Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA315947, Robert J. Perry, Judge.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Jessie Akim Rush was convicted by a jury on multiple counts of carjacking and robbery and one count of receiving stolen property with special findings by the jury he had used a firearm during the commission of the carjackings and robberies and by the court in a bifurcated proceeding he had suffered a prior serious or violent felony conviction. On appeal Rush argues there was insufficient evidence to support two of the carjacking convictions and the trial court erred in admitting certain evidence and in denying his motion to sever the trial of several counts. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
In an 11-count second amended information Rush was charged with four counts of carjacking (Pen. Code, § 215, subd. (a)), six counts of robbery (§ 211) and one count of receiving stolen property (§ 496, subd. (a)). The second amended information specially alleged Rush had personally used a firearm within the meaning of section 12022.53, subdivision (b), in the commission of all the offenses except receiving stolen property and further alleged Rush had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds (a)-(d)) and one prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and had served four prior separate prison terms for felonies within the meaning of section 667.5, subdivision (b). Rush pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code unless otherwise indicated.
There was no count 10.
2. Summary of the Evidence Presented at Trial
a. The People’s evidence
i. Carjacking of Kang Im (count 9)
Kang Im testified that Rush approached him with a sweater over his hand after Im had parked his car near a friend’s house around midnight on December 13, 2006. Rush removed the sweater, exposing a gun, and demanded Im’s keys, cell phone and wallet. After Im complied, Rush also took Im’s briefcase, which contained a laptop computer and other electronic equipment, and drove away in Im’s car.
In January 2007 Im was shown a group of six photographs (a photographic “six-pack” lineup) prepared by Los Angeles Police Detective Ron Kim, the investigating officer, that included a photograph of Rush in position number 5. Although Im selected Rush’s photograph, he wrote in the remarks section of the witness card, “It looks like the suspect, but I’m not too sure.”
At trial Im was unable to recognize anyone in the courtroom who looked like the photograph of Rush he had selected. Im testified, however, that he had identified Rush at the preliminary hearing, stating, “I believe it’s the gentleman in the blue jumpsuit, but I am not 100 percent sure. But he looks familiar. And I think it’s him.” Im explained, “I was pretty sure it was him because when I first looked at the six pictures I wasn’t sure. But at the preliminary hearing, when I saw him walk in, then I was about 90 percent sure.”
Although Im had stated on cross-examination he could not recognize Rush at the preliminary hearing until he was told Rush was a suspect, on redirect examination he said that no one had told him Rush was a suspect and he had made the identification of Rush from his memory of the events.
ii. Carjacking and robbery of Rebecca Lincoln (counts 4 and 11) and robbery of Augustine Um (count 12)
Rebecca Lincoln testified she drove her 2004 Dodge Stratus into the parking garage of Augustine Um’s apartment building on January 16, 2007 at 2:30 a.m. Um met Lincoln in the garage. As Lincoln and Um were trying to determine why the garage gate did not close behind Lincoln, Rush approached them with a gun and demanded Lincoln’s cell phone and Um’s wallet and cell phone. Lincoln gave Rush her purse and also gave him her car keys because she did not want Um, who had martial arts training and appeared to move in Rush’s direction, to get shot. Rush drove away in Lincoln’s car.
When shown the group of photographs prepared by Detective Kim, Lincoln identified the person whose photograph appeared in position number six as the suspect, not Rush. However, at trial Lincoln testified she had no doubt Rush was the person who had robbed her. Lincoln also testified she had identified Rush at the preliminary hearing as the perpetrator and had “not a single doubt” about her identification at that time.
Um also testified. Like Lincoln, he had failed to identify Rush as the suspect from the group of photographs shown to him, but identified Rush, without any doubt, at trial as the perpetrator.
iii. Robbery of Nubia Llerena (count 5)
Nubia Llerena testified she was walking from her apartment to her car on January 17, 2007 at about 11:25 a.m. when Rush, who was wearing a beanie, approached her and lifted his shirt, exposing a gun. Llerena gave Rush her money and cell phone after he demanded them. Llerena was unable to identify a suspect from the group of photographs shown to her by police officers, but identified Rush at both the preliminary hearing and trial.
