Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050902775
Reardon, Acting P.J.
A jury convicted appellant Robert Julian Fleischer of two completed and one attempted first degree residential burglary. Sentenced to four years eight months in state prison, he appeals. He contends that (1) his motion to sever one burglary from the others should have been granted and (2) he is entitled to additional presentence conduct credits. (Pen. Code, §§ 954, 4019.) We order the matter remanded to the trial court to recalculate Fleischer’s presentence conduct credits, but otherwise affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
Although a motion for severance focuses on the facts known to the trial court at the time of its ruling, both parties’ briefs cite the facts adduced at trial-after the motion was determined-when arguing the merits of that ruling. At the time that the trial court denied the severance motion, only the preliminary hearing testimony was before that court. The facts adduced at the preliminary hearing and at trial are very similar. We note those key instances that differ.
A. The Crimes
1. Carlson Boulevard Attempted Burglary
On February 11, 2009, three nearby residences were the target of a burglar. Brendan Garcia was taking a shower at his Carlson Boulevard house in Richmond sometime between 1:00 p.m. and 2:30 p.m. that afternoon when he heard loud knocking at the front door and heard his doorbell sound. When he got out of the shower to check, he heard a noise at the bathroom window. The window was five to six feet above the ground on the side of his house. Through the frosted privacy glass of the window, Garcia saw the blurred image of a person’s head. It looked as if the person had something in his hand. He saw the head move and heard scratching sounds at the edge of the window, as if the person was trying to pry off the window screen.
We take judicial notice of the close proximity of the addresses of the burglary sites as a fact that is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (See Evid. Code, §§ 452, subd. (h), 459, subd. (a).)
Garcia opened the window and saw a man-later identified as appellant Robert Julian Fleischer. The man had short curly hair; he wore a beige shirt and a medium blue denim jacket lined with white or light-colored fleece. Fleischer immediately fled, running back around the house. By the time that Garcia ran through the house and out the front door, Fleischer was already halfway down Carlson Boulevard, running north along the sidewalk.
Immediately, Garcia called Richmond police. Richmond Police Officer Mark Shanks learned about the attempted Carlson Boulevard burglary at approximately 2:23 p.m., very shortly after Garcia’s call. The police had Garcia’s description of the suspect-a light-skinned Black or Hispanic male, approximately 30 years old, with black curly hair, wearing a jeans jacket and pants. It was a rainy day and there was only one person on the street-a man who matched the description that Garcia had given. Within three minutes of receiving the report, Officer Shanks saw this man walking northbound on Carlson Boulevard at Santa Clara Street two to three blocks from Garcia’s home. The man-later identified as Fleischer-was wearing a jean jacket and blue pants. He carried a white canvas bag.
At trial, Officer Shanks reported to his dispatcher that he was on the scene at 2:29 p.m.
By 2:34 p.m., Officer Shanks had detained Fleischer at Carlson and Santa Clara. The officer instructed Fleischer to put down the bag. He told Fleischer that he was investigating a burglary. Meanwhile, Richmond Police Officer Nicole Abetkov had just arrived at Garcia’s home. Having learned that Officer Shanks had detained a suspect, she brought Garcia to see Fleischer.
Garcia identified Fleischer as the person he had seen at his bathroom window. Fleischer was arrested. When searched, his bag was found to contain jewelry, cameras and a credit card bearing Ilona Carpenter’s name. Fleischer also had a pocket knife on his person, but no gloves or burglar’s tools were found.
2. Lexington Avenue Burglary
Three or four blocks away from Garcia’s home, Ilona Carpenter lived at a Lexington Avenue first floor apartment in El Cerrito. At 12:50 p.m. that day, she had locked the windows and doors when she left home. When El Cerrito police learned that Carpenter’s property had been found in Fleischer’s possession, officers went to her apartment to investigate. They entered the empty apartment through the unlocked front door. Carpenter’s front window had been opened. An open jewelry box was found on the bed in the master bedroom. The police took photographs, left a note for Carpenter, secured the window, and locked the front doorknob before leaving.
