Opinion
A145857
07-05-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES CAJIAS GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05141602-3)
I.
INTRODUCTION
Appellant James Cajias Gonzalez appeals following his jury trial conviction for felony hit-and-run driving (Veh. Code, § 20001, subd. (b)(2); count 1), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), and misdemeanor use or being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count 3). Appellant contends the trial court erred in denying his motion to sever the misdemeanor drug charges (counts 2 & 3) from the felony hit-and-run charge (count 1), on the grounds that: (1) the charges were improperly joined under the statutory requirements of Penal Code section 954 (Section 954); and (2) even if joinder were proper under the statute, it resulted in gross unfairness amounting to a prejudicial denial of due process.
"Felony hit-and-run" refers to the crime of leaving the scene of an accident that resulted in death or permanent, serious injury to a person. (Veh. Code, § 20001, subd. (b)(2).)
Count 2 for felony possession of methamphetamine was treated as a misdemeanor due to Proposition 47. --------
Appellant also contends that his count 3 conviction for misdemeanor use or being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)), should be reversed because it was time-barred by California's one-year statute of limitations for misdemeanors. (Pen. Code, § 802, subd. (a).) For this reason, appellant contends the total fines and fees associated with his convictions were incorrectly calculated and should be corrected.
We conclude appellant's charges were properly joined under Section 954, and that the lower court was well within its discretion in denying appellant's motion for severance. In addition, we conclude, and respondent concedes, that appellant's conviction of count 3 was time-barred by California's one-year statute of limitations for misdemeanors. We order the reversal of appellant's count 3 conviction, and strike the fees associated with that conviction. Otherwise, we affirm the lower court's judgment as modified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Accident (Count 1)
On September 17, 2013, Sandra Shamsi was walking her dog around her neighborhood, when she was struck by a vehicle that left her severely and permanently injured. Minutes later, Justin Nguyen drove by the scene of the accident and saw Shamsi's body lying in the middle of the intersection. Then, as Nguyen looked in his rearview mirror, he noticed a truck with its headlights on speed away from the scene of the accident.
Nguyen followed the speeding truck, which eventually led him to a Sizzler parking lot where the driver of the truck, identified as appellant, was parked and speaking on a cell phone with a 911 operator. Nguyen approached appellant while he was on the phone and briefly spoke with him. After appellant completed the call, he drove back to the accident scene with Nguyen following him.
After returning to the scene, appellant walked over to a group gathered near where the accident occurred and stated that he may have been responsible for the accident, but claimed he panicked and drove off. Appellant then contacted an officer who was present at the scene and the officer transported him to the police station.
B. The Police Station (Counts 2 and 3)
At the police station, a search of appellant's wallet revealed 1.29 grams of methamphetamine, later stipulated between counsel to be .915 grams. During appellant's police interview, he admitted to knowing the methamphetamine was in his wallet and that he paid $40 to $50 for it.
Appellant also admitted to using methamphetamine the morning of the day prior to the accident. Police officers then tested appellant's blood, which tested positive for methamphetamine at a level consistent with drug use within the preceding 24 to 48 hours. Police also performed drug recognition tests and concluded that appellant showed no signs that he was under the influence of a controlled substance at that time.
C. Procedural Background
After a preliminary hearing, the Contra Costa County District Attorney's Office filed an information on July 24, 2014, charging appellant with: (1) felony leaving the scene of an accident with a fatality or permanent serious injury occurring (Veh. Code, § 20001, subd. (b)(2); count 1); and (2) misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 2.) On December 9, 2014, the district attorney's office filed its first amended information, with an additional charge of misdemeanor use or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 3).
On April 15, 2015, appellant filed a motion to sever counts 2 and 3 from count 1. At the hearing on the motion, the trial court ultimately denied the severance motion. The court's reasoning behind its denial was that the evidence of the offenses was cross-admissible and relevant to show appellant's motive.
After a jury trial, appellant was convicted of all three counts. He was sentenced to three years of formal probation; and one year in county jail, which was split into six months in custody and six months on electronic home detention. The trial court also ordered appellant to pay: (1) court operation assessment fees of $40 for each count (Pen. Code, § 1465.8, subd. (a)(1)); and (2) criminal conviction assessment fees of $30 for each count (Gov. Code, § 70373, subd. (a)(1)).
