Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCD205341; SCD208903; SCD207214 Randa Trapp, Judge.
O'ROURKE, J.
In a 27-count consolidated amended information, the People charged defendant David Michael Root with crimes committed on four different dates. Specifically, for his conduct on or about March 15, 2007, he was charged with assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c); count 1); burglary (§ 459; count 2); petty theft with a prior (§ 484; count 3) and possession of paraphernalia used for narcotics (Health & Saf. Code, § 11364; count 4).
All further statutory references are to the Penal Code unless otherwise stated.
For his May 15, 2007 actions, Root was charged with burglary (§ 459; counts 5, 8, 11 and 14); forgery of checks and other bank instruments (§ 470, subd. (d); counts 6, 9, 12 and 15); and grand theft of personal property (§ 487, subd. (a); counts 7, 10, 13 and 16).
For his May 29, 2007 actions, Root was charged with burglary (§ 459; counts 17, 20 and 23); forgery of checks and other bank instruments (§ 470, subd. (d); counts 18, 21 and 24); grand theft of personal property (§ 487, subd. (a); counts 19 and 22) and attempted grand theft of personal property (§§ 487, subd. (a), 664; count 25).
For his June 12, 2007 actions, Root was charged with receiving stolen property (§ 496, subd. (a); count 26) and possession of a controlled substance (Health & Saf. Code, § 11377; subd. (a), count 27).
As to count one, it was further alleged as an enhancement that Root used a deadly weapon in the commission of the assault. (§ 1192.7, subd. (c) (11).) As to counts 5 through 27, it was alleged he committed the offenses while on bail. (§12022.1, subd. (b).) It was also alleged he had serious felony priors (§§ 667, subd. (a)(1), 668 and 1192.7, subd. (c)) and three strike priors (§§ 667, subd. (b), 668 and 1170.12).
The jury convicted Root of counts 1 through 26, found true the deadly weapon enhancement and acquitted him of count 27. He admitted he had a prior burglary conviction and that he was out on bail when he committed the crimes charged in counts 5 through 27. The court sentenced him to 20 years and four months in prison.
The trial court denied his new trial motion brought partly on grounds of instructional error.
On appeal, Root contends the trial court erroneously (1) consolidated the charges relating to the March 2007 events, particularly the assault of a peace officer charge, with burglary, grand theft and forgery charges from other dates; (2) denied his motion to sever the cases; and (3) failed to instruct sua sponte with CALCRIM No. 3404 regarding accident. He further contends his trial counsel provided ineffective assistance of counsel by failing to request instruction with CALCRIM No. 3404. We affirm the judgment.
FACTUAL BACKGROUND
Jesse Jaspal testified at trial that he lived in Carmel Mountain Ranch, a San Diego County suburb. On March 14, 2007, at approximately 9:00 p.m., he parked and locked a rented Mustang in front of his house. Early the next morning, he discovered the Mustang's rooftop was slashed and his iPod, keys, compact discs, sunglasses and other belongings were missing from the car. Jaspal reported the incident to the police, who later retrieved the items. Jaspal had not given Root permission to enter his car and remove his possessions.
Andrew Mornout, a Carmel Mountain Ranch resident, testified at trial that on March 15, 2007, around 2:00 a.m., he looked out his window and saw a man looking inside a sports utility vehicle (SUV) parked on the street. The man returned to a pickup and drove away. Approximately 15 minutes later, it seemed like the same pickup returned and pulled up beside the same SUV. A motion sensor light from Mornout's house came on and the man drove off. Mornout reported the events to police. Later, Mornout saw the same vehicle return, followed shortly afterwards by a police car.
San Diego Police Department Officer Raymond Rowe testified at the preliminary hearing that on March 15, 2007, at approximately 2:00 a.m., he responded to the Carmel Mountain Ranch neighborhood because a man was casing vehicles. Officer Rowe drove his patrol car, which was identified as such by its black and white paint, reflective stickers that stated, "San Diego Police" on the front right and left sides; San Diego City seal in gold reflectors on the doors, and a push bumper in the front. He kept his headlights turned off so as to sneak up on the suspect. A vehicle approached his patrol car from behind with its headlights on. Officer Rowe pulled over for the vehicle to pass him, but it turned before reaching him. Officer Rowe made a U-turn and followed the vehicle, which soon turned into a cul-de-sac. Officer Rowe turned on his spotlight, which lit up the rear of the vehicle, and used the spotlight to track the vehicle as it turned. Officer Rowe recognized the vehicle and its driver, Root, who he had seen approximately 10 days earlier when police had detained him. At the preliminary hearing Officer Rowe testified, "[Root] was very distinctive. I already recognized him or dealt with his photos and stuff. I was already familiar with him."
