Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F10308
SIMS, J.Based on his attack on a couple in a Denny’s on Mack Road, a jury convicted defendant Brandon Dashawn Bailey of two counts of assault with force likely to produce great bodily injury (that resulted in personally inflicting great bodily injury only on the husband), battery with serious bodily injury of the husband, and simple battery of the wife (the latter being a lesser offense of the charged crime). Based on his pursuit several months later with others of a young man in his car on Power Inn Road, the jury also convicted him of attempted carjacking while on bail for the previous offenses. The trial court sentenced him to state prison.
The court subsequently disposed of violations of probation (based on the present offenses) in three unrelated cases, which we do not need to detail.
On appeal, defendant contends that the court abused its discretion in denying his motion to sever the carjacking count from the remainder, and that the consolidated trial resulted in a violation of his right to due process. We shall affirm.
BACKGROUND
The prosecutor filed the complaint in the initial matter (case No. 07F10308) in November 2007. On February 1, 2008, the prosecutor filed a second complaint (case No. 08F00828), charging defendant with attempted carjacking. At the March 2008 joint preliminary hearing, both complaints were deemed informations. In April 2008, the prosecutor moved to consolidate the carjacking information with the assault information under the earlier case number. The court granted the motion. (Defendant does not on appeal challenge the propriety of joining the cases.)
After the matter came on for trial, defendant made an oral motion for severance. Defense counsel contended the Denny’s incident was substantially more frightening and inflammatory than the carjacking incident. As there was a video recording of the Denny’s incident, it was also a substantially stronger case than the carjacking, which counsel claimed did not have any corroboration of the victim’s identification of defendant. The prosecutor disputed the efforts to minimize the inflammatory circumstances of the carjacking vis-à-vis the Denny’s incident, or the strength of the evidence tying defendant to the carjacking. The court stated it would review the transcript of the preliminary hearing before making its ruling.
At the preliminary hearing, the carjacking victim testified that he was driving home at 1:22 a.m. on Power Inn Road, heading north. A champagne-colored car passed him on the right and turned into his lane, causing a collision. As he turned off to the left into a gas station, the car circled around him. A second, white car approached from behind and also circled around his car. A female driver came toward him from the champagne-colored car and tried to open the locked driver’s side door, telling him to get out of the car. Another person approached from the white car and spoke to the victim through the open sunroof, telling the victim to “‘Get out of your car. We’re taking your car.’” The victim identified defendant in court as the person making that demand. The victim drove off quickly because both of the other drivers were out of their vehicles.
With respect to the Denny’s incident, the husband testified at the preliminary hearing that he had been having coffee with his wife at 2:00 a.m. after an evening at a club. Defendant, accompanied by another man and a woman, entered the restaurant screaming profanities. The husband’s back was to them. Defendant focused his diatribe on the husband’s white suit. The husband stood up, and someone hit him in the eye, which interfered with his vision. He felt them kicking and punching him. He grabbed a chair and swung it. His wife attempted to intervene, and received a broken finger in the process, according to her husband. The bone below the husband’s eye was broken and required surgery, and his wife’s finger required resetting.
However, at trial the wife testified that she in fact had incurred only a dislocated finger, which might account for the jury’s failure to find that the assault or battery of her resulted in serious or great bodily injury.
When the matter reconvened, the court announced that it had also reviewed the videotape of the Denny’s incident, the 911 call from the carjacking victim, and the police communications that followed the call. It did not find any evidence in the two incidents to be cross-admissible, which could otherwise have been a basis for denying the motion.
According to the court’s summary of the materials, the videotape:
As defendant does not at any point dispute the accuracy of the trial court’s characterization of these other exhibits, and has not sought to include either the videotape or the recording of the police communications themselves in the record on appeal, we quote the ruling at length and do not have any need to augment the record with these other materials.
“... shows... an individual in a white suit having coffee with a young lady, and then a number of people getting into a dispute with him, and then it appears that he is attacked. There is nothing particularly bloody about it....
“The circumstances of the... attempted carjacking as related through the 911 tape reflect a car accident of some sort and then somebody approaching the victim and demanding his vehicle.
“At the time the victim is calling 911, the people that perpetrated this incident are still at the gas station and the victim is across the street....
“And the police are responding, apparently get into a pursuit with the suspect vehicle where stop signs are run and ultimately they detain the defendant and a positive identification of him is made.
