Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA092016. William Barry, Judge.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Ellen Birnbaum Kehr, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Eric Dean Louden appeals from a judgment after a jury convicted him of one count of robbery in the first degree and three counts of burglary in the first degree. We hold that the trial court did not abuse its discretion by consolidating the two accusatory pleadings and the jury was properly instructed that only slight evidence is required to support an inference of guilt based on possession of recently stolen property.
FACTS AND PROCEDURAL HISTORY
A. Burglary of Nina Jones
On July 22, 2007, at approximately 5:00 a.m., the bedroom window blinds of Nina Jones’s ground floor apartment at 12612 Wilmington Avenue in the City of Compton began to crackle and move. Jones, who was in bed with her three-year-old daughter, awoke to a man climbing through the window. Jones screamed. The man, who had half of his body through the window, grabbed a purse from a nightstand within arm’s reach and ran off.
After detaining Louden on August 2, 2007, police officers showed Jones a photo lineup of six suspects; she positively identified Louden as the person who came through her window on July 22.
B. Burglary of Brandon Michelle Archie
On August 1, 2007, approximately ten days after Louden entered Jones’s bedroom window, Brandon Michelle Archie and her five-year-old son were living at 11156 Santa Fe Avenue in the City of Lynwood. Between 5:00 a.m. and 6:00 a.m., Archie was awakened by a man in her bedroom rummaging through her purses. Apparently he entered the house through her son’s bedroom window. After the incident, Archie noticed some of her purses were missing. Archie was unable to provide a detailed description of the burglar to police because she was not wearing her contact lenses at the time the event took place. She merely described the person as an African-American man in his 30’s.
As Archie walked around her house with police, she noticed the window in her son’s room had been opened and a five-gallon paint can had been placed beneath it.
When Louden was apprehended on August 2, 2007, he told officers he was staying at the Crown Motel on Imperial Highway in the City of Lynwood. Officers searched his room, and found jewelry, purses, and medication that had been prescribed to Brandon Michelle Archie. Archie later identified several bottles of medication and a purse recovered from Louden’s hotel room as items that were stolen from her house. However, she was unable to pick Louden out of a photo lineup.
C. Robbery and Burglary of Kristy Vallin and Josephina F.
On August 2, 2007, Josephina F. was asleep in her family’s home on 112th Street in the City of Lynwood, a few blocks from where Archie was burglarized the previous morning. Around 5:00 a.m., Josephina woke up to a man in her bedroom. He was wearing a two-tone shirt and beige Timberland boots, and was holding something that appeared to be a knife. Josephina screamed for her mom, and the man ran out of her bedroom.
Josephina’s mother, Kristy Vallin, heard her daughter scream and saw a man holding a long knife come out of her bedroom. He was approximately six feet tall and about 50 years old. Apparently, he entered Vallin’s home through her kitchen window.
The man followed Vallin down the hallway, asking for her money. At one point, he grabbed her arm and told her to give him her purse. When Vallin responded she did not have a purse, he went into the kitchen and took Josephina’s small black purse from the counter. While he was in the kitchen, Vallin ran out the front door to her neighbor’s house yelling for help. The man returned to Josephina’s room and grabbed a backpack from her closet before leaving the house.
Rebecca Vasquez, Vallin’s next door neighbor, heard screams and called 911. Vallin and Vasquez each observed the man running down the street with Josephina’s backpack. Vasquez described him as an African-American male, wearing dark shorts, a light shirt or tank top, and some kind of beige or tan work boots.
Deputy Thomas Spinks was the first officer to arrive at the scene and interview the victims. After speaking with Vallin and Vasquez, Spinks sent out a broadcast detailing the time and location of the crime as well as a description of the suspect. Sergeant Sean Jones detained Louden as a result of the description. Vallin, Vasquez, and Josephina were taken to the location where Louden was being detained; all three identified Louden as the burglar.
Prior to the broadcast sent by Deputy Spinks, Sergeant Jones noticed Louden looking around nervously as he quickly crossed the street. Jones made contact with Louden near the corner of Fernwood and Alameda Street, but did not have sufficient information to detain him at that time.
