P. v. Soper

Filed 4/10/07 P. v. Soper 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Runston G. Maino, Judge. Reversed and remanded.

I.

INTRODUCTION

In the first portion of a bifurcated trial, a jury found James Daniel Soper guilty of both the second degree murder of James Olson (Pen. Code,  187)^[1](count 1) and the first degree murder of George Rigby ( 187) (count 2). The jury also found, with respect to each count, that Soper personally used a deadly weapon in the commission of the murders, within the meaning of sections 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23). In the second portion of the trial, the jury found that Soper had served four prior prison terms and that he had suffered one prior strike conviction within the meaning of section 667, subdivision (b-i). The trial court sentenced Soper to a total term of 86 years to life in prison.

On appeal, Soper claims the trial court erred in: (1) denying his motion to sever trial of the two murder charges; (2) failing to instruct the jury regarding involuntary manslaughter; (3) admitting evidence of his pretrial assault on a witness and in instructing the jury pursuant to CALJIC No. 2.06 regarding that assault; (4) instructing the jury pursuant to CALJIC No. 2.52 regarding flight as reflecting consciousness of guilt; and (5) denying his postverdict application to disclose jurors' names, addresses and telephone numbers.

We conclude that the trial court erred in denying Soper's motion to sever. We further conclude that this error requires reversal of the judgment and retrial with respect to both murders. Accordingly, we reverse the judgment in its entirety. In light of our reversal, we need not consider Soper's claim regarding his postverdict application to disclose juror information since that issue is not likely to recur on remand. However, we consider Soper's remaining claims because those issues are likely to recur on remand.

II.

FACTUAL BACKGROUND

A. The People's evidence

1. The Rigby murder

George Rigby was homeless. He camped in a golf course behind a Sav-On drug store in Oceanside. On Sunday morning, May 23, 2004, at approximately 8:00 a.m., several golfers found Rigby's dead body lying on a piece of cardboard in his campsite.

Oceanside Police Officer Roy Monge responded to the scene. While he was at the scene, a woman named Tina Torres told Officer Monge that a "mean guy" named Jay Soper frequently visited Rigby at his camp.

Among the items found around Rigby's campsite was an unopened package of crackers. Soper's fingerprints were found on the package. A paper bag with a bloodstain on it was found near Rigby's body. DNA taken from the bloodstain matched Soper's DNA. In addition, a bloodstain containing DNA that matched Soper's DNA was found on the cardboard next to Rigby's knee and hip.

A railroad tie that weighed approximately 30 to 40 pounds was on the ground near Rigby's body. DNA taken from bloodied hairs found on the railroad tie matched Rigby's DNA.

There was a depression and a split approximately four inches in length near the left temple on Rigby's head. The medical examiner testified that Rigby had died from blunt force head injuries, and that he had probably died the night before his body was found. According to the medical examiner, the lack of blood around Rigby's body suggested that he had died from a single blow. In addition, an injury to the back right side of Rigby's head indicated that he had been lying down at the time of the killing.

Several witnesses testified that they had seen Soper with Rigby the day before Rigby's body was discovered. Doris Daniel saw Rigby and Soper together at Rigby's campsite at approximately midnight the night before Rigby's body was found. Jeffrey Nash testified that he had played cards with Rigby and Soper the day before Rigby's body was found. Kenneth Whitaker testified that he had shared a drink with Rigby and Soper on the morning before Rigby's body was discovered.

2. The Olson murder

On September 16, 2004, Carlsbad police officers discovered James Olson's decomposing body in his campsite in a drainage ditch on a hillside behind a shopping center. The Olson homicide location was approximately two to three miles from the scene of the Rigby homicide. Olson was lying in a sleeping bag, and there was a large piece of concrete resting on his legs.

According to the medical examiner, Olson had suffered "crushing head injuries." Blood containing DNA that matched Olson's DNA was found on the concrete. Police found a jar of peanuts with Soper's fingerprint on it in Olson's camp.

The medical examiner concluded that Olson had been dead for several days and possibly for as long as a week, before his body was discovered. The examiner further concluded that Olson had died from blunt force head injuries, and that it was likely that these injuries were inflicted with the bloodied concrete found at the scene. Brian Kennedy, a crime scene reconstruction expert, also testified that in his opinion, Olson probably died from a single blow inflicted with the concrete block.

John Rogers had known Olson for 10 years. Rogers met Soper approximately two weeks before he learned of Olson's death. Soper told Rogers that his name was Richard Perry. Rogers testified that Soper had stolen a pocketknife from him. Among the items police found at Olson's campsite was the pocketknife Rogers claimed Soper had taken from him.