“There is nothing particularly inflammatory about that incident, either. Either individually or collectively, those two incidents, I can’t imagine the jury would be inflamed were they to be tried together.
“I also don’t find there to be a particularly weak versus strong case. There is no doubt that the Denny’s case, if the jury believes the defendant is, in fact, the person in the black shirt, it is an extraordinarily strong case....
“The attempted robbery case, from my review of the 911 [call], is an incident where the defendant, who was identified without any doubt by the victim... in a fairly short period of time after the attempted carjacking took place, the defendant remained at the scene of the car accident where the attempted carjacking took place for some period of time, long enough for the victim to contact law enforcement.
“Law enforcement arrived at the scene and observed the vehicle that the defendant was riding in and began a pursuit, ultimately detaining him at a residence shortly after....
“The victim was immediately taken to that location and was able to positively identify the defendant as being the person who had just committed the attempted carjacking.
“That is not a weak case; rather, it is a fairly strong one supported not only by the identification by the victim, but also the conduct of the people in the vehicle that the police had to pursue....”
Noting in conclusion that neither case involved the death penalty, the court denied the motion. It also observed that to have granted the motion would have been an abuse of discretion.
Defendant does not identify anything about the facts as they developed at trial that deviates significantly from the facts before the court at the time it ruled on the motion, other than the carjacking victim’s failure to mention in his initial description for the police that the carjacker had clearly visible tattoos (which apparently adorn defendant’s face according to the transcript, the appellate record not including his photograph).
DISCUSSION
In conclusory fashion, defendant asserts that the “almost indefensible” evidence involving the Denny’s incident, with its “highly inflammatory videotape” showing defendant’s “violent and aggressive” nature, had a “‘spill-over’ effect” that improperly bolstered “the very weak evidence” involving the attempted carjacking. He claims there is “compelling evidence” (never specified) that this abuse of discretion resulted in substantial prejudice to him because it resulted in the entire undermining of his defense of mistaken identity.
A trial court’s denial of a severance motion is subject to review for an abuse of discretion, based on the facts before the court at the time of its ruling, which requires reversal only where it is reasonably probable that separate trials would have led to a more favorable result for defendant. (People v. Burney (2009) 47 Cal.4th 203, 237.) Even in the absence of an abuse of discretion, a defendant is entitled to reversal where the joint trial of the charges resulted in such gross unfairness as to amount to a denial of due process. (Ibid.)
A defendant seeking severance must make a stronger showing of prejudice than required for exclusion of evidence of other crimes. (People v. Arias (1996) 13 Cal.4th 92, 127.) The only factors pertinent in the present case in assessing prejudice are whether one incident is more unduly inflammatory than the other, and whether a strong case will bolster a weak one. (Ibid.)
We have nothing to add to the pretrial evaluation of the two incidents quoted at length above. Neither case appeared weak: the Denny’s incident was on videotape, and there was unbroken surveillance of the perpetrator of the carjacking and his car from the time he uttered his demand until the victim identified him for the police. There is apparently not anything graphic about the fighting captured on the videotape, nor do the facts of the attempted carjacking present any risk of inspiring a prejudice against defendant as an individual for emotional reasons unrelated to the issues being tried. Moreover, had the cases been severed for trial, the jury in the carjacking case would have learned that defendant was on bail in the Denny’s case, because an on-bail enhancement was at issue. Considering the circumstances, defendant falls far short of showing that the court’s ruling was unreasonable.
As we noted earlier, defendant has failed on appeal to identify anything about the facts as they developed at trial that gave a significantly different picture of the relative strength or inflammatory nature of either incident, other than the failure of the carjacking victim to tell the police about defendant’s facial tattoos in describing the perpetrator. This oversight in the heat of the moment hardly undermines the strength of the case, given the unbroken scrutiny from the gas station to the point of defendant’s capture. Therefore, the Denny’s incident did not have any potential to affect the outcome on the verdict for the attempted carjacking. The converse is even more evident: had there been anything about the rather tame circumstances of the attempted carjacking that would have led the jury to convict defendant regardless of the state of the evidence in the Denny’s incident, then the jury would not have found him guilty only of the lesser crime of battery with respect to the wife. As a result, defendant falls far short of showing gross unfairness amounting to a deprivation of due process at trial.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., BUTZ, J.