Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. Nos. SCR-460275 & SCR-465475
Brian Keaton George appeals from a judgment of the Sonoma County Superior Court entered after a jury found him guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) (count 2), two counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)) (counts 3 & 11), shooting from a motor vehicle at a person (§ 12034, subd. (c)) (counts 4), two counts of shooting from a motor vehicle (§ 12034, subd. (d)) (counts 5 & 8), discharge of a firearm with gross negligence (§ 246.3) (count 9), and shooting at an unoccupied motor vehicle (§ 247, subd. (b)) (count 10). The jury also found true the enhancements of great bodily injury (§ 12022.7, subd. (a)), personal use of a firearm (§ 12022.5), and infliction of great bodily injury on a person (§ 12022.55), as charged in count 2; and, intentional discharge of a firearm at a person (§ 12022.53, subd. (d)), intentional discharge of a firearm (§ 12022.53, subd. (c)), and personal use of a firearm (§ 12022.53, subd. (b)), as charged in counts 4 and 5. ~(CT 243-250, 363-375)~ Appellant claims his conviction must be reversed because (1) the court erred in not instructing the jury regarding willfully false witnesses; (2) the court erred in consolidating his two cases; (3) the jury instruction regarding flight should not have been given; (4) a sentence of 25 years to life violated his right to equal protection and constitutes cruel and unusual punishment; and (5) the use of out-of-court statements deprived him of his constitutional right to confront witnesses. We reject appellant’s contentions on appeal and affirm the trial court’s judgment.
All undesignated section references are to the Penal Code.
Factual and Procedural Background
SIMONS, Acting P.J.
On June 23, 2005, an information was filed alleging appellant had committed the following offenses on January 20, 2005: (1) attempted premeditated murder of Jeremy Phillips, with personal use and discharge of a firearm; (2) assault with a firearm on the same victim; (3) possession of a firearm by a felon; and (4) malicious discharge of a firearm from a motor vehicle. The information also alleged that appellant had served a prior prison term, resulting from a 1999 burglary conviction.
On September 15, 2005, the People moved to consolidate the above case with another case in which it was alleged that appellant committed the following offenses on March 17, 2005: (1) discharge of a firearm from a motor vehicle aimed at John Rogers; (2) malicious discharge of a firearm at an occupied dwelling house; (3) malicious discharge of a firearm from a motor vehicle; (4) discharge of a firearm in a grossly negligent manner; (5) discharge of a firearm at an unoccupied motor vehicle; and (6) possession of a firearm by a felon. On December 16, 2005, the trial court granted the motion to consolidate.
The January 20, 2005 Incident
Jeremy Phillips (Phillips) testified that, at the time of trial, he was on felony probation for a residential burglary he had previously committed. On January 20, 2005, he and his friend Deandre Grinner went to the Grinner residence on West Eighth Street in Santa Rosa. Phillips was sitting on a broken-down car that was parked in the driveway and had just opened a 32-ounce bottle of beer when a blue car with passengers Ryan George (appellant’s brother), Duwann Walker, and an unidentified driver drove up and parked at the side of the house. Phillips had recently been involved in an accident in which Duwann Walker’s car was damaged, so he approached Duwann Walker to make sure he was not upset. After talking to Duwann Walker and thinking “everything was cool,” Phillips returned to the broken-down car.
Phillips testified that as he sat on the hood of the car with his beer bottle between his legs, appellant drove up in a burgundy Mercury Cougar with an unidentified passenger sitting next to him. Appellant was not a friend, but Phillips had seen him on approximately two prior occasions, and had also seen him driving the burgundy Cougar “around town.” Appellant drove up to within 15 to 25 feet of Phillips, lowered his sunglasses, and said, “Who you telling on?” The passenger leaned back, and appellant fired at Phillips with a revolver. Phillips said there was a trash can between him and appellant’s car that blocked about half of his view, but he could see appellant clearly and was “positive” it was appellant who shot him. Phillips testified the bullet entered his inner right thigh and went into his stomach. After Phillips fell off the car and onto the ground, Duwann Walker came up to him and kicked him in the face twice. Phillips heard the blue car “screech off.” On cross-examination, Phillips agreed it would be fair to say that the Cougar “drove up quickly, stopped momentarily, shots rang out, and then the car drove off.” He also agreed that the bullet shattered his beer bottle.
After being shot, Phillips walked to the front door of Deandre Grinner’s house. Duwann Walker’s mother, Thelma Walker, rushed out, saying, “Somebody’s popped.” She “jumped in her Lincoln” and left the house. Phillips “bang[ed] on the door” for some time, until someone came to the door. Phillips testified that he underwent two surgical procedures, stayed at the hospital for about 25 days, wore a colostomy bag for three months, and was still experiencing medical complications at the time of trial.
