Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C146000
Reardon, Acting P.J.
A jury convicted appellant Leon Wiley of three counts of first degree murder, two counts of attempted first degree murder, discharging a firearm at an inhabited dwelling, and being an ex-felon in possession of a firearm. (Pen. Code, §§ 187, subd. (a), 246; former §§ 664, subd. (a) [Stats. 1997, ch. 412, § 1, pp. 2754-2755], 12021, subd. (a)(1) [Stats. 2001, ch. 944, § 3].) A multiple murder special circumstance and many weapons enhancement allegations were found to be true. (§ 190.2, subd. (a)(3); former §§ 12022, subd. (a)(1) [Stats. 1999, ch. 129, § 4, pp. 1802-1803], 12022.53, subds. (b)-(d) [Stats. 2001, ch. 854, § 60].) Wiley was sentenced to life imprisonment without possibility of parole.
All statutory references are to the Penal Code unless otherwise indicated. Although several of the relevant statutes defining crimes, specifying enhancements or setting punishments have been amended since the dates of the 2002 charged offenses, we apply the version of those provisions in effect as of the date of the specific crime, to avoid imposition of an ex post facto law. Our comparison of these provisions with the current versions of them satisfies us that current law is-for our purposes-substantially the same as it was at the time that the offenses were committed. (See current and former §§ 664, 667.5, subd (c)(1), (7), (12), 1192.7, subd. (c)(1), (7), (9), 12021, subd. (a)(1), 12022, subd. (a)(1), 12022.5 [now subd. (a)(1); formerly subd. (a)], 12022.53, subds. (b)-(d); see, e.g., Stats. 1999, ch. 129, § 4, pp. 1802-1803 [2002 version of § 12022]; Stats. 2002, ch. 126, § 2, pp. 555-556 [2003 amendment]; Stats. 2004, ch. 494, § 3, p. 3142 [current law].)
On appeal, Wiley contends that the trial court erred in (1) denying his Wheeler/Batson motion; (2) refusing to sever two sets of charges that had been joined for trial; and (3) failing to redact recordings of his jail house telephone conversations. He also argues that (4) the prosecutor committed misconduct during the opening statement; and (5) his trial counsel was ineffective for failing to object to it. We affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
This is the fourth appeal stemming from the 2002-2003 “Nutcase” crime spree. (See also People v. Donald (June 29, 2010, A121820) [nonpub. opn.]; People v. Ralls (May 14, 2009, A115775) [nonpub. opn.]; People v. Sutton (Apr. 29, 2008, A117919) [nonpub. opn.].)
A. The Crimes
1. October 29, 2002 Incident
On the night of October 29, 2002, Michael Enoch and Tracy Easterling were at 94th and Peach Streets in the Brookfield neighborhood of Oakland when a car pulled up to them. An African-American man got out of the car and fired as many as 10 gunshots at them. After Enoch was first shot, he fell to the ground and pretended to be dead. A man stood over him and shot Enoch in the back of the neck with a handgun. The man tried to shoot Enoch in the head, but the gun did not go off.
Enoch testified that he was shot in the leg. His October 2002 medical records did not contain any reference to a leg injury.
Once Enoch heard the car drive off, he made his way to his aunt’s nearby home. Lying in a pool of blood, afraid that he was dying, Enoch told her that appellant Leon “Twon” Wiley shot him. Wiley’s grandmother lived across the street from Enoch’s aunt in Brookfield. Two hours after the shooting, Enoch gave a statement at a hospital. He gave some details of the incident, but did not identify the shooter. His aunt also gave a statement to police, but she did not report if Enoch had identified the perpetrator to her.
Easterling died as a result of multiple gunshot wounds to the head, torso and pubic area. Police recovered eight.45-caliber shell casings at the scene of the shooting. The physical evidence suggested that Easterling was shot from behind with bullets from two different weapons.
2. December 27, 2002 Incident
Family and friends had gathered at the Campbell Street residence of Jerry Duckworth and Nyesha Leslie on the night of December 27, 2002. From the back patio, Michael Vassar saw Duckworth’s cousin Marc Massie go a few doors down and speak to a girl who was standing on her own patio with Leon Wiley. The girl did not welcome Massie’s attention-she pulled back from him and went into her residence, accompanied by Wiley. Very soon, an angry Wiley came to Duckworth’s patio, looking for Massie. He raved about being a Nut from East Oakland and pointed an assault rifle at Vassar and 14-year-old Keith Harris. Duckworth came out and spoke with Wiley, who left.
Duckworth locked the back door and told Leslie to take her children to a friend’s house down the street. From the neighboring house, Leslie saw two cars pull up. Three men emerged from the cars-one with a long gun held along his body-and approached her own home. Inside that residence, Vassar heard a knock at the front door. He opened the inner wooden door, leaving the outer screen door closed. He saw two men outside. One of the men asked if anyone had a problem earlier; Vassar said no. When the man repeated the question, Vassar called Duckworth to the door.
Then, Vassar saw that the second man was holding an assault rifle. He believed that it was the same weapon that Wiley had threatened him with minutes earlier. He closed the wooden door and tried to move into the house, pushing Harris away from the door as he did so. Many gunshots were fired. Later, police found twenty.223-caliber bullet casings on the sidewalk in front of the residence. The metal door had 19 bullet holes in it.
From her neighbor’s house, Leslie heard the gunshots and then heard cars driving away. She ran to the back of her house, where a bleeding Vassar admitted her. Duckworth was bleeding profusely-one of his internal organs had emerged from a stomach wound. Harris was motionless on the floor with a head wound. Leslie called 911.
Harris died as the result of a bullet wound to the head. Duckworth-who had been shot four times-died from these wounds. Vassar was injured by gunshots to his arm, back, and leg.
3. Investigation and Arrest
In January 2003, Leslie and Vassar each identified a photograph of Wiley as the man who had threatened Vassar and Harris with a gun at the Campbell Street residence. The same month, 15-year-old Timela Clemons-who happened to be Easterling’s cousin-told police that on the night of the Campbell Street incident, she had ridden with Joe Ralls in his car to the scene of that shooting. Joe Ralls brought a large weapon with him as he drove from Brookfield to Campbell Street, saying he was going to meet a friend there. Clemons told police that she heard a lot of gunshots before Joe Ralls returned to the car and drove back to Brookfield. In February 2003, Joe Ralls was arrested.
