Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10166.
RAYE, J.
Defendant Rudolph Edward Marshall was convicted by jury of two counts of kidnapping with intent to commit robbery (Pen. Code, § 209, subd. (b)(1) -- counts 1 and 5), two counts of second degree robbery (§ 211 -- counts 2 and 6), two counts of carjacking (§ 215, subd. (a) -- counts 3 and 7), two counts of possession of a firearm by a convicted felon (§ 12021, subd. (a)(1) -- counts 4 and 9), and one count of assault with a semiautomatic firearm (§ 245, subd. (b) -- count 8). As to counts 1, 2, 3, 5, 6, and 7, the jury also found that defendant used a firearm in the commission of those offenses. (§ 12022.53, subd. (b).) On count 8, the jury found that defendant used a firearm. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) Following a waiver of jury trial, the court found defendant had previously been convicted of a serious felony (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and that he had served a prior prison term (§ 667.5, subd. (b)). Defendant appeals the convictions, contending trial counsel was ineffective for failing to object to consolidation of cases involving separate victims and the trial court prejudicially erred by excluding evidence of third-party culpability. We shall affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY August 21, 2005 -- Counts 1-4
On August 21, 2005, Jagdeep Johal was working the graveyard shift at the Penny Saver. On his lunch break, at about 11:00 p.m., he drove to the California Bank and Trust on Broadway. Johal deposited a paycheck of about $120 and withdrew $40 from his account. He got back in his car and headed toward the freeway to go back to work.
While Johal was stopped at a traffic light on the way to the freeway, an Hispanic woman approached the passenger side of his car and started talking to him. As she spoke with him, an African-American man, defendant, came up to the driver’s side of the car and asked for a lighter. Johal told him he did not have a lighter as he did not smoke, and defendant pulled a semiautomatic handgun from his pants, pointed it at Johal, and told him to turn off the car. Johal offered defendant his wallet and the car keys so they would leave him alone. Defendant insisted Johal get into the back seat of the car. Defendant and the woman got into the car, and defendant drove away. Defendant told Johal to keep his head down and threatened to shoot him. They drove around for 20 to 30 minutes.
Defendant reached into the back, felt Johal’s pockets, and pulled out Johal’s wallet and a pocket knife Johal carried. The woman went through Johal’s wallet and took out his ATM card. Defendant asked him for his PIN and threatened to shoot him if Johal gave incorrect information. A few minutes later, they stopped at an ATM and tried to use Johal’s ATM card. They unsuccessfully attempted to withdraw $280 or $300, then $200, then $100, and then $80. They did successfully withdraw $60 from Johal’s account.
They drove around for another five to 10 minutes and then parked the car. Defendant told Johal not to look up for 10 minutes or he would shoot him. Defendant also told Johal he was going to throw his keys in the street, and after 10 minutes, Johal should pick up his keys, drive off, and not report the incident. Defendant also took Johal’s cell phone, and defendant told him not to deactivate it so defendant could use it.
Johal kept his head down and heard them get out of the car. A few minutes later, he heard another car and people talking, and then he heard the car drive away. He could not hear the people talking anymore, so he got out of the car, retrieved his keys, and left the area. Johal and the car had been driven to the Fruitridge Road/Stockton Boulevard area.
Johal saw his wallet on the floor of the car, but the ATM card was gone. His cell phone and pocket knife were also taken. Johal spotted a police car, pulled up beside it, and told the officers he had just been carjacked.
About two months later, Johal was asked to look at a photographic lineup. After being given the standard admonition, Johal immediately identified defendant as the person who had carjacked him. Defendant’s fingerprints were also found on a manila envelope in Johal’s car.
Johal had pointed out the envelope to officers as an item in the car that defendant had specifically touched.
Johal’s bank records showed a deposit of $126.45 and a simultaneous withdrawal of $40 were made on August 21, 2005, at 11:41 p.m. About 20 minutes later, a withdrawal of $81.50 was made from an ATM identified in the bank records as North Florin. Forty minutes after that, a $62 withdrawal was made from a Fruitridge Manor ATM. Johal did not make the latter two withdrawals.
