Filed 3/29/18 P. v. Moore CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY MOORE,

Defendant and Appellant.
D071912



(Super. Ct. No. SCD264528)

APPEAL from a judgment of the Superior Court of San Diego County, Peter L. Gallagher, Judge. Affirmed, as modified.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Jeffrey Moore appeals from a judgment entered after he was convicted in two cases the trial court consolidated. In the first case, Moore was charged with making criminal threats to his ex-girlfriend's new boyfriend and the new boyfriend's neighbor, and violating a restraining order protecting the ex-girlfriend. In the second case (filed about five months after the first), Moore was charged with two counts of disobeying a no-contact order issued in the first case in favor of the ex-girlfriend, making a criminal threat to her, dissuading her from testifying against him in the first case, and burglary (by sneaking into her house to dissuade her from testifying). A jury found him guilty on all counts in the first case, but only the court-order violation counts in the second case. The trial court sentenced him to four years in prison. Moore contends the trial court erred by consolidating the two cases. We disagree.
Moore also contends the trial court erred by imposing a full-strength sentence on an enhancement attached to a subordinate offense. The Attorney General concedes this was error. We agree, and modify the judgment accordingly. As so modified, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution Case
Case SCD264528: Moore's November 21, 2015 Offenses (Counts 1-3)
In November 2015, Moore was charged with two counts of making a criminal threat, each with a deadly-weapon enhancement allegation (Pen. Code, §§ 422, 12022, subd. (b)(1)); and one count of disobeying a court order (§ 273.6, subd. (a)). The prosecution's trial evidence showed the following:
Moore and Antoinette P. had been in a relationship and had two children together. The relationship ended in 2013. In October 2015, Antoinette obtained a restraining order that prohibited Moore from coming within 100 yards of her.
In November 2015, Antoinette was in a relationship with Gerard S. Moore and Gerard did not get along and had multiple negative interactions. On November 21, Gerard was in the kitchen of his apartment (about five feet from his front door), when Moore arrived and pounded on the screen door. Moore said, "Where is my son's chess set at? Motherfucker, I'm going to kill you." Gerard saw that Moore was carrying a hatchet. Throughout the interaction, Moore was "raising the hatchet and shaking it" at Gerard while making threats. Moore left after he could not open the locked screen door. Gerard called 911.
Gerard's neighbor, Lorraine A., testified she heard a man swearing and banging on Gerard's door. When she went outside to investigate, she saw Moore at Gerard's door, holding a hatchet in a "threatening manner." Lorraine asked Moore, "What the hell are you doing in here?" In response, Moore raised the hatchet and said something like, "Bitch, I'll take care of you, too." Gerard testified he saw Moore wave the hatchet at Lorraine and tell her "it's none of her fucking business."
Lorraine's sister, Jeanette A., who lived across from Gerard, testified she also heard Moore banging on the door and swearing at Gerard. She described Moore as "extremely angry," "a little erratic," and holding "an ax." Jeanette was afraid Moore was going to harm Lorraine.
Police responding to Gerard's 911 call located Moore at Antoinette's house a few blocks away. Antoinette told one of the responding officers that Moore was storing several items in a shed on the side of her house. In that shed, officers recovered a hatchet that matched the description Lorraine had provided to police. Police arrested Moore.
Moore pleaded not guilty to all charges, and was released on $50,000 bail pending trial, which was set for April 12, 2016. In the meantime, the court ordered Moore to "[h]ave no contact/stay away from" Antoinette, Gerard, and Lorraine. The prosecutor subpoenaed Antoinette to testify about her observations of the events of November 21.
