P. v. Carson

Filed 9/12/07 P. v. Carson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles L. Peven, Judge. Affirmed.

John Steinberg, 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, Victoria B. Wilson and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Defendant David Vincent Carson timely appealed from his convictions for assault by means likely to produce great bodily injury (with an attendant great bodily injury enhancement) and first degree murder (with an attendant enhancement for discharge of a firearm). Defendant was acquitted of mayhem.[1] The court sentenced defendant to 56 years to life. Defendant contends the court erred when it denied his motion to sever the assault case from the murder case. We affirm.

FACTUAL BACKGROUND

I. The Assault

During 1999, appellant had two girlfriends, Rose Perriott and Nathifa Lowe. Around the middle of 1999, appellant arranged for Perriott to move into his former apartment with his friend and former roommate Anthony Gomez. Appellant demanded that Gomez not allow Tony, a neighbor, in the apartment because Tony had been rude to Perriott. On August 21, after Perriott complained to appellant that Gomez had entertained Tony in the apartment, appellant angrily confronted Gomez, and the two men argued. When Gomez turned away, without provocation, appellant hit Gomez in the eye, ear and kidneys. Gomez was rendered legally blind as a result.

The prosecutor read appellants testimony from his prior trial into evidence. Appellant claimed he got into an argument with Gomez on August 21 because Gomez had tried to rape Perriott. The argument escalated and Gomez hit appellant in the face. In response, appellant hit Gomez once in the eye.

II. The Murder

Previously, during the course of their friendship, Gomez had introduced appellant to Eddie Rodriguez, Gomezs marijuana dealer. Appellant began purchasing marijuana from Rodriguez. Rodriguez often executed his drug transactions at various businesses at or near a shopping center close to Rodriguezs apartment on Otsego. Rodriguez drove nice cars, wore nice clothes and had nice things.

On the night of September 10, Rodriguez was shot to death in his car near the corner of Otsego and Bellingham.[2] Rodriguezs slumping body depressed the gas pedal, causing the engine to rev and smoke. Maureen ODonnell, who was walking her dog nearby, came upon the scene just after hearing several popping noises and the revving engine. ODonnell called 9-1-1. Fire personnel were dispatched to the reported car fire. Based on the time of dispatch, the 9-1-1 call was probably made around 11:41 p.m. Finding Rodriguez dead, the fire personnel stopped investigating and waited for police to arrive.

While police were examining the murder scene, ODonnell saw a red pickup truck, like the one appellant drove at the time, pull up across the street. The driver, who resembled appellant, smiled as though pleased about something and left after a minute.

During the investigation of the murder, police recovered three .380 caliber shell casings and a bullet fragment from Rodriguezs car. Various bullet fragments were recovered from Rodriguezs body during the autopsy. Scientific comparison to discharged bullets found inside appellants apartment established that all the bullet fragments had been fired from a gun appellant possessed during 1998 and 1999, which he described to a friend as a .380.

In addition, cell phone records showed appellant made numerous calls to Rodriguez on Friday, September 10, leading up to the time of the murder, and none after the time of the murder. The last outgoing call from Rodriguezs cell phone was to appellants pager. The last call from appellant to Rodriguez was made at 11:32 p.m. and was transmitted through a cell tower near the intersection of Laurel Canyon and Sunset Boulevard in West Hollywood, indicating appellant was within one and a half miles of that cell tower at that time. The closest possible point to the murder scene within one and half miles of that tower was around the 2600 block of Laurel Canyon. During the investigation, it took a detective about nine minutes to drive from there to the murder scene at around 11:30 p.m.

Further investigation revealed that appellant and Perriott checked into the Canoga Park Super 8 Motel under Perriotts name at 12:57 a.m. on September 11. Appellant and Perriott checked out of the motel the next day, September 12. Around that time, appellant visited Lowe (his other girlfriend) and told her he was planning to leave town. Later, in a telephone conversation, Lowe told appellant police were looking for him in connection with Rodriguezs murder. Appellant asked Lowe not to tell the police he was leaving town. Appellant also mentioned Rodriguez had been shot although Lowe had not revealed how Rodriguez had been murdered.