Surveillance tapes from the bank at Fruitridge Manor showed an African-American man and a Hispanic woman in the front seat of Johal’s car. While the woman was making the withdrawal from a drive-up ATM, it appeared the man was talking to someone in the back seat of the car.
Defendant denied kidnapping, carjacking, or robbing Johal. He denied ever being in Johal’s car, but could not explain how his fingerprints were in the car or on the envelope. Defendant denied owning a chrome or black handgun.
September 14, 2005 -- Counts 5-9
On September 14, 2005, Jose Lara worked at the Olive Garden restaurant in the Arden Fair Mall area. He had gotten off work around 11:00 p.m. and stopped at an ATM about 11:30 p.m. to get some cash on his way home. The ATM was at Florin Road and Stockton Boulevard near the Florin Mall. Lara parked his car and walked toward the ATM.
When he was about 13 feet away from the machine, two African-American men, one of them defendant, approached him and asked if he had a light. Lara told them he did not have a light. Then defendant pulled out a semiautomatic handgun and pointed it at Lara. Defendant told Lara to get in the back seat of his car and the two men got in the front seats, with defendant driving. Defendant reached into the back seat area and took the car keys from Lara. Lara was told to put his head between his legs. Defendant drove around for a while, parked, and asked Lara where his wallet was. Defendant then took Lara’s wallet from his pants pocket, took $60 from Lara’s shirt pocket, and asked for Lara’s ATM PIN. Lara gave him the wrong number.
The other man got out of the passenger side of the car, and as Lara looked up he saw a blonde woman passing by the car. Lara heard car doors opening and closing, and the other car drove away. A few minutes later, defendant’s cell phone rang and Lara was again asked for his PIN. After giving defendant the incorrect number once again, Lara gave him the correct number.
Defendant then asked for the PIN for Lara’s wife’s credit card, which was in Lara’s wallet. Lara told him he did not know the number as it was not his card, and defendant hit him in the head with the gun. Defendant asked Lara if he wanted to die.
Defendant continued to speak on the cell phone, drove around for about 15 minutes, then stopped again. Defendant got out of the car; Lara heard defendant open the trunk and take his CD player out.
Defendant again asked Lara if he wanted to die and Lara answered, “No.” Defendant told him he was going to leave, throw his keys in the street, and that Lara was not to get up until at least 10 minutes had passed. Defendant then took an imitation fire extinguisher Lara had in his car, quarters from the ashtray, Lara’s wallet, a ring his wife had given him, and his cell phone. Lara heard another car pull up, doors opening and closing, and the other car driving away.
About 30 seconds after defendant left, Lara retrieved his keys from the street and went home. After informing the bank, credit card company, and cell phone provider that the cards and cell phone had been stolen, Lara and his wife went to a nearby sheriff’s substation to report the crimes.
In the course of Detective Mike French’s investigation of the case, he learned a Mary Walker might have been involved in the robbery. French showed Lara surveillance images from the ATM that depicted Walker using the ATM at the time Lara’s account was accessed. Lara identified her as the woman he had seen walk by his car. After being given the standard admonition, Lara was shown a photographic lineup and again identified Walker as the blonde woman who had walked by his car. A few days later, in a live lineup, Lara once again identified Walker. Lara was separately shown a photographic lineup that included defendant, and Lara identified defendant as the man holding the gun during the robbery. Walker and defendant were friends prior to defendant’s arrest in this case.
Transaction records from Lara’s bank show that between 12:29 a.m. and 12:37 a.m. on September 15, 2005, there were multiple attempts to withdraw money from Lara’s account. There was an initial attempt to withdraw $500 at Wells Fargo’s North Florin branch. Then there was an account inquiry and a successful withdrawal of $300 at the same machine. A few minutes later, still at the same location, there were two unsuccessful attempts to withdraw $100 and $40. Then, at a Bank of America at Florin Mall, very close to the North Florin branch of Wells Fargo, there were two unsuccessful attempts to withdraw $302 and $102. At 1:08 a.m., 1:16 a.m., and 1:19 a.m. there were three successful point-of-sale transactions for $7.01, $73.55, and $58.05, respectively.
