Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F00323
NICHOLSON, J.
A jury convicted defendant John Alfin Payne of petty theft with a prior theft-related conviction (count one; Pen. Code, § 666 [all undesignated statutory references are to the Penal Code]), assault on a peace officer with a deadly weapon (count two; § 245, subd. (c)), and evading a pursuing peace officer with reckless driving (count three; Veh. Code, § 2800.2, subd. (a)). In a bifurcated proceeding, the trial court found that defendant had served five prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to 11 years four months in state prison.
Defendant contends that he suffered prejudice from the improper consolidation of counts alleging separate crimes. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Consolidation
On March 5, 2007, an information was filed in case No. 07F00323, charging four counts on or about and between December 8, 2006, and December 20, 2006: (1) unlawfully driving and taking a truck (Veh. Code, § 10851, subd. (a)); (2) receiving the truck as stolen property (§ 496d, subd. (a)); (3) assault on a peace officer with a deadly weapon (§ 245, subd. (c)); and (4) evading a pursuing peace officer with reckless driving (Veh. Code, § 2800.2, subd. (a)).
On May 4, 2007, an information was filed in case No. 07F02346, charging two counts on or about December 9, 2006: (1) petty theft with a prior (§ 666); and (2) second degree commercial burglary (§ 459).
These counts pled the same act in the alternative. The People ultimately dropped the commercial burglary count.
After preliminary hearings in both cases, on May 23, 2007, the People filed a written motion to consolidate the cases, alleging: (1) the cases involved different offenses of the same class of crimes (§ 954); (2) all counts involved the same vehicle; (3) cross-admissible evidence linked the petty theft to the driving or taking of the truck. Defendant opposed the motion.
At the hearing on the motion, the prosecutor also argued that the petty theft was relevant to the counts involving the high-speed chase because identity was at issue in the latter (in which defendant was not apprehended until after the alleged crimes), but was established in the former: because defendant had been identified as the driver of the allegedly stolen truck when he committed the petty theft, this corroborated his identity as the driver of the same truck on the night of the chase.
The trial court granted the motion. The People then filed an amended consolidated information alleging all five counts.
On September 24, 2007, as jury trial was about to begin, the People moved orally to dismiss counts one and two of the amended information (unlawful driving or taking of the truck, and its receipt as stolen property) in the interest of justice. Defendant did not oppose the motion.
It appears that the People did so because the truck’s owner could not be sure that he had not given defendant permission to take the truck.
On October 1, 2007, the People filed a proposed second amended information charging three counts: petty theft with a prior, assault on a peace officer with a deadly weapon, and evading a pursuing peace officer. Defense counsel stated that he had no objection. The trial court granted the request. The People then filed the amended information, on which the case went to trial.
Trial evidence
The truck
Although the counts alleging unlawful possession of the truck had been dismissed, the People put on evidence to show how and when defendant acquired it.
In 2006, Joseph Mayr owned a business which used vehicles bearing the company’s logo, including a white Toyota pickup truck. By November 2006 his business and marriage were failing; he was deeply depressed and drinking “around the clock.” In late November or early December 2006, he invited defendant, who had worked for him part-time, to move in with him temporarily at his home in Sacramento. He also let defendant continue to drive company vehicles from time to time.
On November 28, 2006, Mayr had an accident in the Toyota pickup and was jailed for driving while intoxicated. He was hospitalized twice in December 2006 for detox. After a motorcycle accident, he was hospitalized again from late December through April 2007. Due to his drinking, he remembered little from November and December 2006, including when he last saw the pickup.
Michael Furiani and his wife, Lori Connor, were friends of Mayr who often checked on him in November and early December 2006. They did not know defendant, whom they found at Mayr’s house on the night of December 8, 2006. Furiani told defendant to leave; Connor called the police. Defendant left. Furiani then saw the Toyota pickup drive away from the house, speeding with lights off; he did not see it returned then or later. Defendant also did not return.
Mayr had not told Furiani and Connor about defendant. They identified defendant later from police photographic lineups.
Count One
Around 8:00 p.m. on December 9, 2006, Kathleen Kubochi was the only cashier on duty at the Big Lots store on La Riviera Drive in Sacramento County. Customers told her that someone was leaving with a cart full of unpaid-for merchandise. She chased him into the parking lot, where he was throwing the merchandise into the back of a white pickup truck with a business logo on the side. She saw that he was brown-haired and unshaven and wearing dark clothing.
