P. v. Hudson
Filed 11/15/13
P. v. Hudson CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE
DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
UMAR R. HUDSON,
Defendant and Appellant.
A134881
(San Francisco City and County
Super. Ct. No. 208349)
Appellant
Umar R. Hudson was convicted after a jury trial of one count of
§ 187, subd. (a)), two counts of lewd acts on a child (
of forcible oral copulation (id.,
former § 288a, subd. (c)(2)), and one count of
court’s denial of his severance motion, and (2) a jury instruction regarding
false or misleading statements. We
reject these challenges and affirm.
BACKGROUND
In
late 2006 and early 2007, appellant lived with his girlfriend, J.S., and their
child. J.S.’s other children also lived
with them, including eight-year-old A.S. and 13-year-old M.S. A.S. testified that appellant committed a
lewd act against her in her bedroom, and DNA analysis indicated semen found on A.S.’s
comforter was likely appellant’s. M.S.
also testified to incidents in which appellant sexually molested her.
When
A.S. told her mother what appellant had done, J.S. kicked him out of the
house. A.S. reported the incident to the
police, who subsequently also spoke to M.S.
About two months after A.S. first talked to the police, appellant
stabbed J.S. 45 times and killed her. The
prosecution’s theory was appellant committed the murder to retaliate against J.S.
for supporting her daughters in reporting appellant to the police. Appellant did not dispute that he killed J.S.,
but argued a different motive justified a conviction of manslaughter.
DISCUSSION
I. Severance
Motion
Before
trial, the trial court denied appellant’s motion to sever the murder charge
from the four molestation charges. Appellant concedes the offenses were all of
the same class and joinder was therefore proper under Penal Code section 954,
which authorizes joinder of “two or more different offenses of the same class
of crimes or offenses.†He argues the
trial court nonetheless should have exercised its discretion to sever the
charges.
In
an appeal challenging a trial court’s refusal to sever properly joined charges,
“[the] defendant must show that the trial court’s ruling was an abuse of
discretion. [Citation.] In order to establish an abuse of discretion,
[the] defendant must make a ‘clear showing of prejudice.’ [Citation.]â€
(People v. Thomas (2012) 53
Cal.4th 771, 798.) “We consider first
whether the evidence of the two sets of offenses would have been
cross-admissible if the offenses had been separately tried. [Citation.]
If the evidence would have been cross-admissible, then joinder of the
charges was not prejudicial.†(
If the evidence would not have been cross-admissible, “[w]e consider
‘[1] whether some of the charges are likely to unusually 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 total evidence may alter the outcome of
some or all of the charges; and [3] whether one of the charges is a capital
offense, or the joinder of the charges converts the matter into a capital
case.’ [Citation.] ‘We then balance the potential for prejudice
to the defendant from a joint trial against the countervailing benefits to the
state.’ [Citation.]†(Id.
at pp. 798-799.)
Appellant
concedes evidence of the molestation charges would have been admissible in a
separate trial on the murder charge as evidence of motive; however, he contends
evidence of the murder would not have been admissible in a separate trial on
the molestation charges. We need not
decide whether evidence of the murder would have been cross-admissible because
the cross-admissibility of the molestation evidence alone is sufficient to
justify joinder. (People v. Zambrano (2007) 41 Cal.4th 1082, 1129 [“it is enough that
the assaults were admissible in the murder case; ‘two-way’ cross-admissibility
is not requiredâ€], disapproved of on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22;
926, 985 [“complete cross-admissibility is not necessary to justify the joinder
of countsâ€].) Accordingly, the trial
court did not abuse its discretion by denying severance.
II. Jury
Instruction
Over
defense objection, the trial court instructed the jury pursuant to CALCRIM No.
362: “If the defendant, Umar Hudson, made a false or misleading statement
relating to the charged crime knowing the statement was false or intending to
mislead, that conduct may show he was aware of his guilt of the crime and you
may consider it in determining his guilt.
[¶] If you conclude that the defendant made the statement, it is up
to you to decide its meaning and importance.
However, evidence that the defendant made such a statement cannot prove
guilt by itself.â€
Appellant
contends there was no evidence of a false or misleading statement to support
this instruction. A police officer
testified at trial that, shortly after the murder and near the scene of the
crime, he asked appellant to identify himself and appellant responded with a
false name. This evidence is sufficient
to support the challenged instruction. (
1028 [CALJIC version of CALCRIM No. 362 “was supported by evidence that [the]
defendant gave a false name . . . upon arrestâ€].)
Appellant
argues the jury might have improperly considered the challenged instruction in
connection with the molestation charges because the trial court did not limit
it to the murder charge. In light of the
other evidence presented on the molestation charges, it is not reasonably
probable a more favorable result would have occurred if such a limiting
instruction had been provided; any error in failing to provide one was
therefore harmless. (
836.)
DISPOSITION
The
judgment is affirmed.
SIMONS,
J.
We concur.
JONES, P.J.
BRUINIERS, J.
