Opinion
C065373 Super. Ct. No. 08F08461
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. ERIC MAURICE SISCO, Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After the evidence showed defendant Eric Maurice Sisco used the same gun on two occasions to shoot at separate victims, the jury convicted him of two counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), two counts of assault (§ 245, subd. (b)), and two counts of possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)). The jury also found true allegations that defendant personally and intentionally discharged a firearm in committing the offenses. (§§ 12022.5, subd. (a), 12022.53, subd. (b), 12022.53, subd. (c).) The trial court separately found that defendant had a prior serious felony conviction. (§ 1192.7, subd. (c)(8).) Accordingly, the court sentenced defendant to a determinate term of 30 years and 4 months in state prison in addition to an indeterminate term of 25 years to life.
Undesignated statutory references are to the Penal Code.
Defendant's sole argument on appeal is that the trial court abused its discretion in denying his motion to sever the charges of the two shooting incidents. We reject the contention and affirm the judgment.
BACKGROUND
Prosecution Evidence
1. July Shooting
On July 7, 2008, Jamari McMahan was living with his girlfriend, Chanell Wade, at an apartment in Sacramento. At approximately 7:00 a.m., Wade returned to the apartment after being out all night. As she walked in the door, her cell phone rang. As McMahan answered the phone, he saw defendant's picture displayed as the caller. The caller identified himself as Wade's husband and argued with McMahan. McMahan had not known that Wade was married. McMahan hung up and began to argue with Wade. Wade left the apartment only to return three minutes later.
Defendant called McMahan back on Wade's phone and told him to "come outside." Wade appeared frightened and ran out the door, exclaiming that defendant "plays with guns." McMahan looked downstairs and saw two men standing next to his car. McMahan immediately locked the apartment doors when he saw defendant running up the stairs. Defendant banged on the door once, broke the window with a semiautomatic gun, stuck his arm inside, and began firing. McMahan got a good look at defendant's face when he fired at McMahan three times. McMahan ran into the back bedroom as defendant fired at him twice more. McMahan jumped out of a second-story window to escape.
Using Wade's phone, McMahan called the police. McMahan later downloaded defendant's photo from the cell phone and gave it to the police. McMahan told the police that the shooter was about six feet to six feet and two inches tall, and weighed about 200 pounds. On cross-examination, McMahan conceded that defendant is only five feet and seven inches tall, and weighs "100 and some pounds." However, McMahan explained that defendant appeared bigger when standing downstairs in the parking lot.
McMahan moved out of the apartment two days later. As he was moving, McMahan discovered a certificate of marriage between Wade and defendant.
2. September Shooting
On September 28, 2008, Davela Cannon and Chaynte Salazar argued about ending their dating relationship. Around 11:00 p.m., Cannon saw Salazar and her sisters set off fireworks outside his house in Sacramento. Salazar and her sisters had also thrown eggs at his house. Cannon and his son went outside and told Salazar and her sisters that they needed to leave and that Cannon was going to call the police.
Testifying under a grant of immunity, Salazar recounted that she sent defendant threatening text messages on September 28, 2008. She also called defendant and asked him to fight Cannon. Salazar and one of her sisters gave defendant a ride to Cannon's house. Salazar was not aware that defendant brought a gun along. They arrived at Cannon's house to see Cannon walking back from the house belonging to Salazar's other sister.
Cannon asked defendant, "[W]hat's up partner?" Defendant responded by shooting Cannon in the chest and leg. Defendant then fired a shot at the husband of Salazar's sister. Defendant ran to a car with "a lot of people in it," and the car drove away.
As a result of his injuries, Cannon spent nearly two weeks in the hospital.
3. Shell Casings
A criminalist with expertise in firearms and tool mark identification testified that firearm shell casings found at the scenes of the July 7 and September 28 shootings were fired by the same gun.
Defense Evidence
Jaunisha King testified that she had been defendant's friend for approximately six years in July 2008. King had married defendant's brother in October 2007. King testified that she visited with defendant at his home in Sparks, Nevada, on July 4, 2008. Defendant stayed there "[p]robably about three or four days." Defendant also stayed in his Nevada house throughout "mid-September of 2008."
DISCUSSION
Defendant contends the trial court abused its discretion in denying his motion to sever trial on the charges arising out of the July and September shootings. He argues that the denial of his motion allowed the jury to convict on the combined strength of the evidence rather than the sufficiency of proof as to each charge. Defendant does not argue that the charges relating to the two shootings were improperly joined, but only that they should have been severed according to his motion. We disagree. A. The Trial Court's Denial of the Motion to Sever
After filing separate complaints for the July and September shootings, the Sacramento County District Attorney moved to consolidate the cases because the incidents involved the same class of crimes. The trial court granted the motion, and an amended information was filed to allege offenses on both occasions. On the first day of trial, defendant moved to sever the charges of the two shootings. The trial court denied the motion and explained:
"[As to the] issue . . . whether or not withstanding their previous joinder, the charges from the July and September incident[s] should not be severed such that separate trials would be given to [defendant] on the various charges stemming from the two assaults. At the outset the Court notes that where cases have been properly joined, the burden is on the party seeking severance to clearly establish that there is a substantial danger or prejudice requiring the charges be tried separately. I am citing People versus Soper, 2009 case, 45 Cal.4th 759 at 773. Hence it is the defendant's burden to show und[ue] prejudice [arising from] the continued joinder of the two incidents.
