Opinion
A158605
04-01-2021
THE PEOPLE, Plaintiff and Respondent, v. LAVON CARRAWAY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. SCN231291 )
Lavon Carraway stabbed two men during a bar fight and, about a month later, knocked a woman to the ground during an altercation in a parking lot. Charges arising from the two incidents were jointly tried to a jury. On appeal, Carraway contends that (1) the evidence was insufficient to prove he used force likely to produce great bodily injury during the parking lot altercation; and (2) the trial court erred when it declined to sever the charges arising from the two incidents for trial. Both assertions are meritless, so we affirm the conviction. We agree with the parties that a term imposed for misdemeanor battery must be stayed pursuant to Penal Code section 654, and therefore order the abstract of judgment amended to reflect this and to correct a clerical error.
Further statutory citations are to the Penal Code.
BACKGROUND
I. The Fight at the Mayes Oyster House
On the night of August 4, 2018, a group of friends including Russel S. and Steven S. gathered at Mayes Oyster House, a bar and dance club in San Francisco. The dance floor was crowded, and as Steven, Kyler M., and Ashley F. walked to the back to use the restrooms, Kyler bumped into Carraway. Carraway said "what's up" and Kyler responded in kind. Then Carraway pulled his shirt up to display a knife in his waistband, shook his head and said, "You don't want any of this, white boy." Carraway's companion, Demenzzy Mirini, stood nearby and watched.
We will refer to the victims and witnesses by their first names or initials to preserve their privacy. We mean no disrespect by this practice.
Kyler walked to the restroom, where he told Russel about the encounter. Both were frightened. After leaving the restroom they gathered their friends and started toward the front of the bar to leave. Kyler nodded in Carraway's direction to point out the man with the knife. Carraway gave them a "death look."
The friends headed toward the door with Russel in the lead, followed by Ashley, Kyler, and Steven. Kyler looked back and saw Carraway following behind Steven. Carraway struck Steven in the stomach or ribs. Kyler saw Steven "go down" as Carraway punched him in the face. Russel saw Carraway strike Steven in the back of the head "over and over again" and pull him backwards. Steven was throwing punches, "fighting for his life." Fearing for Steven's life, Kyler joined the fray and started punching Carraway in the head. Mirini punched Kyler in the face. Kyler returned the blow, threw Mirini to the ground and punched him until Ashley pulled him away.
Russel also started throwing punches at Carraway, striking him at least once in the back of the head. Carraway stabbed Russel in the lower abdomen. Blood started "gushing" down Russel's leg. He looked down and saw "a huge opening and [his] guts were starting to come out."
Russel managed to leave the bar. Kyler, who by then was also outside, applied pressure to his wound as they waited for an ambulance. Steven had also been stabbed and was bleeding profusely from the forehead. Both men sustained substantial injuries that required surgery.
With Russel, Steven and Carraway still outside the bar, Kyler flagged down Police Officer Megan Sinclair. Carraway had a bloody nose and a small laceration on the tip of his nose. Officer Sinclair spoke with him and a video recording of their conversation was played for the jury. Carraway identified himself as the victim and Kyler as "the first one that ran up to me and punched me." He elaborated, "[o]ne of his friends came up to me and then, like, approaches me. And I'm like, dude, get out of my face, I don't have anything (unintelligible). He's like dude, you're going to get your ass beat. And he's like, he says (unintelligible) his exact words you're about to get your ass beat by the group of guys behind you. Behind me."
Carraway continued, "And I look back and I'm like, what are you (unintelligible) get the fuck out of my face, I don't have anything to do with this. And then he pushed me and that's when I punched him. And that's when everything just, like, went crazy. He pushed me, he made contact to hit me. I pushed him and that's when his friends came from behind me. I wouldn't throw my hands up. If I had a weapon of any sort, I would've put my hands up here. There's no need to get . . . [¶] . . . [¶] . . . there would be no need for it. I got cut on my nose, I think I got cut on my lip too. But you know the thing I was doing was I was kicking people and pushing people, back."
