Filed 10/11/18 P. v. Lowery CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury found defendant Joshua Phillip Lowery guilty of second degree murder with an enhancement for personal use of a deadly weapon, a hammer (Pen. Code, §§ 187, 12022, subd. (b)(1)).[1] The trial court sentenced him to 16 years to life in state prison.

Defendant appeals, contending only that the trial court erred in admitting uncharged evidence of a 2008 battery. We shall affirm the judgment.

BACKGROUND

2013 Murder

Defendant was alleged to have beaten victim Christopher S. to death with a hammer, on a public street, on October 23, 2013. A surveillance video showed the victim getting off the bus at about 6:22 p.m., approximately eight minutes before police were dispatched to the attack. The video did not show any argument or confrontation.

Witness Katrina Strandberg testified that she was walking at the intersection of Greenback Lane and Birdcage Street in Citrus Heights when she passed two men (defendant and the victim) walking in the opposite direction, separated by a few feet. Realizing she needed to retrieve items from her car, Strandberg turned around and walked in the same direction as the two men. She saw defendant pull a hammer from his backpack and hit the victim several times on the head with it.

Strandberg was a regular methamphetamine user at the time of the murder and was under the influence of methamphetamine when she witnessed the crime, and later when she described and identified defendant. She did not call 911 immediately after witnessing the murder because she had outstanding warrants, but later initiated contact with the police and identified herself as a witness.

In February 2014, Strandberg described the attacker to a police sketch artist. Law enforcement prepared a six-person photographic lineup that included defendant, and Strandberg identified him as the assailant from the lineup.

Witness Jason Whiteside and his wife were driving home on Greenback Lane the evening of the murder when he saw a man hitting another man on the head with a small, black object like a blackjack. The attacker was wearing jeans and a dark hoodie. Whiteside left the car and ran toward the victim yelling out, and the attacker left. A responding officer found the victim lying on the ground, bleeding profusely from the head. He had suffered numerous skull fractures consistent with being struck from behind by a hammer and died from blunt force injuries to the head.

Later that evening, a security guard found defendant lying on the ground and snacking in a park about two miles from the murder scene. He was wearing jeans and a black hoodie and had a framing hammer in his backpack.

In August 2012, police had contacted defendant on Greenback Lane near Birdcage Street. In November 2009, police had contacted defendant about a mile from the murder scene. Defendant had a hammer with him at that time, but no other items related to construction. The officer had previously seen defendant in Citrus Heights.

The victim was five feet three inches tall and 150 pounds. On the day of the incident, defendant was five feet nine inches tall and 210 pounds.

2008 Battery

Justin M. was walking to work on Greenback Lane, near Birdcage Street on March 21, 2008, when he passed a man who was walking in front of him. The man closed the gap between them and stabbed Justin M. in the finger with a syringe. Justin M. identified his assailant in a photographic lineup, and the signed lineup with a circle around the identified individual was presented to the jury. The parties stipulated “that the battery against Justin [M.] on March 21st, 2008, is true.” Justin M. is just under five feet eight inches tall and weighed 130 pounds at the time of the assault.

DISCUSSION

Defendant contends the trial court abused its discretion in admitting evidence of the 2008 battery as prior uncharged misconduct.

Generally, the prosecution may not use a defendant’s prior uncharged act as evidence of disposition to commit a charged criminal act. (Evid. Code, § 1101, subd. (a).) But such evidence is admissible when it is relevant to prove identity or plan. (Id., subd. (b).) Here, the evidence was offered and argued as identity evidence and evidence of common plan and the jury was told through the pattern instruction (CALCRIM No. 375) that it could only consider the evidence of the battery “for the limited purpose of deciding whether the Defendant was the person who committed the offense alleged in this case, or the Defendant had a plan or scheme to commit the offense alleged in this case.”

“When the prosecution seeks to prove the defendant’s identity as the perpetrator of the charged offense with evidence he had committed uncharged offenses, the admissibility of evidence of the uncharged offenses turns on proof that the charged and uncharged offenses share sufficient distinctive common features to raise an inference of identity. A lesser degree of similarity is required to establish the existence of a common plan or scheme.” (People v. Lindberg (2008) 45 Cal.4th 1, 23.) “We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” (People v. Cole (2004) 33 Cal.4th 1158, 1195.)

Defendant first argues the prior misconduct was not sufficiently similar to the charged crime to be admissible to prove identity or common plan. Although the charged and uncharged incidents were not overwhelmingly similar, there are enough similarities to preclude us from finding an abuse of discretion in admitting the evidence for the stated purposes.

Both attacks occurred on the sidewalk of Greenback Lane in Citrus Heights, near Birdcage Street. Both attacks were committed against strangers who were merely walking in front of defendant on the sidewalk. The attacks each involved an uncommon choice of deadly weapon (see People v. Autry (1991) 232 Cal.App.3d 365, 369 [hypodermic syringe is a deadly weapon]; People v. Burton (2006) 143 Cal.App.4th 447, 457 [hammer as deadly weapon]), and were a complete surprise to the victims, perpetrated from behind without warning. The victims in the two attacks were both much smaller than defendant and therefore more vulnerable.

Although defendant argues that the similarities between the two attacks are not remarkable in and of themselves, when considered together they are distinctive. “The inference of identity need not depend on one or more unique or nearly unique common features; features of substantial but lesser distinctiveness may yield a distinctive combination when considered together. [Citations.]” (People v. Scott (2011) 52 Cal.4th 452, 472-473 [sufficient similarity for cross-admissibility where defendant broke into homes at night, in a predetermined area, used deadly force to dominate victims, and kept trophies].) The common marks of the charged and uncharged crimes standing alone need not be particularly distinctive, so long as in the aggregate, the similarities become more meaningful, leading to the reasonable inference that defendant was the person who committed all the crimes. (People v. Medina (1995) 11 Cal.4th 694, 748-749.) Here, the similarities that we have described sufficiently support the admission of the 2008 battery as evidence of identity. Because admission of evidence of common plan requires less similarity than that of identity, admission under on that basis was adequately supported as well.

Defendant also briefly argues error under Evidence Code section 352. He posits that the needle attack was “inflammatory given its rarity, unusualness and remoteness.” But he does not describe how the evidence of a single surprising stab with a needle from behind was inflammatory when compared to the vicious surprise attack with a hammer from behind, resulting in death, about which the jury was hearing. Further, the “rare and unusual” nature of the needle attack is what made it particularly relevant to the issue of identity here, as we have already discussed. Defendant does not explain how any undue prejudice may have outweighed the strong probative value of that identity evidence. Nor do the fewer than five years represented here signal remote conduct as caselaw has defined it. (See, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 405 [12-year gap deemed not too great to prevent admissibility]; People v. Branch (2001) 91 Cal.App.4th 274, 284-286 [prior sexual misconduct admissible notwithstanding 30-year gap from charged crimes].) We find no abuse of discretion in admitting this evidence.

To the extent defendant relies on our decision in People v. Hendrix (2013) 214 Cal.App.4th 216 to support his argument that the pattern limiting instruction given by the trial court was inadequate, that decision made clear its dependence on context not present here. (See id. at p. 239 [“We conclude that the trial court’s legal analysis here was erroneous. The error is understandable because this case presents a significantly different context for the application of the decisional law related to [Evid. Code] section 1101, subdivision (b). We have found no [Evid. Code] section 1101, subdivision (b) cases involving prior resisting arrest incidents admitted for purposes of establishing the knowledge element of a resisting charge or establishing the absence of mistake. Nor have we found any cases addressing the application of the similarity analysis in deciding the admissibility of other crimes evidence to establish knowledge”].) Hendrix is simply not on point to the case at hand.

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Mauro, Acting P. J.

/s/

Hoch, J.