Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury found Tony Hai Nguyen guilty of possession of cocaine (Health & Saf. Code, § 11350) and misdemeanor assault (Pen. Code, § 240; all statutory references are to this code unless noted). He contends the trial court erred by denying his pretrial motion to sever the charged offenses. He also argues the court’s failure to advise him of his constitutional rights before accepting defendant’s admission he suffered a prior conviction requires reversal. We conclude defendant knowingly and intelligently admitted he suffered a prior conviction. But we agree with defendant that the trial court erred in failing to sever the charges. The error here did not affect the verdicts, but the failure to sever rendered defendant ineligible for participation in a drug treatment program under Proposition 36. (§§ 1210, 1210.1.) Consequently, we affirm defendant’s conviction for assault and cocaine possession but remand for the trial court to sever the counts and resentence defendant in accord with the views expressed below.
I
Factual And Procedural Background
Toai Nguyen owned a four-unit apartment in Midway City. He and his immediate family lived in an upstairs unit. His sister, Xuanlan, resided with defendant in a unit below Toai’s. Toai’s brother, Thanh, lived in a third unit.
On April 5, 2006, sometime between 8:00 and 9:00 p.m., Toai arrived home from work. The front door of his sister’s apartment was open and he could hear defendant yelling loudly. Defendant came out of the apartment and shouted, “‘What the f . . . are you looking at? Get out of . . . .’” Defendant walked toward Toai and cursed. He bumped his chest into Toai’s two or three times and told him to “‘get out of here.’” Toai stepped back each time, asserting his right to stand where he was. The men cursed at each other. At some point, defendant stated he was going to “beat the hell” out of Toai and struck him on his left jaw with his right fist. Toai fell to a knee, ran inside his brother’s apartment and called the police.
Deputy Sheriff Erik Baum arrived and Toai explained what happened. Defendant, who had fled the scene, returned around midnight or 1:00 a.m., and Toai alerted the police. Toai admitted he did not like defendant, did not want him living there, and “definitely did not want [him] marrying [his] sister.”
Toai’s wife, Dao, heard defendant yelling. When she heard her husband’s voice, she ran to the window. Both men moved toward the street, “almost running.” Toai asked defendant “what did he want to do,” and defendant punched Toai. Toai fell on his right side. She did not see the men bump or touch each other before the blow.
Thanh testified he tried to intercede in the dispute. He turned to tell Xuanlan, who had come outside, to return to her apartment, and as he turned back around his brother fell. Defendant almost lost his balance and had to avoid stepping on Toai. Thanh did not see defendant hit or push Toai, although he told Baum he did.
According to Baum, he received the initial dispatch at 9:20 p.m. and arrived at Toai’s apartment about five minutes later. Defendant had disappeared. Baum returned just after 2:00 a.m. Toai pressed charges and Baum took defendant into custody. He found .6 grams of rock cocaine in defendant’s right front pants pocket. Baum initially testified Toai had slight swelling and some redness on what Baum believed was the right side of his jaw, but agreed a photograph of Toai’s face did not show these injuries. After reviewing his police report, Baum admitted he made a mistake and that Toai’s injuries were on his left side. None of the witnesses mentioned Toai falling or Thanh’s role in trying to break up the argument, nor did Toai tell Baum that Xuanlan was outside during the incident.
Defendant did not testify. Defense counsel conceded the narcotics offense during his opening statement and closing argument but argued Toai’s family did not tell the truth about the fight.
The jury convicted defendant of felony possession and misdemeanor assault, but acquitted him of battery. Defendant admitted he had previously served a prison term for a 2000 conviction for possession of a controlled substance (§ 667.5, subd. (b)). The trial court imposed the two-year middle term for possession of a controlled substance, a consecutive one-year term for the prior, and suspended sentence for the assault.
II
Discussion
A. Motion to Sever
The trial court denied defendant’s pretrial motion to sever the assault and battery charges from the narcotics possession count, explaining the crimes were “tied together or connected together in their commission.” The court also observed that neither crime was more serious than the other, and neither case appeared “particularly strong or weak relative to the other.” Defendant contends the trial court’s ruling violated his due process rights, arguing charges were improperly joined because the narcotics offense belonged to a different class of crimes than the assault and battery offenses, and the crimes were separate and distinct, lacking any common elements.