Phillips did not know why appellant said to him, “Who you telling on?,” but he recalled an incident that had occurred shortly before, in December 2004, in which he had encountered the police. He testified that he went to a party in Lake County with Duwann Walker, Ryan George, Deandre Grinner and a few others, in separate cars. He had met two women at a mall before going to Lake County, and these two women also drove to Lake County in a separate car. Phillips was a passenger in a burgundy Cadillac that was owned by Duwann Walker and was being driven by a tall, Caucasian man named Chad, or possibly Brad. Phillips said he was not driving because he did not have a driver’s license at the time.
While Phillips was at the Lake County party, someone confronted him and some “words [were] said,” although there was no physical altercation. As Phillips left the party and drove off with Chad, a Toyota Tercel followed them and “rammed” their car from behind. He then heard two gunshots and a tire blow out, and the Cadillac crashed into a barrier. Phillips and Chad jumped out of the car and ran. Phillips was contacted in nearby vineyards by Lake County police officers. He did not notice where Chad went, although he heard someone else running as he ran toward the vineyards.
After the Lake County incident, and two or three days before he was shot, Phillips spoke on the phone to Duwann Walker. When he told Duwann Walker he had come into contact with the police in Lake County, Duwann Walker called him a “snitch.” Appellant then came to the phone, called Phillips a “snitch,” and told Phillips he was a “hitter,” which Phillips understood to mean that appellant was a “killer.” Phillips also testified about his light complexion, and said that in mid-January 2005, he overheard appellant say he would “kill light-skinned niggers.” Phillips acknowledged on cross-examination that he did not know if the Lake County incident was the motive behind the shooting. Phillips testified he was shown a photo lineup at the hospital but did not identify anyone because he “was scared for [his] life.” The second time an officer showed him some photographs, he identified appellant and Duwann Walker.
Dr. Abdul Harris, a general trauma surgeon, testified he treated Phillips for injuries sustained from a bullet that had entered Phillips’s left groin. Emily Samuelson, a registered nurse, testified she was the author of a patient note in which she wrote that Phillips expressed “concern for retaliation against his young niece and nephew if he named the assailant. Patient does not seem willing to disclose information. Santa Rosa Police Department notified.”
Officer William Price (Price) testified he responded to a dispatch call on January 20, 2005, and went to West Eighth Street. He saw Phillips on the ground in front of a garage. Phillips appeared scared and told the officer he had been shot in the leg by someone who drove by in a small car. Price felt Phillips was not telling him everything he knew about what had occurred. He followed the ambulance to the hospital and asked Phillips the same questions at the hospital. There, Phillips said the car was a large red, American-made sedan, with two black males inside, and the driver shot him. Phillips did not know who these men were. While at the hospital, Price obtained the bullet that had been extracted from Phillips’s body.
Detective Robert Scott testified he took computer-generated photo lineups to the hospital to see whether Phillips could recognize anyone as having been involved in the shooting. Phillips indicated he wanted to cooperate but said he was afraid for his safety and the safety of his relatives, and was reluctant to describe the driver. Phillips said he recognized appellant and had seen him the day he was shot, but did not say that appellant was the one who had shot him. Because it was difficult to elicit answers from Phillips, Scott posed a hypothetical question, asking Phillips whether the police might find anything of value to the case if they were to search appellant’s house. Phillips responded “Yes, you might find a gun.” As Scott explored possible reasons for the shooting, Phillips brought up the Lake County incident. Scott understood from what Phillips said that some people who were involved in an incident there had come to believe that Phillips had spoken to law enforcement officers about them, and were calling him a snitch.
Detective Joshua Ludtke testified that he interviewed Phillips several times. On one occasion, Phillips initiated the contact and told Ludtke that appellant was the driver and had shot him. When the detective showed him a photo lineup, Phillips immediately picked out appellant, and also identified Duwann Walker as the person who had kicked him in the face. Ludtke testified it is “very common” for victims of violent crimes to withhold information or delay in their reporting of all of the details.
Ryan George testified he was at the Grinner residence for most of the day on January 20, 2005, “kicking it” outside the house with Deandre Grinner and Phillips, drinking, smoking marijuana and taking ecstasy pills. He was standing on the street corner by the house, when he heard gun fire and saw a blue car drive away. Ryan George did not think appellant had a car at the time, but testified that appellant may have had a burgundy car in the past. He recalled going to Lake County with Phillips, and probably Deandre Grinner, to look for “female friends.” He understood that someone shot at Phillips in Lake County, and that Phillips thought someone was “after him.”
Thelma Walker testified that, on the day of the incident, she went to the Grinner residence to pick up Terry Grinner, who had asked her for a ride. When she arrived, she saw Phillips, who smelled of marijuana and appeared “high.” Malecka Grinner, Deandre Grinner’s sister, testified she was also at the Grinner residence. She did not hear any gun shots, but saw Terry Grinner go outside and return with Phillips on his arm. Malecka Grinner testified that appellant had been to her house more than 10 times, and she had seen him driving various vehicles, although she did not recall seeing him in a red or burgundy car.