Appellant turned himself in on October 26. In an interview with police,[3]appellant did not admit to making the call transmitted through the cell tower at Laurel and Sunset or offer an alibi involving the cell tower, but instead insisted his cell phone records were inaccurate.

At trial, the prosecution presented extensive evidence regarding appellants attempts after his arrest to fabricate an alibi by paying a fellow inmate to take responsibility for the murder and by sending numerous letters to friends urging them to perjure themselves and providing details of his proposed alibi.

According to appellants prior testimony, he bought some marijuana from Rodriguez sometime after 9 p.m. on Friday, September 10. The last time appellant saw Rodriguez was at the drug deal, during which Rodriguez was accompanied in his car by a man wearing gloves. After getting the marijuana, appellant picked up Rita, a friend, and drove to West Hollywood to give some of the marijuana to other friends. While he was there, Rodriguez paged appellant, and appellant called back; this call was the 11:32 p.m. call transmitted through the cell tower at Laurel Canyon and Sunset. Rodriguez was interested in a frat party appellant had mentioned during the drug deal, but appellant did not have any details about the party.

Appellant left West Hollywood, dropped Rita off, picked up Perriott and drove to California State University at Northridge to try to find the party. Unable to find the party, appellant and Perriott bought hamburgers, checked into the Super 8 Motel, smoked some marijuana and fell asleep. They stayed at a motel because appellant had been evicted from his apartment and had just moved out that day. After leaving the motel, appellant lived in other motels or with friends for a period of time. Appellant eventually left Los Angeles to stay with family because he was running out of money. Appellant came back and turned himself in on October 26, after hearing from Lowe that the police were looking for him.

Appellant explained he had attempted to fabricate an alibi because he was scared and had no faith in the legal system. Appellant used information given to him by his attorney, not personal knowledge of the crime, to construct the details of his alibi. Appellant admitted having a gun, which he described as a nine millimeter, but claimed he returned it to his father in mid-1999. Appellant never thought to retrieve it during the investigation to eliminate it as the murder weapon. Appellant denied being at the murder scene.

Eugene Sena, who lived near the scene of the murder, heard the shots. Sena went to the window at the rear of his apartment and saw three men talking loudly. A fourth man ran up, and they all drove away in a car. Sena then heard Rodriguezs engine revving. Sena went outside and saw two people standing near Rodriguezs car. Sena got in his van and drove to the car. The people in the street were gone when he arrived. Richard Greene, another neighbor, testified he called 9-1-1 about three minutes after hearing Rodriguezs engine revving.

Appellants investigator testified it took him about 14 minutes to drive from Sunset over Laurel Canyon to the murder scene, averaging about 35 miles per hour, at around 10 p.m. on a Wednesday night. The speed limit on Laurel Canyon north of Mulholland Drive is 45 miles per hour.

DISCUSSION

Prior to appellants first trial, he requested the trial court exercise its discretion to sever the assault and mayhem charges from the murder charge because, even though the statutory requirements for joinder were met, prejudice would result from trying the charges together. After a hearing, the court denied the motion finding joinder would not be so prejudicial as to warrant separate trials. On appeal, this court rejected appellants claim the trial court abused its discretion when it denied his motion to sever. Appellant raises the same claim on appeal from his retrial.

Appellant acknowledges joinder was permissible in this matter. (See People v. Walker (1988) 47 Cal.3d 605, 622 [murder and assault are crimes of the same class].) When charged crimes are of the same class, there must be a clear showing of potential prejudice to defeat joinder. (People v. Bradford (1997) 15 Cal.4th 1229, 1314-1315.) The denial of a motion to sever is reviewed for abuse of discretion. (People v. Kraft (2000) 23 Cal.4th 978, 1030.) Moreover, [t]he states interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence. (People v. Cummings (1993) 4 Cal.4th 1233, 1284.)