Then, Carraway said, "[t]hey kept coming for me and I kept moving. I grabbed one guy's hand. I ripped his arm, I ripped the arm away." Asked if he knew who had the knife, he said "It was like, maybe . . . there was literally, I got attacked by at least five people. At minimum five people. So there's no way to, no way to determine what went down or how, who did what. [Unintelligible] at least five people. Period." At another point Carraway told Officer Sinclair that "three dudes jumped him" and that he did not recognize Russel or Steven. He told another officer that "two white dudes tried to jump me." He did not tell police he had flashed or used a knife, used a knife in self-defense, or that anyone in the bar had called him by a racial slur.
Multiple witnesses identified Carraway as the man who stabbed Steven and Russel. His bloody knife was located nearby between a parked SUV and the curb. Surveillance videos of the fight were played to the jury.
The defense called a security guard who encountered Carraway at the bar the night of the fight to testify. Carraway said he was "having an issue" with the victims and that he would "have to defend himself" if it continued. The security guard advised him to separate himself from the group and to leave the bar if the situation escalated. Carraway agreed, but said, "if they come at me it's going to be a problem." The security guard briefly left to attend to an issue at a next-door venue. By the time he returned the fight was over and the participants were on the sidewalk outside the bar.
Carraway's companion that evening, Mirini, also testified for the defense. As he and Carraway stood by the dance floor, Kyler and Ashley bumped into them hard and seemingly on purpose. Ashley called Carraway a "nigger" and Kyler called him a "faggot," but they walked away when Mirini and Carraway asked them to "just leave." Five or 10 minutes later Steven, who was dancing nearby, began elbowing and bumping Mirini and Carraway, then turned to them, and said, "you guys know you ain't going to make it alive out of here, right?" and pointed at his friends.
Carraway and Mirini started to leave the bar, but Steven blocked their way and shoved Carraway. Carraway pushed back and then Kyler and another man attacked him, one from behind and one from the front. Carraway defended himself by throwing punches. Mirini tried to pull Kyler off of Carraway but Kyler turned, threw Mirini to the floor and pummeled him until someone pulled him away.
Mirini did not see Carraway stab anyone. Eventually one of the bouncers escorted Mirini outside and he left the scene without speaking to police.
II. The Parking Lot Incident
A little over a month later, on September 15, 2018, B.E. was getting into her car in a San Francisco parking lot when her driver's side door bumped another car. Carraway approached with a female friend and two dogs, screaming at B.E. and calling her a "[f]ucking bitch, this and that" and "Chinese and stuff." B.E. "might have" called him a "nigger."
B.E. is Mongolian.
Carraway told B.E. he was going to smash her car. She attempted to back up to leave, but when Carraway blocked her exit she instead opened her window and tried to talk to him. Carraway spat at her twice through the open window while "verbally attacking [her] and degrading [her] any way he could."
B.E. was "in shock, like, somebody spit on my face right on my face. In my culture, it's very insulting. So I just wanted to confront him." She approached Carraway and possibly tried to spit on him, but "never did." Carraway punched her with a closed fist, knocking her to the ground.
B.E. momentarily blacked out, and was later unable to remember anything between Carraway's hand coming toward her face and finding herself on the ground. She testified, " I think I got knocked out and he was really happy when I got up. He was laughing and like, oh, shit, I knocked her out. He was really happy." B.E.'s face was scratched, her cheek was very swollen and three of her nails were broken "right in the middle."
B .E. retrieved her cell phone from her car and used it to film Carraway, attempting unsuccessfully to record his license plate.
Someone called an ambulance, but B.E. declined it and left on her own after 10 or 15 minutes. Her cell phone footage was played for the jury, as was surveillance video of the entire incident.
III. Trial and Verdict
Carraway was charged with assault with a deadly weapon on Steven and Russel (counts one and three); assault by means of force likely to produce great bodily injury on B.E. (count five); and battery with serious bodily injury on Steven, Russel and B.E (counts two, four and six). The information included enhancement allegations for weapon use, infliction of serious bodily injury, a prior strike conviction and a prior serious felony conviction. The trial court denied Carraway's motion to sever the charges arising from the two distinct incidents and all charges were tried together. At trial, Carraway asserted he acted in reasonable self-defense in both incidents.