Deandre Grinner testified he was at his house with Phillips and Ryan George on the day of the incident. They smoked marijuana and drank, and he saw Phillips take an ecstasy pill. He and Ryan George were standing on the street corner, when he heard a “bang” and saw a blue car in the distance. He walked over to the house and saw that Phillips had been shot. He did not remember previously traveling to Lake County for a party.
Lynell Cook lived at the Grinner residence in January 2005. She testified she was asleep in her bedroom on the day of the incident, when she was awakened by a phone call from Duwann Walker. Five or six minutes later, Cook heard a gunshot and jumped up. She saw her son, Terry Grinner, bringing Phillips into the house. Cook called 911.
Sonoma County District Attorney Investigator Roy Loden testified he called Phillips to arrange to photograph his injuries. Phillips spontaneously said, “I mistakenly identified the wrong leg when I was indicating to the jury where the injury had occurred from the bullet.” The trial court admitted photographs showing a bullet wound on Phillips’s left thigh.
California Department of Justice criminalist Samantha Evans (Evans) testified that a revolver later recovered from a car driven by appellant was a .357 Smith and Wesson Magnum revolver containing .357 Magnum cartridges. The bullet removed from Phillips’s body was a .38 caliber bullet, and Evans believed the bullet could not have been fired from the .357 Smith and Wesson revolver found in the car.
California Highway Patrol Officer Carl Thompson (Thompson) testified that in December 2004, he received a dispatch call regarding an accident in Lake County. When he arrived at the scene, he saw a red 1991 Cadillac in a ditch off the side of the road. He encountered a black male who told him he had not been driving the vehicle and that the driver, a man named Chad, had fled. According to the officer, the man also told him that someone in a car was chasing him, trying to force him off the road, and had fired shots at the Cadillac. Thompson searched for the driver but could not find him, and did not find any evidence of a second person at the scene. He returned to the car and found what appeared to be a bullet hole in the center of the rear bumper. There was no evidence that another vehicle had made contact with the bumper of the car or that the tire had blown out.
Lake County Deputy Sheriff Gavin Wells testified he was also at the scene and saw a red Cadillac whose passenger side door was open. He encountered Phillips, who told Wells that he and a man named Chad had met two girls at the mall and had gone to a house with them. While they were there, nine white males came inside and one of them yelled racial slurs at him, told him to get out, and knocked his hat off his head. As Phillips and Chad left the party, the man got into a green Toyota Tercel and followed them down the road, ramming the car from behind and shooting at their car. A citation made out to Duwann Walker and a cell phone receipt were found in the Cadillac.
The March 17, 2005 Incident
Nancy Rogers testified that on March 17, 2005, she was living on Mohawk Street in Santa Rosa with her husband, Harold Rogers, Sr., and their children John and Natalie. Another son, Harold Rogers, Jr., no longer lived at home. She testified she had three cars parked in front of her house, including a Cadillac. Selamawit Isaac (Isaac) and approximately 15 other guests were at the house that day, celebrating the birthday of Harold Rogers, Sr. Nancy Rogers was inside when she heard a gunshot. She went outside and saw the guests ducking, and heard someone say to her, “Somebody shot and hit your car.” Nancy Rogers went back inside and called 911, and most of the guests left. A photograph of the Cadillac with a bullet hole in the front quarter panel was admitted into evidence. One of the guests found the bullet and put it inside the house.
Harold Rogers, Jr., testified he learned there was a shooting and that a bullet had entered his Cadillac. He stated he was good friends with appellant and denied having a conversation with appellant in which he told him that he and his family had no hard feelings against him about the shooting.
John Rogers did not remember if the police came to his parents’ house on March 17, 2005. He initially testified that he did not remember anything and that he never spoke to an officer. He then stated he was questioned by an officer, but said he had nothing to say to him because he was working underneath his car that was parked a few houses down the block, and did not see anything. He denied telling the officer that he was standing outside at the party, that appellant drove by in a Toyota with the window down, or that he heard a gunshot coming from the Toyota but did not see who fired the shot.
Santa Rosa Police Officer Michael Clark (Clark) testified he was dispatched to the Rogers residence on March 17, 2005. When he arrived, Nancy Rogers appeared shaken and concerned and told him she heard a gun shot. Clark spoke to John Rogers, who told him he was standing in front of the house, when appellant and two or three passengers drove up in a gray Toyota Camry. Appellant asked John Rogers who was after his brother, and as John Rogers started to turn away, he heard appellant say, “This house doesn’t mean anything.” John Rogers heard a gunshot, but did not see who fired the shot. The vehicle then fled the scene.
Clark testified that Nancy Rogers became upset when he told her he had to tow the Cadillac to search for the bullet. At that point, Isaac gave the officer two bullet fragments, which she said she had recovered from the engine compartment. As a result, the car was not towed. Isaac told Clark that she saw appellant driving a gray Toyota Camry that belonged to appellant’s girlfriend, and that she saw him raise a handgun from the driver’s window and fire one round toward the house. The car continued driving until it was out of her view. She said appellant usually drove a red Ford Thunderbird.
