Opinion
D071458
01-17-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES D. MYERS, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD264489) APPEAL from a judgment of the Superior Court of San Diego County, Michael Smyth, Judge. Affirmed. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Charles Myers guilty of participating with two of his brothers (Korey and Willie Myers) in the "Scooter Bandits" series of armed robberies and residential burglaries. The jury was unable to reach a verdict on a misdemeanor count of sexual battery that allegedly occurred during one of the burglaries. The trial court sentenced him to 13 years in prison. On appeal, Charles contends the trial court erred by denying his motion to sever the burglary and sexual battery counts from the robbery counts. He also contends the trial court erroneously responded to a question from the jury about the extent to which the jury could use its conclusions regarding guilt on some counts toward the resolution of the remaining counts. We reject these contentions, and affirm.
For clarity, we will use first names when people have the same surname.
FACTUAL AND PROCEDURAL BACKGROUND
Charles, Korey, and Willie were all initially charged with six counts of armed robbery (Pen. Code, §§ 211, 12022, subd. (a)(1)) and one count of attempted armed robbery (§§ 211, 664, 12022, subd. (a)(1)). Charles and Korey were also charged with two counts of first degree burglary of an occupied residence (§§ 459, 460, subd. (a), 667.5, subd. (c)(21)), during one of which Charles allegedly committed a misdemeanor sexual battery (§ 243.4, subd. (e)(1)). Korey and Willie (but not Charles) were also charged with one count each of being a felon in possession of a firearm.
Undesignated statutory references are to the Penal Code.
Korey and Willie pleaded guilty as charged; following a preliminary hearing, Charles proceeded to trial on all but one of his charges. The dispute was whether Charles had participated with his brothers in the charged offenses.
Charles was not bound over on one of the robbery charges.
The Prosecution Evidence
The prosecution's trial theory was that Charles participated in "a crime spree" with two of his brothers. The spree began in mid-October 2015 when Charles and Korey committed a residential burglary together. It intensified after Willie arrived in town a few weeks later—all three brothers committed one armed robbery on November 13; Charles and Korey committed a second residential burglary on November 14; and all three brothers committed several additional armed robberies on November 15 and 18.
The Kathrine C. Burglary/Alleged Sexual Battery—October 17 (Counts 1 & 2)
Kathrine C. lived alone in a beachfront condo in Imperial Beach. At about 4:30 a.m. on October 17, 2015, she was startled awake by an intruder's hand on her buttocks. The intruder touched the outside of Kathrine's underwear and her bare skin, but did not squeeze her buttocks or reach into her underwear. The touch lasted about one second. When Kathrine gasped, the intruder appeared shocked and said, "Oh, my gosh, you're not Jennifer," and ran out. Kathrine did not go by "Jennifer," nor did any of her neighbors. She called 911 and described the intruder only as an African-American male who "wasn't elderly" (because "he sprinted" away).
Investigating authorities from the San Diego County Sheriff's Office discovered that footage from the condo complex's security cameras showed a man (later identified as Charles) in the common garage looking in people's cars and furniture, and then going up the stairs toward Kathrine's unit. The footage then showed Charles walking downstairs with Kathrine's big-screen TV and going out the door leading to the beach. Subsequent footage showed Charles and a second man (later identified as Korey) entering the complex, and a white car with four doors and a sunroof (later determined to be a 2007-2011 Toyota Camry) out in front of the complex. The video footage showed Korey moving through the garage carrying clothing, apparently from one of the neighbors' storage cabinets. It then showed Korey staring at the security camera, at which point Charles returned Kathrine's TV to her unit.
Later, an investigator with the district attorney's office, who had developed software used by law enforcement agencies throughout the country to map cell phone locations based on cell provider records, determined that phones belonging to Charles and Korey were in contact with cell phone towers near Kathrine's condo around the time of the burglary and alleged sexual battery.
Korey pleaded guilty to the Kathrine C. burglary.
The Galvan Robbery—November 13 (Count 3)
At about 8:45 p.m. on November 13, 2015, Paul Galvan was riding his hoverboard in Pacific Beach. According to multiple eyewitnesses, three young African-American males wearing dark clothing, hooded sweatshirts, and masks ran toward Galvan in a "rehearsed" manner. Two of the men ran up behind Galvan, while the third ran around a parked car and cut him off. The third man punched Galvan in the face, knocking him off the hoverboard and into some bushes. The man pointed a semiautomatic pistol at Galvan's face, and the men demanded all his money. When Galvan yelled in fear and said he had no money, the men grabbed his hoverboard and ran away.
Witnesses followed the three men, two of whom appeared to be using their cell phones. Investigating authorities later determined from cell phone records that Charles's and Korey's phones were in contact with cell towers near the crime scene within minutes of the robbery. About four hours after the robbery, Charles posted on a social media site a video of himself riding Galvan's hoverboard.
Korey and Willie pleaded guilty to this robbery.
Kocherga Burglary—November 14 (Count 4)
On the night of November 13, 2015, Karin Kocherga and her friend, Rosario Flores, housesat at the beachfront Imperial Beach condo of Karin's son, Eugene Kocherga. The condo was one block away from Kathrine C.'s condo.
When Karin and Flores woke up the next morning, certain bedroom, closet, and cabinet doors were not as they had been left, and Karin could not find her cell phone. When Eugene returned from his weekend trip, he found that the cabling to his TV and other electronic devices had been disconnected, and items were stacked on his children's beds. He later determined that property worth more than $7,000 had been stolen, including a rare Swarovski telescope and his son's cell phone.
Investigating authorities later determined from cell phone records that Charles's and Korey's cell phones were in contact with cell towers in Imperial Beach between 5:20 a.m. and 5:32 a.m. on November 14. A few hours later (and about 14 hours after the Galvan robbery), someone sent a text from Charles's phone to Willie's phone stating, "If you get caught, just [bail] out. No talking or TOU."
Korey pleaded guilty to this burglary.