Rogers testified that he had been with Soper and Olson on the Saturday evening before Olson's body was discovered. Rogers said that the group had watched a band perform at a local coffee shop called the Coffee Bean, which was located near Olson's campsite. At approximately 8:30 p.m., Olson left to buy a beer, but soon returned to the Coffee Bean. Shortly thereafter, Olson left to go to his campsite. According to Rogers, as Olson was leaving, Soper told Olson that he was going to accompany Olson to his campsite to have a beer. Olson shook his head no. Rogers said he thought Olson looked scared. Soper followed Olson out of the Coffee Bean. This was the last time Rogers saw Olson.

3. The investigation

On September 16, 2004, Carlsbad Police Officer William Michalek responded to the scene of a reported homicide. When he arrived at the scene, Officer Michalek attempted to locate other homeless individuals in the area who might have information about the murder. Officer Michalek encountered Rogers and Soper sitting together at the Coffee Bean where Rogers testified he had been with Soper and Olson the previous Saturday evening. Officer Michalek asked Rogers and Soper for their names. Rogers gave his real name. Soper told Officer Michalek that his name was Richard Alan Perry. After a brief conversation, Officer Michalek left. Later that same day, after Officer Michalek had gathered more information about the killing, he attempted to locate Rogers and Soper. Michalek was unable to locate Soper and informed other police officers that he would be interested in speaking with Soper.

On September 19, Carlsbad Police Officer Paul Reyes saw Soper standing on a freeway off-ramp holding a sign that read, "Please help if you can. Disabled. God Bless," which Officer Reyes testified, is illegal. Officer Reyes contacted Soper, who told Reyes that his name was Richard Perry. Officer Reyes issued Soper a citation.

Pursuant to this contact, Soper consented to speak with Carlsbad police detectives. The detectives questioned Soper about the Olson killing. Soper denied ever having been in Olson's campsite or knowing "a guy named Jim," who "died behind Sav-On . . . ." Officers learned during a break in their interrogation, through a fingerprint comparison, that the man claiming to be Richard Perry was in fact James Soper. Police determined that there was an outstanding parole violation warrant for Soper and arrested him.

After Soper was given Miranda^[2]advisements, he agreed to speak further with detectives from the Oceanside and Carlsbad police departments. The detectives conducted several additional audiotaped and/or videotaped interviews of Soper in late September 2004.

With respect to the Rigby killing, Soper told detectives that he had never been at Rigby's campsite. Soper also told police that he had "no clue" how his fingerprint could have been found on a wrapper in Rigby's campsite. Detectives asked Soper to think about whether there was any reason his fingerprints would be found at Rigby's camp and then left the interview room. While Soper was alone in the room, the camera and audio recorder continued to record. Soper groaned and stated, "I'm going to throw up."

Soper made inconsistent statements concerning whether he knew Rigby, and how well he knew him. Soper told the detectives that he did not know a person by the name of "George." However, Soper did say that he recognized a photograph of Rigby, but said he had rarely spoken with him. Soper subsequently stated that he had seen the person depicted in the photograph "a million times."

With respect to the Olson killing, detectives showed Soper a picture of Olson and asked Soper if he knew the name of the person depicted in the photograph. Soper stated that he did not know the person's name. Soper told the detectives that he was familiar with the area behind the Sav-On drug store where Olson had been murdered, but said that he had never been in that area. Soper said that he had known Rogers for "probably a couple of weeks."

While he was in custody awaiting trial, Soper assaulted a witness (see part III.C., post). He also initially refused to comply with a court order that directed him to provide police with his fingerprints.

B. Defense evidence

The defense presented evidence that Soper suffered a serious facial wound in late April 2004 that required surgery and that the wound would have been likely to bleed after surgery. Ronald Marquez, a registered nurse at the Vista Detention Facility, testified that on September 19, 2004, he gave Soper Librium after he observed Soper exhibit symptoms consistent with alcohol withdrawal.

III.

DISCUSSION

A. The trial court committed reversible error in denying Soper's motion for severance

Soper claims the trial court erred in denying his motion to sever the two murder charges for trial.

1. Factual and procedural background

On April 25, 2005, the People filed a two-count information charging Soper with the murders of Olson and Rigby. On that same day, the People filed a brief in support of consolidation of the charges and against severance. The People also filed a brief in which they addressed the cross-admissibility of the evidence of each murder. The People claimed that the evidence of each murder was cross-admissible under Evidence Code section 1101, subdivision (b) on the issues of intent, motive, common plan or scheme, and identity, and that consolidation of the murders for trial was thus appropriate.

The People asserted the following similarities between the two murders in support of their claim of cross-admissibility:

"1. Both victims were homeless transients.

"2. Both victims were murdered at their respective transient campsites.

"3. It is extremely rare in Carlsbad and Oceanside for a transient to be murdered by a blow to the head while in [his] bed at [his] campsite.

"4. Both victims were in their 'bed' at their campsites.

"5. Both victims had 'established' campsites that were well known as their campsite[s] in the local transient community.