San Francisco Police Officer Jim Trail testified he was contacted by the Santa Rosa Police Department to help apprehend appellant, who was believed to be in San Francisco driving a gray Toyota Camry. On March 28, 2005, Trail spotted the car and pulled it over. The driver quickly jumped out and looked around as if he was about to run. Trail detained and handcuffed the driver. Trail drove the Toyota back to the police station to conduct an inventory search, and found a loaded .357 Smith and Wesson revolver under the carpet of the passenger-side floorboard, an MCI bill in appellant’s name, and a letter or bill addressed to appellant.
Evans testified that the two bullet fragments turned over by Isaac were likely fired from the revolver found in the Toyota, although other firearms with similar characteristics could not be excluded.
Defense investigator Carla Jacobs testified that Harold Rogers, Jr., told her he had spoken to appellant a couple of weeks after the March 17 incident. Appellant told Harold Rogers, Jr., that he had heard he may be a suspect, and Harold Rogers, Jr., assured appellant that his family did not want to testify against him and that they were still friends. Appellant never indicated to Harold Rogers, Jr., that he was the shooter.
Isaac testified that she was at the Rogers residence on March 17, 2005, but did not recall anything significant occurring that day, and did not remember whether the police were called. She testified that she knew that an officer was looking for a bullet, and recalled handing him “something.” She did not remember seeing appellant on March 17, and did not recall telling an officer that she saw appellant drive by in a gray Toyota Camry and shoot one round from a handgun. She also did not recall telling the officer that appellant usually drove a red Ford Thunderbird.
Shaina Lepper, appellant’s wife, was shown a picture of a car and acknowledged it was her Toyota Camry. She testified that she does not allow others to drive her car, and that appellant had driven it “Only a couple of times.” She knew nothing about the handgun that was found in her car, and said she had “never seen [a gun] in her life.”
At the close of the People’s case, the trial court granted appellant’s motion to dismiss the March 17 count of malicious discharge of a firearm, and denied his motion to dismiss the January 20 count of attempted murder. The jury found appellant guilty of all counts relating to the January 20 incident, with the exception of the attempted murder count, for which the jury voted 11 to 1 for acquittal. The court declared a mistrial as to that count, and the People dismissed it. The jury found appellant guilty of all counts relating to the March 17 incident, with the exception of the count of discharging a firearm at John Rogers. Appellant waived a jury trial on the prior conviction allegation, which the court found to be true. Appellant was sentenced to a total term of 31 years to life in prison. He filed a timely notice of appeal.
Discussion
I. Court Did Not Commit Prejudicial Error in Refusing to Instruct the Jury Regarding Willfully False Witnesses
Appellant contends his conviction must be reversed because the court did not instruct the jury with CALJIC No. 2.21.2, willfully false witnesses, despite the fact that the “most serious counts . . . were based entirely on the testimony of a man [Phillips] who even the district attorney admitted had lied under oath.” We reject this contention.
We note the district attorney did not “admit” that Phillips “had lied under oath.” Instead, he stated that Phillips was wrong about certain facts including which leg was shot, and explained he may have been nervous and scared or confused.
CALJIC No. 2.21.2 provides: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” The instruction “does nothing more than explain to a jury one of the tests they may employ in resolving a credibility dispute.” (People v. Blassingill (1988) 199 Cal.App.3d 1413, 1419; accord, People v. Beardslee (1991) 53 Cal.3d 68, 95; see People v. Millwee (1998) 18 Cal.4th 96, 159.) “[T]he trial court must instruct the jury on every theory that is supported by substantial evidence. [Citations.] Substantial evidence is evidence that would allow a reasonable jury to find the existence of the facts underlying the instruction . . . . [Citations.]” (People v. Jantz (2006) 137 Cal.App.4th 1283, 1290.)
The CALJIC No. 2.21.2 instruction should have been given. The incident in Lake County was one apparent motive for the shooting. Phillips’s description of it was contradicted by Thompson, who testified there was no indication that the vehicle involved had been rammed or a tire had been shot. Though it is certainly possible that Phillips could have been run off the road by another vehicle and, in the confusion, honestly erred regarding these two aspects of the incident, the contradiction warranted the instruction, and nothing in the record explains the trial court’s apparent rejection of appellant’s request for it.
Moreover, Phillips incorrectly testified he had been shot in the right rather than the left leg. Though this testimony may have an honest mistake, the jury was entitled to view it as “willfully false.”