iv. Robbery of Sofilio Cruz (count 3)
Sofilo Cruz testified he was walking from his car to his home on January 18, 2007 at 2:00 a.m. when Rush, who was across the street, asked him for directions. After Rush crossed the street, he pointed a gun at Cruz, who gave Rush his wallet and keys. Rush then got into a waiting car that drove away. Although Cruz testified he did not know the make or model of the car, he identified it from a photograph: the Dodge Stratus that had been stolen from Lincoln. Cruz identified Rush at trial as the perpetrator and had previously selected Rush’s photograph from the group of photographs shown to him by Detective Kim.
v. Robbery of Luis Hernandez (count 6)
Luis Hernandez, a cable installer, testified he was taking a lunch break in his van at about 1:10 p.m. on January 19, 2007 when a Dodge Stratus parked in front of his van. Rush got out of the car, walked past the van and then returned with a gun. Hernandez complied with Rush’s demand for his wallet and money. At the preliminary hearing and trial Hernandez identified Rush as the perpetrator, but had selected a different person from the photographic display.
vi. Receiving Stolen Property Belonging to Susan Kay (count 7)
Susan Kay testified she had been walking home from work on January 19, 2007 at 6:15 p.m. when a man who had a hat or mask covering his face walked toward her and demanded her money. Kay gave the man her ring, watch and a plastic bag containing items including a Visa card and coin purse. Most of these items were found in Rush’s possession when he was arrested the following day.
vii. Robbery of Janice Barry (count 8)
Janice Barry testified she was walking to her car on January 19, 2007 at 7:45 p.m. when a sports utility vehicle pulled into the driveway in front of her. Rush got out of the vehicle, approached her with a gun and demanded her purse, cell phone and rings. Barry complied, but ran away as she was taking off her rings.
Barry identified Rush as the perpetrator at trial with 90 percent certainty and had also identified him at the preliminary hearing. However, she was unable to identify Rush from the photographic lineup she was shown by investigating officers.
viii. Carjacking of Won Hee Yun (count 1) and Byun Seok Kwon (count 2)
Won Hee Yun testified she, her husband, Byun Seok Kwon, and their two children returned home on January 19, 2007 at about 10:25 p.m. Just after Yun, who was carrying the baby, had walked into her front yard, two men approached. One of the men held a gun to Kwon’s side and demanded his money, cell phone and car keys. The other man demanded Yun’s belongings. After taking their possessions, the men drove away in the family’s Cadillac Escalade.
Yun identified Rush’s photograph from the group of photographs, but wrote on the witness card, “The person is similar to the person who took my husband’s wallet, key, and cell phone. And also I was asked to open the purse.” At trial Yun was initially unable to identify Rush, stating, after being asked if she saw the person who had robbed her and Kwon in court, “No I’m not sure because it’s been such a long time.” Court adjourned for the day shortly after this testimony. When Yun resumed testifying the following day, she stated she had identified Rush as the perpetrator at the preliminary hearing although she admitted during cross-examination she had said she was not sure. Yun also testified she now recognized Rush as the man who had robbed her. Upon further questioning, including by the court, Yun stated she was “not exactly sure,” Rush was the perpetrator.
Kwon also testified at trial about the incident, but was unable to identify Rush as one of the robbers. Kwon explained he could not remember the faces of the perpetrators.
ix. Rush’s arrest and the recovery of some of the stolen property
Los Angeles Police Officer Akash Udeshi testified he and his partner were driving in a marked police car at approximately 2:50 a.m. on January 20, 2007 when they saw a 2004 Dodge Stratus that Udeshi believed had been reported as stolen. After confirming the car’s status, Udeshi activated his car’s lights and siren. The Stratus did not stop until it crashed; Rush ran from the vehicle, but was apprehended and taken into custody.
Detective Kim testified many of the items stolen from Llerena, Hernandez, Barry and Kay were found in the Dodge Straus. Additionally, the jacket described by Cruz as worn by the perpetrator, a black ski mask, a beanie and tools were found in the car.
None of Im’s possessions was found in the car. However, his laptop computer and guitar, which had been in Im’s car, were recovered from the Crenshaw Pawn Shop and other items stolen from him were recovered from the Westside Pawn Shop. During Detective Kim’s testimony, the prosecutor attempted to show him the pawn ticket from the Crenshaw Pawn Shop for Im’s laptop computer. Defense counsel objected, arguing there was an insufficient foundation the pawn ticket, which was hearsay, was admissible as a business record. The court sustained the objection.
b. The defense’s evidence
Rush presented an alibi defense. His friend since high school, Lon Darnell, testified Rush had slept at his house on January 14, 15 and 16, 2007, and Darnell had taken Rush to work each of the following mornings.