When she came home about 5:15 p.m., Carpenter found the deadbolt on her door was unlocked and a window shade had been moved. Jewelry, cameras and some credit cards were missing. She called El Cerrito police. When El Cerrito police showed the bag of evidence that had been seized after Fleischer’s arrest to Carpenter, she identified the bag and the items in it as hers.
Richmond and El Cerrito police interviewed Fleischer about the Lexington Avenue burglary. Fleischer told police that he had gotten off the bus near the Lexington Avenue address, that he found the bag, and that he knocked at Garcia’s door on Carlson Boulevard to see if anyone was home there. When questioned by police, Fleischer denied trying to pry open a window at the Carlson Boulevard house.
3. Sutter Avenue Burglary
At 10:30 a.m. that same morning, Claudia Lam had left her Sutter Avenue house in Richmond to go to work. Her sister, who lived with her, was gone by the time Lam left. Lam’s sister returned about noon, leaving the house again at 12:30 p.m. At that time, she locked the door and set the burglar alarm. When each sister left the house, it had been undisturbed.
At 2:31 p.m., a burglar alarm sounded at the house for 20 to 25 minutes. An interior alarm had been tripped. The alarm company reported the alarm to Richmond police about 2:45 p.m. Richmond Police Officer Anthony Diaz arrived at the Sutter Avenue house at 4:25 p.m. to investigate the alarm report. By the time he and Richmond Police Officer Kristian Palma arrived, the alarm was quiet.
The officers inspected the property, finding a ladder propped up against the side of the house directly under an upper story window. The window was open and the curtain inside was no longer on the curtain rod. Officer Diaz noticed muddy scuff marks going up the side of the house from the top of the ladder to the window.
At trial, Officer Diaz testified that wood on the ladder was freshly broken.
The officers entered the front door of the house, which was unlocked. There was nobody inside. In the bathroom, the window was partly open and the curtains were in disarray. There were muddy footprints on the floor and on a towel lying on the floor.
At 4:30 p.m., Officer Abetkov went to the Sutter Avenue home, having received a report of a burglar alarm sounding. The alarm was not audible at that time. The Sutter Avenue home was a few blocks away from the scene of the Carlson Boulevard attempted burglary and was within walking distance of the site of Fleischer’s arrest.
Nothing was missing from the Sutter Avenue residence. One of the muddy footprints-one heading away from the window toward the bathroom door-had a half-arched design, as if the toe rolled when the wearer was walking. While he was in jail, Richmond police seized Fleischer’s boot, which had a half-arched design on the toe similar to that on the footprint. Police deduced that the burglar entered the home by means of the bathroom window and left out the front door.
At the preliminary hearing, a police officer testified that Fleischer acknowledged that the boots in his jail cell were his. They were found on the floor of Fleischer’s cell near his bunk. He was not wearing shoes but the other occupant of the cell was. The boots were size 11. At trial, Fleischer testified that he wore size nine shoes.
B. Pretrial Proceedings
Two days later, a felony complaint was filed charging Fleischer with two counts of first degree residential burglary and one count of attempted first degree residential burglary. (§§ 459, 460, subd. (a), 664.) He denied the charges and moved to suppress evidence found on him at the time of his arrest. (§ 1538.5.) Bail was set at $150,000, but Fleischer remained in custody. After a March 2009 preliminary hearing, Fleischer was held to answer for all three charges and his motion to suppress was denied.
Soon, an information was filed charging Fleischer with these offenses. (§§ 459, 460, subd. (a), 664.) He moved to sever the third count-the Sutter Avenue burglary-from trial of the other two charges. (§ 954.) The prosecution opposed the motion, arguing inter alia that much of the evidence was cross-admissible. The trial court denied the motion.