"6. Although the campsites were well know to other transients, they were not known to the general population.

"7. Neither campsite is a location frequented by the general public.

"8. Both victims' campsites were in undeveloped areas located immediately adjacent to shopping malls that included a Sav-On Drugs store, and were in turn located just off of major streets. . . .

"9. The Carlsbad murder occurred near the city's border with Oceanside. The murder scenes are approximately three miles apart.

"10. Both victims were lying on their back[s], face up.

"11. Both victims were nearly fully dressed. Both victims were wearing at least one shirt, a jacket, pants, and socks. George Rigby had his shoes on, but James Olson had his shoes off.

"12. Both victims had the lower part of their body partially covered at the time their dead bodies were discovered. George Rigby had his legs partially covered by a blanket; James Olson's legs were covered by a sleeping bag.

"13. Both victims were killed by blunt force trauma to their head, primarily the facial area, as opposed to the top of the head or back of the head. . . .

"14. When [the medical examiner] responded to the Carlsbad homicide scene on September 16, 2004, she almost immediately commented on the similarity to the May 23, 2004 Oceanside homicide.

"15. Both victims were killed by what appears to be a single blow to the head.

"16. Neither victim appeared to put up any defense. There is no evidence of a struggle at either crime scene. There was no evidence of recent substantial injuries to any other part of either victims' body.

"17. Both victims were killed by non-standard deadly weapons, as opposed to more common weapons such a firearm or a knife. The weapon that killed George Rigby was a heavy piece of a railroad tie. The weapon that killed James Olson was a piece of concrete weighing approximately fifty pounds.

"18. In both cases the weapon was left at the scene, near the body of the victim. . . .

"19. In both cases the victims were under the influence of alcohol to the extent that the lay term 'drunk' would apply. . . .

"20. In both cases, James Soper provided a statement to the respective homicides regarding the homicides.

"21. In both cases, James Soper admitted knowing the victims.

"22. In both cases, James Soper admitted being in the general area in the days prior to the homicide. . . .

"23. In both cases, James Soper denied ever being at the victims' campsites.

"24. In both cases, James Soper's latent fingerprints were found on items located at the homicide scene. . . .

"25. James Soper's initial refusal to comply with a court order to provide additional rolled prints is relevant. [The remainder of this paragraph described the circumstances of Soper's initial refusal to obey a March 1, 2005 court order to provide police with fingerprints.]

"26. James Soper lived at 'Building a Solid Foundation' in Chula Vista from late May until August 21, 2004. In both cases, James Soper said he was working 'under the table' at a construction company, when he was actually at 'Building a Solid Foundation.'

"27. In both cases, James Soper told investigators that he was a 'loner' who was acquainted with other transients, but kept to himself and did not socialize with them. [The remainder of the paragraph stated there was evidence of Soper socializing with other homeless individuals in both cases].

"28. In both cases the jury will have to be educated to the numerous terms that are unique to the transient lifestyle. . . ."

On June 17, 2005, Soper filed a motion to sever the two murder counts. Defense counsel supported the motion with a brief and a declaration. In the motion, defense counsel argued that the murders were not sufficiently similar such that evidence of one murder would be admissible in a separate trial of the other under Evidence Code section 1101, subdivision (b). Counsel stated:

"The only similarity between the killings is that both individuals were transient[s] and were killed with blunt force trauma. They were found in different cities, and different times of the year, killed with different weapons, and seemingly different motives (as Olson had his money intact.)"

Defense counsel maintained that Evidence Code section 352 would also preclude cross-admissibility of the evidence because the probative value of one murder in a trial of the other was extremely slight, and was outweighed by the possibility of unfair prejudice. Counsel further argued that the joining of the cases reflected a strategy of "bootstrapping, if not two relatively weak cases, at least one weak case and one stronger case." Defense counsel explained that "in a trial joining these two killings, the evidence against defendant in the Rigby killing will inevitably be used to bolster the murder charge in the Olson killing."

The People filed additional briefs in which they argued that they would have to present various evidence twice if the court were to grant Soper's motion to sever. For example, the same medical examiner would testify in both cases, and the foundational evidence for her expert opinion would be the same. Similarly, foundational evidence for blood spatter evidence in both cases would be identical. The People reiterated their argument that the murders were sufficiently similar to support cross-admissibility of the evidence as to each crime.

On June 22, after hearing argument from the prosecutor and defense counsel, the court denied Soper's motion to sever, reasoning in part:

"This is how I am going to rule on this. I think the statute is clear that these are supposed to be combined. I don't think the defense has carried their burden to show a substantial likelihood of prejudice. I realize that you can go through the two offenses and find a number of things that are the same and a number that are opposite. I think from my standpoint I would try and look at the entire picture; and when I look at the entire picture, I believe that there are enough similarities so that the prosecutor can under 1101 use in the one case as to the other. [] I think this is an easy decision for me to make on the law. They should be combined, and the evidence is admissible under 1101[, subdivision (b)]. Even if I split them, we would end up putting on two trials and using the same evidence at both trials."