Pamela Perkins testified Rush, whom she had known for many years, worked at her home on January 16, 17 and 18, 2007, cleaning up after some construction had been completed. He would arrive around 8:30 a.m. and stay until 6:00 p.m.
Rush testified on his own behalf. He claimed that on January 19, 2007 he took a bus to a home where he was doing some construction work at about 9:00 a.m. and did not leave until 5:00 p.m. After work Rush was with some friends, drinking, smoking marijuana and watching a movie. The group went to a diner about midnight, but Rush began to feel ill. Recognizing someone he knew only as “hustle man” who had arrived at the diner in a car (the Dodge Stratus), Rush asked to borrow it and drove to his friend Darnell’s house where he lay down. Rush finally left Darnell’s house after 2:00 a.m. While he was driving, Rush noticed the police behind him but did not stop because he did not want to be arrested for driving under the influence of alcohol. Rush denied he committed any of the offenses.
One of Rush’s other friends, Kendall Jenkins, also testified, corroborating some of Rush’s testimony about the events of January 19, 2009.
Rush also presented the expert testimony of psychologist Dr. Robert Shomer on the subject of eyewitness identification and perception. Shomer, who did not interview any of the witnesses or evaluate the identifications in this case, testified generally that eyewitness identification is the least reliable method of identification even under the best circumstances and is less accurate in stressful situations or when cross-racial identification must be made. The presence of a weapon also adversely affects the eyewitness’s ability to make an accurate identification because people look at the weapon and not at the person’s face. Shomer further testified that an in-court identification by an eyewitness who had failed to identify the suspect in a photographic lineup is not fair or reliable because the eyewitness has likely been influenced by having previously seen a picture of the suspect and by the suspect’s presence at the defense table.
c. Rebuttal evidence
Detective Kim testified that, during Rush’s interview after he was apprehended, his description of the events of the evening was different from and somewhat inconsistent with his trial testimony.
Over defense counsel’s objections, including that the evidence should have been introduced during the prosecution’s case-in-chief, Alex Shukhman testified he owns the Crenshaw Pawn Shop, is the only person who works there and prepares a pawn ticket in the regular course of business as required by law. Shukhman stated he prepared the pawn ticket for Im’s laptop computer, which was pledged by a man named Vernon Watson. The ticket, which was introduced into evidence, stated, “redeem to Jessie.” Rush had admitted when Detective Kim interviewed him he knew a man named “V,” identified from a photograph as Watson, but denied at trial he knew the meaning of “redeem to Jessie” written on the pawn ticket.
3. The Jury’s Verdict and Sentencing
The jury found Rush guilty of all the crimes charged and found true the special allegations Rush had personally used a firearm during the robbery and carjacking offenses. In a bifurcated trial Rush admitted the prior conviction allegations (including the prior strike conviction). The trial court selected the upper term in calculating the principal term, imposed consecutive terms on all nine subordinate terms and sentenced Rush to an aggregate state prison term of 86 years four months.
DISCUSSION
1. Substantial Evidence Supports Rush’s Convictions for Carjacking Kwon and Yun’s Cadillac Escalade
To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Rush contends there was insufficient evidence to support his convictions for carjacking Kwon and Yun’s Escalade because Kwon never identified him and Yun’s identifications from the photographic six-pack lineup during the preliminary hearing and belatedly at trial lacked certainty. It is well settled, however, that the testimony of a single witness, if believed by the finder of fact, is sufficient to support a conviction. (See Evid. Code, § 411 [“[e]xcept where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact”]; People v. Young (2005) 34 Cal.4th 1149, 1181 [“unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction”].) Thus, a single witness’s identification of the defendant may be sufficient to sustain his or her conviction. (See People v. Boyer (2006) 38 Cal.4th 412, 480 [“[i]dentification of the defendant by a single eyewitness may be sufficient to prove the defendant’s identity as the perpetrator of a crime”].) Even if a witness has made an out-of-court identification but is unable to confirm that identification at trial, the evidentiary value of the out-of-court identification is not necessarily negated. (See ibid. [out-of-court identification “can, by itself, be sufficient evidence of the defendant’s guilt even if the witness does not confirm it in court”]; People v. Cuevas (1995) 12 Cal.4th 252, 257, 267-269, 271-272.)