The jury found Carraway guilty of assault with a deadly weapon and battery with serious bodily injury against Steven (counts one and two) and found true the related enhancement allegations, but acquitted him of the charges related to Russel. As to B.E., it found him guilty of assault by means of force likely to cause great bodily injury and misdemeanor battery, but acquitted him of battery with serious bodily injury. The court found true the prior strike and prior serious felony conviction allegations. Sentenced to 11 years in prison, Carraway filed this timely appeal.
DISCUSSION
I. Substantial Evidence
Carraway asserts there was insufficient evidence to support the finding that the assault on B.E. was made with force likely to produce great bodily injury. The assertion is meritless.
Section 245, subdivision (a)(4) makes it a felony to "commit[] an assault upon the person of another by any means of force likely to produce great bodily injury." (§ 245, subd. (a)(4).)
" 'The statute prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.' [Citation.] '[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted.' " (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066, italics omitted (Armstrong).)
"Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (Armstrong, supra, 8 Cal.App.4th at p. 1066.) " 'Likely' means more than 'a mere possibility.' " (People v. Medellin (2020) 45 Cal.App.5th 519, 527 (Medellin); see In re B.M. (2018) 6 Cal.5th 528, 534 [use of an object in a manner "likely to produce" death or great bodily injury for purposes of § 245, subd. (a)(1) requires "more than a mere possibility" of serious injury] (B.M.).) Sufficient force " 'can be found where the attack is made by use of hands or fists. [Citation.] Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied.' " (Medellin, supra, 45 Cal.App.5th at p. 528; In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162 [blow delivered without warning and with enough force to knock the victim down and cause injuries was sufficient to support conviction under § 245, subd. (a)(4)].)
" 'The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. [Citations.] In making this determination, the appellate court "must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citations.] . . . "[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record. . . . Second, we must judge whether the evidence of each of the essential elements . . . is substantial." ' " (Armstrong, supra, 8 Cal.App.4th at p. 1065.)
Here, Carraway punched B.E. with a closed fist hard enough to knock her to the asphalt. She testified that she briefly lost consciousness and suffered a laceration from the middle of her left cheek to her lip, bleeding from her mouth, bruises on her buttocks and three broken nails. Her face was bruised and swollen for a week after the assault and she had difficulty walking for days. On this record the jury reasonably found the force Carraway used in striking her constituted force likely to produce great bodily injury.
Carraway disagrees. Quoting People v. Russel (2005) 129 Cal.App.4th 776, 787, he contends the term "likely" in this context means " 'probable or . . . more probable than not.' " We need not decide whether this remains a valid formulation after B.M., supra, 6 Cal.5th at p. 534 (a likelihood is "more than a mere possibility") because Carraway's assault on B.E. qualifies as force likely to result in great bodily injury under either standard.
It is also immaterial that, as Carraway observes, the jury acquitted him in count 6 (battery with serious bodily injury, § 243, subd. (d)) of actually inflicting great bodily injury on B.E. "[A]n injury is not an element of the crime, and the extent of any injury is not determinative. 'The crime . . . like other assaults, may be committed without infliction of any physical injury, and even though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it.' " (People v. Covino (1980) 100 Cal.App.3d 660, 667.)
II. Severance
Next, Carraway asserts the trial court abused its discretion when it denied his motion to try the charges arising from the fight at the Mayes Oyster House separately from those related to the parking lot assault on B.E. In his view, his self-defense theory in the Mayes Oyster House fight "presented a close issue" and would likely have prevailed if the assault on B.E. had not been "added to the mix." Conversely, he maintains, evidence from the bar fight depicted him as a "capable fighter . . . willing to use deadly force" and thereby caused the jurors to view what was otherwise a simple assault in the parking lot as an assault with force likely to cause great bodily injury. The trial court's rejection of that view was within its discretion.