The Harold Myers Attempted Robbery and Bray Robbery—November 15 (Counts 5 & 6)
At about 3:20 a.m. on November 15, 2015, Harold Myers and his girlfriend Anna Bray were sitting on a seawall in Pacific Beach after a night at a nearby bar. Two men approached them, one of whom was holding a semiautomatic handgun with an extended magazine. He racked a round into the chamber, pointed the gun at Harold and Bray, and demanded their cell phones. Bray surrendered her phone, but when she balked at providing her passcode, one of them men slapped her across the face. Bray complied. The men took nothing from Harold because his phone was broken and they found nothing of value in his wallet.
The men ran off toward the Pacific Beach Shore Club. Harold ran after them and saw them jump into the back of a white, four-door sedan that immediately sped away. Harold believed there was a getaway driver because the robbers "hopped in the car, and it was already in motion," too quickly for either of them to be the driver.
Security camera footage from the Pacific Beach Shore Club captured a white, four-door car with a sunroof, consistent with a Toyota Camry, driving quickly through a nearby alley. Bray and Harold described the suspects as tall, thin, young African-American males. Both wore hoods, blue jumpsuits with Velcro patches where name tags would have been, and masks (one a ski mask, the other a surgical mask).
Investigating authorities later determined from cell phone records that Charles's and Korey's cell phones were in contact with cell phone towers in Pacific Beach at the time of the Bray robbery and Harold Myers attempted robbery. Call records show the phones placed calls to one another.
Korey and Willie pleaded guilty to this robbery and attempted robbery.
The Habeeb and Hines Robberies—November 15 (Counts 7 & 8)
About an hour after the Pacific Beach robbery/attempted robbery, pedicab driver Ayman Habeeb was pedaling his cab back to the Downtown Pedicab warehouse on a dead-end alley between Island and Market Streets. At a time when there was otherwise little traffic, Habeeb initially noticed a white Toyota Camry with specialty headlights and a sunroof on Market Street, and later noticed it in the dead-end alley outside the warehouse door. Habeeb could think of no reason for the Camry to be there.
Shortly afterwards, a male walked by the door talking on a phone, wearing a sweatshirt with the word "Navy" on the back and some sort of emblem on it. After the male left, two other males walked into the warehouse wearing blue jumpsuits and masks. Habeeb described the men as tall, thin African-Americans between the ages of 20 and 30. One had a semiautomatic pistol with an extended magazine. The two men demanded Habeeb's money, and one hit him repeatedly when he did not immediately comply. Habeeb then handed over his phone and his wallet.
At the same time Habeeb was being robbed, pedicab mechanic Gregory Hines and his girlfriend were sitting in a pedicab in the warehouse watching a movie on Hines's laptop. Hines had also noticed the Camry in the alley earlier. Because he had already seen the robbers hit Habeeb, Hines had his money out and ready to hand over. The men took his money, cell phone, and laptop, then walked out the door.
There were security cameras and a visible display screen in the warehouse. The cameras captured the robbery.
Investigating authorities later determined from cell phone records that Charles's and Korey's phones were in contact with cell towers in downtown San Diego just before the robbers entered the pedicab warehouse. The phones were in contact with one another.
Korey and Willie pleaded guilty to robbing Habeeb and Hines.
The Clark Robbery—November 18
This is the robbery with which Charles was initially charged but not bound over. Korey and Willie pleaded guilty to committing it.
Just after midnight on November 18, 2015, Dan Clark was walking in Pacific Beach. Two men wearing masks (at least one of which was a surgical mask) approached him. One of the men pulled a gun and racked the slide. The men took Clark's cell phone, demanded that he unlock it, and then walked away. Clark called 911, then tried to track his phone using a computer program, but the phone had apparently been turned off.
The Emery Robbery—November 18 (Count 9)
About 40 minutes after the Clark robbery, Alexander Emery stepped off his motorcycle in front of his friend's condo in downtown San Diego. As Emery texted on his phone while waiting for his friend to come down, two men approached him. One was armed with a semiautomatic handgun, the other with brass knuckles. The gunman pointed the gun at Emery and cocked it. The men took Emery's phone and the few dollars he had in his pockets. The men then ran down the street and got in an awaiting silver Mercedes, which started driving off before they had closed the doors.
The robbery was captured by several security cameras. The videos show the Mercedes approaching; two men exiting the car, approaching and robbing Emery, then reentering the car; and the car then immediately leaving.
Korey and Willie pleaded guilty to robbing Emery.
The Robbery Investigation
As Emery was being robbed, Dan Clark was continuing his attempts to track his phone. At about 3:00 a.m., it pinged back a location in the 2600 block of 44th Street, which Clark relayed to the police.
Meanwhile, robbery detectives with the San Diego Police Department had been investigating the string of armed robberies, which they believed may be related due to the number and similar descriptions of the suspects (tall, thin, young, African-American males), the use of a getaway driver, and the use (i.e., racking or cocking) of a handgun with an extended magazine. For convenience, they referred to the suspects as the "Scooter Bandits" (so named for Galvan's stolen hoverboard). Based on witness descriptions and security camera footage, detectives were on the lookout for a Camry and a Mercedes. The detectives were as yet unaware of the Imperial Beach burglaries.
At 9:00 p.m. on the night of the Clark and Emery robberies, the detectives began surveilling the location of Clark's cell phone ping. They immediately noticed a white Camry with a sunroof in the parking lot of the apartment complex located at 2628 44th Street. It was registered to Christine Sims, who lived in Unit 1 and, as it turned out, was Charles's girlfriend. A Facebook search revealed a photo of Sims wearing medical scrubs.
About 10 minutes after the surveillance began, Charles drove up and parked his silver Mercedes in the apartment complex's lot. He and Korey got out and walked into Unit 1.
At about 11:00 p.m., Charles, Korey, and Sims (dressed in medical scrubs) exited Unit 1 and got into Charles's Mercedes. The car dropped off Sims at an assisted living facility in Spring Valley, then proceeded to a hookah lounge.
Charles and Korey went into the hookah lounge, but Charles later reemerged to retrieve a backpack from the trunk of his car. Later, Charles (still carrying the backpack) and Korey left the lounge, and Charles drove them away in his Mercedes.
