vehicular second degree murder cases. (See, e.g.,

People v. Ortiz (2003) 109 Cal.App.4th 104, 116 (Ortiz); People v. Brogna (1988) 202

Cal.App.3d 700, 706-710; People v. McCarnes (1986) 179 Cal.App.3d 525, 532-533;

                                             13
People v. Murray (1990) 225 Cal.App.3d 734, 745-746; People v. Eagles (1982) 133

Cal.App.3d 330, 340.) As stated by the Ortiz court: “[C]ourts have recognized

repeatedly that a motor vehicle driver’s previous encounters with the consequences of

recklessness on the highway—whether provoked by the use of alcohol, of another

intoxicant, by rage, or some other motivator—sensitizes him to the dangerousness of such

life-threatening conduct.” (Ortiz, supra, at p. 112.)

       Here, contrary to the arguments set forth in defendant’s brief, the evidence is

relevant, probative, not cumulative, and not unduly prejudicial. As the cases cited above

make clear, the evidence is relevant to show that defendant actually appreciated the risk

of evading police officers and is probative of implied malice required for a conviction of

second degree murder. A “defendant’s knowledge—gained in the course of the prior

misconduct—of the natural consequences, dangerous to life, of the reckless operation of a

motor vehicle, and of his persistence in that behavior” evinces “a conscious disregard for

the lives of others on the road.” (Ortiz, supra, 109 Cal.App.4th at pp. 111-112.) “A jury

is entitled to infer that regardless of the mental state or condition that accompanies an

instance of reckless driving—whether intoxication, rage, or wilful irresponsibility—the

driver’s subsequent apprehension and prosecution for that conduct must impart a

knowledge and understanding of the personal and social consequences of such behavior.”

(Id. at p. 115.)

       Defendant urges this court to decline to follow the rationale of Ortiz, arguing that

the evidence of his prior felony evading conviction does not contribute anything to the

subjective standard (i.e., defendant’s actual knowledge) that is not apparent to the

                                             14
reasonable person. We disagree. While common sense suggests that driving the wrong

way on the freeway is extremely dangerous, the mens rea for second degree murder is a

subjective determination of the defendant’s actual knowledge, not a reasonable person

standard. (People v. David (1991) 230 Cal.App.3d 1109, 1114.) Defendant contested the

issue of implied malice. The fact that he previously caused an accident while trying to

evade officers before he committed the murder in this case increased “‘his awareness of

the dangers of driving badly . . . and that is what the district attorney has a legitimate

right to try to prove . . . [did] this defendant have implied malice in his mind or not when

he drove the way he did, and that is a subjective standard. So we have to find out what he

was exposed to that most people aren’t exposed to in order to understand his level of

awareness of the dangers of driving badly.’” (Ortiz, supra, 109 Cal.App.4th at p. 116.)

       The test for whether evidence is unduly prejudicial is whether it motivates the

jurors to reward or punish one side because of their emotional reaction. (Vorse v. Sarasy

(1997) 53 Cal.App.4th 998, 1008-1009.) Here, although the evidence is probative in that

it shows defendant had previously hit another car head on while attempting to evade a

pursuing officer, it is not likely to “inflame the emotions of the jury.” (Ibid.) This is

because, compared to the current accident in which defendant killed an innocent

motorcyclist, the evidence to which he objects is relatively mild. Any inflaming of

emotions would have come from the evidence of the current crash rather than the 2006

crash. Moreover, the trial court instructed the jury with CALCRIM No. 375 regarding

how to consider the 2006 incident (People v. Williams (2000) 79 Cal.App.4th 1157, 1171

[[t]his court must presume the jury followed the trial court’s limiting instruction]), and

                                              15
the jury was informed that defendant’s conduct during the 2006 incident resulted in a

conviction. The fact that defendant was convicted lessens the prejudicial impact of his

prior driving-related offense, because it validated the evidence and minimized the chance

a jury would punish defendant for his prior offense, for which he had already been

punished. (See People v. Kelley (1997) 52 Cal.App.4th 568, 579.)

       To conclude, the trial court did not abuse its discretion when it allowed the jury to

hear the details of defendant’s 2006 felony evading conduct. The evidence is relevant to

and probative of defendant’s subjective awareness of the danger to human life when he

chose to evade Officer Joyce, it was not cumulative, and it was not unduly prejudicial.

D. Admission of the Photograph of the Deceased Victim’s Body Was Proper.

       Defendant argues the trial court abused its discretion under Evidence Code section

352 and deprived him of a fair trial by admitting a gruesome photograph of the deceased

victim.

