Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, Super. Ct. No. BA285349, Judith J. Champagne, Judge
Sharon M. Jones, 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, Linda C. Johnson, Supervising Deputy Attorney General, Karen Bissonnette, Kenneth C. Byrne, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Eduardo Dion Strickland appeals from the judgment following his conviction, after a jury trial, of second degree murder and two counts of assault with a deadly weapon, with one sustained deadly weapon allegation and two sustained great bodily injury allegations. (Pen. Code, §§ 187, subd. (a), 245, subd. (a), 12022, subd. (b)(1), 12022.7, subd. (a).) After finding that prior serious felony conviction allegations were true, the court sentenced appellant to 43 years to life in state prison. (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a) & (d).) Appellant contends that the trial court erred by denying his severance motion, admitting the opinion of a lay witness, and refusing to admonish the jury regarding prosecution misconduct. We direct the trial court to modify the abstracts of judgment to conform to the oral pronouncement of judgment and affirm the judgment as modified.
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
April 2005 Assault at Club Xes (Count 3)
Appellant and Gregory Williamson both worked in the music industry as promoters and had known each other for several years. On April 19, 2005, at approximately 11:00 p.m., Williamson and a group of his friends went to Club Xes in Hollywood. He saw appellant there and they greeted each other. Later, appellant stumbled into Williamson and spilled his drink. Williamson asked appellant to be careful. Still later, after a friend complained about appellant, Williamson asked him to "cool out" because he was scaring his friend.
When Williamson left the club, appellant was "bouncing around and bumping into people." Williamson told appellant that he was "acting a little belligerent [and that he] need[ed] to go outside." Appellant and Williamson walked toward the door. As he left, Williamson told the security guards to "keep an eye on" appellant and make sure that he stayed outside where he could get some air and calm down, because he was a little out of control. Appellant then called Williamson a bitch and a punk. Williamson responded in a "raised" voice. Appellant held out his fists and lunged toward Williamson, who punched his jaw. Appellant ran after Williamson, and hit his back and neck several times. The fight continued until security guards intervened. Williamson saw blood on his shirt and noticed that his neck hurt. A security guard showed Williamson a three-inch knife with some blood on it. Williamson had cuts on his neck that did not require stitches and some puncture wounds on his lower back.
June 2005 Murder and Assault at Club Ivar (Counts 1 and 2)
On June 12, 2005, Eddie Magee; his ex-wife, Shanese; his friend, Starr; his friend, Sheldon Edwards; and appellant went to Club Ivar in Hollywood. Magee and appellant both worked in the music promotion industry and had known each other for years. Late in the evening, after Starr argued with the bartender, Magee decided to leave the club. As Magee left with his friends, Adonis Harris approached Shanese with a shorter male companion who tried to speak with her. Magee told the short man that Shanese was his "girl" and to "[l]et it go." The short man shook hands with Magee and said, "My bad," as if he were apologizing. Harris had stronger words for Magee: "You don't need to be talking to my homeboy like that. Watch who you are talking to." Magee and Harris then argued and threatened each other. Edwards tried to intervene and told Magee to calm down. Shanese grabbed Magee's right hand and tried to pull him away, but Magee went back toward Harris anyway. Magee then saw appellant lunge toward Harris and punch "toward" his chest. Harris punched appellant. Moments later, Harris stumbled and fell backward, to the floor. Joshua Burkes, a security guard, saw a man in dark clothing punch Harris in the chest. Appellant wore dark clothing that night.
Security guard Joshua Latter thrust his left arm between two people as he tried to stop the fight. He felt a metal object hit his arm and thought it was a watch. After the fight ended, Latter realized that he had a wound on his arm. Several hours later, hospital personnel closed the wound with 12 or 13 stitches.
Security guards "herded" Magee, Shanese, Starr, Edwards and appellant from the club. Shortly after leaving the club, Edwards saw appellant holding a small "Rambo-type" knife. When Magee drove home, appellant said he wanted to go to Denny's to wash his hands because they had blood on them. Magee drove home without stopping at Denny's. While they were in the carport, Magee told appellant that he should not fight Magee's fights for him. Appellant then said either, "I got him," or "I stuck him." Harris died before 3:00 a.m., on June 13, as a result of multiple shock force injuries caused by a seven-inch stab wound in his chest.
When police and prosecution personnel interviewed Edwards before trial, he did not tell them that he saw appellant holding a knife.
DISCUSSION
Appellant first contends that the trial court abused its discretion and deprived him of due process when it denied his motion to sever the Club Ivar murder and assault counts from the Club Xes assault count. We are not persuaded.
Joinder was proper here because the offenses alleged against appellant are all "of the same class of crimes or offenses . . . ." (§ 954.) When considering a motion to sever, the court must balance the potential prejudice of joinder against the state's strong interest in the efficiency of a joint trial. (People v. Arias (1996) 13 Cal.4th 92, 126.) The trial court abuses its discretion by denying a defendant's motion for separate trials if certain charges are "unusually likely" to inflame the jury or certain counts are weaker than others, creating a "'spillover'" effect. (People v. Davis (1995) 10 Cal.4th 463, 508.) Lack of cross-admissibility of evidence among counts does not prevent joinder. (§ 954.1; People v. Stitely (2005) 35 Cal.4th 514, 533; Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1286.) Appellant must "make a clear showing of prejudice to establish that the trial court abused its discretion in denying [his] severance motion." (People v. Mendoza (2000) 24 Cal.4th 130, 160; People v. Davis, supra, 10 Cal.4th 463, 508.) This burden is substantial. (Davis, at p. 508.) On review, the appellate court evaluates the trial court's decision in light of the showing then made. (People v. Balderas (1985) 41 Cal.3d 144, 171.)