In July 2003, Easterling’s mother confronted Enoch, asking who had killed her daughter. Easterling’s mother met with Oakland police, who interviewed Enoch. He told police that he knew Wiley, whose grandmother lived across the street from his aunt in Brookfield. He said that Wiley shot him. On the night of the shooting, Enoch said that he told his aunt that Wiley had shot him. He also reported that when Easterling’s mother asked him who killed her daughter, Enoch said that Wiley had done so. Enoch selected Wiley’s photograph out of a lineup. In August 2003, Oakland police interviewed Enoch’s aunt, but she denied knowing anything about who shot her nephew. Later, she explained that she did not tell police what she knew because she feared that her children might be endangered if she did so.
Oakland police suspected that Wiley, Joe Ralls, Deonte Donald, and Demarcus Ralls were all members of what came to be known as the Nutcase gang. Donald and the Ralls brothers were thought to have been involved in the Campbell Street shooting. Many of the witnesses lived in Brookfield where Wiley lived and were afraid to give evidence against him.
B. Pretrial Matters
In October 2003, a grand jury returned a 39-count indictment against eight defendants, including Wiley, Donald, Joe and Demarcus Ralls. Wiley was indicted for the December 2002 first degree murders of Harris and Duckworth and the attempted first degree murder of Vassar, each allegedly committed while he was armed with a firearm. (§ 187, subd. (a); former §§ 664, subd. (a), 12022, subd. (a)(1).) He was also accused of discharging a firearm at an inhabited dwelling, allegedly committed while being armed with a firearm. (§ 246; former § 12022, subd. (a)(1).) Most of these offenses were alleged to be serious and violent felonies. (Former §§ 667.5, subd. (c)(1), (7), (12) [Stats. 2002, ch. 606, §§ 2, 8, pp. 1558-1559, 1564 [eff. Sept. 17, 2002], 1192.7, subd. (c)(1), (7), (9) [Stats. 2002, ch. 606, §§ 3, 8, pp. 1560-1562, 1564 [eff. Sept. 17, 2002].) Wiley was also charged with having been an ex-felon in possession of a firearm. (Former § 12021, subd. (a)(1).) Finally, the indictment alleged a multiple murder special circumstance. (§ 190.2, subd. (a)(3).)
Initially, the state intended to seek the death penalty, but that option was later withdrawn by the prosecution.
A bench warrant was issued and Wiley was soon under arrest. An amended indictment-filed later October 2003-added a prior conviction allegation against Wiley. He pled not guilty to the charges and denied all enhancement and prior conviction allegations. His motion to set aside the indictment was denied in June 2004. (§ 995.)
Wiley’s petition for extraordinary writ relief challenging this ruling was denied by this court in July 2004. (People v. Wiley (July 8, 2004, A106982) [nonpub. opn.].)
Meanwhile, in November 2003, Wiley was charged in a separate case arising out of the October 2002 incident. An information charged him with the first degree murder of Easterling and the attempted first degree murder of Enoch. (§ 187, subd. (a); former § 664, subd. (a).) These offenses were alleged to be serious and/or violent felonies. (Former §§ 664, subd. (a), 667.5, subd. (c), 1192.7, subd. (c).) Wiley was alleged to have used and discharged a firearm in the commission of the offenses, causing great bodily injury and/or death. (Former §§ 12022.5, subd. (a)(1) [Stats. 1999, ch. 129, § 5, pp. 1803-1805; now subd. (a)], 12022.53, subds. (b)-(d).) The information also alleged a multiple murder special circumstance, making reference to the pending indictment case. Finally, the information alleged that Wiley had suffered a prior conviction. He pled not guilty and denied all enhancement allegations in this matter.
A third probation violation matter appears to have been pending against Wiley in December 2008.
The investigations into both incidents continued. In December 2003, Oakland police received a report from an arrestee that Wiley had admitted killing Easterling and injuring Enoch. In May 2004, a.223-caliber semiautomatic weapon was recovered by police. A ballistics expert test-fired the weapon and concluded that it had been used to fire the bullet casings found outside the Campbell Street residence.
In June 2006, the two cases against Wiley were consolidated, over his opposition. By January 2008, trial was scheduled to begin in May 2008. During March, April, and May 2008, Wiley’s jailhouse telephone conversations were recorded. In these conversations-which were rife with profanity-Wiley referred to himself as a leader of the Nutcase gang. He said that he expected to be going to San Quentin prison for life. “It’s over, ” he told one caller-he had “three bodies [and] two attempts.” He claimed to have carried an AK-47 assault weapon in the backseat of his car, to prevent rival pimps from running prostitutes in his territory. Wiley made statements that could be interpreted as an admission that he attempted to persuade a witness not to testify against him on the Campbell Street charges.
Clemons testified that another girl had been with her and had also witnessed the Campbell Street shooting.
In June 2008, a second amended indictment and information was filed, charging Wiley in a single document with the seven counts alleged in the earlier pleadings. Immediately before trial, Wiley again challenged the consolidation of the two cases pending against him in a motion to sever, without success.
C. Trial
1. Campbell Street Charges
At trial, both surviving victims testified about their recollections of the two incidents. In court, Vassar identified Wiley as the man who had threatened him and Harris with an assault rifle, and told the jury that the same assault rifle had been in the hands of another gunman at the front door of the residence later that evening. Vassar testified that no one inside the Campbell Street residence had a gun. Leslie also identified Wiley in court as the man who wielded a gun on her back patio. A tape of her 911 call for assistance was played for the jury.
During closing argument, defense counsel argued that Joe Ralls was the gunman. As three others had been convicted of the Campbell Street shooting, defense counsel argued against convicting Wiley for it, too.
