PEOPLE v. EARLE

Filed 3/19/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

STORY CONTINUES FROM PART IV.

Defendant maintains that the trial court could not have concluded that the indecent exposure would have been admissible in a separate trial of the assault counts because the admissibility of the indecent exposure evidence depended upon an Evidence Code section 352 analysis.[1] Not so. [A]lthough in the context of evidence of uncharged offenses offered at trial, a court conducts an assessment concerning prejudice under Evidence Code section 352 [citation], by contrast, in the context of properly joined offenses, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial [citation]. In the context of properly joined offenses, we assess potential prejudice not under Evidence Code section 352, but instead in the context of the traditional four factors outlined above: cross-admissibility of charges; tendency of the charges to inflame the jury; the bolstering of a weak case; and the conversion of noncapital charges into a capital case. (Alcala, supra, 43 Cal.4th at p. 1222, fn. 11.) The trial court was not required to conduct an Evidence Code section 352 analysis in considering the cross-admissibility of the indecent exposure evidence.

Defendant implicitly concedes that, where there is cross-admissibility, the other factors need not be considered. However, the majority opinion devotes considerable attention to these other factors. I can find no abuse of discretion in the trial courts conclusion that the remaining factors did not preclude the joint trial of these counts.

While the indecent exposure case was strong, the assault case was not as weak as the majority opinion contends. The majority opinions analysis of the alleged weakness of the assault count is premised on the validity of defendants various challenges in the trial court to the reliability of Glorias identification of him and his vehicle. Yet the defense case was fully presented to the jury and rejected by it. Glorias descriptions of her assailant and his vehicle immediately after the assault were consistent with defendant and his vehicle. The sketch produced from her description was, as the prosecution argued and the defense conceded at trial, quite similar to a photograph of defendant, and Gloria identified the black jacket defendant was wearing at the time of his arrest as the black jacket worn by her assailant. The indecent exposure case was significantly stronger than the assault case due to the license plate number linking defendants vehicle to the offense, but the discrepancy was not nearly so vast as the majority opinion claims.

Finally, the indecent exposure count was hardly inflammatory in comparison to the assault counts. The assault counts involved very violent conduct, the use of a knife, and the infliction of a knife wound on Gloria, while the indecent exposure count was committed without any physical contact between defendant and Gina.

These factors provide no support for a finding that the trial court abused its discretion. The majority opinion disregards the fact that our review of the trial courts ruling is highly deferential. The sole factor favoring severance was the imbalance in the strength of the evidence between the two counts. A mere imbalance in the evidence, however, will not indicate a risk of prejudicial spillover effect, militating against the benefits of joinder and warranting severance of properly joined charges. [Citation.] Furthermore, the benefits of joinder are not outweighedand severance is not requiredmerely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried. (Soper, supra, __ Cal.4th at p. __ [2009 Cal. LEXIS 1100, pp. *44-*45].) Here, the indecent exposure offense was cross-admissible and was not inflammatory, and the benefits of joinder were substantial.

[T]he benefits to the state, in the form of conservation of judicial resources and public funds . . . often weigh strongly against severance of properly joined charges. (Soper, supra, __ Cal.4th at p. __ [2009 Cal. LEXIS 1100, p. *25].) [A]s a general matter, a single trial of properly joined charges promotes important systemic economies. Whenever properly joined charges are severed, the burden on the public court system of processing the charges is substantially increased. Even assuming that some level of economy might be preserved by (when possible) appointing or assigning the same counsel, investigators, and paralegals to prosecute and defend each charge separately, merely segmenting the proceedings typically will result in inefficiency. For example, each of the numerous procedural steps attendant to any criminal proceedingsuch as discovery, pretrial motions, as well as trial sessions themselveswould proceed on discrete tracks. Additionally, when two previously joined matters advance to separate trials, approximately twice as many prospective jurors would need to be summoned and subjected to the selection process.