Surveilling police initiated a traffic stop of Charles's car at about 2:00 a.m. Police found a set of brass knuckles on the front passenger-side floorboard. In the trunk, police found three blue jumpsuits with Velcro patches where name tags would go. In the backseat, police found a blue Navy sweatshirt with logos on the chest and back, and the backpack Charles had carried into and out of the hookah lounge. The backpack contained a Ruger 9-millimeter semiautomatic handgun with an extended magazine. The magazine contained 13 rounds of ammunition, of three different makes.
Charles had his phone with him during the traffic stop. A search of his phone revealed that someone had used his YouTube account to search for videos on "Organized crime," "Robbery San Diego," "How to rob a person," and "How to rob a home."
Meanwhile, around 3:00 a.m., Willie came out of Unit 1, retrieved a backpack from the Camry, and carried it back inside. About half an hour later, he came back out of the apartment without the backpack, and drove away in the Camry. Police stopped the Camry shortly afterwards and arrested Willie.
Holding Cell Conversation
The police took Charles, Korey, and Willie to the station for questioning regarding the armed robberies—the only crimes the robbery detectives were aware of. Detectives told the brothers they were being investigated for multiple robberies, and showed only Willie the security camera footage of the pedicab robbery. The detectives placed the brothers together in a holding cell and recorded the ensuing conversation.
Willie described the video he was shown. Charles acknowledged, "Like maybe . . . they might have me on video . . . walkin' past and some shit," and "like, checkin' shit out." He surmised, "I think that's how they got me 'cause I was wearing that hood." (The person seen casing the pedicab warehouse was wearing a hooded sweatshirt.) When Willie mentioned that the video shows a car, Charles said, "I'm all on that one on the car . . . . I think they got me on that one but I ain't doin' shit." When Willie then explained that Charles could still be liable as an "accessory" even if he stayed in the car, Charles replied, "Oh okay. Well whatever. It is what it is. They got me on that one. For sure." Charles remarked that the video would only show Sims's Camry—"[t]hey don't got the [B]enz on video for shit."
The brothers expressed concern that Sims knew too much. Charles reassured them that "[s]he don't know shit," "she ain't no dummy," and that she will tell police that none of them live with her.
The Robbery Detectives Search Charles's Apartment
On the night of the brothers' arrest, police obtained a search warrant for Charles's apartment. In the master bedroom closet, they found a box of 9-millimeter ammunition of the same make as some of the rounds found in the magazine of the handgun recovered in Charles's Mercedes. In another bedroom, they found a dark-colored jumpsuit.
In the living room, police found a dark sweater with the word "Navy" on the back and an emblem on the front, which resembled the sweatshirt seen in the pedicab warehouse security video. They also found a backpack consistent with the one they saw Willie retrieve from the Camry—there were 10 cell phones in it. Police determined the owners of eight of the phones, who included: pedicab robbery victims Habeeb and Hines; Pacific Beach robbery victim Bray; Kocherga burglary victim Karin Kocherga; and robbery victim Daniel Clark, whose pinging phone led the police to surveil Charles's apartment. Police also found Paul Galvan's hoverboard in Charles's living room.
The record indicates police also recovered Eugene Kocherga's son's stolen cell phone at some point, but it is unclear whether it was in connection with executing the search warrant.
In Charles's laundry room, police found pedicab mechanic Hines's laptop. Fingerprint analysis confirmed a latent print on the laptop belonged to Charles. In the process of photographing Hines's laptop in Charles's apartment, police inadvertently captured in the background a telescope that Eugene later identified as his. This was fortuitous because the robbery detectives did not yet know of the Kocherga burglary.
The Burglary Investigation
With the discovery by the police of some of the Kochergas' stolen property in Charles's apartment, sheriff's investigators became interested in Charles as a suspect in the Imperial Beach residential burglaries. They noted that the Camry that Willie had been driving when he was arrested matched the Camry in the Kathrine C. security video. A video taken on Korey's phone the night of the Kathrine C. burglary also showed Charles dressed identically to how he appeared on the security video. Sheriff's investigators executed a search warrant on Charles's apartment and discovered those clothes. The investigators did not find Eugene Kocherga's telescope or related equipment.
The Defense Evidence
Forensic Evidence
The parties stipulated that Charles's fingerprints were not found on any of the cell phones recovered from the backpack in his living room. A latent print analyst with the sheriff's crime lab testified that only Willie's prints were on those phones. The analyst further testified that Charles was either excluded or found to be inconclusive for latent prints recovered from certain property that had been moved inside the Kocherga condo.
The parties also stipulated that DNA samples from the handgun magazine and brass knuckles were inconclusive as to Charles.
Charles's Testimony
Charles testified about his and his younger brothers' upbringing in a rough Chicago neighborhood, which he escaped in 2005 by joining the Navy at age 19. His position in the Navy prohibited him from bringing his cell phone to work. In 2014, he was arrested for DUI, but never prosecuted. Nevertheless, the Navy revoked his access to classified material. Another incident occurred (the jury did not learn the nature of it) that led Charles to tell his brothers during their holding cell conversation that his Navy career would probably end in about a year. In the meantime, he was still earning about $90,000 per year and had significant job responsibilities.
Charles did not like Korey's living conditions in Chicago, so in August 2015 he invited Korey to stay with him and Sims, and the three of them eventually moved into the apartment on 44th Street. Charles and Sims shared the master bedroom, Korey stayed in the northeast bedroom, and Sims's children stayed in a third bedroom.
Regarding the night of the Kathrine C. burglary (October 17), Charles explained he drove Sims's Camry to Imperial Beach with Korey and two women, where they drank alcohol. Charles ended up in Kathrine's condo because he was drunk and needed to use a restroom, and believed the condo to be a vacant vacation rental. While inside Kathrine's upstairs unit, Charles saw a TV, so he unplugged it and carried to the condo complex's beach door, where he left it before returning to the beach to continue socializing. He mentioned the condo to them as a possible place to "kick it," but everyone decided against it. About 40 minutes later, Charles and Korey began walking to get the car so the group could leave. They ended up going to Kathrine's condo complex instead. However, when they noticed security cameras, Korey began "freaking out about it" and returned items he had taken from the garage. Charles also returned Kathrine's TV to her unit.
