From Casetext: Smarter Legal Research

People v. Turner

California Court of Appeals, First District, Fourth Division
Feb 8, 2011
No. A127558 (Cal. Ct. App. Feb. 8, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALLEN TURNER, Defendant and Appellant. A127558 California Court of Appeal, First District, Fourth Division February 8, 2011

NOT TO BE PUBLISHED

Sonoma County Super. Ct. No. SCR565551

RUVOLO, P. J.

A jury convicted appellant Michael Allen Turner of one count of spousal abuse (Pen. Code, § 273.5, subd. (a) (count 1)), two counts of making a criminal threat (§ 422 (counts 2 & 3)), and one count of false imprisonment (§ 236 (count 4)). The trial court sentenced appellant to a state prison term of four years eight months. On appeal, appellant claims the trial court erred in granting the prosecution’s motion for consolidation and by imposing an unauthorized sentence in violation of section 654. We affirm.

All further undesignated statutory references are to the Penal Code.

I. FACTS

Jane Doe and appellant had been married for 25 years; they had two adult daughters, one 25 years old and the other 22 years old.

A. March 11, 2009 Assault (count 1)

On March 11, 2009, Doe planned to go to San Francisco for a family dinner that evening. In preparation, Doe went shopping for something for her older daughter to wear to dinner that night. Originally, Doe’s younger daughter was going to go shopping with her, but she changed her mind at the last minute. Instead, Doe went shopping with the 16-year-old brother of her older daughter’s fiancée, who also needed something to wear to dinner that evening.

When Doe returned home from shopping, appellant confronted her in a jealous rage, accusing her of having sex with the boy. Once inside their residence, appellant grabbed Doe by her neck and repeated his accusations of infidelity. Appellant pushed Doe down the stairs and then grabbed her head and shoved it against a nearby brick wall. Doe’s head was burning and her vision was blurry; she felt as if she were going to pass out. Appellant then forcefully pulled off Doe’s pants and underwear, spread her legs, and inspected her vagina with a flashlight.

At some point, appellant dragged Doe into the bathroom, slapping her and pushing her head into the wall. While in the bathroom, appellant choked Doe and told her, “ ‘I’m done with you. I need to finish you.’ ”

Doe managed to escape and ran to her daughter’s nearby residence. Appellant followed Doe and pulled out large chunks of her hair. The next day, while at work at a local Walgreens, Doe spoke about the incident with a customer whom she knew was a police officer for the Cotati police department. The customer encouraged Doe to file a police report, which she did file later that day. A police officer documented her injuries and subsequently arrested appellant.

Doe’s older daughter may have witnessed the hair pulling, but neither she nor her sister would cooperate with the police; Doe’s daughters expressed concern that appellant could be facing up to eight years in prison.

B. July 7, 2009 Criminal Threats and False Imprisonment (counts 2, 3 & 4)

On July 7, 2009, at approximately 10:30 p.m., Doe was in the parking lot of Walgreens, after recently finishing her shift at work. Doe and her supervisor, Mina Maldonado, were standing near their parked cars, smoking cigarettes, when Doe heard “really loud” screeching tires. Doe spotted appellant driving his father’s truck into the parking lot, as she was getting into her car. Appellant pulled in behind Doe, which blocked her in the parking spot, as there was a cement landing in front of her car. Doe told Maldonado to call 911. Doe and appellant had separated after the March 2009 incident, and they were in an ongoing dispute over possession of the car.

As Maldonado was walking to her car, she heard appellant yelling at Doe, “ ‘When am I getting my motherfucking car back? Am I supposed to wake up my dad every F’ing morning to have him drive me to work?’ ” Once Maldonado got in her car, she started the engine and called 911. Maldonado’s windows were rolled up, but she was able to observe appellant’s demeanor, which she described as “harsh” and somewhat “mean.” Maldonado was able to maneuver her car around appellant’s truck, and she drove to a gas station across the street, where she talked to the police on her cell phone.

Meanwhile, Doe was able to get in the car and close the door. Appellant ran up alongside of the car, and was jumping up and down, as he angrily yelled, “ ‘I want my motherfucking car back.’ ” He then threatened to kill her, stating, “ ‘I’m done with you... I’ll kill you. No one is going to have the car.’ ” Doe was frightened and took appellant’s threats seriously, due to his extremely agitated demeanor. Doe explained that she was even more terrified that appellant was acting out in front of other people, as he “never tried to show people that side of him in public.” That night, appellant acted out in front of Maldonado, as well as in front of his brother’s girlfriend, who had been a passenger in the truck.