Further amplifying these and related trial-level inefficiencies resulting from separate trials is the appeal of right afforded to all convicted criminal defendants. Separate appellate records would be compiled by the clerks offices of the respective trial courts. Even assuming the same appellate counsel could be appointed or assigned to represent the parties, once again merely segmenting the proceedings generally will cause inefficiency. Furthermore, the Court of Appeal, through its own clerks office, would be required to manage and process discrete appeals, and provide an opportunity for separate oral arguments. Individual written decisions would be drafted, considered, and filed. Subsequently, separate petitions for rehearing could be filed in the Court of Appeal, followed by individual petitions for review in [the California Supreme] court. T[he California Supreme] court, in turn, would need to process, analyze, and dispose of each. Thereafter, separate collateral reviews at the three levels of the federal court systemreprising versions of many of the procedures outlined abovecould ensue.

Although our courts work diligently to ensure due process in all proceedings, their resources are limited. Californias trial courts in particular face ever-increasing civil and criminal dockets without any guarantee of corresponding, additional funds for court servicesjudges, judicial staff, and clerks office personnelto meet the demand. Today, no less than in the past, the opportunity for joinder and its attendant efficiencies provided by section 954 is integral to the operation of our public court system. Manifestly, severance of properly joined charges denies the state the substantial benefits of efficiency and conservation of resources otherwise afforded by section 954. (Soper, supra, __ Cal. 4th at pp. __ [2009 Cal. LEXIS 1100, pp. *45‑*48.)

Hence, the trial court could have reasonably concluded that the imbalance in the evidence did not pose such a high danger of undue prejudice as to require the severance of these counts. Thus, I would find no abuse of discretion in the trial courts denial of defendants severance motion.

4. Due Process

Defendant also urges that the joint trial of the indecent exposure and assault counts resulted in such gross unfairness that he was denied due process. Even if a trial courts severance or joinder ruling is correct at the time it was made, 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. (People v. Mendoza (2000) 24 Cal.4th 130, 162.) Defendant claims that he was unfairly prejudiced by the lack of a limiting instruction restricting the jurys use of the indecent exposure in determining his guilt on the assault counts, and by the prosecutors improper reliance on the indecent exposure in closing argument.

a. Lack of Limiting Instruction

Defendant claims that he was unduly prejudiced because the trial court failed to sua sponte give the jury a limiting instruction on the uses to which the jury could put evidence of the indecent exposure in determining defendants guilt on the assault counts. The trial court has no sua sponte duty to give a limiting instruction on cross-admissible evidence in a trial of multiple crimes. (Maury, supra, 30 Cal.4th at p. 394.) Even if there is an exception to this rule where the joined offense was a dominant part of the evidence against the accused [on the other offenses], and is both highly prejudicial and minimally relevant to any legitimate purpose (People v. Rogers (2006) 39 Cal.4th 826, 854), such an exception would not apply here.

The indecent exposure evidence was more than minimally relevant because it showed both defendants sexual intent toward lone female strangers and his propensity to commit sexually motivated acts against them. And it was not a dominant part of the evidence against defendant on the assault counts. The assault counts were primarily premised on Glorias testimony. The prosecutor simply relied on the indecent exposure evidence to corroborate Gloria. In his closing argument, the prosecutor explained: Im not bootstrapping and Im not asking you to convict Mr. Earle of Counts one and two [the assault counts] because hes guilty of count three [the indecent exposure count], absolutely not, and it would be wrong to do that. The purpose of count three and the reason Im arguing it is not to say, oh, well, he did that so hes therefore, definitely guilty of counts one and two. [] Its to say and explain, and hopefully clarify for you, that when [Gloria] says, thats the guy. You understand and realize that its not a mistake, that its not a coincidence, because under the defense theory, its a mistaken identity. Because the indecent exposure evidence had significant relevance on intent and propensity as to the assault count, the trial court was not obligated to give a limiting instruction sua sponte.