While in Kathrine's unit, "curiosity" led Charles to explore upstairs. Because it was dark, he entered Kathrine's bedroom without realizing it was a bedroom or that it was occupied. When he heard a sound outside from the balcony, he dropped to the floor and tried unsuccessfully to scoot under the bed. He tried to get up, placing his hand on the bed for leverage. That's when he first realized there was a person in the bed, and that he had accidentally touched her. He denied the touching was for sexual gratification or arousal.
A few weeks later, on November 11, Willie arrived from Chicago and stayed on the couch in Charles's living room. He arrived with nothing but a red backpack, a pair of shoes, and a "piece of crap" cell phone. (Despite the phone's quality, phone records indicate it sent or received 491 calls or text messages between November 11 and 18.)
Even though Korey and Willie each had their own cell phones, they frequently borrowed Charles's because they preferred its GPS and camera features. Sims had two cell phones and a tablet with phone functionality that Charles would use when he loaned out his phone. Charles denied involvement in the Kocherga burglary and all of the robberies (and attempted robbery), implying he had loaned his phone to his brothers when it pinged cell towers near those crime scenes. His phone had e-mail and social media accounts in his own name, as well as one e-mail account and one social media account in Willie's name. Similarly, he claimed he had given his brothers permission to use Sims's Camry and his Mercedes on the nights of the robberies, as well as "open permission" to wear one of his Navy sweatshirts.
Charles offered explanations for some of the stolen property found in his apartment. He said Korey and Willie told him they bought Galvan's hoverboard from a drug addict who was selling it for quick money. He suspected Willie had acquired some of the cell phones by stealing them from the gym at the Navy base while the brothers were playing basketball and working out on the morning of November 14 (the morning after the Galvan robbery/of the Kocherga burglary), because people at the gym complained that their phones had been taken. Charles speculated that Korey sent the "if you get caught" text from his (Charles's) phone between basketball games by retrieving it from the console in Charles's car (where he left it). Finally, Charles denied he or Sims ever noticed the telescope in their apartment before his arrest on robbery charges. He admitted that after he was released on bail, but before the sheriff's burglary investigators searched his apartment, he threw away the telescope because he figured it was stolen and "didn't want to help the police send [his] brothers to prison."
Charles also attempted to explain certain of his statements during the holding cell conversation by claiming they all related to the Kathrine C. burglary, not the pedicab robberies.
Jury Verdict and Sentencing
The jury found Charles guilty on both burglary counts, and found true the allegations that Kathrine C.'s and Eugene's residences were inhabited dwellings (§ 460, subd. (a)), and that another person (other than an accomplice) was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(1)). The jury found him guilty on all the robbery and attempted robbery counts, and found true the allegation that he was vicariously armed during the commission of each offense. The jury was unable to reach a verdict on the sexual battery count; eight jurors voted not guilty, four voted guilty.
The trial court sentenced Charles to 13 years in prison.
DISCUSSION
I. Denial of Severance Motion
Myers contends the trial court erred by denying his motion "to sever the residential burglary counts (along with the sexual battery count) from the robbery counts." We disagree.
A. Severance Principles
Section 954 authorizes an accusatory pleading to charge two or more different offenses if they are either (1) "connected together in their commission," or (2) "of the same class." (§ 954; People v. Soper (2009) 45 Cal.4th 759, 769 (Soper).) " 'The law favors the joinder of counts because such a course of action promotes efficiency.' " (People v. Scott (2015) 61 Cal.4th 363, 395 (Scott); People v. Trujeque (2015) 61 Cal.4th 227, 259 (Trujeque).) " 'A unitary trial requires a single courtroom, judge, and court attach[és]. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is greatly reduced over that required were the cases separately tried. In addition, the public is served by the reduced delay on disposition of criminal charges both in trial and through the appellate process.' " (Soper, at p. 772.)
But even when charges are properly joined, a trial court has discretion to order that the charges be tried separately. (Scott, supra, 61 Cal.4th at p. 395.) "In exercising its discretion in this regard, the court weighs 'the potential prejudice of joinder against the state's strong interest in the efficiency of a joint trial.' " (People v. Merriman (2014) 60 Cal.4th 1, 37 (Merriman).) "The often-cited factors for severance are: '(1) whether the evidence relating to the various charges would be cross-admissible in separate trials, (2) whether some of the charges are unusually likely to inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case or with another weak case, and (4) whether one of the charges is a capital offense or the joinder of the charges converts the matter into a capital case.' " (Trujeque, supra, 61 Cal.4th at p. 259.) If the evidence would be cross-admissible in multiple trials, "that is normally enough to justify the trial court's refusal to sever the charged offenses." (Ibid.) "However, the lack of cross-admissibility is not necessarily dispositive for purposes of severance." (Ibid., at p. 259.) "If there is no cross-admissibility of the evidence, we evaluate the three remaining factors to determine whether they demonstrate the trial court's abuse of discretion." (Ibid.)
A defendant challenging a trial court's ruling declining to sever properly joined charges must make a " ' "clear showing of prejudice to establish that the trial court abused its discretion" ' " based on " 'the record before the trial court when it made its ruling.' " (Soper, supra, 45 Cal.4th at p. 774.) "In reviewing for abuse of discretion, we do not consider evidence that later came out during the trial. Rather, a reviewing court's determination of whether a trial court has abused its discretion in denying severance must be based upon the facts before the court at the time of the ruling." (People v. Ybarra (2016) 245 Cal.App.4th 1420, 1433 (Ybarra).)
"[E]ven if a trial court's ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts resulted in gross unfairness depriving the defendant of due process of law." (People v. Gonzales and Solis (2011) 52 Cal.4th 254, 281.) "In determining whether there was such gross unfairness, we view the case as it was tried, including a review of the evidence actually introduced in the trial." (Ybarra, supra, 245 Cal.App.4th at p. 1434; see People v. Thomas (2012) 53 Cal.4th 771, 800-801.)