2. Governing law

a. The law governing joinder andseverance of criminal charges

Section 954 provides in relevant part: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."

Where the statutory requirements for joinder are satisfied, a defendant seeking severance must make a clear showing in the trial court of potential prejudice in joining the charges. (People v. Bradford (1997) 15 Cal.4th 1229, 1314-1315 (Bradford).) This court reviews a trial court's ruling on such a motion to sever for an abuse of discretion. (Id. at p. 1315.)

In Bradford, supra, 15 Cal.4th at page 1315, the Supreme Court outlined the ways in which a defendant can establish a substantial danger of prejudice from the joinder of different offenses for trial.

"'"The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." [Citation.] [] "The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial." [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]'"

If evidence on each of the joined charges would have been admissible in separate trials on the charges, the defendant cannot establish error in the denial of a motion to sever. (Bradford, supra, 15 Cal.4th at pp. 1315-1316.)

b. Admissibility of other crimes pursuant to Evidence Code section 1101

A trial court's ruling on the admissibility of evidence pursuant to Evidence Code section 1101 is reviewed for an abuse of discretion. (People v. Lenart (2004) 32 Cal.4th 1107, 1123 (Lenart).)

In Lenart, supra, 32 Cal.4th at page 1123, the California Supreme Court outlined the law governing the admissibility of evidence of other crimes committed by a defendant to prove he committed an offense:

"Evidence of crimes committed by a defendant other than those charged is inadmissible to prove criminal disposition or a poor character. '[B]ut evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, 1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.] . . . .' [Citation.]"

As with other types of circumstantial evidence, the admissibility of other crimes evidence depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. (People v. Thompson (1980) 27 Cal.3d 303, 315 (Thompson), overruled on another ground by People v. Rowland (1992) 4 Cal.4th 238, 260.)

In People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt), superseded by statute on other grounds, as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505, the Supreme Court explained that there must be a high degree of similarity and distinctiveness between offenses in order for evidence of another offense to be admissible to prove identity:

"The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 403, italics added.)

Similarly, in People v. Balcom (1994) 7 Cal.4th 414, 425 (Balcom), the Supreme Court stated that evidence of other crimes is admissible to prove identity only where "[t]he highly unusual and distinctive nature of both the charged and uncharged offenses virtually eliminates the possibility that anyone other than the defendant committed the charged offense." (Italics added.) The Court of Appeal has noted that Ewoldt established "stringent 'identity' standards," for the admissibility of other crimes evidence. (People v. Robinson (1995) 31 Cal.App.4th 494, 503.)

The Supreme Court has also repeatedly cautioned that "evidence of uncharged misconduct '"is so prejudicial that its admission requires extremely careful analysis."'" (People v. Lewis (2001) 25 Cal.4th 610, 637, quoting Ewoldt, supra, 7 Cal.4th at p. 404; e.g., People v. Medina (1995) 11 Cal.4th 694, 748.) Further, since " 'substantial prejudicial effect [is] inherent in [such] evidence,' uncharged offenses are admissible only if they have substantial probative value. If there is any doubt, the evidence should be excluded. [Citation.]" (Thompson, supra, 27 Cal.3d at p. 318, fn. omitted; see also People v. Haston (1968) 69 Cal.2d 233, 244 [other crimes evidence "should be received with 'extreme caution,' and if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused"].)

Even if a defendant's commission of other crimes is relevant for some purpose under Evidence Code section 1101, in order to be admissible, such evidence "'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]'" (Ewoldt, supra, 7 Cal.4th at p. 404.) 

3. The trial court abused its discretion in denying Soper's motion for

severance

Soper concedes that the statutory requirements for joinder were satisfied. Accordingly, we must consider whether the trial court erred in determining that Soper failed to make a clear showing of potential prejudice in joining the charges. We consider first whether evidence of each murder would have been cross-admissible in separate trials, so as to dispel any prejudice from the fact that the offenses were tried jointly. (Bradford, supra, 15 Cal.4th at pp. 1314-1315.)

a. The evidence of the murders was not cross-admissible

(i) The evidence was not cross-admissible on the issue of the identity of

the killer because the pattern and characteristics of the murders were not

so unusual and distinctive as to be like a signature

Although the People have offered a long list of purported similarities between the two murders in claiming that the evidence was cross-admissible on the issue of identity, many of the asserted similarities are generic, redundant, irrelevant, or simply not all that similar. With respect to generic similarities, we place in this category facts such as that both victims were "wearing at least one shirt, a jacket, pants, and socks," and that both victims were murdered at their campsites.