       1. Additional Background Facts

       At a pretrial hearing, defendant moved to exclude exhibit 11, a photograph of the

deceased victim showing his “mostly amputated” leg. The trial court agreed that the

photograph was gruesome and that the injury depicted was not the injury that caused

death; however, the court noted that “a homicide is frequently gruesome,” and this

photograph did not appear to be more gruesome than other crime scene photographs. In

deciding to admit the photograph, the court stated: “I don’t see that the jury will be

overly inflamed because of this. They will be saddened. It will be an image that they



                                             16
will remember for a while. But that is the nature of homicide and this is not unduly

gruesome or horrific or duplicative.”

       At trial, the prosecutor introduced the photograph during the direct examination of

Wilson, the individual who stopped at the scene of the collision.

       2. Standard of Review

       As the California Supreme Court has previously observed, “‘“‘[t]he 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.]

‘[A] court may admit even “gruesome” photographs if the evidence is highly relevant to

the issues raised by the facts, or if the photographs would clarify the testimony of a

medical examiner.’ [Citation.] ‘We have consistently upheld the introduction of autopsy

photographs disclosing the manner in which a victim was wounded as relevant not only

to the question of deliberation and premeditation but also aggravation of the crime and

the appropriate penalty . . . . [Citations.]’”’ [Citation.] ‘Finally, prosecutors, it must be

remembered, are not obliged to prove their case with evidence solely from live

witnesses . . .’ [citation] and do not have to forgo use of photographic evidence ‘merely

because the defendant agrees with a witness or stipulates to a fact. . . . [T]he jury [is]

entitled to see the physical details of the crime scene and the injuries defendant inflicted

on his [victim]’ [citation].” (People v. Cage (2015) 62 Cal.4th 256, 283.)



                                              17
       3. Analysis

       We have reviewed the photograph and conclude it was relevant to the

circumstances of the crime and the prosecution’s theory that defendant acted with implied

malice. The prosecutor argued that defendant’s conduct after the crash showed his

callous disregard for the victim. (People v. Sattiewhite (2014) 59 Cal.4th 446, 471

(Sattiewhite) [crime scene photographs are relevant to establish the killer’s mental state];

People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1215-1216 [crime scene and autopsy

photographs were relevant to prosecution’s theory of murder and special circumstance],

overruled in part on other grounds as stated in People v. Rangel (Mar. 28, 2016,

S076785) __ Cal.4th __ [2016 Cal. LEXIS 1816, *37-38].) The photograph at issue

helps illustrate this point. During closing argument, the prosecutor referenced other

photographs that showed the proximity of the victim’s body to the truck driven by

defendant. The prosecutor stated: “So you can see that even when the defendant got out

of the truck the deceased’s body is directly in front of him. He never bothered to check

to see if anybody had been hurt. No remorse. No concern.” In light of the prosecutor’s

theory of the case and the other photographs shown to the jury, the photograph at issue

helped establish the defendant’s mental state at the time of the crash by accurately

portraying the injuries the victim suffered as a result of defendant’s dangerous driving.

(People v. Hajek and Vo, supra, at pp. 1215-1216 [“The photographs were disturbing, but

they were not unnecessarily so. They ‘simply showed what had been done to the

[victim]; the revulsion they induce is attributable to the acts done, not to the

photographs.’”].)

                                              18
        We conclude the admission of the photographs fell well within the trial court’s

broad discretion. Because the trial court did not abuse its discretion in admitting it, there

was no violation of defendant’s constitutional rights. (Sattiewhite, supra, 59 Cal.4th at p.

472.)

E. The Trial Court Committed Sentencing Error.

        Defendant contends, and the People agree, that the trial court erred by imposing a

one-year sentence for the prior prison term enhancement (Pen. Code, § 667.5, subd. (b))

that was based on the same conviction (case No. FSB055041) as the five-year sentence

for the prior serious felony enhancement (Pen. Code, § 667, subd. (a)(1)) attached to

count 3. We also agree.

        “[W]hen multiple statutory enhancement provisions are available for the same

prior offense, one of which is a [Penal Code] section 667 enhancement, the greatest

enhancement, but only that one, will apply.” (People v. Jones (1993) 5 Cal.4th 1142,

1150.) The same conviction underlies defendant’s Penal Code section 667.5, subdivision

(b) one-year prior prison enhancement and defendant’s Penal Code section 667,

subdivision (a)(1) five-year prior serious felony enhancement. Accordingly, the one-year

prior prison enhancement for case No. FSB055041 attached to count 3 must be stricken.

                                    III. DISPOSITION

        The judgment is modified to strike the one-year term for the prior prison

enhancement (Pen. Code, § 667.5, subd. (b)) for case No. FSB055041 attached to count

3. The trial court is ordered to correct the abstract of judgment and to transmit a



                                             19
corrected copy to the Department of Corrections and Rehabilitation. As modified, the

judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                            HOLLENHORST
                                                                                       J.
We concur:


      RAMIREZ
                             P. J.

      MCKINSTER
                                J.




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