Appellant filed a timely notice of appeal on July 29, 2015.
III.
DISCUSSION
A. Motion to Sever
Appellant contends the trial court erred in denying his motion to sever the misdemeanor drug charges (counts 2 & 3) from the felony hit-and-run charge (count 1). Appellant's contention is based on two arguments: (1) the trial court improperly joined his offenses under the statutory requirements of Section 954; and (2) even if joinder was proper under the statute, it resulted in gross unfairness amounting to a prejudicial denial of due process.
1. Joinder Under Section 954
Pursuant to Section 954, an accusatory pleading may charge and consolidate two or more different offenses so long as the offenses are either: (1) "of the same class" or (2) "connected together in their commission." (§ 954.) The statute does not distinguish between misdemeanors and felonies, and thus "authorizes the joinder of misdemeanor counts and felony counts in a prosecution" if such joinder satisfies the statutory requirements. (Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722 (Aydelott).)
The question of whether two or more offenses are properly joined under Section 954 is subject to independent review. (People v. Alvarez (1996) 14 Cal.4th 155, 187-188.) Specifically, the issue of whether two or more offenses are "of the same class" is purely a question of law, while the issue of whether offenses are "connected together in their commission" is a mixed question of law and fact. (Ibid.)
In order for offenses to fit within the same class of crimes, the offenses must all have "common characteristics or attributes." (People v. Lucky (1988) 45 Cal.3d 259, 275 (Lucky), quoting Aydelott, supra, 7 Cal.App.3d at p. 722.) For example, the crimes of robbery and murder are of the same class because both crimes "share common characteristics as assaultive crimes against the person. [Citations.]" (Lucky, at p. 275; see also People v. Scott (2015) 61 Cal.4th 363, 394-395 [murder/burglary and burglary share a common element because both crimes include "the intent to unlawfully take property"].) Under this rationale, joinder is permissible even if the offenses are not related or connected in any way in their commission. (People v. Walker (1988) 47 Cal.3d 605, 621.)
In the present case, appellant's misdemeanor drug charges and his felony hit-and-run charge are not offenses of the same class. The drug charges consisting of possessing and using methamphetamine are Health and Safety Code violations directed at deterring and punishing the use and possession of controlled substances. In contrast, the hit-and-run charge is a Vehicle Code violation meant to criminalize and deter the failure to stop and render aid when it involves an accident that produces permanent or serious injury. (See, e.g., People v. Braz (1998) 65 Cal.App.4th 425, 431-432.)
However, appellant's crimes were connected in their commission. Offenses are "connected together in their commission" if there is a " ' "common element of substantial importance in their commission." ' [Citations.]" (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1218 (Alcala).) This requirement is satisfied even if the offenses did not relate to the same transaction and were committed at different times. (Ibid.) In addition, the California Supreme Court noted that "the intent or motivation with which different acts are committed can qualify as a 'common element of substantial importance.' " (Id. at p. 1219; People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza), superseded on other grounds in People v. Brooks (2017) 2 Cal.5th 674 [common element was intent to feloniously obtain property]; People v. Poon (1981) 125 Cal.App.3d 55, 69 [common element was sexual motivation and young female victims].)
In People v. Valdez (2004) 32 Cal.4th 73 (Valdez), the trial court jointly tried Valdez for first-degree murder and an escape from custody charge. (Id. at p. 119.) On appeal, the court held that although the two offenses occurred almost two years apart, they were connected in their commission because the escape occurred as Valdez was being returned to "lock-up" following his arraignment on the murder charge. (Ibid.) Therefore, the apparent motive for the escape was to avoid prosecution for the murder charge. (Ibid.)
Although here the drug charges and the felony hit-and-run charge are not of the same class, they are connected in their commission because they share common elements of substantial importance. Like the facts in Valdez, the apparent intent or motivation behind initially fleeing the scene of the accident may have been due, at least in part, to avoid prosecution for having methamphetamine in appellant's system or on his person.