Nor was it unreasonable for defendants trial counsel to fail to request a limiting instruction. A limiting instruction would have highlighted the fact that the indecent exposure evidence was admissible to show defendants propensity for committing sexually motivated crimes. A reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide. (Maury, supra, 30 Cal.4th at p. 394.)

Since a limiting instruction could have done defendant more harm than good, its absence did not unduly prejudice him or deny him a fair trial.

b. Prosecutorial Argument

Defendant also asserts that the joint trial of the indecent exposure count and the assault count enabled the prosecutor to use derogatory epithets, and make improper comments about defendants motive and modus operandi, in his argument to the jury.

At the conclusion of the trial, the court instructed the jury: Statements made by the attorneys during the trial are not evidence. And the court told the jury: Each count charges a distinct crime. You must decide each count separately. The defendant may be found not guilty or guilty of any or all of the crimes charged. The prosecutor thereafter argued to the jury: Probably the most powerful evidence, we dont have any DNA, Ladies and Gentlemen. But what we do have is powerful powerful corroboration. And that is the defendants indecent exposure three months prior to the assault. After noting that the defense had not challenged Ginas testimony that defendant was the man who had exposed himself to her, the prosecutor asserted: This man is a predator. Hes building up. Hes starting small. He exposes himself. [] Is it really a stretch to think that his next step, three months later, because he gets so agitated, for whatever reason, whatever his state of mind, is he decides to commit a sexual assault. At this point, defendants trial counsel objected: Objection, your honor. Theres no evidence as to this argument. The court responded: The jury has already been admonished that evidence is to be decided from the testimony of witnesses. You have some latitude with respect to argument. [] They can give it whatever weight they want.

The prosecutor subsequently argued that defendant had the means, motive, and opportunity to commit the assault on Gloria. Motive we know the defendant is a sexual deviant because he masterbated [sic] in front of [Gina]. Theres no question hes sexually deviant. What kind of person is going to call a woman up to his car. She walks up to him. Hes got no pants on and hes masterbating [sic]. This is a scary guy. At the conclusion of the prosecutors opening argument, he again said that defendant had committed the indecent exposure and [h]e is a predator. His behavior in indecent exposure establishes hes a predator. His behavior when he assaulted [Gloria] establishes hes a predator.

Defendant claims that he was unduly prejudiced by the prosecutors improper argument, based solely on the indecent exposure, that defendant was a predator, a sexual deviant, and a scary guy. While these epithets carried a certain power, it is only undue prejudice that must be avoided, not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.) A prosecutor is given wide latitude during closing argument. The argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom. A prosecutor may vigorously argue his case and is not limited to Chesterfieldian politeness, [citation], and he may use appropriate epithets. . . . [Citations.] (People v. Harrison (2005) 35 Cal.4th 208, 244 (Harrison).)

An act is predatory if it exploit[s] others for personal gain or profit. (Websters Collegiate. Dict. (10th ed. 1993) p. 917 (Websters).) Defendants indecent exposure exploited Gina for defendants sexual enjoyment and therefore it was a predatory act. A sexual deviant is a person who engages in sexual behavior that departs significantly from the behavioral norms of society. (Websters, at p. 317.) Clearly, a man who summons a lone female stranger to his car to expose his genitals and his masturbatory activity is a person who is engaging in sexual behavior that significantly departs from our societal norms. Ginas testimony also provided substantial support for the prosecutors assertion that defendant was a scary guy. After being exposed to defendants indecency, Gina immediately ran away screaming for help, and she kept running until defendant left the area. A reasonable trier of fact could have concluded that she did so because she found defendant to be a scary guy.

It follows that the prosecutors references to defendant as a predator, a sexual deviant, and a scary guy were appropriate epithets, because they were reasonable deductions from the evidence. A reasonable trier of fact could conclude that these were appropriate epithets to describe a person who, in broad daylight, summoned a lone, unsuspecting female stranger to his car so that he could lewdly display to her that he was naked from the waist down and was masturbating.