To the extent there were weaknesses in Yun’s identification of Rush, the weight to be given the witness’s testimony was for the jury to determine. (See People v. Elwood (1988) 199 Cal.App.3d 1365, 1372; People v. Hawkins (1968) 268 Cal.App.2d 99, 103.) An identification need not be free from doubt to have evidentiary value. (See, e.g., People v. Midkiff (1968) 262 Cal.App.2d 734, 740 [“identification of the defendant need not be positive”]; People v. Robarge (1952) 111 Cal.App.2d 87, 98 [“fact that a witness may to some extent qualify his testimony as to identification, goes to the weight of such testimony and is addressed to the sound discretion of the triers of fact”].) Indeed, a witness’s statements that a suspect resembled or looked like the culprit may be sufficient evidence. (See People v. Wiest (1962) 205 Cal.App.2d 43, 45 [“[t]estimony that a defendant ‘resembles’ the robber [citation] or ‘looks like the same man’ [citation] has been held sufficient”].) Ultimately, “[t]he question of identification of the perpetrator of a crime is one for determination by the trier of fact and unless the evidence of identity is so weak as to constitute no evidence at all this court cannot set aside the decision of the trial court.” (People v. Kittrelle (1951) 102 Cal.App.2d 149, 154; accord, People v. Shaheen (1953) 120 Cal.App.2d 629, 637.)
The jury was presented with the vigorous cross-examination of Yun, exploring her uncertainties about her identifications of Rush, and testimony from an expert regarding the fallibility of eyewitness identification under circumstances similar to those confronted by Yun. The jury nevertheless concluded Rush had committed the offenses. Yun’s three identifications of Rush, albeit with some uncertainty, were sufficient to support the verdict. (People v. Keltie (1983) 148 Cal.App.3d 773, 782; see In re Gustavo M. (1989) 214 Cal.App.3d 1485 1497 [“when the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court”].)
2. The Trial Court Did Not Abuse Its Discretion in Permitting the Pawn Ticket To Be Introduced During the People’s Rebuttal Case
After the People present their case-in-chief and the defendant (if he or she chooses) submits evidence in support of the defense, the parties may offer rebuttal evidence. (§ 1093, subd. (d).) “‘[P]roper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.’ Restrictions are imposed on rebuttal evidence (1) to ensure the presentation of evidence is orderly and avoids confusion of the jury; (2) to prevent the prosecution from unduly emphasizing the importance of certain evidence by introducing it at the end of the trial; and (3) to avoid ‘unfair surprise’ to the defendant from confrontation with crucial evidence late in the trial.” (People v. Young, supra, 34 Cal.4th at p. 1199.)
Notwithstanding these limitations, however, the trial court, “for good reason, in furtherance of justice,” may allow either side to offer additional evidence upon its original case. (§ 1093, subd. (d); People v. Bunyard (1988) 45 Cal.3d 1189, 1121; see also Evid. Code, § 320 [“[e]xcept as otherwise provided by law, the court in its discretion shall regulate the order of proof”].) “‘The decision to admit rebuttal evidence over an objection of untimeliness rests largely within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of that discretion.’” (People v. Mayfield (1997) 14 Cal.4th 668, 761-762; accord, People v. Wallace (2008) 44 Cal.4th 1032, 1088 [“scope of rebuttal evidence is within the trial court’s discretion, and on appeal its ruling will not be disturbed absent ‘“palpable abuse”’”].)
Rush contends the pawn ticket for Im’s laptop computer, which the People had unsuccessfully attempted to introduce during their case-in-chief, was improperly admitted as rebuttal evidence. In overruling defense counsel’s objection to admission of the pawn ticket during rebuttal, the trial court acknowledged the validity of Rush’s argument the evidence was not made necessary by the defense’s case, but explained it nevertheless believed the evidence should be admitted because it had previously been excluded only because of Rush’s objection concerning its foundation as a business record—a deficiency that had been cured—and because it “enhances the search for the truth.”