Detective French later learned that the Sacramento Police Department had a similar case and defendant’s fingerprints had been recovered. He also learned of a connection between Walker and defendant. Using the same photographic lineup previously prepared by the Sacramento Police Department, French showed Lara the photo lineup and Lara identified defendant as the person who had been armed during the robbery. In a separate photographic lineup, Lara also identified the second suspect, who had been in the passenger seat. After defendant was arrested, Lara went to a live lineup that included defendant. The people in the lineup were told to say, “What is your PIN number.” Based on his facial complexion, features, and voice, Lara identified defendant.
Defendant denied carjacking, kidnapping, robbing, or assaulting Lara. Defendant denied owning a chrome or black handgun. Defendant stated Walker was his ex-girlfriend. He also acknowledged the woman depicted in the ATM surveillance photographs at Lara’s bank “probably” looked like Walker.
After being found guilty on all the counts as charged, defendant was sentenced to two consecutive terms of life with the possibility of parole, plus an unstayed determinate term of 36 years four months.
DISCUSSION
I
Originally, the August 21, 2005, and September 14, 2005, incidents resulted in charges being filed in separate complaints. Before trial, the prosecution filed a motion to consolidate the cases pursuant to section 954. Defense counsel indicated that as the offenses were the same class of crimes, he did not “have any legal opposition.” The motion was granted and the cases were consolidated.
Later, in the course of various pretrial motions, the court asked defense counsel if he “wanted to revisit the issue of severing out” the two complaints and “Is that one of the things you wanted to revisit?” Counsel answered, “No, it is not. [¶] . . . [¶] . . . I never said anything about severance of counts. Although it probably is not a bad idea.”
Defendant now claims on appeal that counsel’s failure to object to the motion for consolidation deprived him of effective assistance of counsel. We disagree.
For a defendant to prevail on a claim of ineffective assistance of counsel based on a failure to object to joinder or to seek severance, “he must show that reasonably competent counsel would have moved for severance, that such motion would have been successful, and that had the counts been severed an outcome more favorable to him was reasonably probable. [Citation.]” (People v. Grant (1988) 45 Cal.3d 829, 864-865.) Defendant has not met this burden.
Under section 954, “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. . . . [T]he court in which a case is triable, in the interest 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.”
An accusatory pleading may charge two or more different offenses of the same class of crimes or offenses. (People v. Maury (2003) 30 Cal.4th 342, 391 (Maury).) Two or more offenses of the same class may be tried together, even “where there is no cross-admissibility of the evidence.” (People v. Gomez (1994) 24 Cal.App.4th 22, 29.)
When the statutory requirements for joinder are met, the trial court may still order severance of the offenses upon a clear showing of prejudice. “The factors to be considered are these: (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 case. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 160-161 (Mendoza).)
Defendant contends the evidence would not have been cross-admissible in separate trials. Because the charges involved violent activities, there was a risk of inflaming the jury by joining the charges. The Johal counts were significantly stronger than the Lara counts, in that independent evidence corroborated Johal’s identification of defendant. And, the joinder created the risk that the jury would aggregate all of the evidence and determine defendant was the “type of person who was likely to have carjacked, kidnapped and robbed Lara.”
The evidence was cross-admissible in separate trials. Evidence Code section 1101, subdivision (b) renders admissible evidence of prior acts in three general categories: identity, common design, and intent. The least degree of similarity between the uncharged act and the charged offense is required to prove intent. The greatest degree of similarity is required to prove identity. Somewhere in between falls evidence of a common design or plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (Id. at p. 403.)