Timela Clemons testified that she witnessed the Campbell Street shooting from Joe Ralls’s car. She told the jury that Joe Ralls was at his aunt’s house when Demarcus Ralls and Donald pulled up in their car. After the three men spoke, Joe Ralls got into his car, in which Clemons was seated. He brought a large gun with him and told Clemons that he was going to pick up Wiley who had “got into it with somebody.” Joe Ralls drove from his aunt’s home to Campbell Street, where he met Wiley coming out of a residence. Wiley-whom Clemons told the jury had characterized himself as a Nutcase-had a gun similar to the one Joe Ralls carried.
Clemons testified that Demarcus Ralls and Donald were parked across the street. The Ralls brothers and Donald emerged from their cars and spoke with Wiley. While Clemons sat in the front seat of the car, she heard what sounded like gunfire from two different weapons-one a machine gun, one a handgun. When the shooting ended, Joe Ralls returned to the car with his weapon and drove back quickly to their neighborhood.
2. Peach Street Charges
Enoch-who had been labeled a “snitch” in Wiley’s case while in custody-was a more reluctant witness. He told the jury that Wiley did not shoot him. His earlier identifications of Wiley as the man who shot him and Easterling were offered to the jury by his aunt’s testimony and his own 2003 recorded statement to police, which was played for the jury. He told the jury that when he gave his statement to police, “I lied about [Wiley] shooting me, and I lied about telling [Easterling’s] mama that, and I lied about telling my auntie that.” The police kept badgering him to talk, Enoch testified, so he told them what they wanted to hear hoping that they would release him.
The Oakland police officer who questioned Enoch denied badgering him.
The jury also heard recordings of May 2008 telephone calls in which Enoch said that he was not going to testify against Wiley. Enoch told his aunt that he planned to say that he was under the influence during his police statement and that it was all a lie. His aunt repeatedly told him that she had been subpoenaed to testify and that she was not going to lie in court. Enoch knew that she meant that she would come to court and testify that he told her that Wiley shot him.
Enoch’s aunt said that she had lied for him before and would not do that again. At Wiley’s October 2003 preliminary hearing, the aunt testified that she could not recall Enoch telling her who had shot him. At trial, she told the jury that her earlier testimony had been untrue because she feared for her children’s safety.
Evidence was admitted suggesting that Enoch and Wiley were pimps and that Easterling was a prostitute. The jury heard evidence that before she was killed, Easterling had worked as a prostitute for Wiley. The day after the shooting, Wiley bragged that he killed Easterling and shot Enoch because she did not want to work for him anymore, but had started working for her new pimp. The jury also heard evidence that when Joe Ralls and Wiley were riding together, Ralls always drove and Wiley always sat in the front passenger seat.
The jury heard tape recordings of Wiley’s jailhouse telephone conversations. Wiley did not put on any defense witnesses at trial.
3. Verdict and Sentence
In September 2008, the jury found Wiley guilty of all charges and found all allegations to be true, including the special circumstances allegation. In December 2008, the trial court sentenced Wiley to a term of life imprisonment without possibility of parole.
The abstract of judgment reflects that convictions for shooting at an inhabited dwelling and being an ex-felon in possession of a firearm were the result of a court trial, but the record on appeal shows that the jury found Wiley guilty of these offenses.
While acknowledging that the pronouncement of sentence for specific offenses was academic in this case, the trial court pronounced an indeterminate term of 50 years to life for the first degree murder of Easterling, enhanced by Wiley’s intentional discharge of a firearm resulting in death; a consecutive, indeterminate term of life imprisonment with possibility of parole plus a term of 25 years to life for the attempted first degree murder of Enoch, enhanced by a finding of firearm discharge; consecutive indeterminate terms of 25 years to life each for the first degree murders of Harris and Duckworth, each enhanced by a year for being armed with a firearm; a consecutive, indeterminate term of life imprisonment with possibility of parole for the attempted murder of Vassar, enhanced by a year because Wiley was armed with a firearm in the commission of the offense; an upper determinate term of seven years for shooting at an inhabited dwelling, enhanced by an additional year for being armed with a firearm; and a concurrent eight-month term for being an ex-felon in possession of a firearm.
II. PEREMPTORY CHALLENGES
A. Trial Court Rulings
First, Wiley contends that the trial court erred by using the wrong standard to determine whether he made out a prima facie case for discriminatory use of peremptory challenges by the prosecution. He asserts that the trial court erroneously required him to prove that the prosecutor was acting as a racist in order to establish a prima facie case for Wheeler/Batson error. Wiley also challenges the trial court’s assessment that a single peremptory challenge could not constitute a pattern of discrimination. He reasons that this error violated his constitutional rights to due process, a fair trial, and equal protection.
During jury selection, prospective juror A.B. was questioned by the court, the prosecution, and defense counsel. On her jury questionnaire, A.B. had expressed doubts about the death penalty, which the trial court assured her was not a possibility in this case. She also knew people who went to juvenile hall, but said that nothing about their circumstances affected how she viewed law enforcement or the courts. She was concerned that some within the criminal justice system could too easily manipulate the situation before a jury and that African-American males were targeted, but A.B. still believed that she could be fair to both sides. She believed that she would be a good judge of the facts and would judge all witnesses by the same standard. When asked about her reaction to the serious charges in this case, A.B. expressed concern that it would be difficult for defense counsel to make Wiley appear innocent when the charges against him were so extensive. The trial court explained that the prosecution had the burden of proof, not the defense. Again, A.B. opined that she could be fair to both sides.
A.B. was prospective juror number three.
The prosecutor inquired about A.B.’s responses on her jury questionnaire. She stated that she would not have any difficulty judging Wiley’s guilt or innocence, despite her concern that only God could judge a person’s actions. She explained that she had witnessed her African-American father be pulled over by law enforcement officers and questioned when it was obvious that he was not doing anything wrong. Still, A.B. did not believe that her negative experiences with law enforcement would affect her opinion about law enforcement officials in general. She believed that the judicial system was ineffective-a “lot of” innocent people were imprisoned and years of their lives were wasted. Sometimes the innocent were convicted and sometimes the guilty were not. Defense counsel asked general questions of the potential jurors, eliciting A.B.’s agreement that the defense did not have to prove anything and that if she had a reasonable doubt about the case, she would acquit.