The trial court’s implicit decision to admit the pawn ticket “in the interests of justice” pursuant to section 1093, subdivision (d), did not constitute an abuse of discretion. (See People v. Carter (1957) 48 Cal.2d 737, 754 [“[c]hanges in the order of proof called for by section 1093 can be made within the sound discretion of the trial court”].) The policies warranting restriction on rebuttal evidence were absent here. The pawn ticket was a straightforward, discrete piece of evidence that, even though introduced out of sequence, was unlikely to confuse the jury. Additionally, there was no “unfair surprise that may result when a party who thinks he has met his opponent’s case is suddenly confronted at the end of trial with an additional piece of crucial evidence.” (Id. at p. 753.) Rush was aware the prosecution intended to introduce the pawn ticket during its case-in-chief and only failed to do so as a result of his counsel’s successful objection. In response to Rush’s objections to admitting the evidence on rebuttal, the court agreed he could present the testimony of Vernon Watson (the individual who had pledged the laptop computer) and arranged to have counsel appointed to represent Watson. Although Rush ultimately chose not to call Watson, he was given ample opportunity to address the evidence—indeed, he testified on surrebuttal he did not know why the pawn ticket said “redeem to Jessie.” Rush has failed to demonstrate his defense was hampered in any way by admission of the evidence during rebuttal or that the evidence was given undue significance by its late introduction.
Rush also contends the admission of the pawn ticket violated his Fourteenth Amendment liberty interest under Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175]. Rush did not object to the evidence on this ground in the trial court. Accordingly, to the extent this constitutional argument is predicated on the same analysis as Rush’s objection under section 1093, subdivision (d), although not forfeited (People v. Partida (2005) 37 Cal.4th 428, 435), it lacks merit for the reasons explained in the text. To the extent Rush’s constitutional argument rests on a different analysis, however, it has been forfeited. (Ibid. [defendant on appeal “may not argue that the court should have excluded the evidence for a reason different from his trial objection”].)
In any event it is not reasonably probable Rush would have received a more favorable verdict had the evidence been excluded. Accordingly, any error in admitting the pawn ticket is harmless. (See People v. Daniels (1991) 52 Cal.3d 815, 860 [improper admission of evidence on rebuttal does not merit reversal when “it is [not] reasonably probable that absent the testimony... the jury would have reached a verdict more favorable to defendant”]; People v. Jordan (2003) 108 Cal.App.4th 349, 366 [admission of rebuttal evidence, even if error, not prejudicial because “there is no reasonable probability of a more favorable result”].) The pawn ticket was not, as Rush contends, the only evidence linking him to the carjacking of Im’s car. Im selected Rush’s photograph from the photographic lineup and identified him at the preliminary hearing. Although Im’s two identifications of Rush as the perpetrator were somewhat equivocal, the weakness in the eyewitness identification were not so substantial to permit us to conclude the pawn ticket was the critical piece of evidence in convicting Rush on this count.
3. The Trial Court Did Not Err in Denying Rush’s Motion To Sever
While representing himself before trial, Rush moved to sever the trial on counts 1 (carjacking of Yun), 2 (carjacking of Kwon) and 9 (carjacking of Im) from trial of the remaining counts. Rush argued the evidence as to these counts was sparse; but, if tried with the other charges, the jury might regard the evidence with respect to the remaining counts as corroborative of them. Rush also contended trying all counts together would prejudice his right to remain silent with respect to some, but not all, of the offenses. The court denied Rush’s motion without explanation.
a. Governing law
Section 954 permits two or more offenses of the same class to be consolidated for trial. “[B]ecause consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by law.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).) Thus, when the statutory requirements for joinder have been met, the defendant can demonstrate error in the denial of a motion to sever only by a clear showing of potential prejudice. (Ibid.; People v. Soper (2009) 45 Cal.4th 759, 774 (Soper).) “A trial court’s denial of a motion for severance of charged offenses amounts to a prejudicial abuse of discretion if the ‘“trial court’s ruling ‘“falls outside the bounds of reason.”’”’” (Alcala, at p. 1220; accord, Soper, at p. 774.)
Rush does not dispute all of the charged carjacking and robbery offenses are of the same class. (See People v. Koontz (2002) 27 Cal.4th 1041, 1075 [robbery, “vehicle taking” and petty theft “fall within the same class, in that they share the same common characteristic of the wrongful taking of another’s property”].)
The efficiency and benefits of a joint trial were described in People v. Bean (1988) 46 Cal.3d 919, 939-940: “A unitary trial requires a single courtroom, judge, and court attaches. 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.” (Accord, People v. Soper (2009) 45 Cal.4th 759, 772; see People v. Ochoa (1998) 19 Cal.4th 353, 409 [joinder “‘ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials’”].)
“In determining whether a trial court abused its discretion under section 954 in declining to sever properly joined charges, ‘we consider the record before the trial court when it made its ruling.’... [¶] 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.” (Soper, supra, 45 Cal.4th at pp. 774-775.)