Here, the evidence was that defendant approached men late at night who were near an ATM machine and asked for a lighter. He then pulled a semiautomatic weapon out, demanded their keys, and forced them into the back seats of their cars. After getting their PIN’s, he drove to multiple locations and a woman connected to him withdrew money from the victims’ accounts. He went through their things in the cars and took their cell phones. As he left each victim, he threw his keys in the street and ordered him to wait 10 minutes before getting out of his back seat. He had another person available as he left to drive him away from the scene. These acts are sufficiently similar that they can be explained as “caused by a general plan” to carjack people who had just used or were about to use their ATM cards and withdraw as much money as possible from their accounts as quickly as possible by using the victims’ cars to drive to different locations. (See People v. Catlin (2001) 26 Cal.4th 81, 111.)
The specific differences in the carjackings and kidnappings, such as the fact that there were different secondary players involved, does “not negate the basic similarity between the . . . incidents or render unreasonable the inference therefrom that defendant acted according to a common design or plan. Rather, these differences affect the strength of the inference.” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1690, disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) However, even if the evidence was not cross-admissible, “the absence of cross-admissibility does not by itself demonstrate prejudice.” (Mendoza, supra, 24 Cal.4th at p. 161.)
Contrary to defendant’s claims, neither of the cases was more inflammatory than the other, as each involved virtually identical facts. (People v. Geier (2007) 41 Cal.4th 555, 576 (Geier).)
Lastly, the evidence of one case was not “significantly weaker than the evidence of the other[] so as to create the danger of a ‘spillover’ effect that occurs when ‘weaker charges [are] joined with strong charges so that the effect of the aggregate evidence might alter the outcome of the trial.’ (People v. Marshall (1997) 15 Cal.4th 1, 28 [61 Cal.Rptr.2d 84, 931 P.2d 262].)” (Geier, supra, 41 Cal.4th at p. 576.) While it is true that the identification evidence in Johal’s case was independently corroborated by fingerprint evidence, Lara’s identifications of defendant, the identification of Walker withdrawing the money, and the relationship between defendant and Walker were strong evidence that he was the perpetrator of the offenses.
Because the evidence was cross-admissible in a separate trial to prove common scheme or plan, there was no risk of inflaming the jury, and there was no joinder of a significantly weaker charge with a stronger one, defendant has failed to establish prejudice from the joinder. “[T]he trial court would not have abused its discretion by [overruling an objection to joinder or] refusing to grant a motion to sever had such a motion been made. No reasonable probability existed that, had defense counsel moved for severance, the motion would have been granted. Accordingly, defendant has failed to establish prejudice from counsel’s omission.” (Maury, supra, 30 Cal.4th at p. 394.)
II
Defendant next contends the trial court erred in refusing to admit evidence of third party culpability. Specifically, he complains the court should not have excluded evidence of the investigation of other similar robberies. We find this issue was not properly preserved.
Background
The prosecution made a pretrial motion to exclude defense evidence of alleged third party culpability. The motion noted that during the course of investigating the offenses involving Lara, the sheriff’s department was “investigating similar incidents of carjacking and kidnapping. They developed suspects by the names of Antonio Arkansas, Clay Brown, and Holden Carter. These three individuals were charged in other incidents. There are also some incidents where a suspect has not yet been charged.” Lara was shown lineups that included the above three suspects, and Lara indicated in one of the lineups that one of the “fillers” had a nose similar to that of the man who carjacked him.
Defendant filed a reply in which he detailed various aspects of the identifications made by Lara, including that when shown lineups including Arkansas, Lara saw a resemblance to the second man involved in the carjacking. Defendant then made the following offer of proof: “That the defense in this case is mistaken identification is no surprise to the prosecution. The defense merely seeks, at this point, to explore the vagaries of Mr. Lara’s various identifications in cross examination. This will entail recounting some [of] the circumstances including questioning of the officers involved.” Essentially, it was “defendant’s position [that Lara’s] multiple exposure to lineups and identification procedures made his ultimate selection of [defendant] less than reliable.”
At the hearing on the issue, defense counsel again indicated there were “other crimes being committed that are of a similar nature” and that the relevance of those crimes would depend upon the evidence that ultimately came in. Counsel went on to state, “I think if it becomes an issue and we can establish something more than -- than what we have from the bare police reports, then we should be permitted to introduce it . . . .”