D. Information and Consolidation
On February 13, 2008, a two-count information (case No. TA092016) was filed charging Louden with first degree robbery and first degree burglary of Kristy Vallin and Josephina F. (Pen. Code, §§ 211, 459.) It was alleged Louden used a dangerous or deadly weapon in connection with both counts. (§ 12022, subd. (b)(1).)
All further undesignated section references are to the Penal Code.
On April 16, 2008, a second two-count information (case No. TA096172) was filed charging Louden with first degree burglary of Brandon Michelle Archie (count 1) and Nina Jones (count 2). (§ 459.) The prosecution filed a motion for joinder, seeking to consolidate the two cases.
On April 22, 2008, the prosecution’s motion to consolidate was granted and the case proceeded to trial on a four-count amended information. Louden was charged in count one, with first degree robbery of Kristy Vallin; count two, with first degree burglary of Vallin and Josephina F.; count three, with first degree burglary of Archie; and count four, with first degree burglary of Jones.
All counts were originally charged in case No. TA092016; however, when a witness did not appear at the preliminary hearing, counts 3 and 4 were dismissed. The consolidation was to rejoin the dismissed counts to the case. Given the posture, discovery was complete as to all counts, and counsel were prepared for trial on all counts on the day of consolidation.
Following a jury trial, Louden was found guilty of all counts. The allegation that another person was in the residence under section 667.5, subdivision (c), was found to be true in counts two, three, and four. The jury found the section 12022, subdivision (b)(1) deadly or dangerous weapon allegations were not true. Louden received 25 years to life for all four counts pursuant to the Three Strikes Law; counts one and two were ordered to run concurrently, while counts three and four were to run consecutively. The court also imposed four five-year terms pursuant to section 667, subdivision (a)(1). The total term of imprisonment was 75 years to life plus 20 years.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion By Granting the Motion to Consolidate
Pursuant to Penal Code Section 954, “an accusatory pleading may charge two or more different offenses so long as at least one of two conditions is met: The offenses are (1) ‘connected together in their commission,’ or (2) ‘of the same class.’ ” (People v. Soper (2009) 45 Cal.4th 759, 771; § 954.) Offenses meeting one of these conditions, which are charged in separate pleadings, may be consolidated for trial. (People v. Koontz (2002) 27 Cal.4th 1041, 1074.) It is often said the law “prefers” consolidation in order to promote judicial efficiency. (People v. Grier (2007) 41 Cal.4th 555, 578.)
Section 954 provides in full: “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. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.”
Here, we conclude that the trial court properly joined charges under section 954 because robbery and burglary are crimes of the same class. (People v. Biehler (1961) 198 Cal.App.2d 290, 292.) Not only are the charges in this case of the same class, but three of the four counts are identical in that they allege burglary.
When offenses are properly joined, the burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (People v. Soper, supra, 45 Cal.4th at p. 773.) Depending upon the circumstances of the particular case, consolidation may amount to a prejudicial abuse of discretion where: (1) evidence of crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case or another “weak” case so that the “spill-over” effect of the evidence may alter the outcome of some or all of the charges; and (4) any one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. (People v. Jenkins (2000) 22 Cal.4th 900, 947-948 (Jenkins).) In determining whether prejudice actually resulted from the trial court’s decision to consolidate, we are not required to give all of these factors equal weight. (Id. at p. 948.)
A. Cross-Admissibility of Evidence in Separate Trials Strongly Supported Consolidation
First, we consider whether the evidence underlying each charge would have been cross-admissible in hypothetical separate trials. Courts have frequently observed that any inference of prejudice is dispelled in cases where the evidence underlying the charges would be cross-admissible. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221; see also People v. Memro (1995) 11 Cal.4th 786, 850-851 [denial of severance should be sustained where other crimes evidence is cross-admissible, with a possible exception when joinder is so grossly unfair as to deny defendant due process].)