Case SCD266585: Moore's April 8 and April 12, 2016 Offenses (Counts 4-8)
On April 15, 2016, a new felony complaint charged Moore with five new offenses that occurred on April 8 and 12. For the April 8 events, Moore was charged with making a criminal threat and disobeying a court order. For the events of April 12, he was charged with burglary of an occupied residence (§§ 459, 460, 667.5, subd. (c)(21)), dissuading a witness from testifying (§ 136.1, subd. (a)(1)), and disobeying a court order. As to the criminal threat, burglary, and dissuasion counts, the complaint alleged that Moore committed each offense while released on bail. (§ 12022.1, subd. (b).) The prosecution's trial evidence showed the following:
April 8
On April 8, the prosecutor asked police to check on Antoinette. When the police arrived at her house, Moore was there. According to Antoinette, Moore made two threatening statements to her that day. First, he stared at her and slowly sang a song from the movie, "Deadpool," which she construed as a "passive aggressive threat" because they had been arguing earlier. Second, Moore told her, "I'm not going back to jail. I'll take you out, the kids out, and then me." Antoinette believed he "might actually be serious."
April 12
As noted, trial was set to begin April 12. The night before that, Antoinette hosted a sleepover for her children's friends, and everyone slept in the living room. Antoinette locked all the doors before going to sleep. About 5:30 a.m., Moore woke her by tugging on her shirt. She was not expecting him and had not invited him into the home. After some conversation about why Moore was in the house and Moore wanting to use the shower, he left. As he did, he told Antoinette, "you can fix this. They're lying on me. What do I need to do?" Antoinette understood this to mean Moore wanted her "to say he didn't do half the stuff he did."
Meanwhile, the lawyers argued motions on April 12. At the end of the day, the prosecutor learned of Moore's conduct that morning. Moore was arrested in the courthouse the next morning. This delayed trial and resulted in consolidation, which we discuss in part I, post.
The Defense Case
Moore was the lone defense witness. Regarding the November 2015 charges, he acknowledged becoming angry and frustrated while at Gerard's apartment complex, but he denied ever raising his hatchet or threatening anyone. He admitted he was aware of the restraining order that prohibited him from being near Antoinette, but believed it had been terminated. He said Antoinette had been letting him live at her house as recently as April 2016.
Regarding the charges stemming from the April 8 events, Moore explained he sang the "Deadpool" song to communicate a sexual advance to Antoinette. He denied threatening her or their children. He claimed he believed the protective order allowed him to have peaceful contact with Antoinette.
As for April 12, Moore said he went to Antoinette's house because she asked him to remove his belongings because she would be moving. He entered through the unlocked back door. Moore said he only woke Antoinette "to let her know that [he] got [his] stuff out and just let her know that [their] daughter was in the room and it was cold." The reference to their daughter agitated Antoinette. Moore said he would leave, but would return later to shower and shave. He left to return his work vehicle, then took a bus back to Antoinette's. The doors were locked, so he did not enter. He denied having any conversation with Antoinette on April 12 about his upcoming trial. Finally, Moore claimed he did not believe he was violating any court order by visiting Antoinette on April 12.
On cross-examination, however, Moore effectively admitted the three counts of disobeying court orders:
"Q. So as you sit here today, you admitted you knew about all of the criminal protective orders and the stay-away orders from the court, correct?