"As directed in Soper, this Court examines the following factors in resolving this motion to sever. First, the cross-admissibility of the evidence and hypothetical separate trials.
"As noted in Soper, '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.' That's at page 775.
"In the event the evidence is determined not to be cross-admissible, Soper then directs this Court to examine the following additional factors:
"First, whether some of the charges are particularly likely to inflame the jury against the defendant. Second, whether another 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 third, whether one of the charges but not the other is a capital offense or the joinder of the charges converts the matter into a capital case.
"With the above three factors in mind, the Court then balances the potential . . . prejudice to the defendant from a joint trial against the benefits to the state to include consideration of the systemic economies of joint trials.
"Under Soper the first issue then becomes whether there exists cross-admissibility of evidence at hypothetical separate trials.
"In the current case the Court finds that the facts of the July and September assaults would be relevant to and cross-admissible in hypothetical separate trials. The defendant's intent in each of the two incidents is at issue and the People would no doubt seek to admit 'other crimes evidence' under Evidence Code Section 1101(b) to prove that intent.
"Therefore, provided sufficient similarities exist, evidence underlying the July shooting would be admissible in a trial of the September incident, as would evidence of the September shooting in a trial of the July incident, on the theory that the factual similarities between the two cases demonstrate that in each the perpetrator harbored a similar intent to kill.
"In examining the information available to this Court at the present time, which includes the record of the preliminary hearing and the factual statement provided by each counsel in their accompanying trial briefs, this Court finds the following similarities between the July and September shootings:
"One, the presence of an upset or insulted woman. Two, with a pre-existing relationship or connection to the defendant. Three, who becomes embroiled in an argument with the victim. Four, that argument is over perceived insult to or about the woman by the victim. Five, the defendant subsequently appears on the scene shortly after the argument. Six, the defendant's appearance is followed by an immediate and unprovoked confrontation between the victim and the defendant. Seven, the victim is either shot or shot at by the defendant. Eight, the defendant is identified by an on scene eyewitness as the shooter. And nine, forensic evidence links the shell casings found at each of the two crime scenes to the same weapon.
"Given the similarities in time, place, manner, and method of each of the two shootings and in light of the standard articulated in People versus Ewoldt, 7 Cal.4th 380, for the admissibility of other crimes evidenced, the facts of both shootings would be cross-admissible on the issue of intent in hypothetical separate trials of each of the incidents.
"Assuming for [the] sake of argument that this Court's analysis is incorrect, such that evidence underlying the charges would not be cross-admissible in hypothetical separate trials on the issue of intent, the Court now examines the three additional factors identified by the supreme court in Soper.
"First, whether each of the two cases is similar in nature and equally egregious such that neither when compared to the other is likely to unduly inflame a jury against the defendant.
"On this particular point this Court finds that the charges surrounding each shooting are essentially a mirror image of the other. Neither incident has generated a charge which is not alleged in the other incident. Second, the Court looks to whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence does not alter the outcome as to some or all of the charges.
"Here the court finds that the facts underlying each of the offenses are essentially equal in strength and persuasion. Consequently the fear that proof of a stronger incident will influence or overwhelm the jury's consideration of a weaker case is not a realistic concern.
"The court notes that eyewitness testimony supports the allegation that the defendant was the shooter in each of the two incidents.
"Finally whether this is a case in which one of the charges involves a capital offense and the other does not, and whether the presence of one of the charged offenses converts the second into a capital offense is not at issue, the answer to both these inquiries is simply no.
"In conclusion, this Court notes that Soper found that severance would deny the state substantial benefits of both efficiency and congregation of traditional resources afforded under [] Section 954. Therefore, based on the foregoing analysis and in light of the holding of the California Supreme Court in the Soper decision, defendant's motion to sever is denied, as the defendant has failed to carry his burden of establishing the joinder of the July and September incident[s] will unduly prejudice his ability to obtain a fair trial."
B. Analysis
When there is no dispute that charges have been properly joined in a single information, "[t]he burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (People v. Ruiz (1988) 44 Cal.3d 589, 605; People v. Balderas (1985) 41 Cal.3d 144, 173.)" (People v. Soper (2009) 45 Cal.4th 759, 773-774 (Soper).)