With respect to redundant facts, we agree with Soper that many of the purported similarities stem from the fact that both victims were homeless. Further, many of the claimed similarities were little more than rephrasing of the same basic fact. In this category we would place the following purported similarities offered by the People.

"5. Both victims had 'established' campsites that were well known as their campsite[s] in the local transient community.

"6. Although the campsites were well know to other transients, they were not known to the general population.

"7. Neither campsite is a location frequented by the general public."

Similarly, the fact that each victim was lying on his back (No. 10), in his bed (No. 3), with legs partially covered (No. 12), and that no defensive wounds were present (No. 16), all stem from the fact that it appears that the victims were asleep at the time they were attacked. (See part III.A.1., ante.)

With respect to irrelevant facts, we note that many of the claimed similarities cannot be attributable to the perpetrator of the two crimes, and therefore cannot be deemed to be characteristics "so unusual and distinctive as to be like a signature." (Ewoldt, supra, 7 Cal.4th at p. 403.) For example, the fact that both murders occurred in campsites behind shopping centers in which there was a Sav-On drugstore, and that the campsites were well known in the local transient community, do not tend to suggest that the same person committed both murders. Similarly, Soper's post-arrest conduct is not a relevant similarity for purposes of determining the admissibility of the evidence to prove identity. Nor is the fact that any jury weighing the evidence in these two killings would have to be informed about terms unique to the transient lifestyle relevant to this determination.

With respect to asserted similarities that are not particularly similar, we note that different weapons were used (railroad tie vs. concrete block) and that the murder scenes were three miles apart. In addition, Olson was found with money on his person, while Rigby was found with no money on his person. Defense counsel stated in her declaration in support of Soper's motion to sever that Rigby was seen with "a wad of cash" at some time prior to the murder. Thus, there was arguably evidence of a robbery in the Rigby murder, but not in the Olson murder.

Stripped to the truly potentially relevant similarities between the two murders, we are left with the following: Both victims were homeless individuals who were killed by a single blow to the head while they were apparently sleeping. Further, Soper was acquainted with both victims and his fingerprints were found at both scenes. While we acknowledge that the murders share these similarities, we cannot say that the similarities are so distinctive so as to "virtually eliminate[] the possibility" (Balcom, supra, 7 Cal.4th at p. 425), that a different person committed the two murders. Because the pattern and characteristics of the murders were not so unusual and distinctive so as to be like a signature (Ewoldt, supra, 7 Cal.4th at p. 403), we conclude that the trial court erred in determining that the evidence of the two murders was cross-admissible on the issue of the identity of the killer.

(ii) The evidence of each murder was not cross-admissible to prove either

intent or common plan because the minimal probative value of such evidence

would be outweighed by the possibility of prejudice pursuant Evidence Code

section 352

The People argue that the evidence was admissible to prove intent and common plan, in addition to identity.

In Ewoldt, supra, 7 Cal.4th at page 406, the Supreme Court explained that evidence of the defendant's commission of one offense is not admissible to prove intent with respect to a second offense, where the admission of such evidence on this issue would be greatly outweighed by the possibility of prejudice:

"[E]vidence of defendant's uncharged misconduct in the present case is inadmissible for the purpose of proving defendant's intent as to the charges of committing lewd acts. Evidence of intent is relevant to establish that, assuming the defendant committed the alleged conduct, he or she harbored the requisite intent. In testifying regarding the charges of lewd conduct, Jennifer stated that defendant repeatedly molested her, fondling her breasts and genitals and forcing her to touch his penis. If defendant engaged in this conduct, his intent in doing so could not reasonably be disputed. [Citations.] As to these charges, the prejudicial effect of admitting evidence of similar uncharged acts, therefore, would outweigh the probative value of such evidence to prove intent." (Italics added.)

This was not a case in which the identity of the perpetrator of the two murders could be assumed, and the issue for the jury was the nature of the perpetrator's intent in committing the murders. Rather, the only real issue at trial was the identity of the perpetrator or perpetrators. While the People argue that the evidence of the two murders was probative to establish that the killer had the intent to kill rather than some less culpable intent, it is clear that the probative value of the evidence for this purpose would be substantially outweighed by the danger that the jury would use the evidence for purposes of determining the identity of the killer. This would be an improper and therefore, unduly prejudicial, use of the evidence because the evidence was not properly admissible for purposes of proving identity. Further, as is discussed in part III.A.4., post, because the entire theory of the prosecution's case at trial was that the evidence was relevant to prove the killer's identity, the potential for prejudice in this case was overwhelming.