Appellant eventually backed up the truck, and Doe backed up her car and attempted to leave. However, as Doe was backing up, appellant stopped his truck right in front of her car. Once appellant drove out of the parking lot, Doe drove across the street to the gas station, where Maldonado had been talking to the police on her cell phone. Doe parked as close as she could to the front door of the gas station, in hopes that she would be able to jump out and use the phone inside; Doe did not have a cell phone. However, before Doe could get out of the car, appellant aggressively drove into the gas station and pulled up next to her, and yelled from the window of the truck, “ ‘F you.’ ” and “ ‘I’m going to kill you....’ ” At some point, appellant saw Maldonado on the phone and yelled, “ ‘Are you calling the cops, you dumb bitch?’ ”

Maldonado confirmed that appellant followed Doe into the gas station parking lot. At this point, her windows were down and she could hear appellant yelling at Doe, but she could not make out what was actually being said.

Appellant eventually left the gas station, but turned around and immediately came back in another direction, again yelling at Doe. As appellant’s truck slowly rolled past Doe, he continued to angrily yell at her, “ ‘Fuck you. I’m done with you. You’re done.” Appellant finally drove off and did not return to the gas station.

The police soon arrived at the gas station. Appellant was subsequently arrested. He gave a voluntary statement to the police, in which he admitted to being extremely upset about the car situation and that he went to Walgreens to confront Doe about it. When asked if “he made any threatening statements toward [Doe],” appellant replied, “ ‘I probably did.’ ”

C. Prior Instances of Domestic Violence

Doe estimated that in the 10-year period preceding the March 11, 2009 incident, she had been the victim of approximately 40 incidents of domestic violence committed by appellant, with one occurring about every three months. Doe described the incidents as mostly slapping and yelling, but there was also hair pulling, choking, threats, and pushing. If Doe ever talked back to appellant, he would come up to her and twist her lips so hard that it hurt. Doe explained that the incidents usually occurred on Friday nights, the severity of which depended on appellant’s level of intoxication. Typically, after consuming three large bottles of beer, appellant’s demeanor would change, and he would start saying to Doe things like, “ ‘What the fuck are you looking at? Shut the fuck up.’ ” Doe was “basically on egg shells,” not knowing what to do; she could not do anything right.

When Doe would cry, appellant would tell her, “ ‘You’re a dumb bitch. You’re so naïve.’ ” Doe often ended up with bruises on her arms and neck, which she would cover; one time she sustained a cut on her forehead. She lost a lot of hair during this 10-year period.

The majority of the estimated 40 incidents of domestic violence occurred at home. However, Doe remembered a few occasions when appellant yelled at her in the car and swung his arms at her. Additionally, there were instances when the couple’s children observed the physical altercations, “[a]nd they would get hurt or hit” also.

II. DISCUSSION

A. Consolidation

Appellant contends the trial court prejudicially abused its discretion in consolidating the count relating to the March 11, 2009 incident and those relating to the July 7, 2009 incident. Under section 954, “An 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....”

Section 954, which expresses the legislative preference for joint trials of similar offenses committed by a defendant, sets forth two separate bases for joinder, requiring only that the offenses either be “of the same class of crimes” or “different offenses connected together in their commission.” (See People v. Miller (1990) 50 Cal.3d 954, 986-987.) Courts have consistently interpreted “of the same class” to mean possessing common characteristics or attributes. (People v. Kemp (1961) 55 Cal.2d 458, 476; Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722; People v. Frank (1933) 130 Cal.App. 212, 216.) For example, charges of attempted murder, robbery, and possession of a weapon by an ex-felon may be joined because they all involve “assaultive” crimes. (People v. Thomas (1990) 219 Cal.App.3d 134, 140-141.)

Here, the count involving the March 11 incident and those involving the July 7 incident, as the trial court found, were clearly of the same class of crimes, all assaultive offenses against the same victim, which included assault, criminal threats, and false imprisonment. (See People v. Thomas, supra, 219 Cal.App.3d at p. 140.) Joinder of such counts under section 954 was therefore appropriate and preferred. The question here is whether consolidation so prejudiced appellant that he was denied a fair trial. Appellant carries the burden to “ ‘ “clearly establish” ’ a ‘ “substantial danger of prejudice requiring that the charges be separately tried.” ’ [Citations.]” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1244.) Appellant has not met this burden.

