Cravens
Filed 10/17/13 P. v. Cravens
CA4/1
Opinion
following remand from Supreme Court
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE
DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE
PEOPLE,
Plaintiff and Respondent,
v.
SETH
CRAVENS,
Defendant and Appellant.
D054613
(Super. Ct.
No. SCD206917)
APPEAL from
a judgment of the Superior Court
of
County, John S. Einhorn, Judge. Affirmed.
Randall
Bookout, for the Defendant and Appellant, under appointment by the Court of
Appeal.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Gary W. Schons,
Assistant Attorneys General, Lilia E. Garcia, Pamela Ratner-Sobeck, Lynne G.
McGinnis, Jeffrey J. Koch, Deputy Attorneys General, for the Plaintiff and
Respondent.
A jury
convicted Seth Cravens of second degree
murder (Pen. Code
name="_ftnref1" title="">[1] § 187,
subd. (a); making a criminal threat (§ 422); battery (§ 242); and four counts
of assault by
means of force likely to produce great bodily
found Cravens personally inflicted great bodily injury.
(§§ 1192.7, subd. (c)(8) and 12022.7, subd. (a).) The jury found Cravens not guilty of two
additional assault counts and an additional battery count. The court sentenced Cravens to 20 years to
life in state prison.
Cravens
contends (1) there is insufficient evidence of implied malice to support the
second degree murder conviction; (2) the trial court committed reversible error
by not sua sponte instructing the jury that under People v. Garcia (2008) 162 Cal.App.4th 18 (Garcia), an unintentional killing without malice during the course
of inherently dangerous assaultive felony constitutes voluntary manslaughter;
(3) the court prejudicially erred by denying his motion to sever the second
degree murder count from the other counts; (4) an inconsistent and confusing
jury instruction regarding consideration of evidence of other charged crimes in
connection with the murder count allowed the jury to convict him of the other
crimes by a preponderance of the evidence
rather than by proof beyond a reasonable doubt; and (5) the conviction of
making a criminal threat must be reversed because there is insufficient
evidence that Cravens made or aided and abetted a criminal threat.
In our
initial unpublished opinion in this matter, we agreed with Cravens that there
was insufficient evidence of implied malice to support the second degree murder
conviction. Accordingly, we modified the
judgment by reducing the murder conviction to voluntary manslaughter and
affirmed the judgment as modified. We
did not address Cravens's contention that the trial court committed reversible
error by not sua sponte instructing the jury on the theory of voluntary
manslaughter articulated in Garcia,
to voluntary manslaughter rendered
that contention moot.
The
California Supreme Court granted the People's petition for review and reversed
our judgment to the extent it ordered modification of the second degree murder
conviction. (People v. Cravens (2012) 53 Cal.4th 500.) The Supreme Court remanded the matter to this
court for further proceedings. In a
supplemental brief, Cravens renews his contention that the judgment must be
reversed because the trial court failed to sua sponte instruct the jury on the
theory of voluntary manslaughter articulated in Garcia, supra,
in this case demonstrates that joinder of the other offenses deprived him of
due process of law.
After the People filed a responding
supplemental brief and the case was submitted under California Rules of Court,
rule 8.256(d)(2), we issued an order vacating the submission and stating that
oral argument would be set after the California Supreme Court filed its opinion
in People v. Bryant, review granted
November 11, 2011, S196365, in which the Supreme Court considered the
manslaughter. The Supreme Court filed
that opinion on June 3, 2013. (
FACTS
Second Degree Murder (Count 12 — Victim Emery Kauanui)
Prosecution
Evidence
Cravens was
convicted of murdering Emery Kauanui.
Kauanui had been friends with Cravens and a group of Cravens's friends
that included codefendants Eric House, Orlando Osuna, Matthew Yanke, and Henri
Hendricks.
On May 23,
2007, Kauanui and his girlfriend, Jennifer Grosso made plans over the telephone
to meet that evening at a bar in La Jolla called the Brew House. Around 8:00 p.m. Grosso told Kauanui she had
to work late and would not be able to meet him until around 10:30 p.m. She arrived at the Brew House between 11:00
and 11:30 p.m. and joined Kauanui, who was sitting at the bar with two friends. He was in a cheerful mood when they met. As the evening progressed he became
intoxicated.
About 30
minutes after Grosso arrived at the Brew House, Cravens walked into the bar
with House, Osuna, and Yanke. Grosso was
not sure whether Hendricks was also with Cravens's group. She knew Cravens and was excited to see
him. She greeted him with a hug. Cravens and his friends stood close to where
Grosso and Kauanui were standing. Grosso
testified that "[i]t was very close quarters. Everyone was kind of elbow to elbow."
While
Kauanui was holding a full drink in his hand and dancing with Grosso, he
accidentally spilled some of his drink on House. House became hostile, and told Kauanui
something to the effect of, "You better watch out . . . . I can knock you out in one punch." The situation became tense as Kauanui and
House exchanged words and Cravens joined in.
Grosso testified, "Seth came
in and started making comments like, . . . You know Eric
could beat your ass. Like don't say
anything. It was slightly joking but
then became aggressive . . . on both ends. And Emery kept asking him, like, what are you
saying to me? Like what — do you guys
have like a problem?" According to
Grosso, an employee of the bar intervened and told everyone they had to
leave. She quickly paid the bar tab and
then grabbed Kauanui by the arm and walked out of the bar with him and one of
the bar's bouncers.
Ron
Troyano, who was the manager on duty at the Brew House that night, testified
that when he became aware of the "verbal altercation" between Kauanui
and House, he walked up to House and asked him what the problem was. House said someone spilled a drink on him and
his shirt was wet, but he told Troyano something to the effect of, "We're
all friends. Nothing to worry
about." Troyano concluded no action
was required and resumed other duties at the bar.
Troyano
later saw one of the bartenders walking toward a backroom where a pool table
was located. Troyano went into the
backroom and saw the bartender standing between Kauanui and Cravens. The bartender told him, "These guys need
to go." Troyano thought it would be
difficult to remove "multiple individuals" and observed that Kauanui
was calm, so he asked Kauanui to leave the bar, thinking that was the easiest
way to diffuse the situation. When
Kauanui questioned why he alone was being asked to leave, Troyano explained
that he just wanted to get Kauanui out of there and that he would take care of
the others. Kauanui said he was
concerned about getting jumped. Troyano
told him nothing was going to happen and walked him out of the bar.