"A. Correct.

"Q. And you admit you were at [Antoinette]'s home not only on November 21st, but also April 8th and again April 12th?

"A. Correct."

Moore also admitted suffering convictions for crimes of moral turpitude in 2011 and 2014, and engaging in conduct of moral turpitude that resulted in criminal charges in 2015 and 2016.
Jury Verdicts and Sentencing
After hearing three days of testimony, the jury deliberated for more than one full day and submitted four questions before reaching verdicts.
Regarding the November 2015 charges, the jury found Moore guilty of making a criminal threat to Gerard, making a criminal threat to Lorraine, and disobeying a court order. The jury found true the allegation that Moore personally used a deadly weapon while making each criminal threat.
Regarding the April 8 charges, the jury found Moore guilty of disobeying a court order, and not guilty of making a criminal threat.
Regarding the April 12 charges, the jury found Moore guilty of disobeying a court order, and not guilty of burglary or dissuading a witness.
The trial court denied probation, and sentenced Moore to four years in prison. We discuss the sentence in greater detail in part II, post.
DISCUSSION
I. No Error in Consolidating
Moore contends the trial court erred by consolidating the cases against him. We disagree.
A. Consolidation Principles
Under section 954, when separate accusatory pleadings assert offenses that are "connected together in their commission" or are "of the same class of crimes or offenses, . . . the court may order them to be consolidated." (§ 954; People v. Soper (2009) 45 Cal.4th 759, 769 (Soper).) " 'The law favors the joinder of counts because such a course of action promotes efficiency.' " (People v. Scott (2015) 61 Cal.4th 363, 395; People v. Trujeque (2015) 61 Cal.4th 227, 259 (Trujeque).) " 'A unitary trial requires a single courtroom, judge, and court attach[és]. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is greatly reduced over that required were the cases separately tried. In addition, the public is served by the reduced delay on disposition of criminal charges both in trial and through the appellate process.' " (Soper, at p. 772.)
Although the law favors joinder, a trial court may nonetheless exercise its discretion to order separate trials. "In exercising its discretion in this regard, the court weighs 'the potential prejudice of joinder against the state's strong interest in the efficiency of a joint trial.' " (People v. Merriman (2014) 60 Cal.4th 1, 37;
People v. Macklem (2007) 149 Cal.App.4th 674, 698 (Macklem).) A defendant challenging a court's consolidation decision must make a " ' "clear showing of prejudice to establish that the trial court abused its discretion . . . ." ' " (Soper, supra, 45 Cal.4th at p. 774.)
In evaluating a trial court's exercise of discretion, we consider the following factors: " '(1) whether the evidence relating to the various charges would be cross-admissible in separate trials, (2) whether some of the charges are unusually likely to inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case or with another weak case, and (4) whether one of the charges is a capital offense or the joinder of the charges converts the matter into a capital case.' " (Trujeque, supra, 61 Cal.4th at p. 259.) If the evidence would be cross-admissible in separate trials, "that is normally enough to justify the trial court's refusal to sever the charged offenses." (Ibid.) "However, the lack of cross-admissibility is not necessarily dispositive for purposes of severance." (Ibid.; § 954.1 ["evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact"].) "If there is no cross-admissibility of the evidence, we evaluate the three remaining factors to determine whether they demonstrate the trial court's abuse of discretion." (Trujeque, at p. 259.)
"Determinations of whether the trial court abused its discretion in joining counts for trial will be based on the facts as they appeared at the time of the hearing. [Citation.] However, . . . 'a reviewing court must reverse the judgment if the "defendant shows that joinder actually resulted in 'gross unfairness' amounting to a denial of due process." ' " (Macklem, supra, 149 Cal.App.4th at p. 698; People v. Ybarra (2016) 245 Cal.App.4th 1420, 1434 (Ybarra) ["In determining whether there was such gross unfairness, we view the case as it was tried, including a review of the evidence actually introduced in the trial."].)
"Thus, there are two steps to our analysis: (1) we look to the evidence before the trial court at the time of the ruling to determine whether the defendant made a clear showing of a substantial danger of prejudice, and weigh the potential prejudice against the state's strong interest in the efficiency of a joint trial to determine whether the trial court abused its discretion, and (2) if the trial court did not abuse its discretion based upon the evidence before it at the time of the ruling, we look to whether the defendant has demonstrated that the joinder resulted in 'gross unfairness' amounting to a due process violation based on the trial evidence and other trial related matters, such as the prosecutor's closing argument." (Ybarra, supra, 245 Cal.App.4th at p. 1434.)
B. Background
The day after Moore's April 13 courthouse arrest, the prosecutor told the court she was still prepared to begin trial on the November charges. Defense counsel responded that Moore was "inclined to enter a time waiver to continue this trial to make sure both cases could be matched up for a possible global disposition." The prosecutor reiterated she was ready to proceed and, indeed, had flown in an out-of-state witness. The prosecutor added that it appeared Moore was trying "to create his own continuances" by violating the court's no-contact orders. The court (Judge Howard Shore) concluded a continuance to allow consolidation would promote efficiency:
"Since the new charges involve the same alleged victim, that person would have to come out twice, once for this case and then come out again, so wouldn't it make more sense to consolidate it into one information, have all the charges presented to the same jury at the same time? Seems to me that would be an advantage to the prosecution." [¶] . . . [¶]

" . . . It seems to me—I understand the inconvenience, . . . but the court has to take a big-picture approach, and it seems to me that it would be much more efficient for both sides to prepare for one trial with all the charges addressed to the same jury.