"Thus, there are two steps to our analysis: (1) we look to the evidence before the trial court at the time of the ruling to determine whether the defendant made a clear showing of a substantial danger of prejudice, and weigh the potential prejudice against the state's strong interest in the efficiency of a joint trial to determine whether the trial court abused its discretion, and (2) if the trial court did not abuse its discretion based upon the evidence before it at the time of the ruling, we look to whether the defendant has demonstrated that the joinder resulted in 'gross unfairness' amounting to a due process violation based on the trial evidence and other trial related matters, such as the prosecutor's closing argument." (Ybarra, supra, 245 Cal.App.4th at p. 1434.)
B. Background
In his trial brief, Charles moved "to sever the residential burglary counts (along with the sexual battery count) from the robbery counts." He argued the evidence against him on the Kathrine C. "residential burglary is much stronger than the evidence in the armed robberies" because the former included security camera footage showing Charles removing (and later returning) Kathrine's TV. On the other hand, Charles argued the evidence against him on the robbery counts—cell phone evidence showing his phone was active near the times and places of the crimes, stolen property being found in the apartment he was sharing with his brothers, and the fact a car that looks like his was seen in one case—"has many different explanations." Charles feared the jury would infer from the Kathrine C. burglary that he was criminally predisposed to committing the robberies, too. Finally, he argued that evidence of the burglary counts and robbery counts was not cross-admissible, and there would be little efficiency gained from joinder.
The prosecutor opposed the severance motion. She argued the evidence was cross-admissible because the burglaries were only solved as a result of the robbery investigation and the resultant information-sharing between investigating agencies. She denied she was " 'bootstrapping' " weak cases to a stronger case. To the contrary, the prosecutor pointed out that she had initially filed only robbery charges, and "demanded more investigation by detectives before charging the burglaries." Finally, she argued she had not joined "a highly inflammatory crime . . . with a non-inflammatory crime," as all the offenses were "theft related." She made no mention of the sexual battery count.
At the hearing on the severance motion, Charles's counsel reiterated her view that the evidence was not cross-admissible, with the exception of the cell phone tracking evidence. She also restated her view that there was "very strong evidence" on the Kathrine C. burglary count, and not "as strong of evidence on the robberies." Counsel did not address whether any of the counts were particularly inflammatory, nor did she make any mention of the sexual battery count.
The prosecutor stated joinder was proper because robbery and burglary are the same class of crime. She insisted the evidence was cross-admissible and the evidence of "how the investigation unfolded is important." In terms of overlap, she noted that the detectives who executed the robbery search warrant would also have to testify in a severed burglary trial because that is how they discovered evidence that linked Charles to the burglaries. The cell phone tracking expert would also have testify in both cases.
The court denied Charles's severance motion. The court found the burglary and robbery counts were properly joined because they are of the same class of crimes and are, "at least in some ways," connected in their commission (e.g., a crime spree involving the same people, the same car, and the same type of property being stored in the same place). The court then found Charles had not met his burden of showing a substantial danger of prejudice. The court concluded there was "some degree of cross-admissibility" between the burglary and robbery counts, particularly with respect to the prosecutor's right to present the context necessary to explain the investigators' conduct (particularly with respect to explaining why they were searching his home). The court also found that armed robberies and residential burglaries—"especially when someone is sleeping"—are "all . . . pretty inflammatory, are pretty serious," such that none was particularly more inflammatory than the other. In this regard, the court made no mention of the sexual battery count.
The court further found the prosecution had not joined a strong count to weak ones. Of course, the Kathrine C. burglary count was "going to be a lot easier [to prove] than something that doesn't have a videotape," but this was "not to say that the other counts are weak." To the contrary, the court noted there was "a lot of circumstantial evidence tying" Charles to the robberies. The court summarized: "[C]ircumstantial or direct evidence, put together, I don't look at the other counts as being particularly weak, just not as strong as the one residential burglary."
Finally, the court noted the judicial efficiencies that would be promoted by a joint trial: "there would be . . . a substantial number of witnesses . . . testifying in both trials," "at least 14 jurors being brought in for each of the two cases," plus having to "spend the court time with jury selection and the trials themselves," "not to mention the time of the attorneys and their staff tending to two different trials."
On balance, the court concluded that denying severance did not "rise[] . . . even close to the level of depriving [Charles] of his right to a fair trial . . . ."
C. Analysis
Charles does not challenge the trial court's finding that all the counts were properly joined (because they are either "of the same class" or were "connected together in their commission" (§ 954)). Thus, he bears the burden of making a " ' "clear showing of prejudice" ' " resulting from the denial of severance. (Soper, supra, 45 Cal.4th at p. 774.) He has not met this burden.
1. Abuse of Discretion Challenge
Under our first step of evaluating the trial court's exercise of discretion based on the record at the time of the court's ruling, we find no error.
a. Cross-admissibility
Charles contends the court erred in concluding the evidence was cross-admissible. Although the prosecutor argued below that the evidence was cross-admissible, the Attorney General—despite acknowledging the extensive overlapping evidence (that is, "cell phone tracking evidence, cell phone calls between [Charles] and his co-perpetrator brother, stolen property in his apartment, and involvement of a distinctive car matching the description of [Charles]'s car"—now concedes "this evidence was not enough to establish cross-admissibility." We accept this concession, and evaluate the other factors relevant to a severance motion.
b. Joining Inflammatory Counts With Noninflammatory Counts
We find no abuse of discretion in the trial court's finding that neither the residential burglary counts nor the armed robbery counts were particularly more inflammatory than one other. Charles suggests the residential burglaries were more inflammatory than the robberies, arguing the trial court ignored "the intimacy of a burglary in one's own home." We disagree. First, the trial court expressly recognized that a residential burglary, "especially when someone is sleeping," is "pretty inflammatory." (Italics added.) Second, Charles's argument understates the severity of being robbed at gunpoint.