Other common elements include the fact that the methamphetamine found in appellant's wallet and in his system were discovered by the police while investigating the hit-and-run accident. The drugs were found just hours after appellant told the police that he might have been responsible for Ms. Shamsi's injuries, and thus the two charges occurred close in time. Therefore, in the present case, joinder was proper under Section 954.
2. Prejudice of Properly Joined Offenses
Section 954 also provides that a trial court has discretion to sever otherwise joinable offenses when it appears that separate trials are required "in the interests of justice and for good cause shown." (§ 954; Lucky, supra, 45 Cal.3d at p. 276.)
Generally, when a trial court consolidates unrelated offenses, the potential prejudice lies in the introduction of evidence of other crimes, which the jury might use to infer the defendant's guilt. (People v. Bean (1988) 46 Cal.3d 919, 935 (Bean).) However, when offenses are properly joined, "the defendant's guilt of all the offenses is at issue and the problem of confusing the jury with collateral matters does not arise." (People v. Soper (2009) 45 Cal.4th 759, 773 (Soper).) Unlike what occurs in cases involving the admissibility of uncharged offenses, in which the state has the burden of proving that the probative value outweighs the evidence's inherent prejudicial effect, in the context of properly joined offenses, the burden is on the defendant to prove that " 'countervailing considerations are outweighed by a substantial danger of undue prejudice.' [Citations.]" (Ibid., italics omitted.)
As a result, when ruling on a motion to sever, a trial court weighs "the probative value of any cross-admissible evidence against the prejudicial effect of evidence the jury would not otherwise hear." (Bean, supra, 46 Cal.3d at p. 936.) Under this weighing process, the beneficial results of joinder, such as efficiency and judicial economy, are added to the probative value side. (Ibid.) Thus, a party seeking severance "must make an even stronger showing of prejudicial effect than would be required in determining whether to admit other-crimes evidence in a severed trial." (Ibid.)
The trial court's denial of a motion for severance must be evaluated "in light of the facts and circumstances apparent to the court at the time of its ruling. [Citation.]" (People v. Earle (2009) 172 Cal.App.4th 372, 387; People v. Balderas (1985) 41 Cal.3d 144, 171.) Even if the ruling was correct when it was made, if the appellant shows that joinder actually resulted in "gross unfairness," amounting to a denial of due process, the reviewing court must reverse the judgment. (People v. Arias (1996) 13 Cal.4th 92, 127; People v. Johnson (1988) 47 Cal.3d 576, 590.)
To demonstrate that a denial of a motion for severance was a reversible error, the appellant must make a " 'clear showing of prejudice to establish that the trial court abused its discretion in denying the . . . defendant's severance motion. [Citations.]" (Alcala, supra, 43 Cal.4th at p. 1220, original italics; Mendoza, supra, 24 Cal.4th at p. 160.) A trial court's denial of a motion for severance amounts to a prejudicial abuse of discretion if that ruling falls outside the bounds of reason. (Alcala, supra, 43 Cal.4th at p. 1220.)
In determining whether a trial court abused its discretion in declining to sever properly joined charges, the following factors are considered: " '(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.' [Citations.]" (Alcala, supra, 43 Cal.4th at pp. 1220-1221.)
We first must consider the cross-admissibility of the evidence of the offenses in hypothetical separate trials. Typically, "[i]f the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges. [Citations.]" (Soper, supra, 45 Cal.4th at pp. 774-775; Alcala, supra, 43 Cal.4th at p. 1220.)
However, even if the evidence is not cross-admissible, that determination alone is insufficient to establish that the trial court prejudiced the appellant or abused its discretion by declining to sever the charges. (Soper, supra, 45 Cal.4th at p. 775.) If the evidence of the charged offenses is not cross admissible, then "the court must assess the likelihood that a jury not otherwise convinced beyond a reasonable doubt of the defendant's guilt of one or more of the charged offenses might permit the knowledge of the defendant's other criminal activity to tip the balance and convict him. [Citation.]" (Bean, supra, 46 Cal.3d at p. 936.) In making that determination, we consider the remaining three additional factors, any of which, when combined with the lack of cross admissibility, may establish an abuse of a trial court's discretion. (Ibid.)