In People v. Ewoldt (1994) 7 Cal.4th 380, the court explained that the degree of similarity required for cross-admissibility is dependent on the purpose for which introduction of the evidence is being sought. Assuming the consolidated charges in this case were charged and tried separately, the prosecution would have sought to establish Louden’s identity as the Archie burglar by admitting evidence of other “uncharged” burglaries committed by Louden. When “evidence of uncharged misconduct to be relevant to prove identity... the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Id. at p. 403.) “ ‘The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1148, quoting People v. Thornton (1974) 11 Cal.3d 738, 756, original italics, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684.)
Louden asserts the evidence in this case would not have been cross-admissible in separate trials because the crimes did not possess a common mark or “signature” that would make them distinguishable from a common burglary. In support of his position, Louden cites five cases. However, none of the cases he cites specifically addresses the issue of consolidation or cross-admissibility. Instead, each merely sets out facts showing early morning entry into an occupied home through a window. (People v. Elder (1969) 274 Cal.App.2d 381, 385-386; see also People v. Matthews (1968) 264 Cal.App.2d. 557, 562, fn. 5.) We do not dispute the contention that many Summertime burglaries occur at night where a burglar gains entry into the victim’s home through a window. In fact, we agree this case contains many characteristics of a common burglary; however, there are also numerous distinct features suggesting they were committed by the same person.
First, Vallin, Archie, and Jones all testified that someone entered their homes through a window between 5:00 and 6:00 a.m. These were not simply burglaries taking place in the morning at random, unrelated times. Here, all the alleged burglaries took place within a very specific one hour “window.” Furthermore, a 5:00 a.m. burglary is not a common occurrence since people are often home getting ready for work or school during this hour. All of these burglaries occurred within a very close geographical proximity to one another over a period of 12 days. It is fair to say three burglaries taking place between 5:00 and 6:00 a.m., in an entire city, over the course of a month or a year may be fairly a common occurrence. Three burglaries taking place between 5:00 and 6:00 a.m., within three miles of one another, over a period of 12 days, is not. Finally, each time the burglar took purses. Considering the numerous items of value contained in a home, these burglaries share the distinctive characteristic that the burglar always sought out purses in rooms where people were sleeping, a factor increasing considerably the risk of encountering the victim.
We conclude the combination of proximity, specific time of entry, entry through a window, and the specific item sought, is distinctive enough to suggest the same person committed all three crimes. The underlying evidence would have been cross-admissible to prove identity in separate trials. Therefore, Louden was not prejudiced by consolidation of the charges.
B. Other Factors Also Supported Consolidation
Section 954.1 provides that even if evidence underlying the charges in question would not be cross-admissible, that determination alone does not automatically establish prejudice or an abuse of discretion in refusing to sever properly joined charges. (See also People v. Soper, supra, 45 Cal.4th at p. 775.) If the evidence is not cross-admissible, we proceed by evaluating factors two, three, and four articulated in Jenkins, supra, 22 Cal.4th 900 and consider the “spill over” effect the other crimes evidence might have on the jury in order to determine whether the benefits of joinder outweigh the potential prejudice. (Ibid.)
Section 954.1 states: “In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.”
Moreover, even if the evidence in this case had not been cross-admissible, Louden would not be able to establish prejudice based on a balancing of the other factors articulated in Jenkins. (See also Alcala v. Superior Court, supra, 43 Cal.4th at p. 1227.) “[E]ven the absence of cross-admissibility would not establish the trial court erred when... the offenses have been properly joined by statute and none of the other three factors relevant to the severance issue demonstrates an abuse of the trial court’s discretion.” (Ibid.) We now turn to a brief discussion of those factors.
1. Charges Were Unlikely to Inflame the Jury
All of the charges in this case alleged robbery or burglary. The evidence underlying each incident was nearly identical. Although Louden points out counts one and two were more aggressive, because it was alleged he possessed a knife and physically grabbed Vallin, it is difficult to imagine these facts would have had an inflammatory effect on the jury. Vallin herself testified that Louden did not grab her very hard, and the jury found the knife allegation to be untrue. Based on the record, there is no evidence the aggravated nature of the Vallin offense had an inflammatory effect on the jury.
