Opinion
B228230
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. CRISTINA CHAVEZ, Defendant and Appellant.
Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Steven E. Mercer, and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA063340)
APPEAL from a judgment of the Superior Court of Los Angeles County, Shellie Samuels, Judge. Affirmed.
Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Steven E. Mercer, and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Cristina Chavez argues the trial court erred in denying her motion to sever the trial of charges against her arising from two separate incidents. She contends that she was substantially prejudiced by the joinder, particularly because evidence of the two incidents was not cross-admissible. According to appellant, this error resulted in a denial of her right to due process. She also argues the trial court erred in selecting the subordinate term for a consecutive sentence for automobile burglary.
We conclude the trial court did not abuse its discretion in denying appellant's severance motion and that she failed to demonstrate prejudice resulting in a denial of due process. We find no sentencing error.
FACTUAL AND PROCEDURAL SUMMARY
The first incident occurred in the early morning of May 15, 2008, when Sergio Perez saw someone reaching into the shattered window of one of his sister's two cars. He yelled and ran towards the car. The person who had reached into the car ran and got into a van driven by a woman. The van pulled forward then stopped. The woman driver pointed a weapon at Perez and fired. Since the shot did not make much noise, he believed it was fired from either a BB or pellet gun. A second shot was fired. His sister's Ford Explorer and her Honda Civic which were parked at the house each had a shattered window. There was also a small hole in the garage door.
Police officers responding to the scene of the shooting found blood on the driver's door and on the seat of the Honda Civic. DNA testing of the blood matched the DNA of Mario Ascencio. When these results were obtained, a police officer reviewed Ascencio's rap sheet and discovered he and appellant had been arrested at 10:40 p.m. on May 15, 2008. A BB gun was found under the passenger seat of the vehicle appellant was driving at the time of her arrest. The booking photograph of appellant matched the description of the driver of the van given by Perez. Her photograph was included in a six-pack photographic lineup and shown to Perez, who identified her photograph as the shooter. Perez did not identify her as the shooter at trial and said he had picked her photograph out of the lineup because she had the curliest hair. Investigating officers located a van that matched the description of the van used in the shooting at Perez's house at the house occupied by appellant. It was registered to appellant's father.
The second incident occurred on December 9, 2008. Jesse Cox finished work at 2:00 a.m. and stopped at a fast food restaurant to get something to eat. He pulled up to the drive through window and ordered. At the pay window, he looked in the rearview mirror and saw a woman walk up behind his car. She said "hi" and pulled out a gun. He held up his hands and she began firing. Cox identified appellant as the woman who shot at him. He remembered four to six shots. A dark blue Nissan pulled up next to Cox and appellant got into it and drove off. Cox had one bullet wound to the right shoulder, one in the left elbow, at least two in the abdomen and one in the left hip. Both arms were broken. Cox was hospitalized for six days and had three surgeries.
In an amended information, in connection with the May 2008 incident, appellant was charged with attempted murder (count 1, Pen. Code, §§ 664/187, subd. (a)); assault with a firearm (count 2, § 245, subd. (a)(2)); second degree burglary of a vehicle (count 3, § 459); felony vandalism (count 5, § 594, subd. (a)); and assault with a deadly weapon (count 6, § 245, subd. (a)(1)). Appellant was charged with the use of a firearm in the commission of counts 1, 2, and 3. In connection with the December 2008 incident appellant was charged with attempted willful, premeditated, and deliberate murder (count 4, § 664/187, subd. (a)) with an allegation that appellant used a firearm which caused great bodily injury to Cox.
Statutory references are to the Penal Code unless otherwise indicated.
As to the May 2008 incident, appellant was found not guilty of attempted murder (count 1) and assault with a firearm (count 2). She was found guilty of second degree burglary of a vehicle (count 3), but the firearm use allegation was found not true. She also was found guilty of felony vandalism (count 5) and of misdemeanor assault, a lesser offense of count 6. As to the December 2008 incident, appellant was found guilty of attempted willful, deliberate and premeditated attempted murder and the firearm allegations were found true (count 4). She was sentenced to an aggregate term of life in prison for the attempted murder plus 25 years to life for use of a firearm causing great bodily injury, plus two years and eight months to run consecutive on the auto burglary and felony vandalism counts. The sentence on the misdemeanor assault in count 6 was six months concurrent. Appellant filed a timely appeal.