As its third peremptory challenge, the prosecution excused A.B. Wiley filed a general, written motion challenging the prosecutor’s improper exercise of peremptory challenges. At a hearing on the Wheeler/Batson motion, defense counsel made her specific argument that this exercise of a peremptory challenge was improper. She noted that A.B. was African-American, as was Wiley, and that A.B. had stated that she could be fair. On the basis of this evidence, defense counsel asserted that she had established a prima facie case in favor of her motion.
A.B. self-identified as African-American and Caucasian.
The trial court offered the prosecution an opportunity to respond to the motion. The prosecutor explained his reasons for excusing A.B.: She was only 21 years old and seemed to lack life experience. Some of her beliefs were not well-thought out. She minimized the conduct of her boyfriend who had been sent to juvenile hall for attacking a fellow student. She did not seem to appreciate the severity of the murder rate in Oakland. She believed that a police officer had harassed her. Her views on the criminal justice system suggested a bias against law enforcement officials. Her opinion that African-Americans were targeted by police and her concern that defense counsel would have difficulty showing that her client was innocent troubled the prosecutor, suggesting a bias in Wiley’s favor. In short, the prosecutor believed that A.B. lacked sufficient maturity, experience, and thoughtfulness to be a suitable juror in a case of this importance.
Wiley’s counsel countered that A.B. expressed concern for those who were innocently imprisoned for crime and about those cases in which guilty people were not convicted. Despite her boyfriend’s difficulties with the juvenile court system, A.B.’s boyfriend and her father either sought employment at or worked at correctional facilities. Counsel suggested that other jurors had made similar answers to the questions posed to them, without being accused of being immature or lacking experience. She pointed to questions about being a snitch that was posed by the prosecutor to A.B.-questions that suggested that the prosecutor actually believed that she had a greater life experience than other jurors. She argued that it was obvious that the prosecution was trying to remove an African-American from the jury.
Wiley made a comparative analysis in the trial court, but does not raise this argument on appeal.
During argument, the trial court stated that the conclusion that Wiley asked him to make was that “the prosecutor’s acting like a racist.” It disagreed with Wiley’s assertion that he was entitled to raise a Wheeler/Batson motion even though A.B. was the first African-American against whom the prosecution made a peremptory challenge.
At the close of the hearing, the trial court ruled that Wiley had not established a prima facie case of discriminatory use of a peremptory challenge. It found no support for Wiley’s claim that a single peremptory challenge could form the basis of a prima facie case under Wheeler/Batson. Even if there was a prima facie case, the court concluded that the prosecution’s reasons for exercising a peremptory challenge against A.B. were appropriate. It expressed concern that A.B. might not be able to provide a fair trial for the prosecution, given her youth and her outlook. The trial court denied Wiley’s motion.
The jury that tried Wiley was made up of four Caucasians, three Asians, two Hispanics, and three African-American. Of the three African-American jurors, two were men and one was a woman. None of the three alternate jurors were African-American. Except for A.B., all peremptory challenges in this matter were exercised against Caucasians and Hispanics. After the jurors and the alternate jurors were selected, the remaining venire included five other African-Americans, all but one of which was female.
B. Legal Standard
A prosecutor violates both the California and United States Constitutions by exercising peremptory challenges to remove prospective jurors for group bias instead of reasons specific to the prospective juror. (People v. Lancaster (2007) 41 Cal.4th 50, 74; see also U.S. Const., Amend. XIV; Cal. Const., art. I, § 16; Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 265-266, 272.) A three-step procedure is used to determine a Wheeler/Batson motion. First, the defendant has the burden of making a prima facie case by showing that the totality of the relevant facts give rise to an inference of discrimination. The defendant need only produce substantial evidence to permit the trial court to draw an inference that discrimination has occurred. (People v. Lancaster, supra, 41 Cal.4th at p. 74; Johnson v. California (2005) 545 U.S. 162, 170.) If the defendant makes a prima facie case, the burden shifts to the state to make an adequate explanation of the exclusion by offering permissible race-neutral justifications for the exercise of the peremptory challenge. Once these justifications are tendered, the trial court decides whether the opponent of the peremptory challenge has proved purposeful racial discrimination. (People v. Lancaster, supra, 41 Cal.4th at p. 74.)
C. Discussion
On appeal, Wiley challenges the trial court’s conclusion that he failed to make a prima facie case of racial discrimination. He argues that the trial court erroneously required him to prove that the prosecutor was a racist in order to establish a prima facie case, instead of merely offering substantial evidence to support an inference of discrimination. He also disputes the trial court’s assertion that he could not establish a pattern of discrimination based on a prosecutor’s exercise of a single peremptory challenge.
Two California Supreme Court cases decided after trial in the matter before us suggest that the minimal showing offered by defense counsel was insufficient to establish a prima facie case. (See People v. Hartsch (2010) 49 Cal.4th 472, 487-490; People v. Hawthorne (2009) 46 Cal.4th 67, 79-80.) Wiley relied solely on the fact that the prosecutor used a single peremptory challenge to excuse an African-American prospective juror. He did not claim that the prosecutor used peremptory challenges to strike most or all African-American prospective jurors from the jury venire or that no African-American prospective jurors remained on the jury panel when the motion was made. He put forth no evidence about the number of African-American prospective jurors who were included in the entire jury venire, in the jury panel when the motion was made or in the jury that ultimately tried him. (See People v. Hawthorne, supra, 46 Cal.4th at pp. 79-80.) Wiley’s showing may have been inadequate to establish a prima facie case.
The evidence offered by the prosecution after the jury was impaneled establishes that African-Americans remained as prospective jurors at the time of the Wheeler/Batson motion, and that some African-Americans sat on Wiley’s jury. These facts tend to support the trial court’s denial of the motion.