Grosso
testified that Cravens, House, Yanke, Osuna, and Hendricks followed her and
Kauanui out of the bar into the parking lot, where the verbal confrontation
between House and Kauanui resumed.
Grosso grabbed Kauanui's arm and took his keys and said, "Let's
go. We're leaving right now." Kauanui got into his car with Grosso and she
drove to his house, which took only a couple of minutes.
As Grosso
pulled up to Kauanui's house, Kauanui was speaking confrontationally on his
cell phone with someone, saying, "If you want to fight me one on one, I'll
fight you." As they exited the car,
Grosso yelled at him to get off the phone.
They went into Kauanui's house and Grosso expressed her frustration with
his behavior. She told him that it was
"really dumb and immature for [him] to be acting like that," that he
should just let the situation go, and that she "was not going to be around
if [he acted] this way." Kauanui
immediately became calm and apologetic, and pleaded with Grosso not to
leave. She assured him she would stay
with him. The other family members who
lived in the house with Kauanui were out of town.
Grosso had
left her own car in a Vons parking lot near the Brew House and was concerned
that it would be towed because patrons of the Brew House were not supposed to
park there. Because Kauanui was too
intoxicated to drive, she decided to walk to her car and then drive it back to
Kauanui's house. He offered to drive her
but she declined. She assured Kauanui
that she would return shortly and told him to get ready for bed. He was calm when she left.
She walked
down an alley that led to the Brew House and started jogging because it was
dark and she felt unsafe. She was struck
by a "weird feeling" that caused her to start running toward the Brew
House to "make sure everything was diffused and okay." As she approached the Brew House, she saw
Cravens, House, Osuna, Yanke, and Hendricks outside the bar, and heard Cravens
say, "Don't call him. I know where
he lives. Let's go fuck him
up." Their behavior was rowdy and
aggressive. She screamed
"Seth," hoping that because Cravens knew her, he would "not do
this to me or to us." Cravens
looked in her direction but nobody responded to her. She saw Cravens and others get into a Ford
Explorer. The Explorer drove quickly
past her in the direction of Kauanui's house and she saw that Osuna was
driving.
Grosso
panicked and immediately dialed Kauanui's number but he did not answer. At the same time, she looked into the Brew
House and told Dave Woods and Nur Kitmitto, Kauanui's friends who were with him
when she first arrived at the bar, that Kauanui was going to get jumped. She then ran to her car and drove as quickly
as possible back to Kauanui's house. She
was about one to two minutes behind the Explorer.
As Grosso
approached Kauanui's house, she saw the Explorer parked on the street and a
confrontation outside of the house. She
turned the corner and her car's headlights shone on Kauanui and House fighting
in the street. Kauanui was on the ground
and House was on top of him. Cravens and
Osuna were standing a few feet behind them.
House was punching Kauanui on the sides of his
one of his arms wrapped around House's shoulder and appeared to be trying to
put him in a headlock. As she turned the
corner, Grosso held her horn down to wake the neighbors and get help. She also called 911, but did not remember
talking to anyone because she was "yelling at everyone to stop" at
the same time. She got out of her car
and was "screaming and cussing and making a huge scene."
Because
House did not respond to her, Grosso began violently kicking him and telling
him to get off of Kauanui. House reacted
by repeatedly saying, "Get her the fuck off of me." Grosso heard someone say, "What the fuck
are you doing? You're crazy bitch. You're crazy." Then Hendricks or Yanke picked her up and
moved her away from the fight. She
screamed the names of Cravens, Yanke, and House so the neighbors would hear,
and screamed that she was calling the police and they were all going to
jail. She testified that she was in a
complete panic and was yelling, "Get the fuck out of here. Leave him alone." When no one reacted, she began kicking the Explorer's
headlights.
She looked
back to Kauanui and saw that he was standing and directing his attention to
Cravens, who was standing about five or six feet away from him. There was no aggression in Kauanui's
demeanor, and his arms were at his sides.
He then raised his arms waist high with his palms facing upward, and
said to Cravens, "How the fuck you going to jump me at my
house?" Cravens said nothing in
response, but walked up to Kauanui and, according to Grosso, "just gave
him one extremely hard punch, and Emery just fell back immediately. It was like the lights went out in Emery and
he fell back." Kauanui fell
straight back and did not try to break his fall. Grosso heard his skull crack when it hit the
pavement and saw blood immediately begin to pool from the back of his
head. She thought he was dead.
Grosso
"went crazy" and started screaming, "Fuck all of you guys. None of you are going to get away with
this. She looked at Cravens and asked,
"Why would you do this? Why would
you do this to me? Why?" Cravens
did not respond to her. He said to his
friends, "Come on. Come on. Let's go."
Grosso saw
two people other than Cravens or House kick Kauanui on his side after he was
down and blood was pooling around his head.
She interpreted it as a "we won type of final kick" delivered
with "medium force." She then
saw some members of Cravens's group get into the Explorer and drive quickly
away, leaving House behind on the ground searching for something. Grosso was later told he was looking for a
tooth he had lost in the fight. Around
the same time the police arrived on the scene.
Four of Kauanui's friends, including Woods and Kitmitto, were also
there, having heard that Kauanui was going to get jumped. They tried to calm Grosso as she knelt beside
Kauanui, who was unconscious. The police
arrested House and an ambulance arrived.
Grosso rode with Kauanui in the ambulance to a hospital.
Erica
Wortham and her husband Philip Baltazar lived across the street from
Kauanui. Baltazar testified that at 1:18
a.m. on May 24, 2007, he awoke and heard Kauanui yelling antagonistically into
his cell phone "something like, you know, Motherfucker. You're acting like a fucking child." He also heard a woman's voice telling him to
come inside and to get off the phone. He
looked out the window and saw Kauanui pacing on the sidewalk in front of his
house and screaming into his phone.
Baltazar went to a back room to sleep, thinking "it was over."
Around 1:40
a.m. Wortham awoke to loud voices in the street. It sounded like "guys approaching"
with an "aggressive kind of salutation." She went to the balcony window and saw four
males approaching Kauanui who was standing nearby on the street. She immediately decided to call 911 because
it appeared the four males intended to get into a fight. She yelled out the window, "I'm calling
the cops," but it had no effect on them.
She left the balcony to make the call and while she was on the phone
with the operator, she heard, but did not see, what was happening on the street.
Baltazar,
who was awakened by her dialing 911, came and stood in the doorway of the
balcony while she made the call. After
Wortham moved away from the balcony, she heard fighting. It sounded like "flesh hitting
flesh" and "a lot of blows, a lot of hitting. Like a maul." When she returned to the balcony, she saw
Grosso flashing the lights of her car, honking the horn, and sounding the car
alarm to get attention. Grosso then came
over to where Kauanui was on the ground with a man on top of him and started
kicking the man on top of Kauanui and screaming at him to get off. The man on top was being very still and was
pinning Kauanui down; he was not pummeling Kauanui.
Baltazar
testified that when he looked out the window while his wife was calling 911, he
saw four guys beating on someone. He
described as a "scrum," which is a rugby term for "everyone on
top of someone." The four men were
"either kicking or punching or elbowing or kneeing" someone who
turned out to be Kauanui. The entire
group was moving and ended up falling down by a palm tree. According to Baltazar, Kauanui was able to
pull himself up, and as he did so, "someone wearing a black baseball cap,
a black opened shirt, short-sleeve shirt, black shorts, black shoes and white
socks came flying out of there and cold cocked [Kauanui]. And that's when he went down onto the
ground. And as he was going down, that
individual was kicking, and so was — there was another gentleman without a
shirt on, a blond-haired guy who ended up losing his tooth, who was also
kicking [Kauanui]."
Baltazar
testified that Grosso ran over screaming hysterically and "started kicking
them to get off." After kicking the
"blond guy" and she went around the corner and pounded on the
Explorer and tried "to kick the light in." She then ran back to Kauanui who was down
with a pool of blood around his head.
Baltazar saw "a couple of other guys there that seemed
like . . . they were administering to
[Kauanui] . . . or trying to help him or
something." According to Baltazar,
the man in the black shirt and black shorts came "flying out from that
same corner again . . . and threw these two guys off
[Kauanui] that were down trying to help him." Baltazar identified the man wearing black as
Cravens. He testified that after throwing
the two men off Kauanui, Cravens checked Kauanui's pulse and started running
away. At about the same time, the police
arrived and the Explorer "came flying around the corner, and the door was
open, and [Cravens] dove — because the car stopped there. He dove in."
Kauanui's
friend Dylan Eckardt testified that a little after midnight on the night of the
incident, he and his then girlfriend, Karen Loftus, were at a friend's house
and Kauanui called him from the Brew House.
Kauanui told Eckardt there had been an altercation at the Brew House and
that he was leaving. He asked Eckardt to
meet him at his house.
At 1:31
a.m., Eckardt called Kauanui from Loftus's car as she was driving to Kauanui's
house. Kauanui sounded frantic,
screaming, "Hurry up and get over here." He told Eckardt, "I've got beef at my
house." Eckardt construed that
statement to mean there was some kind of problem at Kauanui's house. Kauanui's phone then went dead and a few
minutes later Eckardt and Loftus arrived at his house. Eckardt saw a few men circled around someone
on the ground in the intersection by Kauanui's house and another man standing
nearby. One man kicked the encircled
person. Eckardt got out of the car and
started yelling and cursing at the men and asking where Kauanui was. He then saw that Kauanui was the person on
the ground.
Grosso ran
toward Eckardt swinging a shoe, apparently not recognizing him. He pushed her aside and as he yelled
Kauanui's name, he saw Kauanui stand up.
Kauanui, who was on the street, turned toward Cravens, who was standing
near Kauanui on the curb. Kauanui said,
"What the fuck. What the fuck. What
the fuck. Why are you at my
house?" In response, Cravens hit
him once with a hard punch to the side of his head, causing him to go down and
hit his head on the ground.
The
ambulance took Kauanui to Scripps Memorial Hospital in La Jolla. Kauanui underwent two surgeries to relieve
pressure in his brain — a craniotomy and a craniectomy. Both procedures are generally performed on
patients with life-threatening brain injuries causing high pressure in the
brain. The pressure in Kauanui's brain
remained very high despite the surgeries
and various medications he was given, and his brain function continued to
deteriorate. He was pronounced brain
dead on May 28, 2007, and he died the next day.
The medical
examiner who performed Kauanui's autopsy testified that Kauanui suffered a
severe fracture that started on the left back of his head at the point of
impact, extended through one of the thickest areas of the skull that holds the
ear canal, and ended just behind where the eyes are on the skull. The medical examiner had seen similar
injuries in motor vehicle crash cases and where people "have been impacted
with some sort of instrument, hammer, baseball bat, tire iron." There was bruising on the undersurface of the
brain on the impacted left side and
right side, opposite the point of impact.
Other abrasions on Kauanui's body were "medically
insignificant." The cause of death
was a single impact, blunt-force head injury.
The medical examiner did not see evidence that Kauanui had been punched
repeatedly in the face or showing on which side of the face Cravens had punched
him. A toxicology examination of blood
obtained from the hospital close to the time Kauanui was admitted revealed a
blood alcohol level of .17 and metabolites of marijuana in his system.
Kristin
Link was a friend of both Kauanui and Cravens.
On the morning of May 24, 2007, her mother called her and told her
Kauanui had been in a fight with Cravens and was in the hospital. Link was confused as to why Kauanui and
Cravens would get into a fight, because she thought they were friends. She called Cravens's cell phone and asked him
if he had been in a fight with Kauanui.
Cravens said, "I would hardly call it a fight. I punched him out." Cravens told her Kauanui had spilled a beer
on House, the two got into an argument, and they went over to Kauanui's house
where Kauanui and House fought. Cravens
said Kauanui was winning, so he (Cravens) pulled House away from the fight and
punched Kauanui. Cravens was not
remorseful until Link told him that Kauanui was in the hospital at the end of
the conversation, at which point Cravens cried.
Nicole
Sparks was friends with Cravens and Hendricks and had dated Kauanui. On May 24, 2007, she heard at her high school
that Kauanui had been in a fight with Cravens the night before. She called Hendricks between 11:00 and 11:30
a.m. He answered his phone and as she
spoke with him, she saw him drive by the high school with Cravens in the
passenger seat. She asked Hendricks if
there had been a fight between Cravens and Kauanui. She heard Cravens laugh and say, "We put
him to sleep."
Defense Evidence
Yanke and
Hendricks testified for the defense.
Cravens did not testify. Yanke
testified that he was friends with Kauanui and that he and Cravens had attended
gatherings at Kauanui's house. He drove
his Explorer to the Brew House the evening of May 23, 2007, accompanied by
Cravens, Hendricks, House, and Sean Keller.
They met Osuna at the Brew House.
Yanke was not aware of any controversy between House and Kauanui before
he left the bar at about 1:00 a.m. After
leaving the bar, Yanke and the group he was with went to Kauanui's house in
Yanke's Explorer because House had received a phone call from Kauanui, who
wanted to fight House one on one. Osuna
drove because Yanke was intoxicated.
When they
arrived at Kauanui's house, Yanke saw Kauanui through a bay window of the
house, pacing back and forth with his shirt off and talking on his cell
phone. He appeared to be "very
agitated, moving violently back and forth." When Kauanui saw House exit the Explorer, he
charged out of the front door, jumped over the front gate, and engaged in a
fight with House in the middle of the street.
House tackled Kauanui and the two wrestled on the ground for a while
with neither dominating the other. At
some point Grosso drove up, got out of her car, and started kicking House in
the head with a "stomping motion," which caused him to retreat a
bit. Hendricks pulled Grosso off House
and told her she did not know what was going on.
House said,
"I'm done" several times and started looking for something on the
ground. According to Yanke, Kauanui
upper cut House three to five times, while he (House) repeatedly said,
"I'm done." Cravens then
pushed Kauanui and said, "Get off him.
He's done. He's done. Get off him." Cravens "backed away from the
situation" and Kauanui charged him, saying "Why did you guys come
over here? Why are you guys doing
this?" Kauanui came within inches
of Cravens's face and started to swing at him with his right arm. Cravens countered with his left arm and
struck Kauanui in the jaw. Kauanui
"buckled up, became stiff, and fell directly back and hit his head on the
pavement."
The sound
of Kauanui's head hitting the ground was "very gruesome" and Cravens
looked shocked and worried about what had just happened. Grosso was screaming and "saying a lot
of stuff," and a neighbor was saying the cops were coming. Yanke and Cravens got into Yanke's car and
Yanke drove to his mother's house. He
hit a retaining wall on the way and parked the car in a church parking lot by
the house. When they arrived at the
house, Hendricks was outside in the alley.
The three spent the night at the house.
Cravens's left hand was hurting and Yanke gave him some frozen peas to
put on it.
Hendricks
related a similar version of the events leading to Kauanui's death. He testified that he first heard of the
controversy between House and Kauanui when he and Yanke left the bar and met
House, Cravens, and Osuna in the parking lot.
He was informed that House and Kauanui had talked on the phone and
wanted to fight each other. Hendricks
got into Yanke's Explorer with Yanke, Cravens, House, and Osuna, who drove
because he had not been drinking, and the group traveled the short distance to
Kauanui's house.
House
called Kauanui when they arrived to let him know they were there and the two
agreed to fight. Hendricks saw Kauanui
through the picture window next to the front door of his house talking to House
on the phone with his shirt off. After
exiting the Explorer, Cravens, Yanke, Hendricks, and Osuna stood on a curb as
House met Kauanui in the middle of the street.
House took Kauanui down with a wrestling maneuver and the fight started
as a wrestling match. Eventually, they
both stood up, but because House was getting up slower than Kauanui, Kauanui
punched House twice in the face before he got to his feet. They ended up back on the ground with House
on top of Kauanui. Grosso drove up, got
out of her car, and started kicking House in the back of the head. Hendricks grabbed her and pushed her away,
saying "You don't know what the fuck's going on."
When
Hendricks turned back to look where House and Kauanui had been fighting, he saw
House on all fours looking disoriented and saying, "I got to find my
tooth. Where's my fucking
tooth?" Kauanui then ran up to
House and swung at him, but did not connect a punch. Cravens or Osuna pushed Kauanui and said,
"It's fucking over with," referring to the fight between Kauanui and
House. House was mumbling, "You got
me. You got me. It's over." Kauanui and Cravens began exchanging words
back and forth, "Hawaiian style."
Each was telling the other he could "fuck him up." They started five to ten feet apart but
Kauanui walked up to Cravens and started talking "in his face" and
"talking with his hands in [Cravens's] face." About three to five seconds later, Cravens
hit Kauanui on the lower chin with his left hand. Kauanui's "head went up and down, and he
was knocked out cold and fell back on his head."
The only
kicking Hendricks saw was Grosso kicking the back of House's head. Yanke and Cravens tried to grab House to get
him back in Yanke's car, but he became violent and started throwing punches,
saying "I need my fucking tooth."
Hendricks and Osuna left the scene on foot as the police were
arriving. They walked to Yanke's house
and Hendricks spent the night there.
After they went into the house, Cravens bragged and expressed surprise
about knocking Kauanui out with one punch from his left hand. Cravens's mother testified that Cravens is
right-handed.
Criminal Threat (Count 1 — Victim Eric Sorensen)
In July
2005, Eric Sorensen was living in a house on Forward Street in La Jolla with
Brian Walsh. In early July 2005, his
mother, his girlfriend, and his girlfriend's mother were visiting and staying
at the house. On July 4, 2005, Sorensen
saw a verbal confrontation outside the house between Osuna and Walsh.
drove up to the house. Erik Wright got
out of the truck and punched Walsh in the face.
Sorensen took Walsh to the emergency room and a less than a week later,
Walsh underwent reconstructive surgery for the entire side of his face.
Wright
testified that on the day of the incident, his mother drove by Sorensen and
Walsh's house on her way to pick him up and Walsh sprayed her vehicle (a Toyota
truck) with a hose.
title="">[5] When she drove back by the house after
picking up Wright, Walsh sprayed her truck again. Wright then got out of the truck and
confronted Walsh, who was drunk and belligerent. Walsh threw a punch at Wright, and Wright
countered with a punch that hit Walsh in the face. Walsh and Sorensen's neighbor, Eduardo
Apodaca, testified that Wright got back into the truck and drove away. Apodaca tried unsuccessfully to read the
truck's license plate.
On July 8,
2005, Apodaca, his wife, and his brother Fernando were having dinner on their
deck when they saw the same Toyota truck drive by fast and heard someone
scream, "fucking kooks." The
Apodacas told Sorensen what had just happened.
Sorensen immediately got on his motorcycle while Fernando got in his
truck, and the two pursued the Toyota truck to get its license plate
number. Sorensen got the number,
returned to his house, and called the police.
Wright
testified that he was driving the gold Toyota truck and saw Sorensen and
Fernando following him as he pulled up to his house. Thinking "they were trying to get
revenge and kick my ass," he turned around and drove down some side
streets. He saw they were still
following him, so he called his friend Nino Nunziante in Pacific Beach and
drove to his house, where he picked up Nunziante, Reed Decker, and
Cravens. His plan was to drive with his
friends to where Sorensen and Apodaca lived to confront them and ask them what
they were doing at his house.
According
to Wright, they pulled up to Sorensen and Walsh's house and Walsh and his
friends were there "calling us pussies and trying to provoke a
fight." Wright's girlfriend also
arrived on the scene because Wright had called her on the way over. Wright testified that "she stopped me
and was going crazy on me and pulled me into her car." He further testified that he left the area
with her in her car, leaving his truck parked at the scene, and "didn't
see anything else."
Sorensen
testified that less than five minutes after he and Fernando returned from
getting the license plate number from Wright's truck, the truck pulled up and
four to six shirtless men jumped out and ran toward his house yelling.
side of him and one behind him. Sorensen
was in the house and was closing a metal screen door, but Wright grabbed it out
of his hand, pulled it open, and tried to grab him. Sorensen slammed the front wood door and held
it with his foot because he could not get it shut enough to lock it. As he held the door with his foot, the
attackers were "banging on the house and kicking things over." Apodaca testified that they knocked over
Sorensen's motorcycle. Sorensen heard Wright
yell that he was "going to fucking kill" him. The group left after Sorensen yelled through
the door that he was calling the police.
Sorensen felt that his life and the lives of those around him were
immediately threatened. During the next
three weeks he spent in San Diego completing flight training, he worried
whether "these people that lived two blocks up the street [were] going to
come bash our house in and kill us."
At a live
line up in 2008, Sorensen identified Cravens as the person he saw with Wright
about two weeks after the July 8, 2005 incident. He was not able to identify any faces from
the incident except Wright's, but remembered someone there having a build
similar to Cravens's.
Bodily Injury
(Count 5 — Victim Chris Jarrett)
In August
2006, August Essner, Chris Jarrett, and Jarrett's girlfriend Shannon O'Neill
were at Windansea Beach in La Jolla in an area the locals call Pink Wall. They went there to skimboard and enjoy the
beach. While Essner and Jarrett were
taking turns using Essner's skimboard, two young men holding beer bottles
approached them and asked what they were doing there. They told Essner and Jarrett they did not
like skimboarding and to get off their beach and "go home." Essner or Jarrett responded, "This isn't
your beach. We're not going
anywhere." Essner said, "Well,
what do you guys want to do about it? Do
you guys have a problem with it? What's
going on?"
The men
suddenly threw their beer bottles at Jarrett and Essner, and one of the bottles
struck and cut Jarrett in the shoulder.
Jarrett grabbed one of the men as the other swung at Essner, and a fight
ensued. As Jarrett and Essner were
fighting the men "two on two," five to seven men, including Cravens,
whom O'Neill recognized from school, ran up to the scene and joined in the
fight. Cravens punched Jarrett, put him
in a headlock and poured sand in his face.
Jarrett was eventually taken to the ground with four or five men on top
of him and someone stomped him on the side of his face, pushing him into the
sand. O'Neill intervened by trying to
pull people off Jarrett and punching his attackers. Jarrett managed to get to his feet and began
fighting one-on-one with Cravens.
O'Neill tried to step in but Cravens hit her in the face, causing her to
fall into the sand. Jarrett ran away and
O'Neill continued to hit Cravens in the stomach and slap him in the face. Cravens said to his friends, "Get this
bitch off of me or I'm going to hit her again."
O'Neill
then saw members of Cravens's group "trying to steal our stuff." They grabbed a cooler and Jarrett's backpack
and O'Neill tried to get those items back from them. They dropped the cooler and threw Essner's
skimboard in the ocean but took the backpack with them. One of the men, who had blood coming out of
his mouth, walked up to O'Neill and spit blood in her face. As the group was leaving, O'Neill walked
after them and yelled, "Why did you guys do this? What was the point of this?" Cravens answered, "This is La
Jolla. This is my town. You guys don't belong there."
As a result
of the fight, Jarrett suffered a split lower lip, a laceration on his shoulder
from the beer bottle, and bruising on his ribs and back. He also had footprints on his back.
Misdemeanor Battery (Count 6 —– Victim Elisabeth S.)
In October
2007, Elisabeth S. was 17 years old and a junior at La Jolla High School. Her mother was in Australia and her father
stayed at a downtown hotel one night so she could have the house to herself for
a small social gathering. She invited
one friend to her house, but her friend invited a lot more people and by 9:30
p.m. there were about 100 people at her house.
When some
people started feeding her dogs beer "and stuff like that," Elisabeth
got everyone out of the living room and onto a deck. She became angry and wanted everyone to leave
through a back gate. She got most of the
people out, but some became upset and threw pots from a balcony onto the
sidewalk and cars below and told her they were not going to leave. Elisabeth yelled at the last few to leave,
including Cravens, telling them they were not invited and needed to get
out. Cravens responded by hitting her
once in the chest and once on the chin.
The hit to the chin was not full force but left a welt. Cravens and the people he was with left when
a neighbor confronted them and told them they needed to leave.
Bodily Injury
(Count 7 — Victim Logan Henry)
On December
31, 2006, Lauren Kelly rented a "party limo bus" for New Year's Eve,
which was also Kauanui's birthday. The
bus picked up Kelly and others at her house and made additional stops
throughout the evening to pick up other people, including Kauanui, his younger
brother Nigel Kauanui, Cravens, Yanke, Osuna, Wright, and Nunziante. Eventually, there were between 40 and 60
people on board the bus.
The same
night, Romy Segall was having an "invitation-only" New Year's Eve
party for her closest friends at her parents' home in La Jolla. About 80 invited guests attended the party
but many left after midnight. By 12:45
a.m., there were 30 to 40 guests remaining according to one witness and about
15 according to another.
Around that
time, Segall's boyfriend, Joseph Heinrich, was outside saying goodbye to someone
and Kelly's party bus pulled up in front of the house. Three men got off the bus and were acting
rowdy. Heinrich told them "to get
the fuck out of here because the party's over." One of the men took his shirt off and walked
up to Heinrich as the other two stood behind him. He asked Heinrich who he thought he was
talking to him like that and said, "You want to go[?] You want to go right now[?]" Heinrich backed up, went back inside the
house, and bolted the door as other people started to "pile off" the
bus.
Heinrich
went to the back yard asked Logan Henry for support in telling the people from
the party bus they were not welcome.
Henry walked around the side of the house to the front yard holding a
bottle. Someone slapped the bottle out
of his hand and punched him on the side of his face. The punch knocked his glasses off and caused
him to fall on top of someone, and he began hitting that person in the
face. The person he was hitting said,
"Get this f'ing person off of me."
Someone then kicked Henry four times in the face. Henry's girlfriend and Segall stepped in
between Henry and his assailants and Henry was able to stand. When he got up, Cravens looked him in the
face and said he was going to "f'ing kill" him. Henry responded, "Do it, you know. Bring it."
Meanwhile,
a group of about seven men inside the house decided to go outside to get the
people from the bus to leave while Heinrich called the police. They were immediately accosted by men from
the bus and a melee ensued. The fight ended
when Heinrich announced he had called the police. Most of the people from the bus scattered and
re-boarded the bus, which then drove away.
Henry
suffered light bruising to his eyes and a bloody nose, and his shirt was ripped
and completely covered in blood. He
testified that the front yard of Segall's house was "mangled." Sprinkler heads were broken and "the
whole lawn . . . looked like a rugby tournament had been
played on it."
Bodily Injury
On February
4, 2007, John Hlavac left a Super Bowl party in La Jolla on foot between 9:00
and 9:30 p.m. He had been drinking and
was intoxicated. He had just crossed a
street to go into a 7-Eleven store when a car abruptly stopped near him. He turned around and saw that Avi Wasserman
was driving the car, Cravens was riding in the front seat, and Osuna was in the
back seat. Hlavac was familiar with
Cravens from school and they did not like each other.
Someone in
the car yelled something and Hlavac responded, "Fuck you." Cravens and Osuna quickly got out of the car
and approached Hlavac. Cravens threw a
punch at Hlavac's head. Hlavac dodged
the punch and hit Osuna, who was getting ready to swing at him. Then someone punched Hlavac hard enough to
knock him to the ground. He covered his
face so he would not "get stomped on." At one point when he was on the ground, Osuna
punched him in the face above his right eyebrow. He received a total of about five "hard
hits" during the fight, which lasted about one minute. Cravens and Osuna jumped back in the car and
drove off when someone from a taco shop across the street came out and yelled
at them in Spanish.
When Hlavac
returned home, his hand was bleeding and his eye was swollen. He did not intend to call the police, but one
of his parents called them and he provided a report to an officer that
night. A few days later he told another
officer who came to see him that he did not want to pursue charges.
Bodily Injury
On May 8,
2007, Christopher Horning and Michael Johnson, an acquaintance of Horning's
from work, had dinner and drinks in Pacific Beach and then drove in Horning's
car to a bar in La Jolla called The Shack to have a beer before going
home. They arrived sometime between
11:00 p.m. and midnight and parked next door to The Shack, across the street
from a 7-Eleven store.
When they
got out of the car, they saw a group of three or four males and two females
crossing the street. The girls were
laughing, and Horning thought he heard one of them imitate the way the comedic
character Borat says the word "nice" throughout the Borat movie that
was out at the time. Horning said
"the same thing right back to her."
He testified that it was a "[c]ommon thing to do at the time. Everybody . . . was
saying [it] everywhere."
In
response, Cravens turned toward Horning and Johnson and said something to the
effect of, "This is none of your fucking business. Stay out of it." Cravens then approached Horning and
Johnson. Horning told him they were just
having fun and not trying to start a fight.
According to Horning, Johnson closed the car door and came around the
front of the car saying "Whoa. Whoa. Whoa," with his hands
raised. He then said, "We're not
trying to start a fight, or peace or something like that." Johnson moved closer to Cravens and suddenly,
without warning, Cravens "stepped into" him and "sucker
punched" him in the face with full force.
Johnson
stepped back, dazed and shocked, and Horning said something to the effect of,
"Whoa. Stop. No. No. No
fighting." One of the males with
Cravens warned Horning to "stay out if it." Cravens ignored Horning and taunted Johnson,
saying something to the effect of, "Come on. What do you got?" Cravens then stepped forward and punched
Johnson again full force in the face, causing Johnson to fall to the
ground. As Johnson sat on the ground
with his legs bent at the knees, his feet on the ground in front of him, and
his arms outstretched behind him to support his weight, Cravens backed up about
six feet and continued to taunt him.
Cravens then stepped forward and punched him a third time in the face
with an underhand swing. Blood came out
of Johnson's nose and mouth and his nose appeared to be broken.
Horning
yelled, "You're going to jail. I
got your license plate number."
Someone in Cravens's group said, "Let's get out of here." Cravens told the two girls to get in the car
and leave. The girls drove off as he ran
down an alley behind the 7-Eleven store with the other males in the group. The police and an ambulance arrived on the
scene, and Horning rode with Johnson in the ambulance to the hospital.
The
emergency room physician who examined Johnson noted injuries consistent with a
probable broken nose and possible other facial fractures. He recommended a CAT scan of Johnson's head
and face, but Johnson left the emergency room before any tests were done. Johnson assumed his nose was broken because
it had been broken before. His face,
eyes, and ears were swollen and there was a slight bruise on his back as a
result of his falling onto the concrete.
His facial injuries
were painful and it took about two weeks for the initial swelling to go away,
and about another month for the swelling to completely disappear and his face
to return to normal. Johnson's nose felt
more deviated after the assault, and he eventually began to have pain in his
ear when he slept on his left side. He
thought pain was possibly due to drainage coming down from the nose and
deviated septum. However, he had
previously broken his nose "once or twice in baseball," and
acknowledged that the deviated septum could be from his other injuries.
The morning
after the assault, Horning returned to the scene to retrieve his car. He spoke to an employee of The Shack named
Pete, who told Horning he knew who had assaulted Johnson. Pete accompanied Horning to La Jolla High
School to look at yearbooks. Horning
identified Cravens as Johnson's assailant from viewing photographs of Cravens
in yearbooks from 2002 through 2004.
On May 10,
2007, Cravens sent the following MySpace message: "What the fuck.
When are we going to chill[?] I
can't go to the Shack for a while because I murdered someone. Ha, ha, ha, ha. No biggie.
Call me up and let's get krunk."
DISCUSSION
I.
Failure to
Instruct on The Theory of Voluntary Manslaughter Articulated in Garcia
Cravens contends that court
committed reversible error by failing to sua sponte instruct the jury on
the theory of voluntary manslaughter
articulated in Garcia,
A trial
court errs if it fails to sua sponte instruct on all theories of a lesser
included offense that are supported by substantial evidence. (People
v. Breverman (1998) 19 Cal.4th 142, 162.)
The Court of
Appeal in Garcia held that an
unintentional killing, without malice, during the commission of an
"inherently dangerous felony" constitutes at least voluntary
manslaughter. (Garcia, supra,
in this case should have sua sponte instructed the jury that if it found he
committed the inherently dangerous felony of assault with force likely
to produce great bodily injury but did so without implied malice, it could
convict him of voluntary manslaughter.
In Bryant,
this court reversed a second degree murder conviction on the ground the trial
court prejudicially " 'erred in failing to instruct the jury on the
lesser included offense of voluntary manslaughter, based on the theory
articulated in Garcia.' " (Bryant,
supra, 56 Cal.4th at p. 964.) Reversing this court, the Supreme Court
disapproved the Garcia theory of
voluntary manslaughter and clarified that an essential element of voluntary
manslaughter is either an intent to kill or a conscious disregard for life, the
latter being the mental component of implied malice. (Bryant,
supra, 56 Cal.4th at p. 968.) Thus, "[a] defendant commits voluntary
manslaughter when a homicide that is committed either with intent to kill or
with conscious disregard for life—and therefore would normally constitute
murder—is nevertheless reduced or mitigated to manslaughter." (Ibid.) The Bryant
court concluded that "[b]ecause a killing without malice in the
commission of an inherently dangerous assaultive felony is not voluntary
manslaughter, the trial court could not have erred in failing to instruct the
jury that it was."
name="_ftnref9" title="">[9] (Bryant,
Bryant establishes that the
that an unintentional
killing committed without malice during the commission of an inherently
dangerous felony constitutes voluntary manslaughter—is not valid in
California. Accordingly, the trial court
did not err in failing to instruct the jury on that theory.
II.
Cravens
contends the court prejudicially erred by denying his motion to sever trial of
the second degree murder count from trial of the other counts.
Under section 954, "[a]n 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."
"For
purposes of joinder, offenses are deemed to have been 'connected together in
their commission' where there was a common element of substantial importance in
their commission, even though the offenses charged did not relate to the same
transaction and were committed at different times and places and against
different victims. [Citations.] Similarly, within the meaning of section 954,
offenses are 'of the same class' if they possess common characteristics or
attributes." (Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722;
276.)
In
noted significant distinctions between joinder of charged offenses and admission of evidence of uncharged offenses. As the
proponent of evidence of uncharged offenses, the prosecution bears the burden
of persuading the court that the probative value of the evidence, which is generally
inadmissible, outweighs its prejudicial effect.
(Id. at pp. 772-773.) However, in the context of properly joined
offenses, the burden is reversed.
"The prosecution is entitled to join offenses under the
circumstances specified in section 954. 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. [Citations.] When the offenses are [properly] joined for
trial the defendant's guilt of all the offenses is at issue and the problem of
confusing the jury with collateral matters does not arise. The other-crimes evidence does not relate to
[an] offense for which the defendant may have escaped punishment. That the evidence would otherwise be inadmissible
[under Evidence Code section 352] may be considered as a factor suggesting
possible prejudice, but countervailing considerations [of efficiency and
judicial economy] that are not present when evidence of uncharged offenses is
offered must be weighed in ruling on a . . . motion [to
sever properly joined charges]. The
burden is on the defendant therefore to persuade the court that these
countervailing considerations are outweighed by a substantial danger of undue
prejudice." (People v. Bean (1988) 46 Cal.3d 919, 938-939, fn. omitted (
at p.773.)
In
the burden allocated differently in cases involving properly joined charges as
compared with cases involving the introduction of uncharged misconduct, but the
nature of the abuse of discretion standard—and the ensuing method utilized to
analyze prejudice, undertaken to determine whether a trial court abused its
discretion in a specific case—also are significantly different from what is
employed in determining whether a trial court erred in allowing the
introduction of evidence of uncharged misconduct." (Soper,
supra, 45 Cal.4th at p. 774.) To establish that a trial court abused its
discretion in denying a motion to sever properly joined charges, a defendant
must make a clear showing of prejudice,
which is a stronger showing of prejudice than would be required to exclude
evidence of other crimes in a severed trial.
(Ibid.) The denial of the severance motion amounts to
a prejudicial abuse of discretion only if it exceeds the bounds of reason. (Ibid.)
Further,
the method used to analyze prejudice is significantly different from that used
in reviewing the admission of evidence of uncharged misconduct. "[A]mong the 'countervailing
considerations' present in the context of severance—but absent in the context
of admitting evidence of uncharged offenses at a separate trial—are the
benefits to the state, in the form of conservation of judicial resources and
public funds. [Citation.]
. . . [T]hese considerations often weigh strongly against
severance of properly joined charges."
(Soper, supra, 45 Cal.4th at p. 774.)
Our
determination of whether the trial court abused its discretion in denying a
motion to sever properly joined charges is based on the record before the trial
court when it made its ruling and the particular circumstances of the
case. (Soper, supra, 41 Cal.4th
at p. 774.) However,
" 'certain criteria have emerged to provide guidance in ruling upon
and reviewing a motion to sever trial.' "
(Ibid.)
"First,
we consider the cross-admissibility of the evidence in hypothetical separate
trials. [Citation.] If the evidence underlying the charges in
question would be cross-admissible, that factor alone is normally sufficient to
dispel any suggestion of prejudice and to justify a trial court's refusal to
sever properly joined charges.
[Citation.] Moreover, 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 . . . 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.[
name="_ftnref11" title="">[11]]" (Soper,
supra, 45 Cal.4th at pp. 774-775.)
If a
reviewing court determines the evidence underlying properly joined charges
would not be cross-admissible, it
then considers " 'whether the benefits of joinder were sufficiently
substantial to outweigh the possible "spill-over" effect of the
"other-crimes" evidence on the jury in its consideration of the
evidence of defendant's guilt of each set of offenses.' [Citations.]
In making that assessment,
[the reviewing court considers] three additional factors, any of which—combined
with [the] earlier determination of absence of cross-admissibility—might
establish an abuse of the trial court's discretion: (1) whether some of the charges are particularly
likely to inflame the jury against the defendant; (2) whether a weak case has
been joined with a strong case or another weak case so that the totality of the
evidence may alter the outcome as to some or all of the charges; or (3) whether
one of the charges (but not another) is a capital offense, or the joinder of
the charges converts the matter into a capital case." (Soper,
supra, 45 Cal.4th at p. 775.) The
reviewing court then balances the potential for prejudice to the defendant from
a trial of properly joined charges against the countervailing benefits to the
state, bearing in mind that the state's interest in joinder gives a trial court
broader discretion to deny a motion to sever properly joined charges than it
has to admit evidence of uncharged offenses in a separate trial. (Id. at
p. 775 & fn. 7; Bean,
We conclude
the court did not prejudicially err in denying Cravens's motion to sever the
other counts from the murder count.
Preliminarily, we view the counts as properly joined because they were
of the same class and connected together in their commission within the meaning
of section 954. Cravens contends that
the count of making a criminal threat (Count 1) was improperly joined because
it is not in the same class as the other assaultive
offenses, and the criminal threat and other offenses were not connected
together in their commission. As noted,
the term "same class of crimes or offenses" in section 954 refers to
offenses that possess common characteristics or attributes, and courts have interpreted
the term broadly. (See
579, 586; [counts of burglary, concealing stolen property, and possession of
property with a removed serial number were properly joined as crimes against
property]; People v. Thomas (1990)
219 Cal.App.3d 134, 139-140 [charges of attempted murder, robbery, and ex-felon
in possession of a firearm properly joined as belonging to the class of
assaultive crimes against the person]; People
v. Lindsay (1964) 227 Cal.App.2d 482, 492 [charges of kidnapping, robbery,
and assault with a deadly weapon were properly joined as offenses against the
person, and burglary with intent to commit those offenses was properly joined
as possessing a common element of substantial importance with the other offenses].) Further, the language "connected
together in their commission" in section 954 reflects legislative intent
for a very broad test for joinder of offenses.
(Alcala v. Superior Court (2008)
43 Cal.4th 1205, 1217-1218.)
The crime
of making a criminal threat is in the same class of offense as assault because
both are crimes against the person, regardless of how they are classified in
the Penal Code.
title="">[12] (See Doe
v. Saenz (2006) 140 Cal.App.4th 960, 987 ["crimes against the
person" generally refers to offenses in which the perpetrator uses
attribute of subjecting the victim to the threat or fear of great bodily
harm. The criminal threat and assault
counts in this case are also "connected together in their commission"
within the meaning of section 954 because they share a common element of
substantial importance, namely, the intent to intimidate, terrorize, and bully
the victims. (See Alcala v. Superior Court,
supra, 43 Cal.4th at p. 1218 ["[T]he intent or motivation with which
different acts are committed can qualify as a 'common element of substantial
importance' in their commission and establish that such crimes were 'connected
together in their commission.' "].)
Because the
counts are properly joined under section 954, our determination whether Cravens
was prejudiced by the joinder requires us to consider whether the evidence
underlying the nonhomicide counts would be cross-admissible, under Evidence
Code section 1101,
name="_ftnref13" title="">[13] in a
hypothetical separate trial of the second degree murder count. (Soper,
supra, 45 Cal.4th at p. 774;
1030.) "[T]here exists a continuum
concerning the degree of similarity required for cross-admissibility, depending
upon the purpose for which introduction of the evidence is sought: 'The
least degree of similarity . . . is required in order to
prove intent . . . .
In order
| Description | A jury convicted Seth Cravens of second degree murder (Pen. Code[1] § 187, subd. (a); making a criminal threat (§ 422); battery (§ 242); and four counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). As to one of the assault counts, the jury found Cravens personally inflicted great bodily injury. (§§ 1192.7, subd. (c)(8) and 12022.7, subd. (a).) The jury found Cravens not guilty of two additional assault counts and an additional battery count. The court sentenced Cravens to 20 years to life in state prison. |
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