Officer Rowe parked to the left of the cul-de-sac, and Root's vehicle turned and faced Officer Rowe's patrol car. Root looked over his shoulder at Officer Rowe and mouthed the word "fuck, " leading Officer Rowe to believe Root had recognized that he had been caught by a police officer. Root accelerated his vehicle toward the patrol car, hit it, climbed over the right side of the hood, stopped briefly in that position, accelerated some more so that his vehicle moved forward and dismounted from the patrol car, and he drove away. Officer Rowe followed him and saw Root running from his parked pickup. Officer Rowe retrieved tools, flashlights, cell phone, keys, watches, an iPod, compact discs, a Ford Mustang manual and miscellaneous items from the pickup. Officer Rowe repeated that testimony at trial.
At the preliminary hearing, San Diego Police Department Detective Patrick Lenhart testified that when he arrested Root in connection with that day's incidents, Root had in his pocket a pipe for smoking methamphetamine. Root told Detective Lenhart he had not intentionally rammed the police patrol car; rather, he had broken into a Mustang earlier; therefore, he was trying to get away from whom he thought was its owner following him.
In the motion to consolidate the charges, the People alleged, and Root did not dispute, the following facts relating to the other robbery, forgery and grand theft charges: On May 16, 2007, while Root was out on bail, he entered four different local branches of San Diego National Bank, presented his driver's license to the tellers, inked his thumbprint on the checks and the tellers gave him cash. On May 29, 2007, he engaged in the same conduct in three different California Bank and Trust branches. His actions in all bank incidents were captured by surveillance videos.
Between June 5 and 6, 2007, Brian Graves's business was burglarized and Graves' credit card was stolen. On June 12, 2007, Officer Rowe arrested Root and found, among other things, a baggie of methamphetamine and a torch used to heat a glass pipe, a homemade lock picker and Graves' credit card in Root's vehicle.
Judge Robert O'Neill granted the People's motion to consolidate the charges, ruling, "The offenses are all theft-related, with the exception of the [section] 245 and the drug charges. The drug charges are, in essence, theft-related because people steal to support their habit.... [¶] And so there is a sufficient showing and sufficient nexus between the various offenses that are alleged. They are of the same class or category. Based on the court's review of the charging documents, the [section 245, subdivision (c) charge] results because of an investigation of a [burglary] of a vehicle, [section 459] is theft-related. The entry into the various locations where forgery offenses occurred are theft-related. The [section 470, subdivision (d)] charges; the [section 487, subdivision (a)] charge, stolen property charge — all theft-related. And the nexus between the cases is that the defendant was out on bail on [section 12022.1] charges."
Judge Trapp denied the motion to sever the charges, ruling, "They are all connected together in their common commission, common elements of theft and the drugs, as the People pointed out. And I do believe they are also the same class[] of crime. [¶] The twist with count 1, though, the [section 245 crime], the [allegation is] that [Root] was fleeing or leaving the scene of one of the common element offenses, theft offense. So the cases have already been consolidated, which was appropriate, and there hasn't been a sufficient showing of prejudice to sever."
San Diego Police Officer Michael Moller testified at trial that on June 12, 2007, he observed Root make two trips and carry a box or a laundry basket from the side of a house to a vehicle. The police arrested Root and found methamphetamine in the vehicle.
Defense expert Joseph Awad, a forensic accident reconstructionist and biomechanical engineer, testified at trial that based on the placement of Officer Rowe's patrol car in the mouth of the cul-de-sac, Root's vehicle "could not have... completed that U-turn without ultimately having the contact it had with the vehicle." He further testified that when a bright source of light is shined on the eyes of a person who has been in darkness, that person will suffer retinal bleaching, a form of temporary blindness. Normal sight will be restored once the light source has been removed from the eyes and after some seconds of recovery time. Asked a hypothetical about the effect of a spotlight, flashed from a police car that's blacked out, on the interior of a pickup at 2:00 a.m. in a cul-de-sac with a street lamp 150 feet behind him, Awad responded that the driver would not be able to see the police vehicle or anything in the surrounding area while the spotlight was in his face, and for several seconds afterwards.