A. Background
In moving to sever, Carraway asserted the statutory requirements for joinder were not satisfied because the two incidents were not of the same class. The trial court ruled the charges were appropriately tried together because the offenses were the same class of offense, both incidents involved racial slurs, and they occurred within a relatively short time frame. All charges were tried together.
When the court initially ruled on the motion, both it and the parties were under the misapprehension that the charges were filed separately and later consolidated pursuant to a motion by the prosecutor. When two days later counsel explained their mistake, the court reaffirmed its findings and that "the fact there was no prior motion to consolidate doesn't actually change my ruling to deny the motion to sever."
B. Legal Standards
Under section 954, "[a]n accusatory pleading may charge . . . different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts. . . . [T]he 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. . . ." Pursuant to section 954.1, "[i]n 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, . . . 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."
The Supreme Court reaffirmed in People v. Soper (2009) 45 Cal.4th 759 (Soper) that, for reasons of judicial efficiency and delay reduction, consolidation or joinder of charged offenses " 'is the course of action preferred by the law.' " (Id. at p. 772.) " '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.' " (Id. at p. 773.) On appeal, a defendant must make a " 'clear showing of prejudice to establish that the trial court abused its discretion ' " in allowing joint trial of the charged offenses. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala), italics omitted.)
When we review a ruling under section 954 "we consider the record before the trial court when it made its ruling." (Alcala, supra, 43 Cal.4th at p. 1220.) The factors to be considered include: " '(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital offense . . . .' " (Id. at pp. 1220-1221.) " 'The state's interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence.' " (Alcala, supra, 43 Cal.4th at p. 1221.) But "[e]ven if a trial court's severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the 'defendant shows that joinder actually resulted in "gross unfairness" amounting to a denial of due process.' " (People v. Mendoza (2000) 24 Cal.4th 130, 162.) C. Analysis
Carraway contends the court abused its discretion because the evidence underlying the charges was not cross-admissible, and the benefits of joinder did not outweigh the possible "spill-over" effects from one charge to the other. We disagree.
Carraway's reliance on the absence of cross-admissible evidence is not persuasive. Assuming, as he contends, that the evidence supporting each of the two incidents was not cross-admissible, that factor does not compel separate trials (§ 954.1; Soper, supra, 45 Cal.4th at pp. 775, 779-780), and the remaining factors to be considered under section 954 support the court's order. (See ibid.) Both offenses involved sudden physical assaults that caused significant injuries, and neither was significantly more likely to inflame the jury against Carraway. There was compelling evidence of each offense, including surveillance videos of both assaults and eyewitness testimony. None of the charges were capital offenses.
The trial court did not place any emphasis on possible cross-admissibility when it granted the motion to consolidate.
Carraway's "spillover effect" argument that each charge would present a weaker case if tried separately does not best the trial court's assessment. He contends the bar fight evidence was likely to influence the verdict on the parking lot charges because the bar fight showed him to be a capable fighter who was willing to use deadly force. Conversely, he contends the evidence from the parking lot assault was likely to inflame the jury against him in assessing his self-defense claim regarding Steven, because the surveillance video from the parking lot showed him spitting on and "[throwing] the first actual blow at a woman." But "[a] mere imbalance in the evidence . . . will not indicate a risk of prejudicial 'spillover effect,' militating against the benefits of joinder. . . . Furthermore, the benefits of joinder are not outweighed . . . merely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried." (Soper, supra, 45 Cal.4th at p. 781.)
"Whenever a defendant is tried for multiple crimes of the same class, the jury will be presented with evidence that the defendant committed multiple offenses. This necessary concomitant of joinder is not sufficient to render the joinder unduly prejudicial. If it were, joinder could never be permitted. The danger to be avoided in joinder of offenses is that strong evidence of a lesser but inflammatory crime might be used to bolster a weak case on another crime." (People v. Hill (1995) 34 Cal.App.4th 727, 735-736 [allowing joinder of robbery-murder and robbery-attempted murder where "neither case was so weak in evidentiary support that the aggregate evidence was likely to have affected the jury's verdict"]; cf. People v. Earle (2009) 172 Cal.App.4th 372, 378-379, 401-402 [reversing where "extremely strong" misdemeanor indecent exposure charge was joined with weaker felony sexual assault].)