C. Trial, Verdict and Sentence
At trial, Garcia identified Fleischer in court as the man he saw at his bathroom window and on the street a few minutes later. Fleischer testified in his own defense. He told the jury that on the day of the burglaries, he left his Richmond apartment about 1:00 p.m. to go to a restaurant. He walked about 15 to 20 minutes to the Richmond BART station and after a few minutes’ wait, caught a bus going along San Pablo Avenue. Fleischer testified that after a 20- to 30-minute bus ride, he got off at Carlson Boulevard and walked north toward the restaurant. It had been raining that day and as he walked along, he saw a bag on the sidewalk near a house. He saw jewelry and cameras inside the bag. Fleischer knocked on the door of the house to see if the bag belonged to the occupants, but no one answered. He saw a gate ajar on the driveway, so he banged on the gate. He did not enter the yard. Someone yelled from the backyard to get away from the house, so he walked back to the street toward the restaurant.
Fleischer took the bag and its contents with him, intending to report to the police that he had found it. Before he was able to do so, a police officer stopped him, saying that he fit the description of a burglary suspect. Fleischer told Officer Shanks that he found the bag. The police had him wait there for a field identification. Eventually, he was taken to the police station, where he told Richmond and El Cerrito police what had happened. At first, Fleischer tried to be cooperative, but after it became clear that the police did not believe him, he stopped talking to them.
Officer Shanks testified on rebuttal that in the 10 to 15 minutes that they stood on the sidewalk together, Fleischer never told him how he acquired the bag.
Fleischer told the jury that he always carried a pocket knife, that he never attempted to break into the Carlson Boulevard house, that he was never at the Sutter Avenue house, and that he was never at the Lexington Avenue house. At trial, he denied that the boots found in his jail cell belonged to him.
The jury found Fleischer guilty of all three charges. He was sentenced to a total term of four years eight months in state prison-a midterm of four years for the Lexington Avenue burglary, a consecutive one-third midterm of eight months for the Carlson Boulevard attempted burglary, and a concurrent four-year midterm for the Sutter Avenue burglary. He was awarded 230 days of credit against this term-154 days of presentence custody credit and 76 days of presentence conduct credit.
II. SEVERANCE
A. Legal Principles
Fleischer contends that the trial court abused its discretion in denying his motion to sever. He reasons that evidence of the Lexington Avenue burglary and the Carlson Boulevard attempted burglary was not cross-admissible in the Sutter Avenue burglary case, but was improperly used to bolster the substantially weaker evidence of the latter burglary. The trial court denied Fleischer’s motion to sever trial of the Sutter Avenue charge from trial of the other two counts. In support of its ruling, it noted the strong preference for a single trial of multiple counts, that the offenses were of same class, and that all three offenses were closely related in time and place. It concluded that the evidence of the Lexington Avenue and Carlson Boulevard cases would be cross-admissible if the Sutter Avenue case were tried separately. Finally, it found that whatever prejudice would arise from a joint trial was more than outweighed by the benefits of joinder.
A single accusatory pleading may charge two or more different offenses as separate counts if those offenses are of the same class of crimes. (§ 954.) A joint trial typically avoids increased expenditures of funds and judicial resources that would result from separate trials. The public also benefits from reduced delay at the trial and appellate levels. For these reasons, joinder of charged offenses is preferred by the law. (People v. Soper (2009) 45 Cal.4th 759, 772 (Soper).) These considerations often weigh strongly against severance of properly joined charges. (Id. at p. 774.)
For good cause, the trial court may order the different offenses to be tried separately. (§ 954; Soper, supra, 45 Cal.4th at p. 771.) In the case before us, all three incidents led to charges of completed or attempted burglary. As the offenses were of the same class of crimes, the prosecution was entitled to join them in a single pleading. (Soper, supra, 45 Cal.4th at p. 771; see § 954.)