As the man got in the cab, Kubochi climbed into the back, thinking he would not leave with her in the truck bed, but he started to pull forward, knocking her off, and then drove away. Having memorized its license number and observed the logo on the side of the truck, she called the police.
Later, she watched the store’s videotape of the incident (which was played for the jury) and viewed a police photographic lineup. Although she identified defendant from the lineup with only 50 percent certainty, she positively identified him in court.
Counts Two and Three
Around 8:30 p.m. on December 20, 2006, Sacramento County Sheriff’s Deputy Francis Nervo, on patrol in uniform in a marked police car, drove by a shopping center at Salmon Falls Drive and La Riviera Drive. In the parking lot was a white Toyota pickup with distinctive logos, which he recognized from investigating Mayr’s November 28 driving under the influence accident.
The pickup exited the parking lot. As the truck entered La Riviera Drive, Deputy Nervo followed it with his lights and siren off. He radioed in its license plate number because it had started to speed. A high-speed chase through the neighboring residential streets ensued. Even after Deputy Nervo turned on his lights and siren, the pickup did not slow down.
It headed into a cul-de-sac, then emerged at a high rate of speed. Trying to block the entrance, Deputy Nervo had to swerve to avoid a head-on collision. As the pickup sideswiped the patrol car, Deputy Nervo saw that the driver was a tall White male in a gray hooded sweatshirt, apparently in his mid-thirties.
The pickup headed into another court, then headed back out without slowing. Deputy Nervo did not try to block it and soon lost sight of it, but had already called in a report.
Around 9:30 or 10:00 p.m., Marquita Kirven, a waitress at a nearby Denny’s restaurant walking through the parking lot toward her apartment across the street, saw a pickup run the stop sign near the lot entrance, fly into the air, and land in the back of the parking lot. The driver, a tall, thin, White male, ran toward the back door of the restaurant’s kitchen. Kirven went home and called the restaurant manager, who called the police. Kirven later told Deputy Nervo the man may have been wearing a gray sweatshirt or T-shirt.
After officers secured the pickup, a canine unit found a black leather jacket discarded near the restaurant. Under it were three photographs of a man who turned out to be defendant. A cooler behind the pickup’s front seat contained two more photographs of defendant.
Deputy Nervo identified the pickup as the one that had sideswiped him; it showed body damage that was new since the November 28 accident. He also identified a photograph of defendant as the pickup’s driver.
Defendant did not put on evidence.
DISCUSSION
Defendant contends that the trial court erred by granting consolidation, “both ab initio and when the District Attorney dismissed the stolen vehicle counts.” He contends further that the consolidation caused an unfair trial and denied him his right to due process of law. We conclude that the consolidation was proper and did not prejudice defendant.
Applicable law
There is a statutory preference for consolidating trial of separately charged offenses if “connected together in their commission,” or if they constitute “different statements of the same offense or two or more different offenses of the same class of crimes or offenses.” (§ 954; see Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).) Because consolidation serves the important purposes of efficiency and judicial economy, the burden is on the defendant to show that these considerations “are outweighed by a substantial danger of undue prejudice.” (People v. Bean (1988) 46 Cal.3d 919, 939.)
Whether the conditions for joinder exist is a pure question of law which we review independently. (People v. Alvarez (1996) 14 Cal.4th 155, 187-188.) However, our standard of review for the grant of a consolidation motion is abuse of discretion. (People v. Osband (1996) 13 Cal.4th 622, 666 (Osband).) Consolidation of charges may be an abuse of discretion if (1) the evidence is not cross-admissible, (2) the joined charges are inflammatory, (3) a weak case is joined with a strong case, and (4) one of the crimes is punishable by death. (Id. at pp. 666-667.) Cross-admissibility is not required for consolidation, however. (Id. at p. 667.)
If joinder was proper under section 954, the defendant must make a clear showing of prejudice to demonstrate abuse of discretion. We assess the trial court’s ruling based on the record when the ruling was made. However, if in hindsight it proves that consolidation resulted in gross unfairness depriving the defendant of due process of law, we would be required to find prejudice. (Alcala, supra, 43 Cal.4th at p. 1220; People v. Zambrano (2007) 41 Cal.4th 1082, 1130 (Zambrano).)