DISCUSSION
I.
Root contends consolidation of the charges violated section 954, particularly because "the assault and bank forgery charges are different in time, location, factual basis, and evidence required for proof, and cannot be said to arise out of the same occurrence or part of an ongoing commission of the same act, with overlapping admissible evidence." He further contends that even if the charges were properly joined, the court abused its discretion in not severing the assault and bank robbery cases before trial; and, assuming the rulings were correct, he was denied his constitutional rights to due process and a fair trial.
Relevant law
Under section 954, "[a]n 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."
"For purposes of joinder, offenses are deemed to have been 'connected together in their commission' where there was a common element of substantial importance in their commission, even though the offenses charged did not relate to the same transaction and were committed at different times and places and against different victims. [Citations.] Similarly, within the meaning of section 954, offenses are 'of the same class' if they possess common characteristics or attributes." (Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722; People v. Lucky (1988) 45 Cal.3d 259, 276.)
Courts have interpreted the term "same class of crimes or offenses" in section 954 broadly to refer to offenses that possess common characteristics or attributes. (See People v. Grant (2003) 113 Cal.App.4th 579, 586; [counts of burglary, concealing stolen property, and possession of property with a removed serial number were properly joined as crimes against property]; People v. Thomas (1990) 219 Cal.App.3d 134, 139-140 [charges of attempted murder, robbery, and ex-felon in possession of a firearm properly joined as belonging to the class of assaultive crimes against the person]; People v. Lindsay (1964) 227 Cal.App.2d 482, 492 [charges of kidnapping, robbery, and assault with a deadly weapon were properly joined as offenses against the person, and burglary with intent to commit those offenses was properly joined as possessing a common element of substantial importance with the other offenses].) Further, the language "connected together in their commission" in section 954 reflects legislative intent for a very broad test for joinder of offenses. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1217-1218.)
In People v. Soper (2009) 45 Cal.4th 759 (Soper), the California Supreme Court addressed the legal principles relevant to severance of properly joined criminal charges. (Id. at pp. 771-772.) In this context, the prosecution is entitled to join offenses, and the burden is on the party seeking severance to clearly establish that there is substantial danger of prejudice requiring that the charges be separately tried. (Id. at p. 773.) To establish error in a trial court's ruling declining to sever properly joined charges, the defendant must make a clear showing of prejudice to establish that the trial court abused its discretion, that is, that its ruling falls outside the bounds of reason. (Id. at p. 774.)
" ' "[A] party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial." ' " (Ibid.) In particular, the party must deal with the countervailing considerations of conservation of judicial resources and public funds, considerations that often weigh strongly against severance of properly joined charges. (Ibid.)
In determining whether a trial court abused its discretion under section 954, we consider the record before the trial court when it made its ruling (Soper, supra, 45 Cal.4th at p. 774), and undertake the following analysis as outlined in Soper: "First, we consider the cross-admissibility of the evidence in hypothetical separate trials. [Citation.] If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges. [Citation.] Moreover, even if the evidence underlying these charges would not be cross-admissible in hypothetical separate trials, that determination would not itself establish prejudice or an abuse of discretion by the trial court in declining to sever properly joined charges." (Id. at pp. 774-775.) The latter rule is codified in section 954.1. (Id. at p. 775.)
"If we determine that evidence underlying properly joined charges would not be cross-admissible, we proceed to consider 'whether the benefits of joinder were sufficiently substantial to outweigh the possible "spill-over" effect of the "other-crimes" evidence on the jury in its consideration of the evidence of defendant's guilt of each set of offenses.' " [Citations.] In making that assessment, we consider three additional factors, any of which — combined with our earlier determination of absence of cross-admissibility — might establish an abuse of the trial court's discretion: (1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case. [ Citations.] We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state." (Soper, supra, 45 Cal.4th at p. 775.)
Analysis
Here, as the trial court found at the time of the motion to consolidate, the broad statutory criteria for joinder were met. The charges for each day of Root's criminal activity shared in common that at least one crime was committed against property in violation of either section 459 (burglary) or section 496, subdivision (a) (receiving stolen property). (Accord, People v. Koontz (2002) 27 Cal.4th 1041, 1074-1075 [concluding that joinder of defendant's robbery, vehicle taking and petty theft charges was proper because they shared the common characteristic of the wrongful taking of another's property].)
