P. v. Moore

Filed 3/1/07 P. v. Moore CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed.

A jury convicted Diondre Moore of pandering (Pen. Code,^[1] 266i, subd. (a)(2)), second degree robbery ( 211), and three counts of attempted robbery ( 211, 664). Moore admitted his prior conviction that was both a serious prior felony ( 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a strike ( 667, subd. (b)-(i), 668, 1170.12). The court sentenced Moore to prison for 18 years.

Moore appeals, contending the court should have severed the pandering charges from the robbery charges. He further contends the court should have instructed the jury with a unanimity instruction on the pandering charge. We affirm the judgment.

FACTS

Count 1

Over a period of four months, Moore asked Michelle Lopez to be his prostitute five times. They first met in a taco shop in La Mesa, where Moore asked Lopez to work as a prostitute for him and she refused. A week later, Moore approached Lopez again and asked her to "ho" for him and be his "bitch." She refused. Lopez encountered Moore around town at least two more times, and she again refused his offers.

Four months after the first encounter, Lopez saw Moore at a friend's house. He again asked her to prostitute for him. She told him no and "not to disrespect [her]." Moore punched her in the face twice and once in the back when she turned around.

Counts 2 through 5

Two days after punching Lopez, Moore and three men confronted David Pina who was waiting for the trolley in La Mesa. One of the men asked if he could use Pina's cell phone. Pina said no, but would make a call for him. The man then forcibly grabbed the phone from Pina. Moore demanded Pina's money and when Pina said he didn't have any, Moore punched him in the face. Moore repeatedly asked for the money, saying "give me the fucking money," "where's your wallet, where's your cash?" One of the men took Pina's wallet but found no money in it. Moore again punched Pina before he walked away with two of the men.

Moore and the two men crossed the trolley tracks and confronted Rianna Gordon, Kyle Samples, and Alvin Graham and asked if they had change for a five dollar bill. When they said they did not, Moore became aggressive and continued to demand the money. The three began to walk away and Moore put his hand on Sample's chest to stop him from leaving. Gordon tried to protect Sample, but Moore punched her in the face. Gordon asked Graham for his cell phone to call the police, but Moore knocked it to the ground. Moore then hit Graham four times, twice with an open fist.

DISCUSSION

I

The Court Properly Denied the Motion to Sever the Charges

Moore argues the trial court erred when it denied his motion to sever the pandering charges from the robbery and attempted robbery charges. Before trial, Moore moved to sever the charges on the ground that the offenses were not of the same class.^[2] Whether the offenses are of the same class is a question of law to which the de novo standard of review applies. (People v. Alvarez (1996) 14 Cal.4th 155, 188.)

A joint trial carries considerable benefits, including conservation of judicial resources and public funds. (People v. Bean (1988) 46 Cal.3d 919, 939-940.) Nonetheless, the trial court must sever trial of offenses when a joint trial would deny the defendant a fair trial. (Williams v. Superior Court (1984) 36 Cal.3d 441, 448.)

To determine if the joinder was fair, we first assess whether the statutory requirements for joinder were met. Second, we review whether the trial court properly determined that joinder would not prejudice the defendant. (People v. Lucky (1988) 45 Cal.3d 259, 276-277; Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 134-135.)

To satisfy the first stage of analysis, offenses must be properly joined under statute so that, although not related or connected in their commission, the crimes "share common characteristics." (People v. Lucky, supra, 45 Cal.3d at p. 276; People v. Thorn (1934) 138 Cal.App. 714, 734-735.) For example, rape and robbery share enough characteristics as assaultive crimes to be joined. (People v. Kemp (1961) 55 Cal.2d 458, 474-476.)

Pandering and robbery offenses share the common elements of threats of violence or actual violence and Moore's conduct in both offenses was violent. ( 266i, subd. (a)(2)), 211.) He punched his victims to obtain money through robbery and pandering. Accordingly, these were violent crimes and the trial court did not err in denying Moore's motion to sever the counts.

Moore also argues the court committed prejudicial error in the second stage of analysis. A defendant must "clearly establish a danger of prejudice sufficient to warrant severance" when different offenses are properly joined under section 954. (People v. Cummings (1993) 4 Cal.4th 1233, 1283.) "Denial of a severance motion may be an abuse of discretion if the evidence related to the joined counts is not cross-admissible; if evidence relevant to some but not all of the counts is highly inflammatory; if a relatively weak case has been joined with a strong case so as to suggest a possible 'spillover' effect that might affect the outcome; or one of the charges carries the death penalty." (Ibid.) Our review of these factors is intended to ensure that "the joinder laws [are not] used to deny a criminal defendant's fundamental right to due process and a fair trial." (Williams v. Superior Court, supra, 36 Cal.3d at p. 448.)