There is no basis here to conclude the trial court abused its discretion. As we have noted, neither incident was significantly more inflammatory or disparate in evidentiary strength than the other. (See Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1284 [prejudicial spillover that prohibits joinder requires "extreme disparity between weak and strong cases, or between inflammatory and noninflammatory offenses"].) Surveillance cameras recorded both incidents, allowing the jury to independently evaluate what happened apart from the witnesses' testimony. Nor has Carraway shown that any potential for prejudice from a joint trial outweighed the systemic economies gained by the joint proceedings. (See Soper, supra, 45 Cal.4th at pp. 775, 782 ["a single trial of properly joined charges promotes important systemic economies" and their severance "denies the state the substantial benefits of efficiency and conservation of resources otherwise afforded by section 954"].)
To the extent Carraway argues that failing to sever the counts in fact deprived him of a fair trial, he has not met his "high burden" to show the joinder violated his right to a fair trial. (Soper, supra, 45 Cal.4th at p. 783.) Again, the evidence on each charge amply supported the verdict, neither incident was significantly more inflammatory than the other, and neither case was significantly weaker than the other. Indeed, Carraway's acquittal on the charges related to the assault on Russel indicates the jurors carefully and independently considered his claim of self-defense with respect to each distinct offense.
Carraway observes the prosecutor (without objection) referred to the assault on B.E. in arguing that Carraway used more than the force necessary for self-defense in the bar fight and referred to the video of Carraway "wind[ing] up" and punching in the bar to argue the assault on B.E. was not self-defense, but simply "his style." But even if those remarks were improper character evidence, as Carraway claims, they fall far short of showing the joinder of charges " 'resulted in gross unfairness depriving the defendant of due process of law.' " (Soper, supra, 45 Cal.4th at p. 783.)
The prosecutor argued, "the defendant from what we can see in the video just seeing a woman flicking her head towards his direction, quickly mind you, but just flicking her head towards him, by that point he is ready to strike. We know he does wind up, punches. You can see it in that video [¶] And you can see him wind up, punches in the club. Watch his movement in the club. Keep an eye open. I will play the video later and narrate what I see and what you should see. But he steps back. He winds up. That is his style."
To be clear, we need and do not resolve that claim.
III. Sentencing
The trial court's orally stated tentative sentencing decision included a consecutive two-year term for the aggravated assault against B.E. in count five and a concurrent six-month term for the misdemeanor battery conviction against her in count six. However, when the court pronounced sentence it made no mention of the punishment for count six. The clerk's minutes also reflect that the court imposed a concurrent six-month term on count six, but the abstract of judgment does not reflect it.
The parties agree, correctly, that the convictions on counts five and six are based on the same act and, therefore, that the concurrent term on count six should have been imposed and stayed pursuant to section 654. We shall order the abstract of judgment amended to so reflect. (See People v. Mitchell (2001) 26 Cal.4th 181, 185, 188 [clerical errors may be corrected at any time] (Mitchell).)
In addition, the People correctly observe the abstract of judgment fails to reflect the six-year term for count two (battery with serious injury on Steven) that the court imposed and stayed under section 654. We therefore order the abstract of judgment be amended to correct that omission. (See Mitchell, supra, 26 Cal.4th at p. 185.)
DISPOSITION
The case is remanded and the trial court is directed to correct the abstract of judgment to reflect (1) a six-month term for count six, imposed and stayed pursuant to section 654; and (2) a six-year concurrent term for count two, imposed and stayed pursuant to section 654. The judgment is affirmed in all other respects.
/s/_________
Wiseman, J. WE CONCUR: /s/_________
Fujisaki, Acting P.J. /s/_________
Petrou, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------