The People also argue that the evidence of other offenses was admissible to prove a common scheme or plan. The argument is also contrary to the holding in Ewoldt. In Ewoldt, the Supreme Court explained, "Evidence of a common design or plan . . . is not used to prove the defendant's intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense." (Ewoldt, supra, 7 Cal.4th at p. 394, italics added.) The Ewoldt court observed that the "distinction, between the use of evidence of uncharged acts to establish the existence of a common design or plan as opposed to the use of such evidence to prove intent or identity, is subtle but significant." (Id. at p. 394, fn. 2.)

"Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, '[i]n proving design, the act is still undetermined . . . .' [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution.

"Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator. For example, in a prosecution for shoplifting in which it was conceded or assumed that a theft was committed by an unidentified person, evidence that the defendant had committed uncharged acts of shoplifting in the same unusual and distinctive manner as the charged offense might be admitted to establish that the defendant was the perpetrator of the charged offense." (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, second italics added.)

The Ewoldt court further clarified that evidence of common scheme or plan is generally inadmissible in cases that involve crimes such as robbery, where the primary issue is whether the defendant was present at a particular location:

"[I]n most prosecutions for crimes such as burglary and robbery, it is beyond dispute that the charged offense was committed by someone; the primary issue to be determined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value." (Ewoldt, supra, 7 Cal.4th at p. 406.)

In this case, the primary issue was the identity of the killer. Admitting evidence of one murder in a trial of the other solely for the purpose of proving common design or plan would thus clearly constitute error under Evidence Code section 352.

b. The benefits of joinder did not outweigh the possibility of prejudice

Having concluded that the evidence of the murders was not cross-admissible, we must consider whether, notwithstanding this lack of cross-admissibility, the trial court properly denied Soper's motion to sever. (Bradford, supra, 15 Cal.4th at p. 1316 ["Cross-admissibility suffices to negate prejudice, but it is not essential for that purpose"].)

The California Supreme Court has instructed that where cross-admissibility of evidence pertaining to two crimes is not present, a court must determine "whether the benefits of joinder were sufficiently substantial to outweigh the possible 'spill-over' effect of the 'other-crimes' evidence on the jury in its consideration of the evidence of defendant's guilt of each set of offenses." (People v. Bean (1988) 46 Cal.3d 919, 938.) In making such a determination, a court must also consider other possible sources of prejudice stemming from joinder, including the inflammatory nature of any of the charges, the possibility that the jury would improperly aggregate the evidence, and the possibility that joinder of the charges would turn the matter into a capital case. (Bradford, supra, 15 Cal.4th at p. 1316.)

In this case, the benefits of joinder were minimal. While there was some overlap with respect to foundational evidence relevant to the experts' opinions, there was almost no overlap with respect to the percipient witnesses in the two murders.

On the other hand, as noted above, refusal to sever may constitute an abuse of discretion where a "weak" case is joined with either a "strong" case or with another "weak" case, so that the spillover effect of aggregate evidence on the charges might alter the outcome on one or more of the charges. (Bradford, supra, 15 Cal.4th at pp. 1315-1316.) In this case, there was little admissible evidence tending to demonstrate that Soper committed the Olson killing. Aside from the testimony of John Rogers, whose credibility could reasonably have been questioned given his status as a suspect in the murder, the only inculpatory evidence mentioned by the prosecutor in his statement of facts in briefing on the motion to sever was that Soper's fingerprints were found on a jar of peanuts in Olson's camp and Soper denied ever having gone to the camp. Clearly, without the inadmissible evidence pertaining to the Rigby killing, the Olson murder was a "weak" case. Thus, the possibility of improper spillover of the impact from the evidence of the Rigby murder was great.

In addition, the possibility that the jury would consider the inadmissible evidence as to one murder when considering evidence as to the other murder was increased even further since this was the very purpose for which the evidence was offered. Given that evidence of the commission of the Rigby murder was the most important evidence the People had to prove the Olson murder, it was virtually a certainty that the jury would improperly aggregate the evidence of the two crimes. Accordingly, we conclude that whatever minimal benefits there were to joining the two charges were clearly outweighed by the possibility that undue prejudice would follow from joinder of these two murder charges.^[3]

4. The error in denying the motion to sever requires reversal as to both

murder counts

A trial court's error in denying a motion to sever is reviewed under the standard adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) to determine whether the error requires reversal. (People v. Pinholster (1992) 1 Cal.4th 865, 932  ["It is not reasonably probable that a result more favorable to defendant would have been reached if the . . . robbery had been severed"].) Reasonably probable in this context "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital Inc. v. Superior Court  (1994) 8 Cal.4th 704, 715, citing Watson, supra, 46 Cal.2d at p. 837.)

The starting point in determining whether the trial court's error in joining the two murders requires reversal is the Supreme Court's repeated admonition that the admission of other crime evidence carries with it the possibility of serious prejudice. (People v. Lewis, supra, 25 Cal.4th at p. 637.) The possibility of undue prejudice in this case was heightened because the erroneously admitted evidence as to each charge was that of another murder that shared certain characteristics.