Section 954 provides, in relevant part, that “[a]n 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 . . . .” Whether the prosecution has properly joined charges under section 954 is a question of law subject to independent review on appeal. (People v Cunningham (2001) 25 Cal.4th 926, 984.) Even if properly joined under section 954, the interests of justice may require the trial court to sever the charges if the defendant demonstrates prejudice. Under these circumstances, we review the trial court’s determination for abuse of discretion. (Ibid.; People v. Lucky (1988) 45 Cal.3d 259, 276-277 (Lucky).)
Offenses are “‘of the same class’” if they possess common characteristics or attributes. (Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722.) For example, assaultive crimes against the person, such as murder, robbery, and rape, are of the same class. (People v. Alvarez (1996) 14 Cal.4th 155, 188 (Alvarez).) In contrast, possession of drug paraphernalia (Bus. & Prof. Code, § 4149) shares no common characteristics or attributes with the crime of failure to appear (§ 853.7) and therefore does not belong to the same class of crimes. (People v. Madden (1988) 206 Cal.App.3d Supp. 14, 19.) Here, it is evident the assault and battery counts and the possession of a controlled substance charge do not belong to the same class of crimes, and the Attorney General does not contend otherwise. It is also evident these charges are not “different statements of the same offense.” Thus, whether these charges were properly joined under section 954 depends on whether these offenses were “connected together in their commission.”
The test for determining whether offenses are linked together in their commission is whether they share a “‘“common element of substantial importance.”’” (Lucky, supra, 45 Cal.3d at p. 276.) The Attorney General argues “[t]here was some commonality to the crimes in that the deputy who responded to the scene of the assault and battery was the same deputy who found the cocaine during the search” four hours later. We disagree. As one court observed, “commission of two separate crimes on the same day does not justify an inference that they were necessarily connected.” (Ondarza v. Superior Court (1980) 106 Cal.App.3d 195, 203.) Nor does temporal proximity alone establish a transactional relationship between separate and distinct offenses. Section 954 permits joinder only if the offenses are “connected together in their commission.” A police officer who witnessed separate and distinct offenses does not establish the crimes were otherwise linked in their commission, nor is the requisite connection established merely because separate offenses occur close in time.
People v. Saldana (1965) 233 Cal.App.2d 24 (Saldana) is on point. There, the prosecution charged the defendant with raping the victim outside her home. The police arrested the defendant in his bedroom less than three hours later and seized some of his clothing as evidence. About a week later, a criminalist found a marijuana cigarette in the pocket of the defendant’s shirt. The jury convicted defendant of rape, but acquitted him of possession. The defendant claimed he suffered prejudice from the misjoinder of the charges, arguing the possession offense was unrelated to the rape charge.
The appellate court agreed “the clear inference [was] that [the defendant] was in possession of marijuana at the time he committed the rape,” but that this fell “far short of establishing any causal connection or ‘transactional’ relationship between the two crimes.” (Saldana, supra, 233 Cal.App.2d at p. 29.) Addressing the Attorney General’s claim “the trial court was entitled to conclude that the two offenses were connected together in their commission because the information alleged that both were committed on the same day” (id. at p. 30), the court rejected the argument: “Although neither party has cited any authority directly in point, logic supports the inference that the Legislature did not intend the phrase ‘two or more different offenses connected together in their commission’ to apply to two wholly unrelated crimes merely because they were committed on the same day or even, as in the present case, at the same time. (See People v. Renier (1957) 148 Cal.App.2d 516 . . ., where the court held that it was error to consolidate for trial two informations charging robbery and . . . theft and unlawful driving or taking of a vehicle[] even though both offenses were committed on the same day and the gun used in the robbery was found in the stolen vehicle.)” (Ibid.; see also Walker v. Superior Court (1974) 37 Cal.App.3d 938, 941 [no sufficient connection shown between robbery charge and defendant’s illegal possession of a weapon; no showing the same weapon used in both crimes].)
