Opinion
C050839
12-12-2006
THE PEOPLE, Plaintiff and Respondent, v. ANDREI BECHER, Defendant and Appellant.
A jury convicted defendant Andrei Becher of second degree burglary of a vehicle (Pen. Code, § 459), attempted theft of a vehicle (Pen. Code, § 664; Veh. Code, § 10851, subd. (a)), and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). The trial court revoked defendants probation in case Nos. 04F01528 and 03F05618 and sentenced defendant to three years and four months in prison.
On appeal, defendant contends the trial court improperly allowed joinder of offenses charged against codefendant Todd Owen Brogdon. We reject the contention and affirm.
BACKGROUND
Vicki Holman works at Winco Foods in Elk Grove and parked her 1995 Geo Metro in the Winco parking lot at around 6:30 a.m. on November 30, 2004. She returned at around 4:30 p.m. to find the drivers side front window was partially rolled down and pulled off track, and the steering column had been opened to expose the wiring. A screwdriver and key which did not belong to her were on the front floorboard of her car.
Sacramento County Deputy Sheriff Anthony Paonessa was in a marked Elk Grove Police Department patrol car in the Winco parking lot at about 3:55 p.m. on the same day. He saw codefendant leaning into the open drivers side door of Holmans Geo Metro and apparently rummaging through the contents of the vehicle. As Deputy Paonessa approached, codefendant left the Geo Metro and went into a white Chevy Metro parked next to Holmans car. The white Chevy Metro was driven by defendant, who drove away after Deputy Paonessa activated his overhead lights.
Deputy Paonessa followed for about 100 yards until defendant pulled over after the deputy turned on his siren. Codefendant fled when Deputy Paonessa was patting down defendant, but was later found hiding in a nearby field. Deputy Paonessa found a white latex glove, a crowbar, a screwdriver, a black rubber glove, and a file in defendants car. Defendant resisted handcuffing and being placed in the patrol car.
Genaro Lemuss Honda Civic was stolen on either January 12 or 13, 2005. On January 15, 2005, Sacramento Police Officer Brian Hergenreder was in his patrol car talking to an officer in another police car at the intersection of 32nd Street and Third Avenue. Codefendant drove up in a gray Honda Accord and engaged the officers in conversation. Thinking this was unusual, Officer Hergenreder ran a check on the Accords license plate and found it was carrying plates for a Dodge.
Codefendant had parked and exited by the time Officer Hergenreder caught up to the Accord. Codefendant was wearing a backpack containing screwdrivers, hammers, and many other tools. He ran away after Officer Hergenreder started to pat him down. The police found codefendant hiding under a plastic table in the back porch area of an apartment complex across the street.
Codefendant was arrested and brought to the police station. At the police station, he was read his Miranda v.Arizona (1966) 384 U.S. 436 warnings, and admitted knowing the Civic was stolen. (RT 271) He ran because he was on bail for stealing a car.
The ignition was pulled out of the Civic. Lemus found a screwdriver, a black mask, and a pornographic magazine inside his car. None of the items belonged to him.
Defendant and codefendant were both charged with second degree burglary of a vehicle (Pen. Code, §§ 459, 460), attempted theft of a vehicle (Pen. Code, § 664; Veh. Code, § 10851, subd. (a)), and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)) for the incident with the Metro. Codefendant also was charged with unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)), possession of a stolen vehicle (Pen. Code, § 496d, subd. (a)), and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)) for the theft of the Civic in case No. 05F00497. The Peoples motion to consolidate the cases was granted over defendants objection. The amended information also alleged that codefendant was on bail when he committed the taking of a vehicle and possession of a stolen vehicle counts (Pen. Code, § 12022.1). Codefendant was convicted on all six counts.
DISCUSSION
Defendants sole contention on appeal is the joinder of the separate counts against codefendant was an abuse of discretion.
Penal Code section 954 provides that two or more different offenses of the same class of crimes may be consolidated and tried together. It also establishes discretion in the trial court to sever the charges for separate trial in the interest of justice and for good cause shown. When consolidation is statutorily authorized, "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." (Pen. Code, § 954.1.)