On appeal, "[a] defendant, to establish error in 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 . . . ."' (Alcala [v. Superior Court (2008)] 43 Cal.4th 1205, 1220, and cases cited.) A trial court's denial of a motion to sever properly joined charged offenses amounts to a prejudicial abuse of discretion only if that ruling '"'"falls outside the bounds of reason."'"' (Ibid.) We have observed that 'in the context of properly joined offenses, "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."' (Id., at p. 1222, fn. 11, quoting People v. Arias (1996) 13 Cal.4th 92, 127 (Arias).)" (Soper, supra, 45 Cal.4th at p. 774.)
"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.' (Alcala, supra, 43 Cal.4th 1205, 1220.) Although our assessment 'is necessarily dependent on the particular circumstances of each individual case, . . . certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.' (Frank [v. Superior Court (1989)] 48 Cal.3d 632, 639.)
"First, we consider the cross-admissibility of the evidence in hypothetical separate trials. (Alcala, supra, 43 Cal.4th 1205, 1220.) 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. (Id., at p. 1221.)" (Soper, supra, 45 Cal.4th at pp. 774-775.)
We agree with the trial court's analysis and conclusion on defendant's motion to sever charges stemming from the July and September shootings. Evidence Code section 1101, subdivision (b), allows for "admission of evidence that a person committed a crime . . . when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." Under Evidence Code section 1101, the People were entitled to admit evidence of both shootings to establish intent to kill in prosecuting the attempted murder charged for each of the incidents. "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance." [Citations.]'" (People v. Ewoldt (1994) 7 Cal.4th 380, 402, quoting People v. Robbins (1988) 45 Cal.3d 867, 879.)
As the trial court noted, the preliminary hearing provided evidence of multiple similarities between the shootings allowed for cross-admissibility of the evidence. These distinctive characteristics included (1) an "upset or insulted" woman, (2) who had a romantic relationship with the victim, (3) the relationship was in jeopardy of ending, (4) an argument ensued "over perceived insult to or about the woman by the victim," (5) defendant's arrival at the scene shortly after the victim argued with his girlfriend, (6) defendant's arrival immediately resulted in an angry confrontation with the victim, (7) the victim is shot or shot at by the defendant, and (8) the defendant is identified by an eyewitness who was at the scene.These similarities allowed cross-admissibility of the evidence of both shootings and amply supported the trial court's decision to deny the motion to sever. (Soper, supra, 45 Cal.4th at pp. 774-775.)
The appellate record does not indicate that the People attempted to show at the preliminary hearing that the shell casings found at the scenes of the two shootings came from the same firearm.
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Defendant takes issue with the trial court's phrasing of some of the similarities between the two shooting incidents. For example, defendant attempts to distinguish the "bad conversation" between Wade and McMahan as something different than an "argument" between Cannon and Salazar. Defendant concedes that both women were "upset," but asserts that only Salazar was also "insulted." Defendant also asserts that the exact timing of defendant's arrival with respect to the "bad conversation" between Wade and McMahan did not match the trial court's description of defendant's arrival immediately after the argument. We reject these as distinctions that do not undermine the trial court's findings that both incidents involved a significant number of the same defining characteristics. These similarities sufficed to show the evidence of the two shootings was cross-admissible and thus warranted a single trial on the charges stemming from the two shootings.
Even if the evidence had not been cross-admissible in hypothetical separate trials, we would nonetheless affirm the trial court's denial of the motion to sever based on the consideration of "'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.]" (Soper, supra, 45 Cal.4th at p. 775.) As the Soper court instructed, "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. (Arias, supra, 13 Cal.4th 92, 127; see also Alcala, supra, 43 Cal.4th 1205, 1220-1221, and cases cited.) 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.)
Neither the July nor the September shooting was inherently more inflammatory than the other. Even while attempting to distinguish the shootings, defendant fails to identify one shooting as more inflammatory or sensational.
The evidence in support of both sets of charges was strong. In each instance, an eyewitness identified defendant as the shooter. Although defendant attempts to cast doubt on McMahan's initial description of defendant as taller and bigger, McMahan based his identification on having gotten a "good look" at defendant. Similarly, defendant was shown to be the shooter in the second incident by the person who drove him to Cannon's house for the confrontation. The identifications were solid and unequivocal. Defendant does not challenge the strength of the evidence showing that the shooting occurred or that the shooter attempted to kill the victims. In short, the evidence in support of each of the shootings was strong and neither shooting required bolstering evidence pertaining to the other incident.
Finally, this is not a capital case. Thus, the third factor that might weigh in favor of severance does not apply here. (See Soper, supra, 45 Cal.4th at p. 775.)
Accordingly, we conclude that the trial court did not err in denying defendant's motion to sever. The evidence of the two shootings was cross-admissible, and no other factor compelled severance of the two sets of charges.
DISPOSITION
The judgment is affirmed.
HOCH, J.
We concur:
BLEASE, Acting P. J.
ROBIE, J.