The instructional error was harmless. “The failure to give an instruction on an essential issue, or the giving of erroneous instructions, may be cured if the essential material is covered by other correct instructions properly given. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.) CALJIC No. 2.21.2 has been described as setting out “a common sense principle for evaluating witness credibility.” (People v. Murillo (1996) 47 Cal.App.4th 1104, 1108.) “ ‘[T]he absence of the instruction did not preclude [appellant] from asking the jury to draw the common-sense inference mentioned in the instruction.’ [Citation].” (Ibid.) If the jury had believed Phillips was consciously lying on the stand, “it would have been able to reach the conclusion that ‘his testimony [was] to be distrusted,’ even without the instruction’s guidance.” (Ibid.) Further, the court properly instructed the jury with portions of CALCRIM No. 226 regarding ways to determine witness credibility, CALCRIM No. 302 relating to the evaluation of conflicting evidence, and CALCRIM No. 315 regarding the believability of eyewitness testimony. Viewing the instructions as a whole, we are satisfied that the jury was adequately instructed on the relevant legal principles, and the trial court did not commit prejudicial error in failing to instruct the jury regarding willfully false witnesses.
CALCRIM No. 226, as given, provided:
CALCRIM No. 302, as given, provided:
CALCRIM No. 315, as given, provided:
II. Court Did Not Err in Granting the People’s Motion to Consolidate
Appellant contends the trial court abused its discretion in granting the motion to consolidate the charges from the January 20 and March 17 incidents “because it is highly likely that a jury, once convinced that [he] had committed the March offense, would have based its conviction on the more serious January charges not on the evidence, which was extraordinarily weak, but on their belief that [he] had a vicious character.” We reject this contention for the following reasons.
Section 954 provides in pertinent part: “An accusatory pleading may charge two or more different offenses connected together in their commission, or . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the 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 or divided into two or more groups and each of said groups tried separately. . . .”
“The phrase regarding offenses ‘connected together in their commission’ under section 954 includes offenses that share a common element, such as the use of a defendant’s home to commit the crime, or commission of several crimes against male juveniles. [Citation.] Such offenses are deemed to be connected together ‘even though the offenses charged do not relate to the same transaction and were committed at different times and places against different victims.’ [Citation.] [¶] Section 954 also permits joinder of offenses ‘of the same class of crimes.’ Offenses are of the same class when they possess common attributes, such as lewd conduct toward young female minors. [Citation.] Crimes are of the same class when they all involve assaultive crimes against the person. [Citations.]” (People v. Leney (1989) 213 Cal.App.3d 265, 269.) Where charges of the same class are joined, remaining charges not of the same class, but connected in their commission to those counts joined by class, properly may be joined. (People v. Alvarez (1996) 14 Cal.4th 155, 188.)
The charges from the January 20 and March 17 incidents were in the same class, as all charges concerned the illegal possession or discharge of a firearm. (See People v. Thomas (1990) 219 Cal.App.3d 134, 140 [the offenses of ex-felon in possession of firearm, attempted murder, and robbery, are in the same class involving “assaultive crimes against the person”].) Since the same offense was committed in both groups of crimes, and all of the remaining counts were connected in their commission to one of those two counts, the statutory requirements were met. (See People v. Alvarez, supra, 14 Cal.4th at p. 188; Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722 [offenses were connected together in their commission because there was a common element of substantial importance in their commission].) Appellant does not contest that the statutory requirements for joinder were present in this case, but asserts the trial court abused its discretion because joinder was prejudicial.
“When . . . the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion . . . . [Citations.]” (People v. Mendoza (2000) 24 Cal.4th 130, 160-161; see also People v. Sandoval (1992) 4 Cal.4th 155, 172.) “ ‘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.]” (Sandoval, at pp. 172-173.)
Appellate courts review a trial court’s decision to consolidate two or more charges for abuse of discretion. Abuse of discretion occurs if the ruling “ ‘falls outside the bounds of reason.’ [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 666.) “The judge’s discretion in refusing severance is broader than his discretion in admitting evidence of uncharged offenses. (People v. Matson (1974) 13 Cal.3d 35, 41.) “In both cases the probative value of considering one alleged offense in light of another must be weighed against the prejudicial effect, but additional factors favor joinder.” (Ibid.) “Because consolidation ordinarily promotes efficiency, the law prefers it.” (People v. Ochoa (1998) 19 Cal.4th 353, 409; accord, People v. Manriquez (2005) 37 Cal.4th 547, 574.) “ ‘The statutory policy favoring joint trials has been so consistently applied that cases holding it an abuse of discretion to deny a severance are virtually nonexistent.’ ” (People v. Rhoden (1972) 6 Cal.3d 519, 525, fn. 2.)
Applying the four factors set forth in Sandoval, we conclude the trial court did not abuse its discretion in granting the People’s motion to consolidate the January 20 and March 17 cases. First, although the facts of the January and March shootings were not necessarily cross-admissible, the absence of cross-admissibility does not require severance. (People v. Manriquez, supra, 37 Cal.4th at p. 575; People v. Mason (1991) 52 Cal.3d 909, 934 [“we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice”].)