"So I'm inclined to grant the continuance as long as Mr. Moore is willing to waive time."

Moore confirmed he was willing to "waive statutory time for a trial so that this case [regarding the November charges] may be consolidated with [his] new case" on the April charges. The court reiterated its decision to grant the continuance was "not a question of [Moore] getting an advantage," but rather, "the court determining that it's more efficient for all witnesses to only testify once." Trial was continued to November 3, 2016.
On the day trial was set to begin, the prosecutor filed a formal motion to consolidate the two cases. The prosecutor argued consolidation was appropriate because "[t]he victims and witnesses on each case are similar," "the defendant was in trial on [the November charges] when he committed the conduct underlying" the April charges, and "[m]ultiple counts charged in [the later case] stem from conduct by the court and the defendant in [the earlier] case." Our review of the appellate record suggests Moore did not file a written opposition to the consolidation motion.
The court (Judge Peter Gallagher) called the two cases and noted the pending consolidation motion. Moore's counsel argued against consolidation. First, he suggested the cases were not joinable because "there are differing classes and there's a lack of common characteristics or attributes." Second, he argued joinder would unduly prejudice Moore. Counsel admitted that the general fact that the earlier action was pending would be cross-admissible at trial on the later charges to provide context for the dissuasion count, but he argued that the details of the earlier case would not be cross-admissible. Counsel also argued joinder would be "unduly inflammatory" because evidence regarding the November criminal threats might "lead a jury to believe that . . . this is the kind of guy who is going to break into somebody's residence. And vice versa." Finally, counsel argued that "a relatively weaker second case"—the burglary count, as to which Moore asserted there was no evidence of his alleged intent to commit an underlying felony—was "being unreasonably bootstrapped to the" stronger case on the November criminal threats. However, counsel did not explain why he considered the case on the earlier criminal-threat counts stronger.
The prosecutor responded that evidence would be cross-admissible under Evidence Code section 1101, subdivision (b) to show intent, knowledge, a pattern of conduct, and the absence of mistake.
The court granted the motion, explaining:
"I am going to allow the consolidation pursuant to [section] 954 on the grounds of judicial economy. It is a similar class of cases, similar victims, related victims, the closeness of the relationship. I don't think it bolsters a weak case. Although there may be some issues on what the underlying crime is on the burglary, I don't think it's overly inflammatory. So I am going to allow the consolidation."