If the “evidence underlying properly joined charges would not be not 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; see Alcala, supra, 43 Cal.4th at pp. 1220-1222.)
Even if a trial court’s denial of severance was correct when made, a reviewing court must reverse the judgment if the defendant shows joinder actually resulted in gross unfairness amounting to a denial of due process. (Soper, supra, 45 Cal.4th at p. 783.)
b. The cross-admissibility of the evidence at hypothetical separate trials is not conclusive
The question whether the evidence would be cross-admissible, thus dispelling any claim of prejudice, is a close one. “[T]here exists a continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought: ‘The least degree of similarity... is required in order to prove intent. [Citation.]... In order to be admissible [for that purpose], the uncharged misconduct must be sufficiently similar to support the inference that the defendant “‘probably harbor[ed] the same intent in each instance.’ [Citations.]” [Citation.]’ [Citation.] By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity.” (Soper, supra, 45 Cal.4th at p. 776.)
Although the analysis of the degree of similarity required for evidence to be cross-admissible is viewed in terms of the admissibility of uncharged misconduct, there is a difference between those circumstances and the analysis employed when considering severing properly joined charges. That difference is accounted for in several respects as discussed in Soper, supra, 45 Cal.4th at page 774: “Not only is the burden allocated differently in cases involving properly joined charges as compared with cases involving the introduction of uncharged misconduct, but the nature of the abuse of discretion standard—and the ensuing method utilized to analyze prejudice, undertaken to determine whether a trial court abused its discretion in a specific case—also are significantly different from what is employed in determining whether a trial court erred in allowing the introduction of evidence of uncharged misconduct.” (See also Alcala, supra, 43 Cal.4th at p. 1222, fn. 11 [“[d]ecisions such as Ewoldt are relevant to the analysis governing admissibility, but both the burden of proof relating to admissibility and the assessment of prejudice are different in the context of properly joined charged offenses”].)
“‘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.... [E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. [¶]... For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’” (People v. Ewoldt (1994) 7 Cal.4th 380, 403; accord, Soper, supra, 45 Cal.4th at p. 776, fns. 8 & 9.)
Rush argues any similarities between the offenses in counts 1, 2 and 9, on the one hand, and the other counts, on the other hand, were simply characteristics common to any carjacking or robbery and there were also many differences in the commission of the offenses: Some of the offenses were committed with an accomplice; others were not; some of the offenses were committed late at night; others were committed during the day. In addition, he notes there was nothing distinctive about the manner in which the crimes were committed or the perpetrator’s appearance.
Rush’s argument has some merit, especially given the higher degree of similarity required to prove identity. Although we can identify similarities in the charged crimes that might support cross-admissibility, at least with respect to common design or plan (see Alcala, supra, 43 Cal.4th 1205, 1225 [“even with respect to the comparatively higher degree of similarity required for the use of other-crimes evidence to establish ‘common scheme or plan,’ the standard can be met despite the existence of some factual differences between or among the charged offenses”]), because cross-admissibility is not readily apparent, “we proceed to weigh the factors indicating potential prejudice against the benefits of joinder.” (Soper, supra, 45 Cal.4th at p. 779.)
c. A weighing of factors demonstrates the benefits to the state of joinder outweighed any potential prejudice to Rush
Considering factors other than cross-admissibility, the trial court acted well within its broad discretion in denying Rush’s severance motion. The counts Rush sought to sever were no more likely to inflame the jury against Rush than the remaining charges. Although counts 1, 2 and 9 were for carjacking, one of the remaining charges was for carjacking, as well. In addition, the crimes were all accomplished in essentially the same manner: Rush approached each of the victims with a gun and demanded his or her property. The only difference in the crimes is the type of property taken, a relatively insignificant element of an armed robbery/carjacking.