Second, none of the charges were likely to unduly inflame the jury against appellant, as neither charge or groups of charges was significantly more serious than the others, and none were so inflammatory as to render joinder unduly prejudicial. (See People v. Manriquez, supra, 37 Cal.4th at pp. 552, 575 [joinder of four murders which occurred on four separate dates over the course of a year not prejudicial]; People v. Catlin (2001) 26 Cal.4th 81, 110 [joinder of two separate murders proper].) The circumstances in this case are different from those in Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 139-140, where the court held it was inflammatory, and therefore prejudicial, to join several counts of rape and oral copulation of two children, with the charged murder of an adult. Here, in the most serious January 20 charge, the People alleged that appellant intentionally shot Phillips; and, in the most serious March 17 charge, the People alleged he intended to shoot John Rogers. Because appellant was charged with two shootings, it cannot be said that one case was so inflammatory that it would be prejudicial to join the two cases.
Third, in opposing the motion to consolidate below, appellant asserted that joinder would be prejudicial because Phillips’s “direct [eyewitness] identification” of appellant as the perpetrator rendered the January 20 case stronger than the March 17 case. On appeal, however, appellant has changed his position and contends that because the inconsistencies in Phillips’s testimony significantly weakened the January 20 case, that case was “extraordinarily weak,” and should not have been consolidated with the stronger, March case.
“It is elementary that a new theory cannot be raised on appeal where, as here, the theory contemplates factual situations the consequences of which are open to controversy and were not put in issue in the lower court. [Citations.]” (People v. Smith (1977) 67 Cal.App.3d 638, 655-656 [validity of the People’s assertion on appeal was dependent upon factual issues that were never raised in the trial court].) “[W]hen the alleged error involves the exercise of [the] trial court’s discretion based on factual findings and the particular circumstances of a case, the waiver rule is applied because it serves an essential function: It encourages the parties to present all relevant evidence so the court can resolve factual disputes upon which the ruling must be based, and permits the court to develop a complete record for review. [Citations.]” (People v. Williams (1999) 77 Cal.App.4th 436, 460.) To permit a party to change his position on appeal “would not only be unfair to the trial court, but manifestly unjust to the opposing litigant,” who had no opportunity to factually or legally attack the theory. (In re Blake (1979) 99 Cal.App.3d 1004, 1022; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 198-199.)
Because appellant did not assert below that the March 17 case was much stronger than the January 20 case, the trial court did not make a determination of that issue, and the People had no opportunity to oppose the argument or present an adequate record in response. Appellant cannot present this new argument to us for the first time on appeal.
Although a “pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process” (People v. Stitely (2005) 35 Cal.4th 514, 531), appellant does not assert on appeal that joinder denied him due process, and the record does not support such a conclusion.
The last factor discussed in Sandoval is inapplicable here, as none of the charges in this case carried the death penalty. Appellant has failed to establish prejudice as a result of the joinder of the two cases. Thus, the trial court did not abuse its discretion in granting the People’s motion to consolidate.
III. The Jury Instruction Regarding Flight Was Properly Given
CALCRIM No. 372, known as the flight instruction, as given to the jury provided: “If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” Appellant contends the trial court erred in giving the flight instruction because there was no evidence of flight that was independent of the claims of eyewitnesses who saw defendant commit the crimes. We disagree.
A “flight instruction is appropriate where there is substantial evidence of flight by the defendant apart from his identification as the perpetrator, from which the jury could reasonably infer a consciousness of guilt.” (People v. Rhodes (1989) 209 Cal.App.3d 1471, 1476.) “[T]hat a certain person was observed fleeing from, say, the scene of a robbery and thereby manifested a consciousness of guilt is of no consequence unless the person fleeing was the defendant.” (People v. London (1988) 206 Cal.App.3d 896, 903.)
In Rhodes, the witness arrived at the victim’s house and observed the defendant walking away from the house. (People v. Rhodes, supra, 209 Cal.App.3d at p. 1473.) He then heard a “whooshing noise and the sound of broken glass,” and saw the defendant running away. (Id. at pp. 473-1474, 1476-1477.) He and the defendant ran into each other, and seconds later, he saw smoke coming from the house. (Id. at pp. 1474, 1477.) An improvised torch was found in the house. (Id. at p. 1474.) The court held it was proper to instruct the jury on flight because the witness’s testimony was not connected to an identification of the defendant as the perpetrator. (Id. at pp. 1476-1477.)
Similarly, here, there was evidence that John Rogers said he saw appellant driving a car by his parents’ house on March 17, 2005. He heard a gunshot as he turned away from the car, and although he did not see who fired the shot, he saw the car immediately “fle[e] eastbound on Mohawk Street, away from the residence.” The evidence that appellant fled the scene in the car was independent of any eyewitness testimony identifying him as the perpetrator. Thus, the trial court properly gave the flight instruction.
IV. Sentence of 25 Years to Life in this Case Did Not Violate Appellant’s Right to Equal Protection, and Did Not Constitute Cruel and Unusual Punishment
Appellant claims that the imposition of the 25-years-to-life enhancement in this case denied him equal protection under the law and “constitutes cruel and unusual punishment” under the California and United States Constitutions. We reject this contention.