More importantly, the prosecutors opportunity to use such epithets in argument cannot be attributed to the joint trial of the indecent exposure and assault counts. The prosecutor could have properly utilized the same epithets based solely on the assault counts. A man who uses a knife to force his way into the car of a lone female stranger in order to perpetrate a sexually motivated attack on her is reasonably characterized as a predator, a sexual deviant, and a scary guy.

Defendant also contends that the joint trial of the indecent exposure and assault counts permitted him to be unduly prejudiced by the prosecutors improper argument that the indecent exposure offense showed that defendant had a motive to commit the assault and that the indecent exposure and assault offenses had a common modus operandi. When the issue focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (Harrison, supra, 35 Cal.4th at p. 244.)

Defendant views the prosecutors comments through a narrow lens that tightly focuses on the legal meaning of motive and modus operandi. However, it is not reasonably likely that the jury attached anything other than their common meaning to these terms. In common parlance, motive refers to something (as a need or desire) that causes a person to act. (Websters, supra, at p. 759.) The jury would have understood the prosecutors comment about motive to refer to defendants desire for sexual stimulation. The evidence supported the inference that defendants base desire for sexual stimulation motivated both the indecent exposure and the assault. The common meaning of modus operandi is a method of procedure. (Websters, at p. 748.) The jury would have understood the prosecutors use of the term modus operandi to refer to the fact that both the indecent exposure and the assault involved defendant arriving in a vehicle, approaching a female stranger who was alone, seeking nonconsensual sexual stimulation, and then escaping in his vehicle after the female fled and screamed for help. Notwithstanding some notable distinctions between the two events, these similarities could well have suggested to a rational factfinder that defendant utilized a common method of procedure on both occasions. While the joint trial of the indecent exposure and assault counts allowed the prosecutor to make such an argument, the cross-admissibility of the indecent exposure evidence would have permitted such an argument even in separate trials.

Defendant has failed to establish that the joint trial of the indecent exposure and assault counts deprived him of a fair trial.

B. Other Contentions

1. Comments on Failure to Produce Alibi Evidence

Defendant also contends that the prosecutor improperly commented on his failure to present alibi evidence.

a. Background

The court instructed the jury: A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact the defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way. No lack of testimony on the defendants part will make up for a failure of proof by the People so as to support a finding against him on any essential elements.

As part of his argument about defendants opportunity to commit the assault on Gloria, the prosecutor argued that defendant had had the opportunity to call any witnesses he wished to call. Ladies and gentlemen, did we hear an alibi? Did they present any evidence that he didnt have the opportunity to commit these crimes. We didnt hear from any of his friends except the [one] friend, and all he said was hes good in jujitsu. [] No friends gave him an alibi. No family gave him an alibi, his girlfriend didnt come to testify that she was with him. He lives with his mom and his brother. They didnt come and testify where he was on the night, the morning. Theres no internet record to show he was surfing the internet at any particular time. No gasoline or credit card purchase was presented to show he was in a different area. [] Theres no evidence presented he was in a competition, maybe he was out of state, maybe he was in a different country. Hes such a great grappler, maybe hes going to competition. Theres absolutely no evidence of an alibi, ladies and gentlemen. [] Now, what does that tell you? It doesnt prove that hes guilty. What it shows, ladies and gentlemen, is that he had the opportunity, because I assure you, if he had an alibi, if they had some corroborating evidence to establish that he wasnt there or didnt have the opportunity to commit this crime, you would have heard that evidence. Since you didnt hear it, you can infer that he did have the opportunity to commit this crime, because there was no evidence that he was someone [sic] else or that he was doing something with someone else or that he was in a different location.