Focusing on the potential prejudice from joining a weak case with a strong one, Rush asserts the eyewitness identifications for counts 1, 2 and 9 were suspect and failing to sever those counts permitted the jury to convict him for those three crimes based on the evidence for the other counts. As discussed, Rush’s argument the witness identifications by Im and Yun were insufficient is without merit. A witness identification need not be made with 100 percent certainty. (See People v. Kittrelle, supra, 102 Cal.App.2d at p. 154; People v. Wiest, supra, 205 Cal.App.2d at p. 45.) In some respects the evidence against Rush in counts 1, 2 and 9 was actually stronger than most of the other counts because Im and Yun identified Rush from the photographic display while, other than Cruz, the victims in the other counts did not. Additionally, the pawn ticket, properly albeit belatedly introduced into evidence, and Rush’s admission he knew Vernon Watson were additional evidence linking him to the carjacking of Im (count 1). Finally, the jury was instructed, “Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.” We presume the jury followed this instruction. (See People v. Hovarter (2008) 44 Cal.4th 983, 1005 [“Although defendant contends the limiting instructions were ‘not sufficient to properly guide the jury’s consideration of the other crime evidence,’ he does not persuasively explain why. ‘We presume that jurors understand and follow the court’s instructions’ [citation] and thus reject the claim the court abused its discretion under Evidence Code section 352.”]; cf. People v. Grant (2003) 113 Cal.App.4th 579, 592 [defendant was prejudiced by joinder of charges; evidence on counts 1 and 2 was very similar but evidence on count 1 was weak in relation to count 2 and court “failed to give any cautionary or limiting instruction against considering the evidence on counts 2 in relation to count 1, and vice versa”].)
Rush also contends joinder of all counts deprived him of a fair trial because he intended to testify with respect to some of the counts, but not counts 1, 2 and 9. In People v. Sandoval (1992) 4 Cal.4th 155, 173-174 the Supreme Court rejected the same claim on a record very similar to the one here: “Although we have not addressed this theory of prejudice, it has been considered by federal courts. The federal courts have ruled that severance is not mandatory every time a defendant wishes to testify to one charge but not to another. ‘“If that were the law, a court would be divested of all control over the matter of severance and the choice would be entrusted to the defendant.”’ [Citation.] The need for severance does not arise in federal courts ‘“until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other.”’ [Citations.] Federal courts have required the defendant to present enough information to satisfy the court that the claim of prejudice is genuine and to enable it to weigh the considerations of economy and expedient judicial administration against the defendant’s interest in having a free choice with respect to testifying. [Citation.] [¶] Defendant’s showing fell far short of anything that would have satisfied the federal standards or any standard this court might adopt. Defendant neither explained the nature of the testimony he wished to give in the Belvedere Park case nor his reasons for not wanting to testify in the Wells case. The trial court did not abuse its discretion in denying severance.”
Similarly, in the case at bar, Rush merely argued it was his intention to testify as to counts 3 through 8, 10 and 11 because those were the only counts that required an explanation and that trying the counts together would create a prejudicial atmosphere and be confusing to the jury. Simply reciting legal catchphrases without substantive argument and a description of the nature of the testimony he intended to provide was not enough. Rush did make any showing that would permit the trial court to weigh the economy of a single trial against his interest in being able to choose whether to testify. Thus, the trial court did not abuse its discretion when it denied Rush’s severance motion.
Even if the trial court did not abuse its discretion in denying the motion to sever based upon the showing made at the time of the motion, “there remains the question whether, despite the correctness of the trial court’s ruling, a gross unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or due process of law.” (People v. Johnson (1988) 47 Cal.3d 576, 590.) In considering that question, the reviewing court examines the impact at trial of the joinder by looking at the evidence actually introduced at trial—the independent evidence of the defendant’s guilt, as well as any spillover effect of the evidence from the joined charges. (See People v. Turner (1984) 37 Cal.3d 302, 313, overruled on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150.) Once again, as in People v. Sandoval, supra, 4 Cal.4th at p. 174, a bald assertion of prejudice is not sufficient. (Ibid. [“‘[o]ne asserting prejudice has the burden of proving it; a bald assertion of prejudice is not sufficient’”].) Rush has not explained how his testimony would have differed had counts 1, 2 and 9 been severed from the remaining counts. Indeed, Rush provided very specific alibi testimony for the time the crimes charged in counts 1 and 2 were committed. It is unlikely Rush’s testimony would have differed in any material respect had those counts been severed. Thus, Rush has failed to show that denial of severance deprived him of a fair trial.