2. All Consolidated Charges Were of Relatively Equal Strength
The prosecution had fairly strong evidence against Louden in all counts. In counts one, two, and four, the victims actually identified Louden as the perpetrator. Louden contends the evidence establishing his guilt for count three was comparatively weak because Archie was unable to identify him. However, in making this argument, he overlooks that his possession of Archie’s recently stolen property was in some respects the strongest evidence against him. Possession alone is not sufficient to support an inference of guilt, but, it is so strong that the law only requires slight additional corroborative evidence. The victims’ identification of Louden in counts one, two, and four do not make those cases substantially stronger than a case where he is actually found to be in physical possession of the victim’s recently stolen property.
3. No Capital Offenses
None of the charges was a capital offense.
C. Any Error By Failing to Provide Time for Opposition to Consolidation Was Harmless
The prosecution filed a motion for joinder, on April 16, 2008. The court granted the motion on April 22, 2008, and proceeded to trial on that day. Louden argues that it was an abuse of discretion to consolidate the charges on short notice, without giving him more time to prepare opposition, because he had just received the transcript of the preliminary hearing the morning the motion was to be heard. Assuming only for the sake of argument that the trial court did err, we conclude such error was harmless because it is not reasonably probable that Louden would have obtained a more favorable outcome had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)
On appeal, Louden makes no attempt to explain how he would have benefited from having additional time, other than that it would have allowed for more research into the issue. Louden’s opening brief fails to articulate any new arguments or cite to any law unknown to him when the motion was heard that would have been beneficial to his position. At the April 22 hearing, Louden objected to consolidation, arguing that robbery and burglary were not crimes of the same class and that the Vallin robbery was likely to inflame the jury in a prejudicial manner. He stated he believed the prosecution’s motion was untimely, and he made the trial court aware of the fact that he had only received the transcript of the preliminary hearing that day, but he never sought additional time to prepare an opposition. Based on our discussion of cross-admissibility and the other Jenkins factors, we conclude even if Louden had been given additional time to respond to the consolidation, the outcome would have remained the same. Not only would the consolidation motion have been granted, even if it had been denied there is no reasonable probability the jury’s verdict would have been any different.
II. The Jury Was Properly Instructed With CALCRIM 376
The jury was instructed with CALCRIM 376, which states in part: “If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of robbery or burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed robbery or burglary. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove guilt of robbery or burglary.”
Louden maintains that instructing the jury only slight evidence was required to corroborate guilt based on possession of recently stolen property runs counter to the requirement that in order to prove his identity in the burglary of Archie’s residence, evidence of other crimes must be sufficiently distinctive to constitute a signature. Louden appears to be confusing the standard required for cross-admissibility of evidence under Evidence Code section 1101, subdivision (b), with the standard of evidence to corroborate an inference of guilt based strictly on admissible evidence. One is a task for the judge; the other for the jury.
The law is clear that, “possession alone of property stolen in a burglary is not of itself sufficient to sustain the possessor’s conviction of that burglary... [but] when possession is shown, however, the corroborating evidence may be slight.” (People v. Citrino (1956) 46 Cal.2d 284, 288-289.) Corroborating circumstances may consist of acts or conduct of the defendant tending to show the guilt of the accused. (People v. McFarland (1962) 58 Cal.2d 748, 759.)
Here, Louden’s conduct corroborates the inference that he was responsible for the Archie burglary. The morning after Archie was burglarized, Louden was arrested for a different burglary occurring just a few blocks away where both victims identified him as the burglar. When a person possesses recently stolen property and is then identified and arrested for an unrelated burglary in the same neighborhood, committed in the same manner, evidence of the second burglary is more than the slight evidence required to corroborate an inference of guilt based on possession of recently stolen property.
No evidence at trial reasonably explained why defendant possessed the purse or medicine. No effort was made through either direct or cross-examination of Archie to show an alternative way Louden may have come to possess these items.
DISPOSITION
For the reasons set forth above, the iudgment is affirmed.
WE CONCUR: FLIER, J., MOHR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.