When the court is faced with a motion to sever such counts, it must determine whether joining the similar crimes would unduly prejudice the defendant. Fleischer bears the burden of demonstrating that the benefits of joinder are outweighed by a substantial danger of undue prejudice. (See Soper, supra, 45 Cal.4th at p. 773.) He must make a clear showing of that prejudice in order to establish that the trial court’s denial of his motion to sever constituted an abuse of discretion. This is a stronger showing of prejudice than would be necessary to exclude other-crimes evidence in a severed trial. In so doing, we consider the record before the trial court at the time that it made its ruling, based on the particular circumstances of each case. (Id. at p. 774; see Evid. Code, § 1101.) As the trial court denied the severance motion as trial began, the evidence before the trial court was that offered at the preliminary hearing.
Cross-admissibility is often the crucial factor affecting prejudice. (Soper, supra, 45 Cal.4th at pp. 774-775; People v.Stitely (2005) 35 Cal.4th 514, 531.) If evidence on each of the joined crimes would have been admissible in a separate trial of the other crimes, this cross-admissibility usually dispels any inference of prejudice. (Soper, supra, 45 Cal.4th at pp. 774-775; People v. Catlin (2001) 26 Cal.4th 81, 110.) The trial court found that the evidence of his commission of the Lexington Avenue and Carlson Boulevard offenses would have been cross-admissible in a separate trial on the Sutter Avenue offense to prove his presence in the same area, as well as his motive and his intent. On appeal, Fleischer disputes this conclusion.
B. Cross-admissibility on Intent
The prosecution was required to prove Fleischer’s intent to commit burglary and attempted burglary, which are both specific intent crimes. (People v. Kipp (1998) 18 Cal.4th 349, 376 [attempt]; see People v. Sparks (2002) 28 Cal.4th 71, 88 [burglary]; see also §§ 459, 664, subd. (a).) The least degree of similarity for cross-admissibility is required to prove intent. The uncharged misconduct must be sufficiently similar to support an inference that the defendant probably harbored the same intent in each instance. (Soper, supra, 45 Cal.4th at p. 776.) A fact finder may properly consider admissible other-crimes evidence to prove intent if (1) the evidence is sufficient to sustain a finding that the defendant committed both sets of offenses and (2) the factual similarities among the charges tend to demonstrate that the perpetrator harbored the required intent in each instance. (Id. at p. 778.)
In the case before us, the evidence is sufficient to support a finding that Fleischer committed the Sutter Avenue burglary as well as the Carlson Boulevard and Lexington Avenue offenses. The offenses were committed within a brief window of time on the same day, all within walking distance of one another. Fleischer was present in that area during the relevant time and was on foot. In addition, he had items taken in one burglary in his possession shortly after one offense. (See, e.g., Soper, supra, 45 Cal.4th at pp. 778-779 fn. 14.)
We also find sufficient factual similarities among the charges tend to demonstrate that the perpetrator harbored the required intent in each instance. In each instance, the residence appeared to be unoccupied, and entry into the residence was gained or attempted through a window. In both completed burglaries, the evidence suggests that the perpetrator left the house by the front door rather than the window by which entry was gained. These factual similarities tend to demonstrate that the perpetrator harbored the intent to burglarize each residence. (See, e.g., Soper, supra, 45 Cal.4th at p. 779 fn. 15.) Thus, we find that the evidence of the Sutter Avenue burglary and the other two offenses were cross-admissible to prove intent to commit burglary and attempted burglary.
C. Cross-admissibility on Identity
The identity of the perpetrator of each of the three offenses was also at issue. The standard for cross-admissibility of evidence to prove identity is higher than that required to be cross-admissible on intent. (Soper, supra, 45 Cal.4th at p. 776.) Having found that the evidence offered at the preliminary hearing about the Lexington Avenue and Carlson Boulevard counts was cross-admissible on the Sutter Avenue count to prove intent, we need not determine whether it was also admissible to prove identity. (See id. at p. 779.)