4. The Trial Court Did Not Commit Prejudicial Error in Admitting Darnell’s Testimony Rush Had Smoked Marijuana
After Rush’s friend Darnell testified Rush had been playing video games with him until around 2:00 a.m. on January 16, 2007, about the time when Lincoln and Um were carjacked and robbed, the prosecutor attempted to elicit details of the evening from Darnell to test Rush’s alibi. The deputy district attorney first asked Darnell how he knew they went to bed at 2:00 a.m., not midnight, and whether they had been drinking or taking drugs. Darnell admitted he had been smoking marijuana that night. The prosecutor then asked if Rush had been drinking or taking drugs. Over defense counsel’s objection, in response to the prosecutor’s question, “You saw him doing weed?” Darnell answered, “Yeah. I seen. Yes, I seen him get high before. Yes.” Rush contends admission of this testimony was prejudicial error, arguing it was not relevant because the only disputed issue was the identity of the perpetrator and it suggested Rush was not law-abiding or truthful.
A trial court “may exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice....” (Evid. Code, § 352.) “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.... The ‘“prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.)
We review for an abuse of discretion a trial court’s determination pursuant to Evidence Code section 352 that the probative value of evidence outweighed its potential for confusion or undue prejudice. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) Even if the court abused its discretion, reversal is not warranted unless “‘it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.’” (People v. Page (2008) 44 Cal.4th 1, 42.)
As Rush contends, “evidence of an accused’s narcotics addiction is inadmissible where it ‘tends only remotely or to an insignificant degree to prove a material fact in the case....’” (People v. Cardenas (1982) 31 Cal.3d 897, 906.) The Cardenas Court observed any involvement with illegal narcotics could adversely impact the jury’s perception of the defendant: “The impact of narcotics addiction evidence ‘upon a jury of laymen [is] catastrophic.... It cannot be doubted that the public generally is influenced with the seriousness of the narcotics problem... and has been taught to loathe those who have anything to do with illegal narcotics in any form or to any extent.’” (Id. at p. 907.) However, the cases in which this principle has been applied typically involve substantial evidence of a defendant’s drug addiction or abuse of heroin offered to suggest the defendant robbed or stole to support his or her drug habit, not a passing reference to recreational marijuana use on a single evening even if that reference may have been interpreted to include similar usage on other occasions. (See id. at p. 913 [police officer testified, among other indicia of drug addiction, scar tissue on defendant’s arm showed he had been addicted to heroin for a long time and “estimated the cost of [defendant’s] habit at a ‘minimum of $25 and maybe up to $75 per day’”]; People v. Gonzalez (1990) 51 Cal.3d 1179, 1209 [in Cardenas “[w]e confirmed that because of its prejudicial impact, an accused’s addiction to narcotics may not be admitted as remote evidence of his motive for stealing something other than drugs”]; People v. Holt (1984) 37 Cal.3d 436, 450 [evidence of defendant’s drug use, including prosecution’s attempt to establish defendant had heroin habit, improperly admitted where testimony had established defendant split proceeds from robbery; “whatever minimal probative value there was in the additional testimony that [defendant] used his share to purchase and then use drugs was outweighed by the inflammatory effect of this testimony on the jury”]; People v. Forte (1988) 204 Cal.App.3d 1317, 1324, fn. 4, disapproved on another point in People v. Montoya (1994) 7 Cal.4th 1027, 1040 [evidence defendant acknowledged using heroin and officer testimony he had two-week-old injection marks not admissible to show motive for burglary]; People v. Bartlett (1967) 256 Cal.App.2d 787, 794 [officer’s testimony regarding defendant’s withdrawal symptoms and “opinion as to the length of time they had been using narcotics including the daily heroin supply necessary to maintain their habit as well as the cost thereof... should have been excluded because its tenuous probative value to show motive was far outweighed by its tendency to incite a jury to resolve the issue of guilt or innocence on defendants’ character rather than on proof of the essential elements of the crime”].)
Moreover, even if it were error for the court to have permitted Darnell’s testimony Rush had used marijuana during the early morning hours of January 16, 2007, it was harmless in view of testimony offered by the defense to establish Rush’s alibi for January 19, 2007 when the offenses against Kay, Barry, Kwon and Yun were committed. Rush’s friend Jenkins testified he, Rush and others had obtained and smoked marijuana while watching a movie at Jenkins’s house. Rush confirmed Jenkins’s account of the evening and specifically confirmed marijuana use in explaining why he became ill at the diner. To the extent the jury was inclined to draw any negative inferences about the credibility of Rush or the believability of his alibi from the fact he used marijuana—a proposition we seriously doubt in light of the entire record—Darnell’s testimony was no more sensational or inflammatory than Jenkins’s or Rush’s own testimony freely offered.
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J., JACKSON, J.