Wiley challenges the standard that the trial court used to determine whether he established a prima facie case. Even if we assume arguendo that the trial court applied an incorrect standard at this first stage, we conclude that the trial court properly denied his Wheeler/Batson motion. The trial court heard the prosecutor’s race-neutral reasons for exercising a peremptory challenge against A.B. It evaluated those reasons and found that they warranted the exercise of the peremptory challenge. (See People v. Silva (2001) 25 Cal.4th 345, 385; see People v. Jurado (2006) 38 Cal.4th 72, 104-105.) We are satisfied that regardless of whether he established a prima facie case in support of his Wheeler/Batson motion, Wiley failed to meet his ultimate burden of persuasion that the prosecution acted with a racial motivation when exercising its peremptory challenge to remove A.B. from the jury panel. (Purkett v. Elem (1995) 514 U.S. 765, 768; People v. Dunn (1995) 40 Cal.App.4th 1039, 1051.) The trial court properly denied the Wheeler/Batson motion.
Preliminarily, we reject Wiley’s claim that if the trial court erred at the prima facie case stage, we are required to either reverse or order a limited remand for determination of this preliminary issue based on the proper standard. The cases that he cites in support of a limited remand are both factually distinguishable. In one, the trial court applied an improper standard at the first stage and the trial court failed to reach the second and third stages of analysis. (See People v. Johnson (2006) 38 Cal.4th 1096, 1103-1104.) In our case, the trial court reached these later stages-it heard the prosecution’s race-neutral reasons and found those reasons to be an appropriate basis for exercising a peremptory challenge. In the second case that Wiley cited, a remand was ordered because the trial court required the defendant to meet an inappropriately high standard of proof at the third stage of its analysis. It was not clear to the appellate court what ruling the trial court would have made on the Wheeler/Batson motion if it had applied the correct, lower standard of proof. (See People v. Hutchins (2007) 147 Cal.App.4th 992, 996-999.) In our case, any error arose during the first stage of the trial court’s analysis. Wiley does not challenge the burden of proof applied by the trial court to assess the persuasiveness of the prosecutor’s stated reasons for exercising the peremptory challenge against A.B. In the circumstances of our case, when the trial court engaged in the second and third stages in an appropriate manner and offered a second ground for denying the motion, we may evaluate the trial court’s alternative resolution.
III. SEVERANCE
A. Trial Court Ruling
Wiley also contends that the trial court erred when it denied his motion to sever trial of the Peach Street incident charges from trial on the Campbell Street incident charges. He asserts that the joint trial of these two sets of counts violated his federal constitutional due process right to a fair trial. Wiley seeks reversal of his convictions and a remand for separate trials on the two sets of charges.
Twice, Wiley challenged the consolidation of these charges-once, by opposing the prosecution’s motion to consolidate and again, when he moved to sever trial of the Peach Street charges from trial on the Campbell Street offenses. The trial court found that Wiley’s jailhouse admissions were general statements that could apply to either set of charges, and thus would be cross-admissible on both. It rejected Wiley’s assertion that the two cases each had serious proof problems. It also suggested that the multiple murder special circumstance alleged in both the Campbell Street indictment and the Peach Street information weighed against severance.
Although the two cases were consolidated in 2006, a second motion to consolidate was filed by the prosecution in 2008. The clerk’s transcript of the 2008 hearing states that a motion to consolidate was granted, but the reporter’s transcript makes it clear that the trial court denied Wiley’s motion to sever the previously consolidated cases.
If the joinder gives rise to the special circumstances allegation, then a greater degree of scrutiny must be given to the issue of joinder. (People v. Bradford (1997) 15 Cal.4th 1229, 1318.) In this matter, the prosecution opted not to seek the death penalty, but was required to prove that Wiley had committed more than one murder in order to trigger application of a sentence of life imprisonment without possibility of parole. (§ 190.2, subd. (a)(3).) Even before the two cases were consolidated, each pleading charged a multiple murder special circumstance.
B. Legal Standard
California law permits different offenses committed at different times to be charged in the same accusatory pleading if the offenses are of the same class of crimes. (§ 954.) Joinder of charged offenses is preferred if these criteria at met. (People v. Manriquez (2005) 37 Cal.4th 547, 575; People v. Arias (1996) 13 Cal.4th 92, 127.) A joint trial avoids the increased expenditure of funds and judicial resources that may result from two separate trials, reduces delay in disposing of criminal charges, and promotes important systemic economies. (People v. Soper (2009) 45 Cal.4th 759, 771-772, 782 (Soper).) The trial court properly joined the Peach Street and Campbell Street charges, as both cases involved not only counts of the same class of crime, but identical charges of murder and attempted murder. (See, e.g., Soper, supra, 45 Cal.4th at p. 771; People v. Catlin (2001) 26 Cal.4th 81, 110 (Catlin).)
In the trial court, Wiley-as the party seeking severance-had the burden to clearly establish that a substantial danger of prejudice outweighed the benefits of joinder, thus requiring that the two sets of charges be separately tried. (Soper, supra, 45 Cal.4th at p. 773; Catlin, supra, 26 Cal.4th at p. 110; People v. Grant (2003) 113 Cal.App.4th 579, 586 (Grant).) On appeal, he bears the burden of demonstrating that the trial court’s denial of severance constitutes a clear prejudicial abuse of discretion. An abuse of discretion arises only if the trial court’s refusal to sever properly joined charges falls outside the bounds of reason. (See Soper, supra, 45 Cal.4th at p. 774; Catlin, supra, 26 Cal.4th at p. 113.) When determining prejudice, our evaluation is made in light of the showings made and facts known at the time that the motion for severance was determined. (Soper, supra, 45 Cal.4th at p. 774; Catlin, supra, 26 Cal.4th at pp. 110-111; Grant, supra, 113 Cal.App.4th at p. 587.)
C. Analysis
The trial court’s exercise of discretion when determining a severance motion turns on the specific facts of each case, but certain criteria have emerged to guide our analysis. (Soper, supra, 45 Cal.4th at pp. 774-775; Grant, supra, 113 Cal.App.4th at p. 586.) In a noncapital case, the denial of a motion for severance of counts may constitute an abuse of discretion if (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, and (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 alter the outcome of some or all of the charges. (Catlin, supra, 26 Cal.4th at p. 110; Grant, supra, 113 Cal.App.4th at pp. 586-587.)