As Soper states in his brief, the leitmotif of the People's theory at trial was that whoever committed one of the murders must have committed the other as well.A number of witnesses testified regarding the purported distinctive similarities of the two murders. For example, the People presented the results of two studies of homicides in Carlsbad and Oceanside that were conducted for the stated purpose of determining the uniqueness of the characteristics of the murders charged in this case. Similarly, the prosecution's crime scene reconstruction expert testified that in his opinion, the crime scenes were quite distinctive and similar to one another. The medical examiner testified that she was "struck by the similarities" between the two crime scenes. She further testified that she told Carlsbad police at the scene of the Olson murder that there was a "very similar case in Oceanside. . . ." An investigating police officer also testified as to the purported distinctive similarities of the two crimes.^[4]

The prosecutor devoted a large portion of his closing argument to this theme. For example, the prosecutor stated:

"We're talking about two crimes that are very similar. We're talking about two murders that were so similar they were done by the same person, and that person is James Soper."

The prosecutor repeatedly stressed the alleged distinctive similarities of the two murders throughout his closing argument.^[5]

The evidence of Soper's guilt with respect to either murder was not overwhelming. The evidence of Soper's guilt with respect to the Olson killing, apart from the improperly admitted identity evidence, was based largely on the testimony of Rogers.^[6] Rogers's credibility was very much in doubt for a number of reasons, including that he himself was a suspect in the Olson murder since a knife that belonged to him was found at the murder scene.

While there was a considerable amount of evidence of Soper's guilt as to the Rigby murder, it was not overwhelming. For example, DNA from neither Soper nor Rigby was found in a blood spot on the railroad tie that was used in the Rigby murder, suggesting that a third party might have killed Rigby. Considering the extremely high potential for prejudice stemming from the improper joinder of the two charges balanced against the evidence of Soper's guilt, we conclude that there is a reasonable probability that a result more favorable to Soper would have been reached with respect to both counts if the cases had not been improperly joined for trial.^[7] Accordingly, we conclude that the judgment must be reversed as to both counts.^[8]

B. The trial court did not err in failing to instruct the jury regarding involuntary

manslaughter

Soper claims the trial court erred in failing to instruct the jury regarding involuntary manslaughter, based on Soper's voluntary intoxication. Soper argues that because there was substantial evidence that he was voluntarily intoxicated at the time of the offenses, the court was required to instruct the jury that "when a defendant, as a result of voluntary intoxication, kills another human being without premeditation and deliberation and/or without an intent to kill (i.e. without express malice), the resultant crime is involuntary manslaughter." We conclude that the failure to instruct the jury as to involuntary manslaughter was not error since there is no substantial evidence that Soper was intoxicated at the time of the offenses.

1. Factual and procedural history

During the trial, the prosecutor filed a brief regarding jury instructions in which he argued that that there was insufficient evidence of Soper's intoxication at the time of the killings to warrant an instruction as to voluntary intoxication. The prosecutor also argued that there was no basis for the court to give an instruction on involuntary manslaughter based on voluntary intoxication. The prosecutor argued, however, that the involuntary manslaughter instruction "would be relevant if the defense requested instruction on voluntary intoxication is granted."

During the jury instruction conference, the trial court asked defense counsel whether she was requesting that the court give an instruction regarding involuntary manslaughter. Defense counsel responded: "I am not requesting that, but I am requesting voluntary intoxication, therefore it sort of dovetails towards each other." In response, the prosecutor reiterated his argument that there was insufficient evidence of intoxication. The court said it would return to the issue at a later time.

Later, during the same conference, the court stated that defense counsel had requested that the court instruct the jury pursuant to CALJIC Nos. 4.21.1 and 4.22, regarding voluntary intoxication and its relationship to the formation of the specific intent required to be found guilty of the charged offenses. The court indicated that it would probably give the instruction, reasoning:

"The important thing in this case is that I think there is substantial evidence. By that, I mean, evidence worthy of consideration by the jury. Whether its believed or not is something else, which would indicate Mr. Soper is an alcoholic. From that I think one can infer that alcoholics are just drunk most of the time. The fact they drink early in the morning is to top their alcohol level up, and then they go again. There's substantial evidence to believe if Mr. Soper committed these killings, that he had some alcohol in his system. It was of some substantial nature. I don't think, however, there's sufficient evidence to show that Mr. Soper was unconscious . . . . But clearly, there's evidence that the jury might consider if he had so much to drink he could not form premeditation and deliberation."

The prosecutor objected, claiming there was no evidence regarding how intoxicated Soper may have been at the time of the killings.

After further discussion of the issue at a conference the next day, the trial court stated that it would instruct the jury pursuant to CALJIC Nos. 4.21.1 and 4.22, over the prosecutor's objection.