The trial court did not abuse its discretion. Appellant failed to establish "extreme disparity" in the evidence of the offenses at Club Xes and Club Ivar (Belton v. Superior Court, supra, 19 Cal.App.4th 1279, 1284) or that it was not cross-admissible (People v. Wright (1998) 62 Cal.App.4th 31, 45). The Club Xes victim knew appellant long before the assault and testified that appellant attacked him. The Club Ivar crimes involved victims who did not know appellant and were based on the testimony of multiple witnesses. Those crimes occurred in the midst of a brawl involving several people, in the presence of security personnel, whose testimony collectively established that appellant stabbed Harris. A club surveillance camera recorded the brawl. Appellant argues that the videotape evidence is confusing and "fuzzy." Appellant stresses that the witnesses who provided the most damaging evidence regarding the murder were biased because of their affiliation with Magee. However, other witnesses without such bias (security personnel) provided incriminating evidence against appellant. In reviewing the record, including the videotape evidence, we find no "extreme disparity" in the evidence of the offenses at Club Xes and those at Club Ivar. Further, the evidence of the incidents at each location was similar and showed a number of common marks, which made it cross-admissible to prove intent, identity and motive. (See Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393-396; People v. Wright, supra, 62 Cal.App.4th 31, 45.) Appellant "has not established that joinder 'actually resulted in "gross unfairness" amounting to a denial of due process.'" (People v. Marshall (1997) 15 Cal.4th 1, 28; Frank v. Superior Court (1989) 48 Cal.3d 632, 638-639, 641.)
Like many surveillance videotapes, the videotape of the Club Ivar incident has a "fuzzy" quality. Because the brawl participants moved around quickly, it is not possible to observe the continous conduct of each participant by viewing the videotape. The images of Magee, who wore light clothing, are more clear than those of appellant, who wore dark clothing. No knife is visible on the videotape.
Appellant also argues that the trial court erred and deprived him of due process by allowing a lay witness, Latter, to give his opinion concerning the identity of Harris's assailant. We disagree. A lay witness may offer an opinion that is rationally based on his own perception. (Evid. Code, § 800, subd. (a).) Lay opinion testimony regarding the identity of a suspect in a surveillance photograph is admissible where the witness has personal knowledge of the suspect's appearance at or before the time the photograph was taken and the witness's testimony assists the trier of fact. (See People v. Ingle (1986) 178 Cal.App.3d 505, 513.)
Before viewing the videotape of the stabbing incident, Latter thought that Magee had assaulted Harris. Latter's recollection was refreshed when he viewed the videotape and he testified that appellant assaulted Harris. Because Latter observed appellant immediately before the stabbing, he possessed the requisite personal knowledge of his appearance. (People v. Ingle, supra, 178 Cal.App.3d 505, 513.) His testimony did not invade the jury's fact finding function. Even if the court had erred in admitting Latter's opinion, the admission of his testimony did not deprive appellant of due process or prejudice him, in view of other evidence establishing that he stabbed Harris. (See People v. Partida (2005) 37 Cal.4th 428, 439.) Appellant said that he "got" or "stuck" Harris. Other evidence established appellant's close proximity to Harris during the fight. In addition, Burkes, the security guard, saw a man in dark clothing punch Harris in the chest and appellant wore dark clothing at the time of the fight. Appellant held a Rambo-style knife shortly after the stabbing.
We similarly reject appellant's claim that the prosecutor committed misconduct during closing argument by arguing that defense counsel would do "everything he possibly [could] to twist and turn the evidence and try to insist that Eddie Magee is the killer." The prosecutor may argue that the defense is trying to hide the truth or confuse the issues, and that the jury should focus on the relevant evidence (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47; People v. Bell (1989) 49 Cal.3d 502, 538; People v. Breaux (1991) 1 Cal.4th 281, 305-306) or that defense counsel was arguing out of both sides of his mouth (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1218). Improper remarks by a prosecutor can render the resulting conviction a denial of due process. (People v. Farnam (2002) 28 Cal.4th 107, 167; Darden v. Wainwright (1986) 477 U.S. 168, 181-182.) In this case, however, in light of their relative importance and the strength of the evidence against appellant, the prosecutor's comments did not "comprise a pattern of egregious misbehavior making the trial fundamentally unfair," such that it violated appellant's due process rights under the federal Constitution. (People v. Espinoza (1992) 3 Cal.4th 806, 820.) Nor did they amount to a miscarriage of justice under state law. (People v. Hill (1998) 17 Cal.4th 800, 844.)
Respondent contends that the judgment must be modified to reflect the oral pronouncement of judgment correctly. We agree. The indeterminate and determinate abstracts of judgment reflect a total aggregate sentence of 40 years to life. The court imposed a sentence of 30 years to life with a one-year section 12022, subdivision (b)(1) enhancement for count 1; one two-year consecutive term for each of counts 2 and 3; one three-year consecutive section 12022.7, subdivision (a) enhancement for count 2; and a five-year consecutive section 667, subdivision (a) enhancement, for a total aggregate sentence of 43 years to life.
The trial court is directed to modify the abstracts of judgment to reflect the total aggregate sentence of 43 years to life and to forward the modified abstracts of judgment to the Department of Corrections. As so modified, the judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.