First, appellant asserts that the 25-year-to-life enhancement required by section 12022.53, subdivision (d), for causing great bodily injury, was “so unequal, unreasonable and irrational in its application” that it denied his right to equal protection under the law. He further states that “the nature of appellant’s sentence turn[ed] entirely on the fact that he was convicted of discharging a firearm from a motor vehicle, the crime denounced by . . . section 12034, subdivision (c). Had the shooter in this case simply stepped out of his car and fired the same shot, causing the same injury, he would have been guilty of assault with a firearm, causing great bodily injury, and could have been sentenced to no more than seven years in prison . . . . The disparity in punishment in this case can only be called capricious.”
However, the constitutionality of section 12022.53 has been repeatedly and uniformly upheld. (E.g., People v. Alvarez (2001) 88 Cal.App.4th 1110, 1114-1119; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1216; People v. Perez (2001) 86 Cal.App.4th 675, 678-680.) Further, “[t]he decision of how long a particular term of punishment should be is left properly to the Legislature.” (People v. Flores (1986) 178 Cal.App.3d 74, 88.) “ ‘The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible.’ [Citation.] ‘Reviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.’ [Citations.]” (Zepeda, at pp. 1213-1214.) “Appellant does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.” (Flores, at p. 88.) The application of the Penal Code sections to appellant’s case did not violate his right to equal protection under the law and did not constitute cruel and unusual punishment.
Second, appellant asserts his sentence was grossly disproportionate to the crimes for which he was convicted, such that the sentence constituted cruel and unusual punishment. “[R]ecogniz[ing] that a federal argument is difficult at this stage of the high court’s jurisprudence,” appellant asserts his sentence was cruel and unusual under state law. Punishment is cruel or unusual if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) The determination of disproportionality is based on: (1) the nature of the offense and/or the offender; (2) a comparison of the present punishment to punishments imposed in California for more serious offenses; and (3) a comparison of the offender’s punishment to punishment for the same offense in other jurisdictions. (Id. at pp. 425-427.) The defendant bears a “considerable burden” in demonstrating disproportionality (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529), and such findings rarely occur (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196).
The sentence did not constitute cruel and unusual punishment in the present case. “ ‘To determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant’s involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant’s acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities. [Citation.]’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1269.) Here, appellant, who had a prior felony conviction, was a 26-year-old adult at the time he committed serious and violent offenses that placed the public in danger. He drove by an occupied residence and fired a shot at Phillips, seriously injuring him, and could easily have killed him. Less than two months later, he drove by an occupied residence at which many visitors were celebrating a birthday, fired a shot at the residence, and drove away. Based on the record before us, appellant has not demonstrated that his sentence is disproportionate to his personal culpability.
Appellant makes no effort to compare the sentence imposed in his case to punishments in other jurisdictions, but argues his sentence is disproportionate when compared to punishments imposed in California for more serious offenses. As noted, the Legislature is responsible for determining which class of crimes deserves certain punishments and which crimes should be distinguished from others. (People v. Flores, supra, 178 Cal.App.3d at p. 88.) We conclude the Legislature acted reasonably in imposing a severe punishment for the types of crimes committed in this case.
Moreover, appellant’s reliance on People v. Dillon (1983) 34 Cal.3d 441 is misplaced, as Dillon is distinguishable. (See People v. Munoz (1984) 157 Cal.App.3d 999, 1014 [Dillon’s use of a proportionality analysis to reduce a first degree conviction “must be viewed as representing an exception rather than a rule”]; People v. Weddle, supra, 1 Cal.App.4th at p. 1196 [a successful Dillon claim is an “exquisite rarity”].) In Dillon, the court concluded that a life sentence for a felony-murder conviction was grossly disproportionate to the defendant’s culpability, where the 17-year old defendant was unusually immature for his age and had no prior criminal history, where others who were “jointly responsible with him received the lightest [penalty]—the proverbial slap on the wrist,” and where the jury on several occasions expressed their reluctance to apply the felony-murder rule to the case to find the defendant guilty of first-degree murder. (Dillon, at pp. 482, 484-486, 488.) As we discussed above, appellant’s background and the nature of the two incidents are entirely different from Dillon. Unlike Dillon, here, the sentence imposed was not so disproportional that it could form the basis for a successful Dillon claim. Accordingly, we reject appellant’s claim that his sentence constituted cruel and unusual punishment. (See Munoz, at p. 1014.)
V. Use of Out-of-Court Statements Did Not Deprive Appellant of his Constitutional Right to Confront Witnesses
Appellant contends the court violated his constitutional right to confront witnesses when it admitted prior out-of-court statements made by several witnesses. As a preliminary matter, we hold appellant waived his right to make this claim. We also reject his contention on the merits.
Appellant acknowledges there is “no possibility that this court could rule the statements inadmissible where, as here, each declarant was called to testify and was subject to cross-examination.” He states he has “raised this issue solely to preserve it for further review.”