Wiley asserts that the joint trial on these two sets of charges was unfair, for several reasons. First, he argues that evidence of the two incidents were not cross-admissible. We agree that the circumstances of each set of offenses were not cross-admissible under Evidence Code section 1101, to prove motive, opportunity, intent, or other such facts. (See Evid. Code, § 1101, subd. (b); People v. Bradford (1997) 15 Cal.4th 1229, 1315-1316; Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 939-940.) Cross-admissibility is often the crucial factor affecting prejudice. (People v. Stitely (2005) 35 Cal.4th 514, 531.) However, a lack of cross-admissibility alone is insufficient to establish clear prejudice from a denial of severance. (Soper, supra, 45 Cal.4th at pp. 774, 779-780; People v. Manriquez, supra, 37 Cal.4th at p. 575; People v. Stitely, supra, 35 Cal.4th at p. 532; Grant, supra, 113 Cal.App.4th at p. 587; see § 954.1.)
Wiley argues that the denial of his motion for severance was prejudicial because the Campbell Street counts were more inflammatory than the Peach Street counts. He asserts that an assault rifle attack by members of the Nutcase gang on an occupied dwelling in retaliation for a perceived trivial slight was much more inflammatory than the circumstances of the Peach Street shooting. If one set of charges are particularly likely to inflame the jury against the defendant, that factor weighs in favor of severance. (See Soper, supra, 45 Cal.4th at p. 775; Grant, supra, 113 Cal.App.4th at pp. 586-587.) However, we disagree with Wiley’s sense that the Campbell Street charges were more inflammatory than the charges stemming from the Peach Street incident. Each was an unprovoked attack on unarmed persons in response to a slight, by one who self-identified as a “Nutcase.” In this manner, the two sets of offenses were similar in nature. (See Soper, supra, 45 Cal.4th at p. 780.) In our view, the Campbell Street and Peach Street offenses were equally reprehensible. When compared with each other, the evidence of the Campbell Street counts was not unduly likely to inflame a jury also trying the Peach Street charges. (See, e.g., ibid.)
Wiley also urges us to find that joinder of the two cases was prejudicial, because it made the prosecution’s case stronger for each case than it would have been in separate trials. If a weak case is joined with another weak case, the spillover effect of aggregate evidence on several charges may alter the outcome of some or all of the charges. (See Soper, supra, 45 Cal.4th at p. 775; Catlin, supra, 26 Cal.4th at p. 110.) Wiley reasons that the Peach Street evidence against him was weak because Enoch testified at trial that he was not the shooter. This assertion overlooks evidence offered at trial identifying Wiley as the man who shot Easterling and Enoch, the testimony of a witness who told police that he admitted killing Easterling because she did not want him to be her pimp anymore and shot Enoch because he had taken over this role. The jury would also hear Wiley’s own statement that could be interpreted as claiming responsibility for three killings and two attempts-an admission that he was responsible for all these charged offenses.
Wiley also argues that the Campbell Street case against him was weak because he was only an aider and abettor rather than the shooter. In so doing, he ignores evidence that he threatened Harris and Vassar with an assault weapon minutes before the shooting incident occurred. Wiley also asserts that the prosecution used Campbell Street evidence of a Nutcase gang connection when arguing his motive for the Peach Street shooting. Again, this claim ignores his own jailhouse statement that could be interpreted as claiming responsibility for both sets of charges because he was a member of the Nutcase gang.
The strongest evidence that Wiley may have been a shooter in the Campbell Street case did not come out until Clemons testified at trial that he had been armed with a weapon similar to that which Joe Ralls carried. As this report was not part of Clemons’s statement to police, it was not known to the prosecution at the time that the motion to sever was argued. Thus, we cannot consider it. (See Soper, supra, 45 Cal.4th at p. 774; Catlin, supra, 26 Cal.4th at pp. 110-111.)
In any two sets of charges, there is always one that is stronger than the other. A mere imbalance in the evidence does not indicate a risk of a prejudicial spillover effect that militates against the benefits of joinder and warrants severing properly joined counts. The benefits of joinder are not outweighed merely because properly joined charges might make it more difficult for the defendant to avoid conviction when compared with his or her chances if separate trials were conducted. (Soper, supra, 45 Cal.4th at p. 781.) In our judgment, the evidence supporting one set of charges was not significantly weaker than the evidence underlying the other criminal offenses charged against Wiley. (See, e.g., id. at pp. 780-781.)
Although the two sets of crimes were not cross-admissible, key evidence in this case was admissible on both sets of charges-particularly, the admissions that Wiley made in his jailhouse conversations that he was going to prison for life for killing three people and attempting to kill two others. Wiley’s jailhouse statement combining the two cases in his mind would be admissible at both trials, if separate trials were conducted. The fact that duplicative evidentiary issues would have to be resolved in separate trials tends to weigh against severance. (See Soper, supra, 45 Cal.4th at pp. 772, 781-782.)
Wiley stated: “I’m gone bro. It’s over nigga.... It’s over bro–on everything.... I’m fittin to get life bro.” He went on to explain: “I got three bodies bro, two attempts right now blood.”
The need to prove the special circumstance allegations also weighs in favor of joinder. The Peach Street charges set out in the information made express reference to the Campbell Street offenses as alleged in the indictment, requiring a separate jury trying the former case to hear some evidence of the other set of offenses. The fact that the prosecution was required to prove a multiple murder special circumstance was true in each matter tends to weigh against severance, because some of the same trial evidence would be admitted in both of two separate trials.
In this matter, the benefits of joinder were substantial and the potential for prejudice was minimal. Wiley has failed to demonstrate that the denial of his severance motion constituted a clear abuse of discretion. Thus, the trial court properly denied the motion. (See, e.g., Soper, supra, 45 Cal.4th at pp. 774, 783; People v. Stitely, supra, 35 Cal.4th at p. 533.)
As Wiley notes, even a ruling that may be correct at the time severance is denied may form the basis for reversal if he can show a reasonable probability that joinder actually affected the jury verdict. (Soper, supra, 45 Cal.4th at pp.783-784; Grant, supra, 113 Cal.App.4th at pp. 587-588.) His brief makes a scant reference to this additional basis for reversal, without any factual support. If the issue was properly raised, we find no merit in it.