Although defendant attacks the ultimate consolidation of three counts for trial, he did not oppose it at the time. Indeed, he acquiesced in the People’s motion to file the second amended consolidated information. Yet there were arguably stronger grounds to oppose the consolidation of the three counts on which the case was tried than there were to oppose the consolidation of all the originally charged counts. Defendant’s acquiescence in the filing of the second amended consolidated information forfeits any claim of error on appeal as to the consolidation of the counts alleged in that information. (Gonzales v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131; Ferris v. Gatke Corp. (2003) 107 Cal.App.4th 1211, 1225-1226, fn. 7; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.) Therefore we consider only defendant’s arguments as to the motion to consolidate the originally charged counts.
By dropping the truck-theft counts, the People abandoned their prior arguments that the counts charged “two or more different offenses of the same class of crimes” (§ 954) (i.e., theft offenses relating to the truck and the Big Lots store) and that the evidence as to the theft offenses was cross-admissible.
Defendant contends that the motion to consolidate the originally charged counts was improper under section 954 because (1) the petty theft with a prior was not of the same category or class as the other offenses; (2) the crimes were not connected in their commission; and (3) “no evidence going to disputed facts was cross-admissible between” the petty theft and any other offense charged. We disagree.
First, petty theft with a prior is a crime of the same class as unlawfully taking a truck. Offenses are “of the same class” for purposes of joinder if they possess common characteristics. (People v. Leney (1989) 213 Cal.App.3d 265, 269 (Leney).) The common characteristic of these offenses is the intent to obtain property feloniously. (See People v. St. Germain (1982) 138 Cal.App.3d 507, 515.) Defendant’s assertion that “[p]etty theft shares no attribute with stealing a car” is unsupported by authority or common sense.
Second, all the alleged offenses shared a “‘common element of substantial importance’” (Alcala, supra, 43 Cal.4th at p. 1218, italics omitted) which “connected [them] together in their commission” (§ 954) -- a requirement which may be satisfied “‘even though the offenses charged do not relate to the same transaction and were committed at different times and places against different victims.’ [Citation.]” (Leney, supra, 213 Cal.App.3d at p. 269.) This common element is defendant’s alleged use of the same vehicle in all of the offenses, which also tended to corroborate his identity in the offenses stemming from the high-speed chase.
Relying on Leney, supra, 213 Cal.App.3d at page 269, and People v. Poggi (1988) 45 Cal.3d 306, 320, defendant asserts: “[T]he two types of offenses [i.e., the theft offenses and the offenses stemming from the high-speed chase] do not share a common thread of behavior, such as violent assault, or lewd acts against children.” But neither decision holds that “connected together in their commission” under section 954 means or requires “a common thread of behavior,” a phrase not used in either.
Since the statutory criteria for joinder were satisfied, and cross-admissibility is not required (Osband, supra, 13 Cal.4th at p. 667), we need not address defendant’s claim that evidence going to the different offenses was not cross-admissible.
Defendant also contends that even if joinder was proper under section 954, it was nevertheless prejudicial in hindsight. (Cf. Zambrano, supra, 41 Cal.4th at p. 1130.) He is mistaken.
Defendant asserts first that he suffered prejudice from the admission of evidence about how and when he obtained the truck, even though he was no longer charged with stealing it or receiving it as stolen property. According to defendant, the testimony of Michael Furiani, Lori Connor, and Joseph Mayr cast him in an unsympathetic light as a person who took advantage of a helpless alcoholic and may very well have taken the truck without permission. But without this evidence, the jury would have heard only that defendant drove a truck which did not belong to him for at least 10 days and committed crimes with it -- a scenario which would inevitably have inspired speculation that he stole the truck. Mayr’s testimony at least raised the possibility that defendant had permission to drive it. On balance, the admission of this evidence benefited defendant, if anything.
Defendant also asserts prejudice on the ground that there was a reasonable probability of an outcome more favorable to him had the cases not been joined. This is so, according to defendant, because he argued at trial that he did not commit either the shoplifting at Big Lots or the misconduct directed at Deputy Nervo, and separate juries unprejudiced by “evidence of unrelated offenses [and] uncharged crimes” would have been more likely to accept these defenses. However, given the eyewitness identification of defendant by the Big Lots cashier and the deputy, and the circumstantial evidence additionally linking defendant to the events of December 20 (the photographs of him found in or near the pickup in the Denny’s lot, pointing to him as the driver), defendant’s argument is not persuasive.
DISPOSITION
The judgment is affirmed.
I concur: CANTIL-SAKAUYE, J.
I concur in the result: SIMS, Acting P. J.