The trial court instructed the jury pursuant to CALJIC No. 4.21.1 and CALJIC No. 4.22. CALJIC No. 4.21.1 instructs the jury that it "should consider the defendant's voluntary intoxication in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime." CALJIC No. 4.22 defines voluntary intoxication.

2. Governing law

In People v. Roldan (2005) 35 Cal.4th 646, 715 (Roldan), the Supreme Court outlined the responsibilities a trial court has to instruct a jury on the law relevant to a criminal case:

"'[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case.' [Citation.] In addition, 'a defendant has a right to an instruction that pinpoints the theory of the defense [citations]; however, a trial judge must only give those instructions which are supported by substantial evidence. [Citations.] Further, a trial judge has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence.' [Citation.] 'A party is not entitled to an instruction on a theory for which there is no supporting evidence.' [Citation.]"

The Roldan court also outlined the law governing jury instructions pertaining to voluntary intoxication:

"'Evidence of voluntary intoxication, formerly admissible on the issue of diminished capacity [citation], now is 'admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.' [Citations.] Accordingly, a defendant is entitled to an instruction on voluntary intoxication 'only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's 'actual formation of specific intent."' [Citations.]" (Roldan, supra, 35 Cal.4th at p. 715.)

Courts in several cases have discussed the degree of evidence of intoxication that is necessary to support an instruction regarding such intoxication. For example, in Roldan, 35 Cal.4th at page 716, the court held that the following did not constitute substantial evidence of intoxication to warrant an instruction on voluntary intoxication:

"Defendant relies on the testimony of Jude Barrios, but her testimony fails to provide substantial evidence of intoxication. For example, she testified that Sergio Ayala was intoxicated at the time of the crime and that, due to his heavy drinking, he felt sick after fleeing the scene of the robbery. That information does not establish that defendant also was drinking. Defendant attempts to link Ayala's drinking with himself, noting that Barrios testified defendant told her 'they' had been drinking (meaning he, Ayala, and Zorns) in order to build up their courage before committing the robbery. However, she also testified: 'I don't know if that meant everybody, but he said they had been drinking.' She later clarified her testimony, saying defendant never told her he personally had been drinking. 'He said he felt a little woozy, but that was the extent of it. He didn't say he was drinking or anything.' This evidence is inadequate to support an intoxication instruction. Nor does evidence that defendant was an habitual user of marijuana constitute substantial evidence he was intoxicated or under the influence at the time of the crime. Further, testimony that a few hours after the crime defendant was 'ecstatic' and on 'cloud nine' does not establish he was intoxicated at the time of the crime."

In People v. Ramirez (1990) 50 Cal.3d 1158, 1180 -1181 (Ramirez), overruled on another ground by People v. Saille (1991) 54 Cal.3d 1103, 1118-1120, the Supreme Court held that the trial court did not err in failing to instruct the jury regarding voluntary intoxication in relation to a first degree murder charge, under the following circumstances:

"In the present case, defendant testified that he had about four or five beers at the first bar he visited on the night of the offense, and about four or five additional beers during the two and one-half to three hours that he was in Mr. Barry's, and also testified on cross-examination that he 'was higher' on the night of the killing than he was when he was arrested a few days later with a blood-alcohol level measuring .14 percent. [Fn. omitted.] Neither defendant nor any of the other guilt phase witnesses who were at Mr. Barry's on the night in question, however, testified that defendant's beer drinking had had any noticeable effect on his mental state or actions. [Fn. omitted.] Defendant purported to give a detailed account of all of the events of the night in question, and did not suggest that his drinking had affected his memory or conduct. Instead, his defense was simply that he had not sexually assaulted or stabbed Kim at all and that the offenses must have been committed by another individual.

The Ramirez court concluded,

"Given this state of the evidence, the governing authorities support the Attorney General's contention that the trial court had no duty to instruct on intoxication. In People v. Bandhauer (1967) 66 Cal.2d 524 [58 Cal.Rptr. 332, 426 P.2d 900], for example, the court concluded that although the evidence demonstrated that the defendant had had six or seven beers in several bars in the hours immediately preceding the crime, because there was 'no evidence that his drinking had any substantial effect on him, or that he was so intoxicated that he did not or could not harbor malice' (id. at p. 528), the trial court had not erred in refusing to give an intoxication instruction. Similarly, in People v. Flannel, supra, 25 Cal.3d 668, 685-686, the court held that while there was evidence that the defendant had consumed at least six cans of beer and several shots of whiskey on the day of the crime and the defendant had testified somewhat equivocally as to his own intoxication, because all of the eyewitnesses had testified that the defendant was 'acting normal' and that the alcohol had 'no effect' on his behavior the trial court did not err in declining to give an intoxication instruction." (Ramirez, supra, 50 Cal.3d at p. 1181.)

(See also People v. Horton (1995)