Evidence need not be cross-admissible before offenses may be jointly tried before the same trier of fact under section 954.1. (Price v. Superior Court (2001) 25 Cal.4th 1046, 1070.) The absence of cross-admissibility is not, by itself, sufficient to demonstrate prejudice from the joinder. (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1286.) For this reason, we may affirm the trial court's decision if we conclude that all of the other relevant factors favor joinder of the charges. (People v. Hill (1995) 34 Cal.App.4th 727, 734-735 [finding it "unnecessary to decide" cross-admissibility where all of the other factors favored joinder].) We conclude that they do.
First, neither the pandering nor the robbery charges was significantly more inflammatory than the other and none carried the death penalty. Moore contends the pandering charge was more inflammatory because it involved exploitation of a woman. However, Moore's attempt to have Lopez prostitute for him and hitting her when she refused, is no more inflammatory than hitting people after they refuse to turn over their possessions. There was no danger of a prejudicial spillover effect based on the allegedly inflammatory nature of the pandering charge, particularly when no actual exploitation occurred.
Second, this case did not involve joinder of a weak case with a strong case. The prosecution's evidence pertaining to both sets of offenses was strong. Both the pandering and robbery charges were fully supported by the uncontradicted testimony of the witnesses. Speculative allegations that Moore knew the victim of the pandering offense do not undermine the facts of the pandering.
All of the relevant factors support the trial court's denial of the motion to sever. In these circumstances, we cannot find an abuse of discretion. (People v. Hill, supra, 34 Cal.App.4th at pp. 734-735.)
Where the trial court's ruling on a motion to sever was correct when made, the judgment must nevertheless be reversed if the joinder resulted in a "gross unfairness" amounting to a denial of due process. (People v. Mendoza (2000) 24 Cal.4th 130, 162.) A denial of due process may occur when the government uses evidence of one count to leverage a conviction on an unrelated count. (People v. Grant (2003) 113 Cal.App.4th 579, 593 [trial court did not abuse discretion in denying severance, but conviction reversed because the ensuing trial was unfair; "the prosecutor erroneously urged the jury to infer that defendant was guilty on count 1 because he was guilty on count 2, and vice versa"].) When such unfairness is asserted, the defendant "must demonstrate a reasonable probability that the joinder affected the jury's verdicts." (Id. at p. 588.)

We find no such unfairness. The prosecutor kept the charges relating to robbery and those relating to pandering completely separate. He did not infer Moore was guilty of one because of the other. There is no other basis for finding gross unfairness and we conclude that Moore has failed to demonstrate any error from the joinder.

II

Failure to Give the Jury a Unanimity Instruction Was Harmless Error

Moore contends his conviction for pandering must be reversed because the court failed to sua sponte give a unanimity instruction (CALJIC No. 17.01). A defendant in a criminal trial has a constitutional right to a unanimous jury verdict. (Cal. Const., art. I,  16.) Where the evidence shows more than one offense occurred, the court must tell the jurors they must unanimously agree on at least one of the offenses involved in order to convict. (Peoplev.Madden (1981) 116 Cal.App.3d 212, 219.) The danger in failing to give a unanimity instruction is that a conviction may be returned even though not all the jurors are convinced beyond a reasonable doubt that the defendant committed any one offense shown by the evidence. (Peoplev.Epps (1981) 122 Cal.App.3d 691, 701-703.)

Here, the prosecution did not use one specific act to prove pandering. Instead, in closing argument the prosecutor directed the jury to all four or five of the incidents where Moore asked Lopez to prostitute for him. Because Moore committed discrete offenses that occurred at separate times over four months, a unanimity instruction should have been given. Moore did not act continuously so his criminal conduct cannot be considered a single offense under the continuous conduct exception to the unanimity rule. (People v. Diedrich (1982) 31 Cal.3d 263, 281.) As such, it was error not to give a unanimity instruction.

Failure to give a unanimity instruction is governed by the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24), which requires the error to be harmless beyond a reasonable doubt. (People v. Deletto (1983) 147 Cal.App.3d 458, 471.) "Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless." (People v. Thompson (1995) 36 Cal.App.4th 843, 853.)

There was no rational basis for the jury to distinguish between Moore's acts. Moore gave the same defense for each of the pandering offenses. He alleged that Lopez was not credible because she lied about knowing him and she did not report any of the incidents until the last one. Furthermore, the jurors had the same evidence for each of the pandering offenses which was Lopez's testimony. The jurors had to believe Lopez's testimony on all the incidents to convict Moore. Therefore we conclude it was harmless error not to give a unanimity instruction for the pandering offense.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

McINTYRE, J.

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^[1] Statutory references are to the Penal Code.

^[2] Section 954 provides: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated."