P. v. Fuller

Filed 8/31/09 P. v. Fuller CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed with directions.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant, James Fuller, of two counts of first degree home robbery (Pen. Code, 211/212.5, subd. (a))^[1]and one count each of trespass (Pen. Code, 602),^[2]dissuasion of a witness ( 136.1, subd. (c)(1)), possession of a billy club ( 12020, subd. (a)(1)) and resisting a police officer ( 148, subd. (a)(1)). The jury further found that defendant had suffered a prior conviction which was both serious and constituted a strike ( 667, subds. (a),(c) & (e)). Defendant was sentenced to prison for 19 years and appeals, claiming his motion for severance should have been granted and the jury was misinstructed. We reject his contentions and affirm while directing the trial court to amend the abstract of judgment to correct errors therein.

Facts

On August 5, 2006, defendant and two companions entered an apartment which the victims were visiting, robbed the victims of various personal items including cell phones and took items from the apartment. As the assailants left, the victims were threatened and those threats were repeated in calls made hours later. On November 15, 2006, defendant was accosted by a police officer, from whom he ran, disposing of a billy club on the way. More detailed facts will be disclosed as they are pertinent to the issues discussed.

Issues and Discussion

1. Motion to Sever

Defendant was charged by information on March 7, 2007. A week later, he filed a demurrer to the information for which, despite a written opposition by the People, a hearing was never held.^[3] Almost a year and a half later, trial was continued or trailed from June 30, 2008 and on July 28, 2008, counsel stipulated that the last date for trial was August 14, 2008, then stipulated again later that the last day was August 19, 2008.

On that date, which was one court day before the first day of trial, defendant filed a trial brief, which included Evidence Code section 402 motions in limine, one of which was a request to sever the trial of possession of a billy club and resisting a police officer (hereinafter, the November offenses) from the trial of the other charges, which were alleged to have been committed in August, 2006 (hereinafter, the August offenses). There was no statement of facts in defendants moving papers and he made no such statement during the hearing on his motions in limine. The People, in their trial brief, included a statement of facts in which they recited that defendant had committed the August offenses on August 5, 2006. The People also stated that defendant eluded capture by police for these crimes until November 15, 2006, when he was accosted by a police officer, from whom he ran, dropping the billy club as he went, thus committing the November offenses.

In the request for severance portion of his trial brief and motions in limine, defendant said only that severance should be granted because evidence concerning the charged billy club possession (a November offense) would be used to bolster the weapon use allegation attached to the two robberies^[4](August offenses) and it would not be cross-admissible at the trial of the August offenses and evidence related to the resisting a police officer charge (the other November offense) would be used to bolster all the August offenses and it was not cross-admissible at the trial for them. He did not discuss any evidence in connection with his assertions and made no further elaboration on them.

At the hearing on the request, the People pointed out that the defendant was quite late in seeking severance, which could have been done almost a year and a half before and not on the eve of trial. Before the trial court denied his request, defendant informed it that if he chose to testify at trial, he would permit the jury to determine the truth of the allegation that he had committed a prior assault with a deadly weapon, which had been alleged both as a serious prior and as a strike, at the same time as it determined his guilt of the charged offenses.

The trial court denied the request to sever, saying, [T]he time spent in severing these would . . . not [be] a very good use of the courts resources and [the presence of the billy club possession and evading a police officer charges in this trial] is not all that prejudicial . . . in a [section] 352 weighing [process], the prejudice of severing it versus the benefit. The jurors are going to be instructed that [the possession and resistance charges are] . . . completely separate offense[s] and that theyre to weigh the facts of [those c]ounts separate[ly] . . . from all of the others. []  . . .  [Theyre] all part of the same Information, and Im not inclined to use the resources that way, and I find that it is not necessarily prejudicial to [defendant] that each of these [charges] is tried to the jury at the same time rather than [in two separate trials] . . . . I think that that is an undue waste of the courts time.

Defendant here contends that the trial courts ruling was an abuse of its discretion. We disagree. As the People correctly state, we review the propriety of the ruling by considering the record as it stood at the time the ruling was made. (People v. Soper (2009) 45 Cal.4th 759, 774 (Soper).) The factors to be considered in granting a request to sever, as relevant here, are: the cross-admissibility of the evidence of the various charges, whether evidence of some of the charges is likely to inflame the jury against the defendant concerning the others, and whether a weak case has been joined to a strong one so that all the evidence may alter the outcome of some or all of the charges. (People v.Mendoza (2000) 24 Cal.4th 130, 161.)

We disagree with defendant that evidence of the November offenses would not have been admissible at trial of the August offenses. Defendants three month long effort to elude police after committing the August offenses and the lengths to which he went in November to avoid contact with the police when accosted by them showed his consciousness of guilt as to the August offenses.^[5] Additionally, one of the robbery victims was unable to identify the device that had been held against his head during the crimes. As both counsel argued to the jury, a reasonable assumption was that it could have been the billy club.

Defendant asserts that he was prejudiced by the joinder by asserting that he denied involvement in two of the August offenses (the robberies). However, this was not known by the court at the time it made its ruling. As to defendants assertion that his possession of a billy club led the jury to believe he might be a violent person and, therefore, commit the charged robberies, we point out that at the time the trial court made its ruling, it realized the real possibility that defendant would testify at trial, be impeached with his prior assault with a deadly weapon conviction and have the jury determine the truth of the allegation that he suffered that conviction for purposes of enhancement at this trial. That possibility is precisely what happened here, which persuades us that, aside from the facts known to the court at the time it denied defendants request, what later occurred at trial demonstrated, including defendants admission on the stand that he dealt drugs for a living, that defendant was not ultimately prejudiced by the ruling, a matter for which defendant carries the burden of proof.^[6] (Soper, supra, 45 Cal.4th at p. 783.) Defendant does not even assert in his briefs that those consequences he anticipated in making his request had actually occurred at trial.

Defendant also bore the burden below of demonstrating a likelihood that he would be prejudiced by trial of all the charges together. (Soper, supra, 45 Cal.4th at p. 773.) His bare assertions in his trial brief/motions in limine did little to help him with this burden. Under these circumstances, we cannot conclude that the trial court acted unreasonably in denying his request to sever.

2. Jury Instruction on Witness Intimidation

Defendant contends that because the jury had three different acts of witness intimidation from which to choosewhen he (or one of his cohorts) told the victims as he and his cohorts left the apartment to not tell the police it was them or they would return and kill them, within 40 minutes of the robberies when he called the apartment resident at the latters apartment and reiterated the earlier threat, and when he made a second call, at 2:30 a.m., while the resident and the victims were at the home of the parents of the residents roommate and repeated the threatthe trial courts failure to give the unanimity instruction requires reversal of the witness intimidation conviction. We disagree.

In arguing to the jury that defendant was guilty of the charge, the prosecutor asserted in both his opening and closing arguments that the phone calls constituted the crime.^[7] The prosecutor having made this election, there was no need to give a unanimity instruction as the jurors had to find that defendant made these phone calls in order to convict him. (People v. Russo (2001) 25 Cal.4th 1124, 1132.)^[8]

To the extent the prosecutors remarks and defense counsels final remarks can be construed as inviting the jury to convict defendant based on all the threats he made that night, including the one at the scene, his acts constitute a continuing course of conduct for which a unanimity instruction is not required. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292; People v. Salvato (1991) 234 Cal.App 3d 872, 882.)

Disposition

The trial court is directed to amend the abstract of judgment to show that defendant received a one-third the midterm, doubled under section 667, subdivisions (c) and (e)(1), rather than the full consecutive term the abstract currently states and to show that defendant was sentenced pursuant to section 667, subdivisions (c) and (e)(1), not section 667, subdivision (a), as the abstract currently states. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

MILLER

J.

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^[1] The Information alleged, in connection with the first robbery, that defendant used a deadly weapon but there was no identical allegation as to the second robbery. On August 29, 2008, at the conclusion of discussions on jury instructions, the trial court allowed the People to amend the Information to add this allegation as to the second robbery. THE MINUTE ORDER FOR AUGUST 29, 2008 CONTAINS NO REFERENCE WHATSOEVER TO THIS. It is also disturbing that the version of the Judicial Council of California Criminal Jury Instructions, CALCRIM No. 2622 contained in the Clerks Transcript does not contain the amendments the trial court ordered be made to it.

^[2] All further statutory references are to the Penal Code unless otherwise indicated.

^[3]It is this document which defendant cites in his opening brief as containing his motion for severance. It did not.

^[4] See footnote 1, ante, page 2.

^[5] Defense counsel, herself, said to the jury during argument, Theres two reasonable interpretations as to why [defendant] ran [from the police in November]. Sure, you could say, if he ran [in November], well, he could have committed the robber[ies]. Sure, thats reasonable.

^[6] We also note that defendant admitted his guilt of possessing the billy club and resisting a police officer.

^[7] When quickly summarizing the charges, at the beginning of his opening argument, the prosecutor said of the dissuasion, Those are the phone calls. Later he said, We go on to . . . intimidating a witness. And these are the elements right here. Defendant tried to prevent [the robbery victims] from making a report to law enforcement . . . . [] [W]hat are the facts here?  . . .  Defendants words: Call the cops, Ill kill you. [On the c]ell phone, [he] kind of reiterated that. []Im going to come back.[] [] He called twice that we know of. The first time when [the apartment resident] was inside the apartment . . . . []You call the cops, Ill kill you.[]  . . .  And right before . . . defendant was leaving the apartment, he stops and says, [T]ell them a bunch of Mexicans did this. If you . . . call the cops, Im going to come back , and Ill blast you.[]  . . .  [] [Defendant] almost picked the right target, young people that he knew he could intimidate.  . . .  Thats what he definitely tried doing to them. He tried to prevent them here. At the end of his opening statement, the prosecutor said, once again summarizing the charges, And the evidence points to one thing, that this man broke into . . . [the apartment residents] home, told [the victims] to get on the ground.  . . .  And he robbed them.  . . .  And then after that [he] takes the cell phone that he stole and calls him up, and tells him[, D]ont call the cops. If you do, I will kill you. [] For that . . . hold him responsible . . . . During closing argument, the prosecutor asserted that it was defendant who made the 2:30 a.m. phone call. Later, he said, Its an ambush that he caused [the robbery victims]. And he steals their items. [] And then after that he tries to bully them [to] not call . . . the police. They made that threat: []You call the police, Ill blast you.[] That makes perfect sense why [defendant and not the other two who participated in the robbery is] the one making the phone call[s].  . . .  [] Defendant has a motivation to say that.  . . .  He was able to do it when he robbed them. Now hes able to do it when hes making those phone calls.  . . .  But who would be the only person who would know who to even call? Thats the defendant. At the end of his closing argument, he said, [Defendant] came into their house. He ambushed them . . . and robbed them. And then after the fact he uses the same items he stole from them to threaten them to not call the police . . . .

^[8] Unfortunately, defense counsel muddied the waters during her argument to the jury by making conflicting statements about the charge. She began by saying, We are here to determine whether the government has proved to you beyond a reasonable doubt  . . . of the truth of the dissua[sion] of a witness.  . . .  [Defendant] told you he called . . . [the apartment resident twice, but he said only, D]ont make a false police report. This would suggest that the defenses theory was the same as the prosecutions, i.e., that the witness intimidation occurred during the phone calls and not at the apartment. This interpretation was confirmed by the following later statement of counsel concerning this charge, thusly, [I]f you call somebody and say, [D]ont make a false police report,[]thats not dissuading a witness. Thats saying, []Im innocent, dont accuse me of something I didnt do. Okay. So hes not guilty of that [charge]. [] The accusations that [defendant] made these other phone calls . . . Im not really sure if you should believe any of that. But if you do, ask yourselves: What evidence do I have that it was him who made those calls, and is it believable? What physical evidence do I have to corroborate that it was him who made those calls? And is it believable? Has the prosecution met their burden of proof in proving to me that it was him that made those calls? No. [] Also, [defendant is] accused of dissuading [the robbery victims], the phone calls that were made were his voice. But then defense counsel said the following, So those phone callsif the prosecution argues to you that those phone calls should be the subject of that charge, that is not what we are asking you to do[. O]n the contrary[,] Im arguing it to you because of the possibility that [defendant] was the subject of that charge, . . . but it is our position that that is not the subject of that charge. The subject of that charge is the . . . threat that was allegedly made inside the [apartment] at the end [when someone said, I]f you call the cops, we will shoot you,[] . . . when [the robbery victims] were in the back [bed]room. . . .  [] So we argue to you thats how he was charged. That is the subject of the count. But either way, if you want to take other information, although we do not condone it, we think that hes not guilty anyway. These remarks show that it was the prosecutors theory that the intimidation occurred during the phone calls and it was defense counsel who attempted to steer the jury away from the election made by the prosecutor. But defendant cannot now profit from his own acts.

Defendant was charged with dissuading both robbery victims, not just one or the other. Defendant appears to have forgotten this fact when he asserts that the prosecutor never elected to which [robbery] victim . . . the charges applied and the prosecutor did not elect to limit the . . . charge to . . . only one victim.