C. Analysis
Moore now concedes the crimes alleged in each case were presumptively joinable because they appear to be connected and are of the same class. However, he contends the trial court erroneously concluded that consolidation would not prejudice him. We conclude Moore has not met his strong burden of showing either an abuse of discretion or a denial of due process.
1. Abuse-of-discretion Challenge
a. Cross-admissibility
The trial court did not expressly address cross-admissibility. As Moore conceded below, evidence regarding the earlier charges would be cross-admissible to some extent to provide context for the later charges. We need not determine the full extent of cross-admissibility because we conclude the remaining factors clearly show the trial court did not abuse its discretion in consolidating the cases.
b. Joining Inflammatory Counts With Noninflammatory Counts
Moore argues the burglary charge would likely inflame the jury because "entering . . . someone's home, in the early morning hours, while they and their children are asleep, is a very serious[,] dangerous crime." So is brandishing a hatchet and threatening to kill someone. Moore has not shown the trial court abused its discretion in balancing the potentially inflammatory nature of these counts.
c. Bootstrapping a Weak Case to a Strong Case
Nor has Moore shown the trial court abused its discretion regarding its assessment of the relative strength of the respective cases. "[A]s between any two charges, it always is possible to point to individual aspects of one case and argue that one is stronger than the other. A mere imbalance in the evidence, however, will not indicate a risk of prejudicial 'spillover effect' mitigating against the benefits of joinder . . . ." (Soper, supra, 45 Cal.4th at p. 781.) To prevail, a defendant must show an " 'extreme disparity' in the strength or inflammatory character of the evidence." (Ybarra, supra, 245 Cal.App.4th at p. 1436, italics added.)
Moore has not shown that the record before the trial court showed an extreme disparity in the strength of the cases. Indeed, although Moore argued to the trial court that the burglary count was weak, he never explained why he believed the case on the November charges was stronger.
d. Joinder With a Capital Offense
None of the charges against Moore, standing alone or when joined, was a capital offense. This factor, then, supports the trial court's exercise of discretion.
e. State's Strong Interest in Joinder
Moore argues the benefits of judicial economy did not outweigh the potential for prejudice because there was only one witness common to both cases—Antoinette. This ignores that Moore was also a potential witness in both cases. It also ignores the numerous other efficiencies gained by consolidation: " 'A unitary trial requires a single courtroom, judge, and court attach[és]. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is greatly reduced over that required were the cases separately tried. In addition, the public is served by the reduced delay on disposition of criminal charges both in trial and through the appellate process.' " (Soper, supra, 45 Cal.4th at p. 772.) Moore has not shown the trial court abused its discretion in its assessment of these considerations.
2. Due Process Challenge
Having concluded the trial court did not abuse its discretion based on the record before it at the time it ruled on the consolidation motion, we must now "look to whether [Moore] has demonstrated that the joinder resulted in 'gross unfairness' amounting to a due process violation based on the trial evidence and other trial related matters . . . ." (Ybarra, supra, 245 Cal.App.4th at p. 1434.) Having considered the entire record, we find no due process violation.
First, the record shows Moore requested a continuance of the trial on the November charges "to make sure both cases could be matched up for a possible global disposition." Indeed, he expressly confirmed he was willing to waive his right to a speedy trial on the November charges so that that case "may be consolidated with [the] new case" on the April charges. Moore has not explained how it was grossly unfair of the trial court to grant his own request.
Second, the jury's deliberations and verdicts show Moore received a fair trial. (See Ybarra, supra, 245 Cal.App.4th at p. 1440 ["In determining whether there was gross unfairness, we may . . . look to the verdicts . . . ."].) The jury deliberated for one full day and asked several questions. The fact the jury ultimately acquitted Moore on the burglary and dissuasion counts indicates the joinder of the November charges did not bias the jury against Moore on the later charges.
Moore argues, conversely, that joinder of the later charges prejudiced him on the earlier charges. He reasons that if the jury heard he was the type of person to sneak into someone's home during the night, jurors would conclude he must be the type of "dangerous criminal" who would also make criminal threats. This argument fails because the jury acquitted Moore on the burglary count (thereby rejecting the underlying factual predicate of his argument) and the April 8 criminal threat count (thereby rejecting the logical predicate of his argument).
Finally, Moore essentially admitted on cross-examination that he disobeyed court orders on three occasions. He has not explained how trial was grossly unfair as to these counts.
II. Unauthorized Sentence
Moore contends the trial court erred in imposing a full-strength term for the weapon-use enhancement attached to count 2 (making a criminal threat to Lorraine) because the consecutive sentence on that count was subordinate to count 1 (making a criminal threat to Gerard). The Attorney General concedes this was error. We agree.
The court sentenced Moore to four years in prison, determined as follows: (1) a principal term of 16 months on the criminal-threat conviction as to Gerard, plus one year for the deadly-weapon enhancement; (2) a consecutive, subordinate term of eight months on the criminal-threat conviction as to Lorraine, plus one year for the deadly-weapon enhancement; and (3) concurrent one-year terms on each of the three convictions for disobeying a court order.
Section 1170.1, subdivision (a) states: "The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Italics added.)
Because count 2 was a subordinate offense, the trial court should have imposed only one-third of the one-year sentence (that is, four months) for the deadly-weapon enhancement attached to this count. We modify the sentence accordingly. (See People v. Scott (1994) 9 Cal.4th 331, 354.)
DISPOSITION
The judgment is modified to reflect a sentence of four months (rather than one year) on the deadly-weapon enhancement attached to count 2. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward the amended abstract to the Department of Corrections and Rehabilitation.



HALLER, J.

WE CONCUR:



HUFFMAN, Acting P. J.



O'ROURKE, J.