Appellant argues that the evidence underlying the drug possession charge is not admissible in a separate hit-and-run case because if appellant's post-accident flight was motivated by his possession of drugs, he would have discarded the drugs before returning to the scene of the accident. Appellant also contends that the evidence underlying the use of methamphetamine charge would not be admissible in a separate hit-and-run case because the prosecutor's theory was not that appellant was driving under the influence. We find these arguments to be unpersuasive.
First, looking at the cross-admissibility of the offenses, the evidence underlying the use of methamphetamine charge is admissible in a separate hit-and-run case because the evidence goes to prove appellant's mental and physical state at the time of the accident, including appellant's perception, his ability to recall what happened at the scene, his ability to focus while driving, and to explain his motive in fleeing the scene. The admissibility of this evidence to prove motive is bolstered by appellant not admitting to using methamphetamine until the police found it in his possession at the police station. This fact is evidence that appellant may have been trying to hide his methamphetamine use both at the time of the hit and run and hours after the accident when he was questioned by law enforcement.
While appellant argues that if his motive was to avoid detection for drug use, he could or would have discarded the methamphetamine. But, just as likely it was detection that he was under the influence of a drug when he hit a pedestrian that concerned him, and not simply what was in his wallet.
Even though appellant is correct that the state did not present a driving under the influence theory, the likely reason the state did not charge appellant with driving under the influence is that the drug recognition tests performed by the police concluded appellant showed no signs he was under the influence of a controlled substance. However, the tests were conducted hours after the incident had occurred.
Therefore, we conclude that the evidence in appellant's underlying offenses is fully cross-admissible. Satisfying this factor is independently sufficient to overcome any claim of abuse of discretion and prejudice. (Soper, supra, 45 Cal.4th at pp. 774-775; Alcala, supra, 43 Cal.4th at p. 1220.)
Even if not cross-admissible, the other factors articulated in Alcala, supra, 43 Cal.4th at page 1221 are satisfied. There was nothing about the charges that was unduly inflammatory, and thus likely to prejudice the jury against appellant because of the evidence relating to that other charge alone. Moreover, the evidence supporting each of the charges was strong. This is not a situation where a decidedly weaker charge was joined with a stronger one in a manner likely to alter the outcome on the weaker charge. Nor is either charge a capital offense. Accordingly, for these additional reasons there was no prejudice to appellant in having the charges tried together, and no error by the trial court in denying the motion to sever.
B. Misdemeanor Conviction of Count 3
Appellant contends, and respondent concedes, that the conviction of count 3 for recent use of a controlled substance, should be reversed because it was barred by the one-year statute of limitations for misdemeanors.
In a criminal matter, a person can raise a statute of limitations defense at any time, even after a judgment. (In re Demillo (1975) 14 Cal.3d 598, 601.) Penal Code section 802, subdivision (a) states that a "prosecution for an offense not punishable by death or imprisonment in the state prison . . . shall be commenced within one year after commission of the offense." In other words, California has a one-year statute of limitations for a majority of its misdemeanor charges, including the one in question. (Ibid.)
In the present case, on July 24, 2014, the district attorney's office filed its first information against appellant. This information contained two counts, but did not contain the charge of misdemeanor use or being under the influence of a controlled substance. (Health & Saf. Code, § 11550, subd. (a).) This third count was included for the first time in the first amended information filed on December 9, 2014. According to the amended information: "On or about September 17, 2013, in Contra Costa County, the Defendant . . . did unlawfully use and be under the influence of Methamphetamine, a controlled substance." Therefore, the amended information shows on its face that the drug charge stemming from the September 17, 2013 incident occurred more than one year prior to the filing of December 2014 amended information. As a result, the charge is barred by the one-year statute of limitations set forth in Penal Code section 802, subdivision (a).
We agree with appellant's contention and reverse the trial court's conviction of count 3. Furthermore, we order all fines and fees associated with Count 3 to be reversed and that appellant's total sum of fees associated with his convictions be recalculated to include only counts 1 and 2.
IV.
DISPOSITION
The sentence and judgment for counts 1 and 2 is affirmed. The sentence and judgment for count 3 is reversed, and the $30 and $40 fees associated with that count are hereby stricken. Otherwise, we affirm the lower court's judgment.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
RIVERA, J.