DISCUSSION
I
Appellant argues the trial court violated her rights to a fair trial and due process guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution by denying her motion to sever the trial on the unrelated charges arising from the May and December 2008 incidents. She contends that the joint trial generated minimal savings to the judicial system while creating severe prejudice. The basic premise of appellant's argument is that the admission of evidence which was not cross-admissible on the unrelated charges was prejudicial.
Section 954 provides: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated." (Italics added.) Where different offenses of the same class of crimes have been charged together, evidence of one offense need not be cross-admissible as to the other offense. (§ 954.1) Attempted murder charges were brought in relation to each incident. Appellant was also charged with assault offenses based on the December 2008 shooting, burglary and vandalism. These were offenses belonging to the same class of assaultive crimes against the person so that joinder was appropriate under section 954 unless prejudice is clearly shown. (People v. Jenkins (2000) 22 Cal.4th 900, 947; People v. Stitely (2005) 35 Cal.4th 514, 531; People v. Lucky (1988) 45 Cal.3d 259, 276.)
A defendant must " ' "clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried[]" ' [citations]" in order to demonstrate that denial of a severance motion was reversible error." (People v. Arias (1996) 13 Cal.4th 92, 127.) Although we "examine a pretrial severance ruling on the record then before the court . . . we must reverse if defendant shows that joinder actually resulted in 'gross unfairness,' amounting to a denial of due process. [Citation.]" (Ibid.)
The trial court has discretion under section 954 to order separate trials in the interest of justice and for good cause shown. Joinder is preferred because it ordinarily promotes efficiency, and therefore "joinder is error only if prejudice is clearly shown. [Citations.]" (People v. Scott (2011) 52 Cal.4th 452, 469 (Scott).)In Scott, the Supreme Court reiterated that the relevant factors in determining prejudice are whether "'"(1) the evidence would be cross-admissible in separate trials, (2) some charges are unusually likely to inflame the jury against the defendant, (3) a weak case has been joined with a strong case, or with another weak case, so that the total evidence may unfairly alter the outcome on some or all charges, and (4) one of the charges is a capital offense, or joinder of the charges converts the matter into a capital case." [Citation.]'" (Id. at pp. 469-470.)
We agree that evidence of the two incidents was not cross-admissible under Evidence Code section 1101, subdivision (b), which provides for the admission of evidence that a person committed a crime "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." The degree of similarity required between the present and prior offenses under section 1101(b) depends on the purpose for which the prior crimes evidence is offered. "When the prosecution seeks to prove the defendant's identity as the perpetrator of the charged offense with evidence he had committed uncharged offenses, the admissibility of evidence of the uncharged offenses turns on proof that the charged and uncharged offenses share sufficient distinctive common features to raise an inference of identity. A lesser degree of similarity is required to establish the existence of a common plan or scheme and still less similarity is required to establish intent. [Citations.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to the charged offense to support the inference that the defendant probably acted with the same intent in each instance. [Citations.]" (People v. Lindberg (2008) 45 Cal.4th 1, 23; People v. Thomas (2011) 52 Cal.4th 336, 354-356 (Thomas).)Here there was insufficient similarity to render evidence of the two incidents cross-admissible on any of these theories. Respondent does not argue otherwise. At trial, the prosecutor did not argue that evidence of the two incidents was cross-admissible. In denying the motion, the trial court said it did not consider cross-admissibility a factor in this case, citing section 954.1 which allows joinder even where there is not cross-admissible evidence.