Whether joinder of properly joined counts would cause prejudice depends on the circumstances of each case, “but 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.) Joinder “may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]” (People v. Sandoval (1992) 4 Cal.4th 155, 172-173, distinguished on another point in People v. Lewis (2001) 26 Cal.4th 334, 390.)

Turning to these factors, we first consider the cross-admissibility of the evidence in hypothetical separate trials. Evidence Code section 1109 provides an exception to the general rule against the admissibility of propensity evidence. Under Evidence Code section 1109, “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1).)

Here, appellant argues the “generic character evidence” proffered under Evidence Code section 1109 was not cross-admissible. According to appellant, this “generic” character evidence would have been admissible in a separate trial regarding the March 11 incident, but would have been inadmissible in a trial on the July 7 incident, because, unlike the March 11 incident, the July 7 incident had percipient witnesses. This argument is baseless.

As the legislative history of Evidence Code section 1109 indicates, “ ‘in domestic violence cases, as in sexual offense cases, special evidentiary rules are justified because of the distinctive issues and difficulties of proof in this area. Specifically, evidence of other acts is important in domestic violence cases because of the typically repetitive nature of domestic violence crimes, and because of the acute difficulties of proof associated with frequently uncooperative victims and third-party witnesses who are often children or neighbors who may fear retaliation from the abuser and do not wish to become involved.’ [Citation.]” (People v. Brown (2000) 77 Cal.App.4th 1324, 1333, italics added.)

Thus, it is reasonably inferable that “the obvious intention of the Legislature was to provide a mechanism for allowing evidence... acts of domestic violence to be used by a jury to prove that the defendant committed the charged offense of the same type; recidivist conduct the Legislature has determined is probative because of its repetitive nature. Furthermore, it is apparent that the Legislature considered the difficulties of proof unique to the prosecution of these crimes when compared with other crimes where propensity evidence may be probative but has been historically prohibited.” (People v. Brown, supra, 77 Cal.App.4th at pp. 1333-1334, fn. omitted.)

Contrary to appellant’s unsubstantiated assertion, neither the statutory language nor the legislative history of Evidence Code section 1109 contemplates excluding evidence simply because the acts of domestic violence occurred in the presence of witnesses. Furthermore, the specific retention of the power to exclude evidence under Evidence Code section 352, found in Evidence Code section 1109, provides “ ‘a realistic safeguard that ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts.’ [Citation.]” (People v. Brown, supra, 77 Cal.App.4th at p. 1334.)

Accordingly, we conclude that the so-called “generic character” evidence underlying the March 11 and July 7 offenses would indeed be cross-admissible in hypothetical separate trials.

However, “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. [Citation.] Indeed, section 954.1[]... codifies this rule-it provides that when, as here, properly joined charges are of the same class, the circumstance that the evidence underlying those charges would not be cross-admissible at hypothetical separate trials is, standing alone, insufficient to establish that a trial court abused its discretion in refusing to sever those charges.” (People v. Soper (2009) 45 Cal.4th 759, 775, fn. omitted.)

Section 954.1 provide as follows: “In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.” (Italics added.)

An examination of the other relevant factors demonstrates, even if the evidence was not cross-admissible, there was no prejudice in joining the charges. The acts of domestic violence in both incidents are similar in nature and involved the same victim-hence neither, when compared to the other, was likely to unduly inflame the jury against appellant. (People v. Soper, supra, 45 Cal.4th at p. 780.) Nor is this a situation in which either charge is a capital offense. (Ibid.)

Although neither of these factors militates against the benefits of joinder in the instant case (People v. Soper, supra, 45 Cal.4th at p. 780), appellant suggests that the remaining factor does: he asserts that the People’s case based on the July 7 incident was weak while the case based on the March 11 incident was so strong that there was danger of a “spillover” effect. Not so. The July 7 incident, unlike the March 11 incident, occurred in public in front of at least two witnesses. For example, Maldonado saw appellant use his truck to prevent Doe from leaving the Walgreens parking lot and she observed appellant’s menacing demeanor towards Doe. Even if the Maldonado had her windows rolled up at some point, she was certain of the verbal altercation that she witnessed. Indeed, she testified that she, herself, was frightened by appellant’s behavior, prompting her to leave the area and call 911 from a nearby gas station. Moreover, when questioned by the police about whether he made any threatening statements toward Doe, appellant replied, “ ‘I probably did.’ ”