IV. REDACTION
A. Trial Court
Next, Wiley asserts that the trial court erred by refusing to redact from his recorded jailhouse telephone conversations statements referring to other bad acts, his repeated use of racial epithets and other use of vulgar language. He contends that this bad character evidence had little or no probative value, and reasons that its admission violated his federal constitutional rights to due process and a fair trial.
While he was in jail, law enforcement officials tape-recorded 11 of Wiley’s telephone calls occurring between March 31 and May 15, 2008. Before trial, he moved to exclude this evidence. He argued against admitting his repeated references to being part of the Nutcase gang and sought to exclude a statement that could be interpreted to mean that if he had had an assault rifle, he would shoot someone with it. He also moved to exclude admission of his copious use of profanity. The trial court excluded some references that Wiley challenged, but admitted most of the recorded statements. At trial, recordings of these telephone calls were played for the jury, which reviewed transcripts of them, as well.
It indicated that it was willing to reconsider its rulings at a later time, if Wiley asked. There is no indication that he sought reconsideration.
B. Legal Standard
A declarant’s statement is admissible in evidence as an admission if offered against the declarant in an action in which he or she is a party. (Evid. Code, § 1220; People v. Castille (2005) 129 Cal.App.4th 863, 875-876.) A trial court retains the discretion to exclude evidence of a party admission if its probative value is substantially outweighed by the probability that admitting this evidence will create a substantial danger of undue prejudice. (Evid. Code, § 352.) Relevant evidence has some tendency to prove or disprove a disputed fact of consequence to the determination of an action, and includes evidence relating to the credibility of the hearsay declarant. (Evid. Code, § 210.) A trial court has broad discretion to determine the relevance of evidence, but has no discretion to admit irrelevant evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 132.)
Evidence of gang membership can have a highly inflammatory effect on a jury. As such, this evidence is not admissible if it is only tangentially relevant to the offenses charged in a criminal case. It cannot be admitted when its sole relevance is to prove a defendant’s criminal disposition. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; People v. Williams (1997) 16 Cal.4th 153, 193; People v. Albarran (2007) 149 Cal.App.4th 214, 223.) Evidence of gang membership and activity is admissible if (1) it is logically relevant to prove some material issue in the case, other than character evidence, (2) it is not more prejudicial than probative, and (3) it is not cumulative. (People v. Albarran, supra, 149 Cal.App.4th at p. 223.) Gang evidence can be relevant if it shows motive, specific intent, the means of applying force or fear, or other issues bearing on the issue of guilt or innocence. (See People v. Hernandez, supra, 33 Cal.4th at p. 1049; People v. Williams, supra, 16 Cal.4th at p. 193; People v. Albarran, supra, 149 Cal.App.4th at p. 224.)
A trial court has broad discretion to determine whether evidence of gang membership is relevant in a particular case. (People v. Champion (1995) 9 Cal.4th 879, 922-923, overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 860; People v. Olguin (1994) 31 Cal.App.4th 1355, 1373.) Once the trial court determines that this evidence is relevant, it should carefully consider whether its admission is more prejudicial than probative, because of its potential to inflame the jury. (People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Williams, supra, 16 Cal.4th at p. 193; People v. Albarran, supra, 149 Cal.App.4th at p. 224; see Evid. Code, § 352.) On appeal from a denial of a motion to exclude evidence as more prejudicial than probative, we review the trial court’s ruling for an abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see Evid. Code, § 352; People v. Harris (2005) 37 Cal.4th 310, 337; People v. Walker (2006) 139 Cal.App.4th 782, 807.)
C. Gang References
On appeal, Wiley challenges various aspects of the recorded evidence. First, he contends that the admission of gang membership was improper. He reasons that this evidence was irrelevant in a case in which no gang allegations had to be proven, and that it was highly prejudicial to him. In the tapes, Wiley repeatedly referred to himself as a “Nutcase” or a member of the “Case gang.” He described himself as a gangster and a colonel. Wiley also made references to the Italian Mafia, including identifying himself as “Gotti” and describing his gang as “the Gambino family.” Arguing in favor of the relevance of this evidence, the prosecutor explained that Wiley’s statements constituted admissions that he was involved with the Nutcase gang and that he was a leader of it-a leader who ordered that the Campbell Street shooting take place. The prosecution’s theory of the Campbell Street charges was that Wiley ordered the members of his gang who fired the fatal shots to do so because a person at the Campbell Street residence had slighted him.
John Joseph Gotti, Jr. was the leader of the Gambino crime family. [as of July 1, 2010]. (Evid. Code, §§ 452, subd. (h), 459, subd. (a).)
Wiley’s admission of his affiliation with and leadership in the Nutcase gang was clearly relevant on the issue of his motive to kill. (See People v. Garceau (1993) 6 Cal.4th 140, 179, disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117.) It was also relevant to prove his premeditation and deliberation, both elements of the charge of first degree murder. (See §§ 187, 189; Evid. Code, § 210.) The challenged evidence was more relevant because it was not third party testimony about a possible gang connection, but Wiley’s own words demonstrating his connection to and leadership in the Nutcase gang. (See People v. Champion, supra, 9 Cal.4th at pp. 919-921; People v. Olguin, supra, 31 Cal.App.4th at p. 1373.) More so than most gang evidence, Wiley’s own statements had a greater tendency in reason to prove or disprove disputed facts that were of consequence to the action. (See Evid. Code, § 210.)
Although gang membership evidence also carried with it the potential for prejudice, we believe that the probative value of this evidence substantially outweighed the possibility of prejudice. The prejudice that section 352 of the Evidence Code seeks to avoid is not that naturally flowing from relevant, highly probative evidence. The statute attempts to avoid the prejudging of a case based on extraneous facts. (People v. Zapien (1993) 4 Cal.4th 929, 958; People v. Harris (1998) 60 Cal.App.4th 727, 737.) The evidence of Wiley’s gang affiliation and his rank in the Nutcase gang was not extraneous to the prosecution’s case.