The Attorney General’s reliance on Alvarez, supra, 14 Cal.4th 155 is misplaced. There, a rape offense was connected to a vehicle theft because “the theft of the vehicle may have been motivated by a desire to avoid apprehension for the rape.” (Id. at p. 188.) In contrast, no evidence connects defendant’s possession of cocaine with his earlier assault of the victim.
The Attorney General also relies on People v. Smith (2007) 40 Cal.4th 483, but the defendant there conceded the charged crimes of burglary and conspiracy to commit murder were connected in their commission to the remaining charged offenses. The defendant instead argued due process required severance because the evidence supporting the burglary and conspiracy counts was not cross-admissible to prove the remaining charges and would inflame the jury against the defendant. (Id. at p. 511.) Cross-admissibility is a factor courts must consider in determining whether due process requires severance of charges properly joined under section 954. (People v. Marshall (1997) 15 Cal.4th 1, 27 (Marshall).) In Smith, the California Supreme Court rejected defendant’s due process argument, finding it “reasonably probable” the evidence would have been cross-admissible on the issue of premeditation. (Smith, at p. 511.) Here, the Attorney General concedes the evidence of defendant’s possession offense was not cross-admissible in the assault and battery prosecution. Accordingly, we conclude the trial court erred in failing to sever the assault and battery charges from the possession count.
Reversal is required if it is reasonably probable the misjoinder affected the jury’s verdict or defendant would have obtained a more favorable result had the counts been severed. (People v. Grant (2003) 113 Cal.App.4th 579, 588; Saldana, supra, 233 Cal.App.2d at pp. 30-31.) Our analysis is guided by consideration of the same factors used to determine whether to sever counts that are otherwise properly joined: “(1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; [or] (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses . . . .” (Marshall, supra, 15 Cal.4th at pp. 27-28.)
Turning to the assault conviction, defendant contends, and the Attorney General concedes, evidence of the drug crime would have been inadmissible in a separate trial on the assault and battery charges. Defendant also argues evidence of his drug possession inflamed the jury against him. He also complains the misjoinder combined a strong case on the drug count with a weak case on the assault and battery charges. Defendant asserts the jury would infer from the evidence on the drug charge defendant had criminal propensities and therefore was likely to have also committed the charged assault.
None of the above factors require reversal of the assault conviction. “Although cross-admissibility ordinarily dispels any inference of prejudice [citation], the absence of cross-admissibility does not by itself demonstrate prejudice.” (People v. Mendoza (2000) 24 Cal.4th 130, 161.) Nor do we agree the drug count inflamed the passions of the jury. This was nothing more than a routine drug possession case involving a small quantity of cocaine. The acquittal on the battery count demonstrates the possession charge did not prejudice the jury against him. Finally, we do not consider the evidence on the assault and battery charges weak. All three eyewitnesses testified or told the investigating deputy that defendant hit the victim. The officer observed swelling and redness on the victim’s face, and defendant fled the scene. We conclude it is not reasonably probably defendant would have fared better on the assault charge had the trial court severed the drug charge.
As for the drug possession count, defendant conceded his guilt at trial, and on appeal admits the prosecution presented overwhelming evidence of his guilt. Consequently, there is no likelihood defendant would have obtained a more favorable verdict had the counts been severed. Defendant contends, however, the trial court’s erroneous failure to sever prevented him from demonstrating his eligibility for drug treatment under Proposition 36. (§§ 1210, 1210.1.) We agree.
Section 1210.1, subdivision (a), provides that “[n]otwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation.” Subdivision (b)(2) disqualifies from drug treatment “[a]ny defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs . . . .” (Italics added.) Under the circumstances presented here, defendant’s assault and battery charges constituted misdemeanor offenses not related to defendant’s drug possession. Even if defendant had pleaded guilty before trial to the drug charge, his subsequent assault conviction would have rendered him ineligible for treatment. (People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 538.) Only a severance would have created separate proceedings and given defendant the right to apply for inclusion in a drug program under Proposition 36. (Id. at pp. 537-538.)