“In any event, as between any two charges, it always is possible to point to individual aspects of one case and argue that one is stronger than the other. A mere imbalance in the evidence, however, will not indicate a risk of prejudicial ‘spillover effect,’ militating against the benefits of joinder and warranting severance of properly joined charges. (People v. Ruiz [(1988)] 44 Cal.3d 589, 606, 607... [severance not required of two properly joined murder charges even though evidence underlying one charge was ‘relatively weak’ and was made ‘much stronger’ by the evidence underlying the second charge].) Furthermore, the benefits of joinder are not outweighed-and severance is not required-merely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried. (E.g., Zafiro v. United States (1993) 506 U.S. 534, 540... [‘[D]efendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials.’]....)” (People v. Soper, supra, 45 Cal.4th at p. 781.)

On the record before us, after considering the factors set out above, we conclude that the trial court did not abuse its discretion in consolidating the offenses. Furthermore, after considering the proceedings as a whole, the joinder of the offenses did not result in a grossly unfair trial or otherwise deprive appellant of due process of law. (People v. Soper, supra, 45 Cal.4th at pp. 783-784.)

B. Sentencing

The trial court selected the March 11 spousal abuse (count 1) conviction as the base term at sentencing and imposed the upper term of four years. As to the criminal threat occurring on July 7 (count 2), the trial court imposed a consecutive eight-month term (1/3 the middle term). With respect to the additional criminal threat (count 3) and the false imprisonment (count 4) stemming from the July 7 incident, the trial court imposed two concurrent three-year sentences.

Appellant asserts that the trial court imposed an unlawful sentence because the second criminal threat (count 3) and false imprisonment (count 4) were part of the same course of conduct as the first threat and could not be separately punished under section 654.

Section 654, subdivision (a), provides in relevant part that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

Pursuant to section 654: “A course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. [Citation.]” (People v. Martin (2005) 133 Cal.App.4th 776, 781.) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.]... [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)

Whether the crimes were committed during an indivisible transaction is a question of fact to be determined by the trial court and the court’s finding will not be disturbed on appeal where it is supported by substantial evidence. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.)

Appellant’s contention the trial court erred in sentencing him separately for the criminal threats (count 2 and 3) convictions and the false imprisonment conviction under section 654 has no merit: the trial court’s implied finding that appellant entertained different and independent objectives in threatening to kill Doe in the Walgreens parking lot, falsely imprisoning her there, and then threatening her again at the gas station is supported by substantial evidence. Although appellant’s sole objective may have been to get the car back, he harbored independent, multiple criminal objectives in pursuit of this otherwise singular objective. Specifically, the first criminal threat at Walgreens in which appellant told Doe he would kill her and no one would get the car was not necessary to facilitate the false imprisonment. Rather, appellant accomplished the false imprisonment by blocking Doe in the parking spot with his truck, which prevented her from leaving the parking lot. Similarly, the appellant’s second criminal threat at the gas station was unrelated to the false imprisonment and the first criminal threat. By this time, Doe had managed to leave the Walgreens’ parking lot and was attempting to reach safety, when appellant aggressively drove into the gas station and threatened to kill her. This additional threat demonstrates a separate criminal objective, which did not facilitate or accomplish the first threat and false imprisonment.

On this evidence, the court did not err in sentencing defendant separately for the two criminal threats and the false imprisonment. (See People v. Nichols (1994) 29 Cal.App.4th 1651, 1656-1658 [separate punishment proper under section 654 because the defendant had separate objectives to (1) hijack a truck by kidnapping and robbing the victim and (2) avoid detection and conviction by dissuading and intimidating the victim].)

III. DISPOSITION

The judgment is affirmed.

We concur: REARDON, J., RIVERA, J.


Summaries of

People v. Turner

California Court of Appeals, First District, Fourth Division
Feb 8, 2011
No. A127558 (Cal. Ct. App. Feb. 8, 2011)
Case details for

People v. Turner

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALLEN TURNER, Defendant…

Court:California Court of Appeals, First District, Fourth Division

Date published: Feb 8, 2011

Citations

No. A127558 (Cal. Ct. App. Feb. 8, 2011)