The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [] The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial. Refusal to sever 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 omitted.) (People v. Bradford, supra, 15 Cal.4th at p. 1315.)

The last factor is not relevant as this case is not a capital case. Respondent concedes the evidence would not be cross-admissible in separate trials. (See People v. Kraft, supra, 23 Cal.4th at p. 1030 [[T]he absence of cross-admissibility does not, by itself, demonstrate prejudice.].) Thus, the issues are whether either charge was unusually likely to inflame the jury against appellant and whether a weak case had been joined with a strong case (or with another weak case).

Although appellant argues to the contrary, neither charge was more likely than the other to unusually inflame the jury as they both were crimes of violence, but dissimilar kinds of violence. The assault occurred during an argument between appellant and Gomez. When Gomez turned away from appellant, in an unprovoked attack, appellant hit Gomez in the eye (and the ear and kidneys), rendering Gomez legally blind. The murder appeared to be an execution-style killing in which Rodriguez was shot three times in the head. Neither victim was particularly vulnerable or sympathetic. Thus, to the extent the jury was likely to be inflamed, the circumstances of either offense were equally as likely to influence the jury. (See People v. Mayfield (1997) 14 Cal.4th 668, 721 [[T]o establish prejudice defendant must show more than the absence of cross-admissibility of evidence. He must show also, for example, that evidence of guilt was significantly weaker as to one group of offenses, or that one group of offenses was significantly more inflammatory than the other.])

In essence, appellant argues the assault case was a strong case because Gomez was an eyewitness and the murder case was a weak case because it was based on circumstantial evidence and there was no eyewitness. In the alternative, appellant inconsistently claims he was prejudiced in the assault case as the evidence of murder was compelling (as this court described in the prior appeal), itself an indication the cases were of equal strength. Though circumstantial, the evidence supporting the murder conviction was strong. The records of Rodriguezs and appellants cell phone calls on the night of the murder shows appellant called Rodriquez before, but not after, the murder. The records and testimony about cell sites and travel times, placed appellant in the vicinity of Rodriguez within a possible time frame of the murder. Appellants gun was used to kill Rodriguez. Shortly after the killing, a red pickup truck similar to the truck appellant drove at the time was seen checking out the murder scene. The driver of the pickup, who was smiling, looked similar to appellant.

Shortly after the murder, appellant visited Lowe and told her he was leaving town. In a subsequent telephone conversation, when Lowe told appellant police were looking for him in connection with Rodriguezs murder, he asked her not to tell police he was leaving town. Appellant mentioned Rodriguez had been shot even though Lowe had not revealed how Rodriguez had been murdered. Finally, when in custody, appellant made far reaching and elaborate attempts to fabricate an alibi and have someone else confess to the murder.

Assuming arguendo the evidence supporting the murder conviction was not quite as strong as the evidence supporting the assault conviction, that does not make the murder case a weak case. Accordingly, appellant has not shown the court abused its discretion when it denied the motion to sever, especially given the courts broader discretion in ruling on a motion to sever.

The jury was instructed with CALJIC No. 17.02 to consider the charges individually. Citing Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, 1083-1084, appellant notes that an instruction to consider each count separately was insufficient to dispel the prejudicial effect of joinder because it did not specifically admonish jurors that they could not consider evidence of one set of offenses as evidence establishing the other. Appellant neither claims the court committed any instructional error nor cites any authority that the court has a sua sponte duty to give such an instruction. (Cf. MST Farms v. C. G. 1464 (1988) 204 Cal.App.3d 304, 306 [This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record.].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J.

JOHNSON, J.

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[1] In his first trial, a jury convicted appellant of murder, mayhem, and aggravated assault, but the California Supreme Court affirmed this courts reversal of his conviction. (People v. Carson (2005) 35 Cal.4th 1.) This appeal is from his retrial.

[2] The prosecutions theory was that appellant was jealous of Rodriguezs possessions and killed Rodriguez for drugs and money.

[3] A tape recording of the interview was played for the jury.