When denying the severance motion, the trial court found that the evidence was cross-admissible to prove Fleischer’s presence in the vicinity of the crimes, which appears to be related to the issue of identity. At the preliminary hearing, Fleischer did not testify. He did not admit that he was present in that area until after the severance motion was denied, when he testified at trial.
D. Prejudice
A lack of full cross-admissibility-by itself-is insufficient to establish prejudice and compel severance. (Soper, supra, 45 Cal.4th at pp. 775, 779-780; People v.Stitely, supra, 35 Cal.4th at p. 532; see § 954.1.) In a case in which the evidence was not cross-admissible on one issue, the fact that it was cross-admissible on another issue weighs into the prejudice evaluation we must make. (See Soper, supra, 45 Cal.4that pp. 779-783.)
If the evidence was not fully cross-admissible-that is, if it was admissible for one purpose, but not another-we must weigh the factors indicating potential prejudice against the benefits of joinder. (Soper, supra, 45 Cal.4th at p. 779.)
If we find that the evidence underlying the properly joined charges is not fully cross-admissible, we consider whether the benefits of joinder were sufficiently substantial to outweigh the possible spillover effect of other-crimes evidence. When making that assessment, we consider three factors-any one of which, in addition to a lack of cross-admissibility-may establish an abuse of the trial court’s discretion. Those factors are (1) that some of the charges are unusually likely to inflame the jury against the defendant, (2) that a weak case has been joined with a strong case or with another weak case such that the totality of the evidence may alter the outcome of some or all of the charges, and (3) that any one of the charges carries the death penalty or the joinder of them converts the matter into a capital case. Considering these factors, we must balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state. (Soper, supra, 45 Cal.4th at pp. 774-775.)
This is not a capital case and nothing about the counts was particularly inflammatory in comparison to another. Fleischer asserts that joinder of the three charges linked a weak Sutter Avenue burglary charge with stronger cases stemming from the Lexington Avenue burglary and the Carlson Boulevard attempted burglary. The Sutter Avenue case linking Fleischer to the burglary based on footprint evidence was somewhat weaker than the other cases, in which stolen property and an eyewitness identification more strongly linked Fleischer to each offense. In our view, the Sutter Avenue evidence was not quite as weak as he suggests.
At the preliminary hearing, a police officer testified that Fleischer had admitted that boots found in his jail cell-those capable of making a half-arch pattern similar to the footprints found inside the Sutter Avenue residence-were his. Besides the muddy footprints inside the house, there was evidence of muddy footprints outside the house, as well-marks near the top of the ladder leading to the entry window. This physical evidence linked Fleischer to the Sutter Avenue residence and tended to prove that he entered the home for purposes of committing burglary. (See Evid. Code, § 210.) The fact that nothing was stolen from the house was consistent with the rapid flight that might reasonably be expected once an interior room burglar alarm sounds. While we agree that the evidence of the Sutter Avenue count was weaker than the other two counts, it was not much weaker.
Fleischer denied that the boots were his when he testified at trial.
Overall, Fleischer has not presented a strong case of undue prejudice. Counterbalancing this showing, we consider the degree to which a single trial of properly joined cases would promote efficiencies specific to this case. (See, e.g., Soper, supra, 45 Cal.4th at pp. 781-782.) Richmond police officers would be needed to testify in separate hypothetical trials. Details relating to Fleischer’s detention and arrest in the vicinity of each offense might have been the subject of testimony at multiple trials. Important, more general systemic economies must also be taken into account. Whenever properly joined charges are severed, the burden on our court system in processing those charges increases during the discovery phase, pretrial motion stage and the trial itself. Twice as many jurors would be required to try Fleischer for these offenses in separate trials. If he were convicted in both trials, separate appellate records would be compiled and even if the same counsel represented him in both appeals, the work would be segmented. The appellate clerk would be required to manage and process separate appeals and to offer a separate opportunity for oral argument. Separate decisions would be drafted, considered and filed. Separate petitions for rehearing and California Supreme Court review would be allowed. These inefficiencies are part of the reason why joinder is preferred in the first instance, and bear on whether the defendant showed that the trial court committed a clear abuse of discretion in denying his motion to sever. (See id. at pp. 772, 774, 782.)