The fact that the assault charge arose from the March 15, 2007 activities did not bar joinder because the assault was connected in its commission to the burglary of the Mustang. Specifically, Root assaulted Officer Rowe, who was investigating a complaint that a man was casing cars for possible theft. Officer Rowe recognized Root and his vehicle, and Root appeared to recognize the fact he had been caught by an officer. Minutes after the assault, Officer Rowe found Root's abandoned pickup, which contained items he had taken from the Mustang. Accordingly, the evidence was cross-admissible, at least as to the burglary of the Mustang and the assault, thus dispelling any inference of prejudice. (People v. Carter (2005) 36 Cal.4th 1114, 1154.) We acknowledge that the evidence regarding the assault was not cross-admissible with that regarding the charged crimes from the other days, but this factor is not dispositive under section 954.1.
Root can establish error requiring severance of the charges only on "a 'clear showing of prejudice to establish that the trial court abused its discretion' " (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1220), meaning that its ruling falls outside the bounds of reason in denying the severance motion. (People v. Ramirez (2006) 39 Cal.4th 398, 439.) He failed to do so.
Root contends strong evidence, including video evidence, photo lineups, fingerprint analysis and tellers who were called as witnesses, supported the bank robbery and forgery charges, but much weaker evidence supported the claim he had an assaultive intent when he hit the patrol car because he was blinded by the spot light and the patrol car was parked facing the wrong way on the wrong side of the road. We disagree that the evidence supporting the assault charge was weak. The critical issue regarding this charge was Root's intent. A defendant is guilty of assault if he willfully does an act aware of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to another. (People v. Williams (2001) 26 Cal.4th 779, 788; CALCRIM No. 915.) Officer Rowe testified at the preliminary hearing that Root appeared to recognize him as a police officer who had caught him, mouthed "fuck, " and proceeded to drive towards the patrol car, hit it, and continued driving in flight from the scene. This direct evidence from an eyewitness was strong and pointed to Root's willful conduct, particularly when considered alongside evidence Root was transporting materials from the Mustang, because it tended to show Root's intention was to exit the cul-de-sac and escape apprehension. Root does not argue that this was a case in which the facts of the underlying assault count were more likely to inflame the jury against him or that this was a capital case or rendered one because of the joinder of the counts.
Root, relying on United States v. Lewis (9th Cir. 1986) 787 F.2d 1318 (Lewis), contends the cumulative nature of the 27-count complaint was "likely to create inherent prejudice." He adds, "the People's witnesses on these separate offenses were interwoven, further adding to the potential the jury could determine if [he] was guilty of one crime, he had the criminal intent to commit all of the crimes." We disagree. The length of the complaint was not inherently prejudicial, and it is not likely the jury was prejudiced by the fact the witnesses of the different crimes were interspersed with those of other crimes. It was easy for the jury to keep the crimes separate, particularly because Officer Rowe was the principal witness regarding the assault, and the evidence of the bank charges involved distinct proof issues addressed by video evidence, fingerprint evidence, and testimony of tellers.
Lewis is distinguishable because the court specifically focused on the failure to sever a charge that the defendant was a felon in receipt of a firearm from the counts of bank larceny and killing because the evidence of his prior felony would have been inadmissible in a trial on the larceny and killing counts. (Lewis, supra, 787 F.2d at pp. 1320, 1321.) In that context, the court recognized the existence of " 'a high risk of undue prejudice whenever... joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible.' " (Id. at p. 1321.) Here, the joinder of the charges did not present the risk of introducing into Root's trial inadmissible evidence of his other felonies; therefore, Root's reliance on Lewis is misplaced.
Although we find the trial court's denial of Root's severance motion proper at the time it was made, "[b]ecause the issue is raised on appeal following trial [and Root asserts he was denied a fair trial by the denial of his severance motion] we must also consider whether 'despite the correctness of the trial court's ruling, a gross unfairness has occurred from joinder such as to deprive the defendant of a fair trial or due process of law' " (People v. Sandoval (1992) 4 Cal.4th 155, 174.) In this regard, Root has not demonstrated any actual prejudice from any "spillover" effect of the joinder of the charges for trial. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) "Appellate courts have found 'no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials.' " (Soper, supra, 45 Cal.4th at p. 784.)