Charles also argues, for the first time on appeal, that the trial court "failed to consider the effect the evidence of the sexual battery might have on the jury." However, Charles never asked the court to consider this. He has thus forfeited the argument on appeal. (See People v. Simon (2001) 25 Cal.4th 1082, 1103.)
We nevertheless address the contention below in our discussion of Charles's due process challenge.
c. Bootstrapping a Weak Count to a Strong Count
Likewise, we find no error in the trial court's conclusion that the fact that the evidence supporting the Kathrine C. burglary was strong does not mean that the evidence supporting the other counts was weak. "[A]s between any two charges, it always is possible to point to individual aspects of one case and argue that one is stronger than the other. A mere imbalance in the evidence, however, will not indicate a risk of prejudicial 'spillover effect,' militating against the benefits of joinder and warranting severance of properly joined charges." (See Soper, supra, 45 Cal.4th at p. 781.) To prevail, a "defendant must show an 'extreme disparity' in the strength or inflammatory character of the evidence." (Ybarra, supra, 245 Cal.App.4th at p. 1436, italics added.) Charles has not shown this.
At the time of the court's ruling, the parties expected the evidence would show that (1) Charles's cell phone was active at the time and places of nearly all the robberies; (2) Charles's and his brothers' cell phones were communicating with each other around those same times; (3) some of the robbery victims' property was found in Charles's apartment; (4) Charles's and Sims's cars were seen near the crime scenes; and (5) Charles made potentially incriminating statements during the holding cell conversation. This was not weak evidence.
d. Joinder With a Capital Offense
None of the charges against Charles, standing alone or when joined, was a capital offense. This factor, then, supports the trial court's exercise of discretion.
e. State's Strong Interest in Joinder
Charles argues the trial court placed undue weight on "[t]he consideration of economies of one trial." We are not persuaded. First, the state generally has a strong interest in jointly trying properly joined counts. (Merriman, supra, 60 Cal.4th at p. 37; Scott, supra, 61 Cal.4th at p. 395; Trujeque, supra, 61 Cal.4th at p. 259.) Second, Charles's assertion that the burglary trial would have been streamlined by the fact the Kathrine C. burglary count could be proven entirely by the security camera footage ignores the fact that the Kocherga burglary count—which Charles did not seek to sever from the Kathrine C. burglary count—would have to be proven with essentially the same circumstantial evidence as the robbery counts (e.g., cell phone data and recovery of stolen goods in Charles's apartment).
f. Conclusion
Based on the record before the trial court when it denied Charles's severance motion, we find no abuse of discretion.
2. "Gross Unfairness"/Due Process Challenge
We must now determine whether, based on the evidence presented at trial, "the joinder resulted in 'gross unfairness' amounting to a due process violation . . . ." (Ybarra, supra, 245 Cal.App.4th at p. 1434.) In this analysis, we review "the case as it was tried, including a review of the evidence actually introduced in the trial." (Ibid.) Having reviewed the record, we find no gross unfairness.
a. Cross-admissibility
Charles maintains that evidence regarding the burglary counts would not have been cross-admissible in a hypothetical separate trial on the robbery counts. However, in defending against the robbery counts, it was Charles who testified that his statements during the holding cell conversation related to the Kathrine C. burglary. In this respect, it was actually Charles who, in practice, invoked cross-admissibility. His doing so was not grossly unfair.
b. Joining Inflammatory Counts With Noninflammatory Counts
Nothing at trial undermined the trial court's determination that the residential burglaries and armed robberies were "all . . . pretty inflammatory." Downplaying the severity of the robbery counts, Charles argues there was "no direct evidence" showing he ever held the gun or knew "his brothers, who already pled guilty, were even using one." We disagree. The evidence at trial showed that when Charles was arrested, the backpack he had been seen carrying that evening contained a handgun matching the one described by several of the robbery victims. Moreover, police found in Charles's closet a box of ammunition matching some of the ammunition they found in the extended magazine of that handgun.
Although Charles did not raise the issue below, we conclude that joinder of the sexual battery count with the other counts was not grossly unfair to Charles. "In determining whether there was gross unfairness, we may . . . look to the verdicts . . . ." (Ybarra, supra, 245 Cal.App.4th at p. 1440.) Because the jurors were unable to reach a verdict on the sexual battery count—splitting eight to four in favor of not guilty—it is exceedingly unlikely they were so inflamed by that count that they unanimously found him guilty of every other count.
c. Bootstrapping a Weak Count to a Strong Count
The evidence presented at trial does not show there was "an 'extreme disparity' in the strength . . . of the evidence." (Ybarra, supra, 245 Cal.App.4th at p. 1436.) True, the video evidence supporting the Kathrine C. burglary was strong. But so, too, was the circumstantial evidence supporting the robbery counts.
Cell phone tracking evidence showed that Charles's phone was active near the time and place of all but the Emery robberies. Charles's phone had also been used to search YouTube for "How to rob a person" and "How to rob a home," and to send a text to Willie's phone instructing him how to proceed if arrested. Although Charles testified he loaned his phone to his brothers at the time of each offense, the trial evidence also showed that each brother had and used his own phone, and that several of the robberies involved three participants, one of whom was driving a car that matched Charles's or his girlfriend's. On this point, because the prosecution theory was that Charles was the getaway driver, we find unavailing his argument that none of the robbery victims positively identified him as one of the actual robbers.
In addition, police recovered from Charles's Mercedes a handgun matching the one described by several robbery victims, a pair of brass knuckles like those used during the Emery robbery, and distinctive Navy attire described by several victims. Inside Charles's apartment, police recovered property stolen during the robberies (and the Kocherga burglary), ammunition matching that found in the extended magazine of the handgun recovered from his car, and more Navy attire. Police also saw that Charles's girlfriend wore medical scrubs for work, which possibly explained why one of the robbers sometimes wore a surgical mask.