In ruling on a motion to consolidate charges, or to sever charges that have been brought together, a trial court must rule on the basis of the record then before it. (People v. Arias (1996) 13 Cal.4th 92, 127.) However, even if a ruling was correct when made, a judgment must be reversed if the defendant demonstrates that a joint trial resulted in such gross unfairness as to amount to a denial of due process. (Ibid.) The burden is upon the defendant, who must clearly establish cause for reversal. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1244 (Musselwhite).)
In order to obtain reversal, defendant is required to clearly establish that a joint trial was so grossly unfair as to amount to a denial of due process. (Musselwhite, supra, 17 Cal.4th at p. 1244.) "`"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." [Citation.] [¶] "The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial." [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.] [Citations.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)
Defendant relies on the absence of cross-admissibility between the evidence of codefendants theft of the Honda Civic and the charges against defendant. Penal Code "[s]ection 954.1 provides that evidence need not be cross-admissible before offenses may be jointly tried before the same trier of fact." (Price v. Superior Court (2001) 25 Cal.4th 1046, 1070.) In order to establish that the joinder resulted in a grossly unfair trial, defendant must establish additional grounds supporting prejudice.
Defendant contends the joinder was prejudicial because it allowed "improper inferences of guilt by association and that [defendant] belongs to a ring of car thieves." His contention is unsupported by the record.
Defendant was not prejudiced by the joinder of inflammatory charges to his case. Although the joined offenses were proved by different evidence, they involved the same type of criminal conduct — automotive theft and resisting arrest — as the charges against defendant. The evidence admitted to prove codefendants theft of the Honda Civic is similar to the evidence used to prove defendants crime. Both the theft of the Honda Civic and the attempted theft of the Geo Metro involved an officers eyewitness account of the codefendant in each of the victims cars. The Metro and the Civic both showed signs of tampering with the ignition system. The only significant differences between the two thefts is that the theft of the Civic was completed, and codefendant admitted knowing the Civic was stolen. However, codefendants admission only incriminated himself and did not prejudice defendant.
The similarity of the evidence also shows defendant was not prejudiced by having a weak case against him joined to a strong one against codefendant for the theft of the Civic. The prosecution supplied ample proof of defendants guilt in the attempted theft of the Metro. The evidence of codefendants theft of the Civic did not allow an inference of guilt by association, nor did it indicate that defendant belonged to a car theft ring. It proved nothing more than codefendant stole the Civic while on bail. Any risk of prejudice was diminished by the trial courts instruction to the jury not to consider the evidence related to the January 14 incident involving the Civic when deliberating over the November 30 incident involving the Metro.
Defendant cites several cases holding joinder of unrelated charges involving another person was improper. Some are decisions from the Ninth Circuit, which we are not bound to follow. (People v. Camacho (2000) 23 Cal.4th 824, 830, fn. 1.) Others were decided before Proposition 115 added Penal Code section 954.1, and are thus distinguished from defendants case. The one California case decided after Proposition 115, Calderon v. Superior Court (2001) 87 Cal.App.4th 933 (Calderon) does not support defendants claim.
In Calderon, at least three and possibly all four of the Bradford factors were present. (Calderon, supra, 87 Cal.App.4th at p. 939.) As in the present case, the evidence in the joined case was generally not cross-admissible against defendant. (Id. at p. 939.) The only possible exception was gang evidence because defendant and codefendant were members of the same street gang. (Id. at pp. 939-940.)
The joined offense was also inflammatory relative to the charge against defendant. Defendant was charged with a murder arising from an exchange of insults, while the joined crime involved an execution style killing. (Id. at pp. 936-937, 941.) The prosecutions case in the joined crime had a confession and better identification evidence, making it stronger than the case against defendant. (Id. at p. 941.) Finally, it was possible that codefendant could be charged with a special circumstance in the joined case. (Ibid.)
Defendant has not established that joinder created a "substantial danger of prejudice." (Bradford, supra, 15 Cal.4th at p. 1315.) Accordingly, we reject defendants claim.
DISPOSITION
The judgment is affirmed.
We Concur:
RAYE, J.
HULL, J. --------------- Notes: Codefendant is not a party to this appeal.