As noted, the evidence regarding the assault was distinct from that regarding the other crimes. Further, Root's earlier burglary of the Mustang and his carrying stolen material from it provide sufficient indication of his intent to escape from the cul-de-sac without being apprehended with evidence of his burglary, even if it meant assaulting the police officer. Further, the court instructed that "willfully" in this context simply means the act was done willingly or on purpose. (§ 7, subd. (1); see People v. Lewis (2004) 120 Cal.App.4th 837, 852; CALCRIM No. 3404.) The court also instructed the jury, "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict on each count." The jury's acquittal on the methamphetamine possession charge shows it independently evaluated the evidence on each count and was not unduly inflamed. Root has not demonstrated that prejudice actually resulted from joinder of the charges at trial. (Bradford, supra, 15 Cal.4th at p. 1318.) We conclude that Root did not meet the "high burden of establishing that the trial was grossly unfair and that he was denied due process of law." (Soper, supra, 45 Cal.4th at p. 783.)
II.
Root contends his defense to the assault charge was that it was an accident. Accordingly, the trial court had a sua sponte duty to instruct with CALCRIM No. 3404, which states in relevant part: "The defendant is not guilty of [a crime] if he acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of [crime] unless you are convinced beyond a reasonable doubt that he acted with the required intent."
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) "[T]he sua sponte duty to instruct on all material issues presented by the evidence extends to defenses as well as to lesser included offenses [citation].... In the case of defenses, ... a sua sponte instructional duty arises 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (Id. at p. 157.)
In order to be guilty of assault, the defendant must willfully do an act aware of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to another. (People v. Williams, supra, 26 Cal.4th at p. 788; CALCRIM No. 915.) "Willfully" in this context simply means the act was done willingly or on purpose. (§ 7, subd. (1); see People v. Lewis, supra, 120 Cal.App.4th at p. 852; CALCRIM No. 3404.)
Legal authority exists requiring the giving on request of an instruction concerning the defense of accident when there is substantial evidence supporting that defense. (People v. Acosta (1955) 45 Cal.2d 538, 544; CALCRIM No. 3404.) Here, in light of Root's reliance on a defense of accident on the assault charge, as demonstrated by his expert's testimony regarding retinal bleaching, the trial court had a sua sponte duty to instruct regarding accident in the language of CALCRIM No. 3404.
Significantly, any error was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Salas (2006) 37 Cal.4th 967, 984 [the standard of prejudice applicable to the erroneous failure to instruct on an affirmative defense is unsettled]; People v. Williams (2009) 176 Cal.App.4th 1521, 1530 [same].) The record shows beyond any reasonable doubt that an instruction on the defense of accident would not have resulted in a more favorable verdict. The court instructed regarding assault and the willfulness component: "To prove that the defendant is guilty of this crime, the People must prove that: 1. The Defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; the defendant did that act willfully; 3. When the defendant acted, he was aware of the facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.... Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else, or gain any advantage."
The defense of accident is a claim that the mental element of an offense is absent. The jury here was fully instructed concerning the elements of assault and the prosecution's burden of proving each of those elements beyond a reasonable doubt. Even in the absence of an instruction regarding accident, the defense argued that the police officer's spotlight blinded Root and he did not mean to hit Officer Rowe, and did not even know Officer Rowe was present. Following the instructions given, and based on its verdict, the jury plainly elected to believe that no accident was involved, and Root willfully drove in the direction of the patrol car, hit it, continued driving over it and fled. Based on the record evidence, as noted, overwhelming evidence supported the jury verdict regarding Root's intent in committing the assault and therefore any error in omitting the accident instruction was harmless beyond a reasonable doubt.
III.
Root contends, alternatively, the combined failure of the trial court to instruct with CALCRIM No. 3404 and his trial counsel's failure to request it deprived him of his Sixth Amendment right to a fair trial and effective assistance of counsel. This claim lacks merit in light of our conclusion Root has failed to establish any merit to his substantive claims or prejudice from the alleged error. (People v. Price (1991) 1 Cal.4th 324, 440.) A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings. (People v. Fosselman (1983) 33 Cal.3d 572, 584; see also Strickland v. Washington (1984)466 U.S. 668, 687-696 (Strickland).) It is not necessary to determine whether counsel's challenged action was professionally unreasonable in every case, however. If the reviewing court can resolve the ineffective assistance claim by first deciding whether there is a reasonable probability that the outcome would have been different absent counsel's challenged actions or omissions — it may do so. (Strickland, at p. 697.) Because Root has not satisfied the second part of the test, we need not consider whether trial counsel's performance was professionally unreasonable.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., IRION, J.