After his arrest, Charles made incriminating statements during his recorded holding cell conversation. His claim that his statements pertained only to the Kathrine C. burglary—not the pedicab robbery—are dubious. For example, Charles seemed surprised that he had been captured on camera, but he admitted during trial that he saw security cameras during the Kathrine C. burglary. Moreover, Korey indicated he saw a "screen" for the security cameras during the crime the brothers were discussing, but the parties stipulated that no such screen was visible at Kathrine's condo complex—but one was visible in the pedicab warehouse. Finally, Willie acknowledged the video showed him wearing a jumpsuit, but he was not yet in San Diego at the time of the Kathrine C. burglary.
Lastly, the circumstantial evidence supporting the robbery counts was no weaker than the circumstantial evidence supporting the Kocherga burglary count, which Charles did not seek to sever from the Kathrine C. burglary count.
Charles argues that the dangers of bootstrapping a weak case to a strong case were exacerbated by the court's jury instruction regarding conspiracy, which the prosecutor "compounded . . . by . . . [speaking] first to the jury about the conspiracy instruction and then immediately launch[ing] into the undisputed evidence on the [Kathrine C.] residential burglary." This argument misunderstands the record. First, Charles cites without context only two sentences from a page-long instruction. Second, Charles ignores that the prosecutor addressed all three theories on which Charles could be found guilty (principal, aider and abettor, and conspiracy), and actually spent more time discussing aiding and abetting than conspiracy. The prosecutor then "launch[ed] into" addressing the Kathrine C. burglary only because she addressed all the counts in numerical order, and the Kathrine C. burglary was count 1. Viewed in context, it is apparent the prosecutor was not favoring a conspiracy theory of liability based on the strength of the evidence on the Kathrine C. burglary count.
d. Joinder With a Capital Offense
No trial evidence or proceedings related to this factor.
e. State's Strong Interest in Joinder
As the trial court anticipated, "a substantial number of witnesses" testified for the prosecution about the robbery investigation that led to the identification of the Myers brothers as suspects in the residential burglaries. Specifically, seven detectives or officers with the San Diego Police Department testified about the robbery investigation, one sergeant with the sheriff's office testified about the link between the robbery investigation and the burglary investigation, and an investigator with the district attorney's office testified about the cell phone tracking evidence. In addition, Charles testified and denied his involvement in the robberies and the Kocherga burglary. Because all these witnesses would likely have testified in hypothetical separate trials on the burglary and robbery counts, it was not grossly unfair to Charles to promote the state's interest in efficiency by allowing them to testify in a joint trial.
II. Response to Jury's Question
Charles contends the court also erred by erroneously responding to a question from the jury about the extent to which the jury could use its conclusions regarding guilt on some counts toward the resolution of the remaining counts. We disagree.
A. Background
On its first full day of deliberations, the jury submitted three questions to the court. The third question asked:
"Regarding separate counts, if I believe someone is guilty on counts 3, 4, 5, [and] 6[,] can I use those conclusions to help me determine guilt on 7 or any other count? Can I string them together? In other words, can I use the reasoning that because of 3, 4, 5[, and] 6 guilt, this is the pattern which helps me find guilt on 7 or 8 or 9?"
The court notified counsel and prepared two alternate proposed responses. The first proposed response read:
"As you correctly note, the jury must consider each count separately. The jury may conclude that certain evidence may be relevant to more than one count, and may therefore consider that evidence in
determining all counts to which it is relevant. However, the mere fact that you find defendant guilty of some counts is not in itself a proper evidentiary basis for a finding of guilt in other counts. The evidence presented must convince you beyond a reasonable doubt that the defendant is guilty of a charged offense before you can find him guilty of that count. Your finding of guilt in one or more counts is not, in itself, evidence to be considered for other counts."
The second proposed response read:
"As you correctly note, the jury must consider each count separately. The fact that you find defendant guilty of some counts is not, in itself, a proper evidentiary basis for a finding of guilt in other counts. The evidence presented must convince you beyond a reasonable doubt that the defendant is guilty of a charged offense before you can find him guilty of that count. Your finding of guilt in one or more counts is not, in itself, evidence to be considered for other counts.
"However, the jury may conclude that certain evidence is relevant to more than one count, and may therefore consider that evidence in determining all counts to which the jury finds it relevant. In addition, certain evidence may be relevant to the jury's finding regarding whether the defendant was a member of a conspiracy, which the jury could determine applies to more than one count (see Instruction[s] 416, 418).
"Also, . . . if the jury believes defendant committed the crimes charged in certain counts, the jury may consider that conduct in assessing defendant's credibility while testifying (see Instruction 226)."
Defense counsel urged the court to narrowly construe the jury's question as asking whether the fact of a guilty finding on one count could support a guilty finding on another count. So framed, counsel asserted the court's first proposed response adequately addressed the jury's concern without delving into conspiracy and credibility.
The prosecutor, on the other hand, urged the court to construe the question as asking, more broadly, whether the "reasoning" or "pattern" that led to the guilty findings on some counts could be used to reach a guilty verdict on other counts. This, the prosecutor argued, was consistent with her trial theme that Charles and his brothers were engaged in a "pattern of conduct," or "crime spree."
Responding to the prosecutor's "pattern" theory, the court analogized to the admissibility of other-crimes evidence under Evidence Code section 1101, subdivision (b), to prove identity or a common scheme or plan. The prosecutor cautioned the court not to instruct the jury regarding Evidence Code section 1101, subdivision (b) because that would "[c]hange the scope of the propose" for which the evidence had been admitted, which is "not allowed." The court agreed the evidence had not been admitted under Evidence Code section 1101, subdivision (b), and the jury had not been instructed under that statute.
Evidence Code section 1101, subdivision (b) provides that the general prohibition on the admissibility of character evidence does not "prohibit[] the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
The court prefaced its decision by stating it found the jury's question "a little ambiguous." Initially, the court construed the question more narrowly, but in "looking at it more," found "it wasn't as . . . black and white as [the court] had initially interpreted it." Ultimately, the court construed the question more broadly, focusing on the jury's use of the word "reasoning." The court explained the conspiracy and credibility examples were intended to inform the jury "there are ways you can use [the reasoning or the facts underlying the other counts], but just not in this obviously wrong way of using the guilt in one to conclude guilty in another in itself."