D. Hypothetical Shooting
Wiley also contends that the trial court abused its discretion by admitting a statement that could be interpreted to mean that, if he was insulted by someone and he had access to a weapon, he would have shot the speaker. On appeal, he contends that this interpretation of the evidence was pure speculation and, as such, lacked any relevance. In the trial court, the prosecution reasoned that this evidence conveyed Wiley’s sense of his importance in the gang organization and his willingness to use violence to command respect. On the Peach Street incident, the prosecutor argued that Easterling-who was believed to be a prostitute-had ceased using Wiley as her pimp and that Enoch had taken over that role. The prosecution reasoned that Wiley killed Easterling and attempted to kill Enoch because they failed to afford him the respect that he believed they owed him. The prosecution also theorized that the Campbell Street incident also had its roots in a perceived lack of respect to Wiley.
Wiley stated: “He was gonna stop by Mac house, cuz Mack [sic] live in Marin City, I think that nigga stopped by and was fuckin with Mac and blood [found] out dude was gonna cut him. (unintelligible) I woulda bust that nigga for doin that shit to me on the streets man. Nigga I’m a colonel, blood. Niggas don’t be getting at me like that blood.”
Evidence can be relevant to prove motive. (People v. Contreras (1983) 144 Cal.App.3d 749, 756; People v. Frausto (1982) 135 Cal.App.3d 129, 140-141; see People v. Plasencia (1985) 168 Cal.App.3d 546, 552.) This evidence of motive is relevant if it aids the prosecution in rebutting the presumption of innocence by showing a reason for Wiley’s criminal acts. (See People v. Plasencia, supra, 168 Cal.App.3d at p. 552.) To the extent that the statement reflects Wiley’s callousness, it may also be relevant to the issues of intent and premeditation. (See People v. Bolin (1998) 18 Cal.4th 297, 320.) The proffered evidence is capable of the interpretation that the prosecution offered. The fact that it may be interpreted in another manner that is less damning to Wiley does not render the evidence irrelevant. The correct interpretation of the proffered statement goes to the weight to be afforded this evidence, not its admissibility. (See Evid. Code, § 210.) As the evidence tended to prove issues of consequence in the case, it was not extraneous. The trial court did not abuse its discretion in admitting Wiley’s statement.
E. Racial Epithets and Vulgarity
Wiley also contends that the trial court erred by admitting evidence containing racial epithets and vulgar language. This evidence was not at all probative and was very prejudicial, he reasons. Wiley’s jailhouse telephone conversations were riddled with vulgarities such as “nigga, ” “fuck, ” bitch, ” “motherfuckers” and “shit.”
In a representative sample of his manner of speaking, Wiley tells a female caller: “Man, that nigga crazy blood. Fuck that nigga man. I be trying to be cool with motherfuckers man but I’m gonna get to flashin’ blood. That nigga-that nigga then they all he want to talk about is how Bey getting[ ] money and doing shit and he get me a lawyer.” A few minutes later, he referred to an Asian woman as a “bitch.”
Wiley’s use of racial epithets and vulgarities tended to show his manner of relating to those around him, rendering his use of these terms somewhat relevant to the issues at trial. His words paint a faithful portrait of who he is, which is not in and of itself unfair. (People v. Harris, supra, 60 Cal.App.4th at p. 737.) The use of racial epithets-while offensive-is not so unusual that it would inevitably bias a jury against a criminal defendant. (People v. Quartermain (1997) 16 Cal.4th 600, 628; People v. Edelbacher (1989) 47 Cal.3d 983, 1009.) This is particularly true in a case such as ours, in which Wiley uses racial epithets to refer to members of his own race. In these circumstances, this language does not display racial animus and hence, is much less inflammatory than cross-racial references can be. Even profanity-laden statements may be more probative than prejudicial. (See, e.g., People v. Hines (1997) 15 Cal.4th 997, 1044-1045 [tape-recorded jail conversations].) We conclude that the trial court acted within its discretion when it admitted Wiley’s admissions into evidence.
V. PROSECUTORIAL MISCONDUCT
Finally, Wiley contends that the prosecutor committed misconduct during his opening statement by asserting facts about a witness who the prosecutor knew would not offer any testimony at trial to support those facts. He contends that in so doing, the prosecutor deprived him of his federal constitutional rights to confrontation, due process, and a fair trial.
During his opening statement, the prosecutor explained that Wiley and Joe Ralls had been identified as the men who shot and killed Easterling. Later, he told the jury that Joe Ralls had been the shooter in the Campbell Street incident. Ralls had pled guilty to two counts of voluntary manslaughter and was serving a 23-year sentence in state prison. The prosecution explained that he arranged to have Joe Ralls transferred from state prison back to county jail, hoping that he would provide evidence in Wiley’s case. In an interview with the prosecutor, Joe Ralls admitted knowing Wiley, but initially refused to explain what happened at Campbell Street. Later, he asked to speak with the prosecutor again. In another interview, he agreed to tell the truth if he could be released from prison. When the prosecutor would not agree to do so, Joe Ralls again refused to talk about the incident. The prosecutor offered this comment about Ralls: “His loyalty to the mob boss is over. He’s only concerned about himself. The days of sitting in [prison] have convinced him it’s not worth it.”
During the prosecutor’s opening statement, defense counsel did not object that Joe Ralls would not testify at trial or that the prosecutor would not be able to produce evidence from Joe Ralls during trial. Outside the presence of the jury, defense counsel objected that the prosecutor was presenting evidence to the jury that it would not hear, because Joe Ralls had refused to testify. The trial court disagreed with this assumption, noting that Joe Ralls had not yet asserted a Fifth Amendment privilege against self-incrimination.
Referring to facts not in evidence constitutes misconduct. (People v. Hill (1998) 17 Cal.4th 800, 823, 827-828.) In such circumstances, the prosecutor appears to be offering his or her own unsworn testimony that is not subject to cross-examination. (Id. at p. 828.) Wiley’s prosecutorial misconduct claim is based on his assumption that, at the time of his opening statement, the prosecutor knew that Joe Ralls would not testify at trial. However, the trial court was of the view that it was not clear whether or not Joe Ralls would testify. As Wiley has not established the necessary predicate of his claim of error, it follows that no prosecutorial misconduct occurred.
For the same reason, we reject Wiley’s related ineffective assistance of counsel claim.
The judgment is affirmed.
We concur: Sepulveda, J. Rivera, J.