In Thomas, supra, 52 Cal.4th 336, the court considered joinder of two murder counts where the evidence of the charges was not cross-admissible. The court concluded section 954 applied because the murder charges were offenses of the same class of crimes. (Id. at p. 350.) "When the evidence underlying properly joined charges is not cross-admissible, we consider whether the benefits of joinder sufficiently outweigh the possibility that evidence of unrelated charges might affect the jury's consideration of each set of charges. [Citations.] In making that assessment, we consider whether (1) some of the charges are particularly likely to inflame the jury against the defendant; (2) a weak case has been joined with a strong case; or (3) the joinder of the charges converts the matter into a capital case. [Citations.] We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits. [Citation.]" (Ibid.)The Thomas court found none of the factors weighing against joinder were present in that case. The emotional impact upon the jury of each murder was reasonably comparable, the evidence in the cases was fairly evenly balanced, and in one case, the defendant was convicted only of the lesser charge of second degree murder. (Ibid.) Only the first two factors identified in Thomas apply here.
Here the trial court concluded that the evidence in the two cases was comparable, and that a charge based on strong evidence had not been joined with a count with weak evidence to bolster it. It cited the evidence that the victim in each incident identified appellant as the shooter from a six-pack, and that the identification was bolstered by other evidence. Perez's identification of appellant was supported by his identification of the van used by the shooter which matched a van belonging to her father. Cox identified appellant as the shooter in court as well as from the six-pack. The court also concluded that one case was not more inflammatory than the other, noting that in both incidents the victims were unnecessarily fired upon. The court noted that the third factor, a capital offense, was not present in this case.
In support of her argument that denial of severance was prejudicial, appellant cites portions of the prosecutor's closing argument which she contends raised an impermissible propensity inference. In one passage the prosecutor argued that appellant's eyes were very different at trial than in photographs taken at the end of 2008. She argued that perhaps appellant was "'healthier'" at time of trial as a detective put it, or perhaps she was sick in 2008 "with wrongful intentions" and "sick with intentions that were criminal and evil as well." The prosecutor asked the jury to consider why appellant's appearance had changed so drastically, and reminded the jury that the issue at trial was appellant's behavior in 2008. This was proper argument. Appellant also cites a statement made by the prosecutor in discussing Cox's prompt identification of appellant as his assailant from a photo six-pack. She said: "Is it just again a coincide [sic]?Is everyone just trying to get Cristina Chavez or is Cristina Chavez a little bit to [sic] eager to fire a firearm and a weapon at other people?" Appellant also cites the prosecutor's characterization of her in discussing the reliability of Cox's identification: "And Jesse [Cox] lived through a traumatic event. A vicious attack by a vicious individual." In the same passage, the prosecutor said that Cox had looked into appellant's eyes, "her evil eyes . . ." Once again, this was fair comment based on the evidence and related to the reliability of Cox's identification of appellant as the person who shot him repeatedly at point-blank range.
Finally, Chavez contends the prosecutor referred to the joint charges to impermissibly attack her character when she argued: "Ms. Chavez was shedding tears earlier this morning. Did she shed any tears when she was in that van fleeing away from the scene after pointing that BB gun at Sergio Perez? Did she shed any tears after that window was smashed by the shots that she fired [at the Perez house]? Did she shed any tears while the little guy with her, Mario Ascencio, was breaking into the Honda and taking parts of the Honda with him? Did she shed any tears at all when she pointed that gun at Jesse Cox and fired four to six feet away from him, at another human being, attempting to take his life away? Ask yourself that question." Chavez contends that this part of the argument was an improper attempt to use the two shooting incidents as evidence of Chavez's propensity to fire a weapon at others.
As in Thomas, supra, 52 Cal.4th at page 350, the emotional impact of the evidence of the two incidents here was reasonably comparable in that both involved appellant firing at a victim. The results of the trial establish that appellant was not prejudiced because a stronger case was joined to a weaker case to bolster the evidence in the latter. Here, the prosecutor in closing argument conceded that it had not proven beyond a reasonable doubt that a firearm was used in the May 2008 incident and asked the jury to reach a not guilty verdict on the assault with a firearm count (count 2) arising from that incident. Similarly, the prosecutor asked the jury to find the firearm use allegations relating to that incident not true. The jury found appellant not guilty of attempted murder and assault with a firearm, and found the firearm use allegations regarding the May 2008 incident not true. It convicted appellant not of assault with a deadly weapon in that incident, but of the lesser offense of misdemeanor assault. This demonstrates that the jury was not prejudiced by the evidence of appellant's use of a gun to shoot Cox in the December 2008 incident in reaching its verdicts regarding the earlier May 2008 incident. The verdicts establish that the jury carefully considered the sufficiency of the evidence of the charges arising from the two incidents and concluded that the prosecution had failed to carry its burden of proof as to the most serious charges from the May 2008 incident. We find no abuse of the trial court's discretion in denying the severance motion.