Modeled largely on its second proposal, the court gave the jury the following answer:
"As you correctly note, the jury must consider each count separately. The fact that you find defendant guilty of some counts is not, in itself, a proper evidentiary basis for a finding of guilt in other counts. The evidence presented must convince you beyond a reasonable doubt that the defendant is guilty of a charged offense before you can find him guilty of that count. Your finding of guilt in one or more counts is not, in itself, evidence to be considered for other counts.
"However, the jury may consider all the evidence presented, and conclude that certain evidence is relevant to more than one count, and may then consider that evidence in deciding any count to which the jury finds it relevant. In addition, certain evidence may be relevant to the jury's finding regarding whether the defendant was a member of a conspiracy, which the jury could determine applies to more than one count (see Instruction[s] 416, 418).[]
"Also, if the jury believes defendant committed the crimes charged in certain counts, the jury may consider that conduct in assessing defendant's credibility while testifying (see Instruction 226).[]
"However, the jury may not find defendant guilty of any count unless it finds that his guilt has been proved beyond a reasonable doubt as to that count."
The court had instructed the jury with CALCRIM No. 416 "Evidence of Uncharged Conspiracy," and CALCRIM No. 418 "Coconspirator's Statements"
The court had instructed the jury with CALCRIM No. 226 "Witnesses," which states it is the jury's role to "judge the credibility or believability of the witnesses," and identifies factors the jury may consider in doing so.
B. Relevant Legal Principles
"When a jury asks a question after retiring for deliberation, '[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.' " (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.) "Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.' " (People v. Eid, supra, 17 Cal.App.4th at p. 882.) "We review for an abuse of discretion any error under section 1138." (Ibid.; see People v. Waidla (2000) 22 Cal.4th 690, 746-747.) We will not find an abuse of discretion unless "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
Section 1138 states: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
C. Analysis
We find no abuse of discretion in the trial court's construction of, or response to, the jury's question.
The question was not unambiguously focused on whether the jury could use the fact of a guilty finding on one count as evidence of guilt on another count. Rather, the question's use of the words "reasoning" and "pattern" suggests the jury was, in fact, concerned more broadly with the extent to which it could use the rationale underlying its guilty findings on some counts when deliberating on others. The court did not abuse its discretion in so construing the question.
Nor did the court's response go "too far," as Charles asserts. In support of this contention, he relies almost exclusively on People v. Armstead (2002) 102 Cal.App.4th 784 (Armstead), where the jury asked whether the phrase " 'consideration of all the evidence' " meant the jury could consider " 'all of the evidence presented throughout the trial' " as to any count, or whether it referred to " 'all of the evidence presented per count.' " (Id. at p. 790, italics added.) The trial court told the jury it could " 'consider evidence of the other charged crimes in deciding each count under consideration,' " but only " 'for the limited purpose of determining if it tends to show identity of the perpetrator, motive, or intent' "—that is, for the purposes authorized by Evidence Code section 1101, subdivision (b). (Armstead, at p. 790.) The Court of Appeal reversed, reasoning that because the evidence of the other crimes had neither been admitted at trial for the limited purposes authorized by Evidence Code section 1101, subdivision (b), nor undergone the required vetting for such limited admission, "the trial court's ad hoc shift in the scope of the evidence after the case had been submitted to the jury was fundamentally unfair and denied [the defendant] due process." (Armstead, at p. 794.)
No similar concern is present here because the trial court did not "shift . . . the scope of the evidence." (Armstead, supra, 102 Cal.App.4th at p. 794.) Indeed, the court and the prosecutor were mindful of the prohibition against doing so. Instead, what the court did was cite examples of permissible uses the jury could make of evidence that had been generally admitted.
Charles contends that "[b]y even raising the" examples, "the court tipped the scales in the People's favor." We disagree. First, the examples the court provided were merely elaborations on pattern jury instructions the court had already provided. Second, nothing about those elaborations suggested that the court sided with the prosecutor regarding the existence of a conspiracy or a lack of credibility.
Charles's reliance on People v. Montero (2007) 155 Cal.App.4th 1170 (Montero) does not persuade us otherwise. There, the jury asked the trial court for guidance, generally, on the " 'the idea of "control" ' " in the context of possession of a controlled substance. (Montero, supra, 155 Cal.App.4th at p. 1178.) But the jury's question also included a case-specific fact pattern. (Ibid.) The trial court believed the fact-specific question was "inappropriately asking the Court to assist them in their substantive deliberations and . . . was not a request for a clarification of the instruction on possession." (Montero, supra, 155 Cal.App.4th at p. 1179.) Accordingly, the court responded to each question that it was " 'for the jury to decide,' " and directed the jury to the pattern instruction defining " ' "control." ' " (Ibid.) The Court of Appeal found no abuse of discretion in the trial court's refusal to elaborate, as doing so "would have thrust the court into the jury's role of deliberating whether defendant had controlled the substances." (Id. at p. 1180.)
Charles's first mention of Montero on appeal was in his reply brief, which deprived the Attorney General the opportunity to address the case. However, because his counsel discussed the case in argument before the trial court, we will not find the issue forfeited.
The Montero jury asked: " 'Is it enough that [defendant] was in the same room as excessive amounts of drugs, scales ect [sic] that are in plain precence [sic] or tucked-away; is it enough to say that he was indeed in "control" and in possession of these items?' " (Montero, supra, 155 Cal.App.4th at p. 1178.) --------
The jury's question here was nothing like the case-specific fact pattern at issue in Montero. This jury was not asking the court how to apply evidence pertaining to other counts; it was asking whether it could apply it. Likewise, the court's response here did not tell the jury how to resolve and apply evidence regarding conspiracy or witness credibility; the response merely told the jury it could consider that type of evidence as to all counts. The court's response was neutral as to the weight, if any, the jurors could or should give to such evidence.
In sum, the court did not abuse its discretion in construing or responding to the jury's question.
DISPOSITION
Affirmed.
HALLER, J. WE CONCUR: McCONNELL, P. J. AARON, J.