Defense counsel made a hearsay objection to John Rogers’s out-of-court statements but did not object to Isaac’s out-of-court statements, or to either statement on the basis of the confrontation clause. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19 [hearsay objection does not preserve claim for violation of the confrontation clause].)
Evidence Code section 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” The United States Supreme Court upheld section 1235 in California v. Green (1970) 399 U.S. 149, 164, holding section 1235 does not violate the confrontation clause of the Sixth Amendment. “[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” (Crawford v. Washington (2004) 541 U.S. 36, 59-60, fn. 9.)
Evidence Code section 770 provides: “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.”
Appellant asserts he had no opportunity to cross-examine the witnesses in the present case because they had no memory of the events in question. On remand from the United States Supreme Court, the California Supreme Court in People v. Green (1971) 3 Cal.3d 981, 989, addressed this very issue of whether a witness’s “ ‘apparent lapse of memory’ so affected defendant’s opportunity to cross-examine him at trial that the admission of the witness’s prior statement to [an officer] violated defendant’s right of confrontation under the Sixth Amendment.” (Fn. omitted.)
The witness in Green had previously stated he purchased marijuana from the defendant, yet when he testified at trial he stated in an unconvincing fashion that he remembered only the facts leading up to when the marijuana came into his possession, and did not recall how or from whom he obtained it. (People v. Green, supra, 3 Cal.3d at p. 987.) Noting that the three-fold purpose of confrontation is: “(1) to [e]nsure reliability by means of the oath, (2) to expose the witness to the probe of cross-examination, and (3) to permit the trier of fact to weigh his demeanor” (id. at p. 989), Green held that the purposes were fulfilled, and the witness’s prior statement was properly admitted (id. at p. 990).
Similarly, here, the three purposes of the confrontation clause were satisfied. First, although John Rogers and Isaac were reluctant to testify, were generally evasive, and initially stated they did not remember anything about the March 17 incident, further questioning revealed that they were at the Rogers residence that day, that John Rogers spoke to an officer about the shooting, and that Isaac had provided the officer with the fragments of the bullet that hit the car. Their testimony provided the jury with sufficient information to confirm that it had before it conflicting statements of the same witnesses.
Appellant does not specify whose statements were improperly admitted. Because John Rogers and Isaac provided statements to the police, we assume these are the “witnesses” to which he refers.
Isaac, for example, appeared in court only after a bench warrant was issued for her arrest.
Second, defense counsel had the opportunity to cross-examine both witnesses, and utilized the opportunity to question Isaac. Although he did not cross-examine John Rogers, “[w]hether or not a witness is actually cross-examined, the fact the defendant has an adequate opportunity to carry out such an inquiry satisfies the confrontation clause [citation].” (People v. Green, supra, 3 Cal.3d at p. 990.)
Finally, the function of confrontation in subjecting the witness’s demeanor to the scrutiny of the jury was undoubtedly served in this case, as the jury was able to weigh the testimony of John Rogers and Isaac after observing their demeanor in court, and was able to determine whether their statements to police were more or less credible than the statements they made in court.
The admission into evidence of John Rogers’s and Isaac’s out-of-court statements did not violate appellant’s right to confrontation.
Disposition
The judgment is affirmed.
We concur. GEMELLO, J., NEEDHAM, J.
“You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s gender, race, religion, or national origin. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe. In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
“· How well could the witness see, hear, or otherwise perceive the things about which the witness testified?
“· How well was the witness able to remember and describe what happened?
“· What was the witness’s behavior while testifying?
“· Did the witness understand the questions and answer them directly?
“· Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
“· What was the witness’s attitude about the case or about testifying?
“· Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?
“· How reasonable is the testimony when you consider all the other evidence in the case?
“· Did other evidence prove or disprove any fact about which the witness testified?
“· Did the witness admit to being untruthful?
“· What is the witness’s character for truthfulness?
“· Has the witness been convicted of a felony?
“· Has the witness engaged in [other] conduct that reflects on his or her believability?
“Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.”
“If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.”
“You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.
“In evaluating identification testimony, consider the following questions:
“· Did the witness know or have contact with the defendant before the event?
“· How well could the witness see the perpetrator
“· What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation
“· How closely was the witness paying attention
“· Was the witness under stress when he or she made the observation
“· Did the witness give a description and how does that description compare to the defendant
“· How much time passed between the event and the time when the witness identified the defendant
“· Was the witness asked to pick the perpetrator out of a group
“· Did the witness ever fail to identify the defendant
“· Did the witness ever change his or her mind about the identification
“· How certain was the witness when he or she made an identification
“· Are the witness and the defendant of different races
“· Were there any other circumstances affecting the witness’s ability to make an accurate identification
“· Was the witness able to identify other participants in the crime
“· Was the witness able to identify the defendant in a photographic or physical lineup
“The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find that [sic] the defendant not guilty.”