Even where appellant fails to demonstrate that the trial court abused its discretion in denying a severance motion, we "'must determine whether . . . the joinder of counts . . . for trial resulted in gross unfairness depriving the defendant of due process of law. [Citations.]' [Citations.]" (People v. Soper (2009) 45 Cal.4th 759, 783 (Soper).)
Appellant relies on People v. Earle (2009) 172 Cal.App.4th 372 (Earle)to argue the court abused its discretion in denying severance. In Earle, a strong misdemeanor indecent exposure charge was joined with an unrelated charge of assault with intent to commit rape and assault with a deadly weapon supported by weaker evidence identifying the defendant as the assailant. (Id. at p. 378.) At trial, the defendant offered no defense to the indecent exposure charge but vigorously contested the assault charges on the ground that the victim had misidentified him. The jury convicted the defendant of all charges and found he personally used a deadly weapon in the assault. (Id. at p. 384.) The Court of Appeal held that the joinder resulted in gross unfairness because the assault case was weak, the evidence of indecent exposure was inflammatory, and the prosecutor's closing argument heightened the inflammatory impact of the evidence. (Id. at pp. 409-411.) Earle is distinguishable because, as we have discussed, the jury here did not convict appellant of the most serious charges arising from the May 2008 incident, demonstrating that there was no spillover effect and thus no prejudice resulting from joinder.
In Soper, the Supreme Court considered whether denial of a severance motion made the resulting trial grossly unfair, depriving the defendant of due process. (Soper, supra, 45 Cal.4th at pp. 783-784.) The court observed that "Appellate courts have found '"no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials."' [Citations.]" (Id. at p. 784.) That is the case here. The jury heard evidence of two separate incidents of assaultive behavior. Like Soper, the evidence of one incident was not more inflammatory than the other. In May 2008, appellant shot at a person who was standing in front of a house; in December 2008, she fired at a man seated in a car. The Soper court noted that the jury was able to "compartmentalize" the evidence presented in the two cases, finding the defendant guilty of a lesser charge in one of the cases. (Ibid.)The jury in this case did the same thing, demonstrating that there was no improper spillover effect. (Ibid.) Considering the proceedings as a whole, we conclude that defendant's trial was not grossly unfair.
II
Appellant was sentenced to life in prison on the attempted murder count plus 25 years to life for use of a firearm causing great bodily injury. On the automobile burglary count, the court imposed a consecutive sentence of two years. Appellant argues the term for the automobile burglary should have been one-third the middle term, i.e., eight months based on section 1170.1, subdivision (a) which provides that "[t]he subordinate term for each consecutive sentence shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed . . . ."
Respondent cites People v. Garza (2003) 107 Cal.App.4th 1081 (Garza),which held: "Section 1170.1, which requires reduction of consecutive terms to one-third, 'fully applies only when all terms of imprisonment are "determinate," i.e., of specified duration. A life sentence is "indeterminate," i.e., not for a fixed period. When a defendant is sentenced to both a determinate and an indeterminate sentence, the determinate sentence is served first.'" (Id. at p. 1094.) The Garza court concluded that the trial court properly imposed a full 10-year enhancement on a count with a determinate sentence because it was to be calculated independently of the indeterminate term imposed on another count. (Ibid; see also People v. Neely (2009) 176 Cal.App.4th 787, 797-799.) In People v. Felix (2000) 22 Cal.4th 651, the Supreme Court held that the straight life sentence imposed for attempted first degree murder is an indeterminate sentence not subject to the Determinate Sentencing Act, including section 1170.1. (Id. at pp. 657-659.) We conclude that the court's sentence on the automobile burglary count was proper.
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
WILLHITE, J.
MANELLA, J.