The court responded, “So if I’m hearing this right, you’re just -- you don’t have anything to offer just yet, but you’re asking me to just defer a final ruling on that?” Defense counsel acknowledged he was seeking a deferred final ruling.
The prosecution again laid out the factual background regarding the other robberies, which apparently also involved Mary Walker, and then argued “[t]he fact that . . . vehicle burglaries happen in a neighborhood over a two-month period, but the defendant could only be charged with . . . two of those ten-vehicle burglaries doesn’t mean that the Defense gets to talk about there are other vehicle burglaries that he’s not linked to; therefore, a-ha, he must not have done the ones he’s charged with. . . . [¶] . . . I can understand if the Defense wants to and the Court were to deem it appropriate to question the accuracy or validity of that particular victim’s [Lara’s] identification of the defendant if the Defense believes that the identification was compromised . . . . [¶] But, to talk about who those other lineups involved and that there was a suspect who actually was later charged with or suspected of doing similar robberies, all of that I believe should be excluded and is not admissible.” Defense counsel answered that defendant had the right to put on evidence that it was possible other people committed these crimes.
The court replied: “There is really nothing for me to rule on right now specifically. [¶] If you are trying to -- because I don’t know exactly what you’re trying to rule out. Certainly fair cross-examination has got to be allowed so long as it’s relevant. [¶] . . . [¶] So I just -- [¶] I’m not hearing what it is you’re trying to offer.” Defense counsel responded, “I am not trying to offer anything. She is trying to do a preemptive strike on me . . . .” The court then stated, “I mean, this is a situation that isn’t it true that there were other ATM robberies around town in this same period of time. That might not be enough. But if you have something more than that, then it might be enough.” The court then went on to rule, “[A]t this point, in view of the motion, in view of what I have in front of me, I think I -- it would be appropriate for me to grant the motion but without prejudice, and if and when you feel that there’s some evidence that you feel you should be allowed to explore, then bring it up and we’ll talk about it.”
During trial, defense counsel thoroughly cross-examined Lara regarding his identifications. He also extensively cross-examined Detective French regarding Lara’s identifications. At no point did defense counsel move the court to allow him to introduce any additional evidence regarding third party culpability.
Analysis
“In general, third party culpability evidence is admissible if it ‘rais[es] a reasonable doubt of defendant's guilt.’ [Citation.] This does not mean, however, that no reasonable limits apply. Evidence that another person had ‘motive or opportunity’ to commit the charged crime, or had some ‘remote’ connection to the victim or crime scene, is not sufficient to raise the requisite reasonable doubt. [Citation.] Under [People v.] Hall [(1986) 41 Cal.3d 826] and its progeny, third party culpability evidence is relevant and admissible only if it succeeds in ‘linking the third person to the actual perpetration of the crime.’ [Citations.]” (People v. DePriest (2007) 42 Cal.4th 1, 43.)
Third party evidence is treated like any other evidence. (People v. Hall (1986) 41 Cal.3d 826, 834.) Thus, a defendant must actually seek admission of evidence to preserve the issue on appeal. (Evid. Code, § 354, subd. (a).) At no time did defendant proffer any evidence actually linking a third person to the perpetration of the crime. Since defendant did not seek admission of testimony or evidence on the issue of third party culpability, he forfeited any claim that it was improperly excluded. (People v. Panah (2005) 35 Cal.4th 395, 481; People v. Valdez (2004) 32 Cal.4th 73, 108-109.)
Furthermore, even if the issue were preserved and even if the trial court had erred, there would be no prejudice. Defendant’s original goal was “to explore the vagaries of Mr. Lara’s various identifications in cross examination. This will entail recounting some [of] the circumstances including questioning of the officers involved.” Defendant’s cross-examination of Lara and Detective French was not hindered or restricted. He was fully able to explore such vagaries of identification on cross-examination.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P. J., BUTZ, J.