Even if we assume that the evidence was not fully cross-admissible, Fleischer has not clearly shown that the prejudice from joinder of these counts did not substantially outweigh the public benefits of efficiency and conservation of public resources. (See Soper, supra, 45 Cal.4th at pp. 782-783.) In these circumstances, we find that the trial court properly denied his motion to sever the Sutter Avenue charge from the other two charges.
E. Due Process
When a ruling on a severance motion was correct at the time that it was made, we must also determine whether the joinder of counts for trial resulted in gross unfairness depriving Fleischer of due process of law, based on a posttrial evaluation of the case. This is a high burden to meet, and we conclude that Fleischer has not done so. (See Soper, supra, 45 Cal.4th at p. 783.) Typically, appellate courts find no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even if the evidence might not have been admissible in separate trials. (Id. at p. 784.) In Fleischer’s case, the evidence of each offense was distinct. None of the evidence of the three offenses was inflammatory when compared with that tending to prove another count. The trial court instructed the jury that each of the counts was a separate crime. The jurors were charged to consider each separately. (CALCRIM No. 3515.) Fleischer’s counsel reminded the jurors of this instruction during closing argument. Considering all these factors, we conclude that Fleischer has not demonstrated that the denial of his severance motion caused gross unfairness at trial. Thus, we find that the trial court properly denied Fleischer’s motion. (See, e.g., Soper, supra, 45 Cal.4th at pp. 783-784.)
III. PRESENTENCE CONDUCT CREDITS
Fleischer also contends that a recent statutory amendment should be retroactively applied, entitling him to additional presentence conduct credits. In July 2009, Fleischer was sentenced and was given the equivalent of three days of credit for every two days spent in custody. This was in accordance with former section 4019, which awarded four days of custody credit and two days of conduct credit for every six days spent in presentence custody. (See former § 4019, subd. (f) [Stats. 1982, ch. 1234, § 7, pp. 4553-4554].)
Effective January 25, 2010, this provision was amended to provide that for crimes such as the ones of which Fleischer was convicted, four days will be deemed to have been served for every two days spent in actual custody. (§ 4019, subds. (b)-(c), (f); see Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) The amended provision awards presentence conduct credits at a higher rate than under former law, to reduce jail populations as a means of addressing California’s fiscal crisis. (See § 4019 [Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50].) On appeal, Fleischer claims that he should be awarded presentence conduct credit against his sentence at the higher rate set out in the statute as amended after his sentence was pronounced in July 2009.
There is a split of authority on whether the amendments to section 4019 are retroactive or only apply in a prospective manner. (See, e.g., People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552 (Pelayo) [retroactive]; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 (Hopkins) [prospective].) Many cases currently pending before the California Supreme Court pose this issue. (See, e.g., People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782 [retroactive]; Pelayo, supra, 184 Cal.App.4th 481 [same]; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260 (Norton) [same]; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808 (Landon) [same]; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813 [same]; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [same]; Hopkins, supra, 184 Cal.App.4th 615 [prospective]; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314 [same]; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808 [same].)
We are persuaded that the amendments should be retroactive, consistent with other reported cases from the First Appellate District and with the legislation’s stated goal of addressing the fiscal emergency declared by the Governor. (See Pelayo, supra, 184 Cal.App.4th 481; Norton, supra, 184 Cal.App.4th 408; Landon, supra, 183 Cal.App.4th 1096; see also Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62.) Thus, we remand the matter for a recalculation of Fleischer’s presentence conduct credits.
The matter is remanded to the trial court with directions to recalculate Fleischer’s credits pursuant to amended section 4019. The trial court shall prepare an amended abstract of judgment and forward a copy to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.