The trial court’s refusal to sever prejudiced defendant because it prevented him from demonstrating his eligibility for a Proposition 36 drug program. We are in no position to determine the likelihood of defendant’s participation, but fairness requires defendant receive an opportunity to establish his eligibility. No basis exists to disturb defendant’s conviction for possession of a controlled substance, but we conclude the trial court should have granted defendant’s motion to sever the drug possession count from the assault and battery counts. Consequently, we remand the matter for the trial court to enter an order nunc pro tunc severing the charges. On remand, the trial court must determine whether defendant qualifies for a drug program under Proposition 36 (see § 1210.1, subd. (b)(1)-(5)), and resentence defendant on both convictions accordingly.
B. Defendant’s Admission of a Prior Conviction
We must still address defendant’s constitutional challenge to his admission he suffered a prior conviction. Of course, sentence enhancements under section 667.5, subdivision (b), apply only to increase sentences for felony convictions, and if defendant qualifies for diversion on remand, the trial court may not use defendant’s prior felony conviction to enhance his misdemeanor assault sentence. But if defendant does not qualify for diversion, the trial court may use his prior conviction to enhance the underlying felony under section 667.5, subdivision (b). In this event, we must address defendant’s attack on the validity of his admission he suffered a prior.
The information alleged defendant served two prior prison terms within the meaning of section 667.5, subdivision (b), based on a May 2000 conviction for possession of a controlled substance, and a June 1999 conviction for corporal injury to a cohabitant. Defendant denied the allegations.
The court bifurcated the priors and scheduled a hearing on the allegations to follow the jury trial on the underlying charges. Defendant subsequently waived a jury trial. At the outset of the bench trial on the priors, defense counsel informed the court his client would admit one of the prior convictions, and the prosecutor moved to dismiss the first prior given “the ambiguity that exists . . . .”
The trial court then asked defendant if he was “willing to admit that you have that prior.” Defendant responded, “Yes, sir.” The court informed defendant he would be “giving up the right to the trial to see that it’s true that you have the prior because the prosecutor, like the original charges, . . . has to prove it up[] [n]ormally . . . by showing documents and apparently he has some and has shown them to your lawyer.” Defendant said he understood the penal consequences of admission, and was still “willing to admit that it’s a prior.”
Defendant contends the trial court failed to establish he knowingly and voluntarily pleaded guilty because it neglected to advise him of his privilege against self-incrimination and his right to confront and cross-examine witnesses against him. The Attorney General implicitly concedes the trial court failed to advise defendant of these rights, but argues defendant’s admission was voluntary and intelligent under the totality of the circumstances. We agree.
Failure to expressly advise a defendant of the requisite constitutional rights no longer requires per se reversal. (People v. Howard (1992) 1 Cal.4th 1132, 1178.) After Howard, “the reviewing court must examine the record of the ‘entire proceeding’ to assess whether the defendant’s admission of the prior conviction was intelligent and voluntary in light of the totality of the circumstances.” (People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby).)
Mosby is illustrative. There, defendant admitted prior convictions after a jury trial on the substantive charges. The trial court advised the defendant of his right to a jury trial, but neglected to inform the defendant of the right against self-incrimination and to confront witnesses. The California Supreme Court concluded the defendant voluntarily and intelligently admitted his prior conviction despite being advised of and waiving only his right to a jury trial. (Mosby, supra, 33 Cal.4th at p. 365.) The court explained the defendant “was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation.” (Id. at p. 364, original italics.)
As in Mosby, defendant, represented by counsel, invoked his privilege against self-incrimination by not testifying at his recently concluded trial. He also observed his lawyer confront and cross-examine the witnesses called by the prosecution. Defendant argues for reversal, but relies on several cases expressly disapproved in Mosby. (Mosby, supra, 33 Cal.4th at p. 365, fn. 3.) Accordingly, after reviewing the totality of the circumstances, we conclude defendant voluntarily and intelligently admitted his prior conviction.
III
Disposition
We remand the matter for the trial court to enter an order nunc pro tunc severing the count charging defendant with possession of a controlled substance from the assault and battery counts. The convictions are affirmed. The trial court shall determine defendant’s eligibility under Proposition 36 and resentence accordingly.
WE CONCUR: SILLS, P. J., MOORE, J.