Defendants trial counsel addressed these comments at the beginning of her closing argument. [The prosecutor] has flipped the presumption of innocence on its ear. Why didnt Mr. Earle present any evidence? Why didnt he have an alibi? [] First of all, it was 5:00 oclock in the morning, but thats not the point. The point is that he doesnt have to present anything. . . . [] . . . [] The fact, when you look at this case, you must start with the presumption of innocence. And you cant flip it on its [sic] ear to say, why didnt Mr. Earle call anyone to say where he was at 5:00 in the morning. That is completely inappropriate and you must start with the presumption of innocence. At this point, the prosecutor objected to the characterization, that that was inappropriate. The court sustained the objection as to the argument as to that word, but you may continue. Defendants trial counsel continued her argument. The law requires a presumption of innocence. It does not require the defendant to prove anything.

The prosecutor addressed this issue in his closing argument. Defense said, well, mentioned something about . . . this alibi and suggested I made an improper argument and saying, why didnt they bring in alibi evidence. [] Well, the defendant absolutely has the right not to present evidence. He doesnt have to present evidence at all. In fact, he can just rely on the state of the evidence and not present any evidence and say, you know what, the people havent met their burden. [] And in fact when I made that argument about the alibi, how they didnt present evidence of an alibi, hes certainly not required to do it. And if the defense had not presented any evidence at all and just said, hey, you know what, Mr. Baker hasnt proved his case, I wouldnt have made that argument. [] But the defense decided to put on evidence. Decided to present a defense. They decided to attack the credibility of my witnesses and my victims. [] What better way to attack the credibility of these witnesses and victims than if he had just presented an alibi, but he didnt. He doesnt have to, but he has the constitutional right to do so. [] Now, does that in and of itself prove that hes guilty? [] No. [] Should you convict him because he didnt present evidence of an alibi? [] Absolutely not. [] And that would be completely wrong. If you went back there and said, hey, you know what, he didnt present evidence of an alibi so therefore hes guilty. No. Absolutely not. [] But its a fact to consider in the totality of the circumstances. It shows that he had an opportunity to commit this crime. We know he had the means. We know he had the motive.

The prosecutor continued to argue this theme. You cannot speculate as to possible facts. The defense says, well, theyre saying we should have presented an alibi. And its not fair, maybe three, four months after youve got to come in and present an alibi or figure out where you were. [] Well, Mr. Earle was arrested just a little over two weeks after this crime occurred. On top of that, the defense said, maybe my guy was alone, was sleeping at home by himself, well, theres no evidence of that. Theres no evidence presented like that at all. You cant consider it. You cant consider comments of counsel and you cant consider it unless you heard it on the witness stand or you see it in the exhibits.

b. Analysis

Defendant argues that these comments violated the rule that a prosecutor may not comment upon a defendants failure to testify in his or her own behalf. (People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford).) A prosecutor violates this rule if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand. (Bradford, at p. 1339.) No violation occurs if the prosecutors comments [are] based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses. (Ibid.)

Defendants argument is premised on his claim that only he could have provided himself with an alibi for the time of the attack on Gloria because it occurred at 5:00 a.m. Yet the prosecutors comments themselves highlighted the many other types of evidence that defendant could have produced to support an alibi defense. As the prosecutor pointed out, defendant could have produced a witness other than himself who was aware of his whereabouts at that time, such as a family member or a girlfriend. Or, as the prosecutor also noted, he could have produced documentary evidence that he was in another location at the time of the attack on Gloria. Since such evidence could have come from someone other than defendant, and the prosecutor made this clear, the prosecutors comments cannot be interpreted as improper comments on defendants failure to testify rather than proper comments on the defenses failure to produce material evidence.

2. Cross-Examination of Eyewitness Identification Expert

Defendant also argues that the prosecutor committed misconduct by improperly cross-examining the defense eyewitness identification expert.

a. Background

The prosecution moved in limine to limit the scope of the testimony of the defenses eyewitness identification expert. This motion sought exclusion under Evidence Code section 352 of any opinions or testimony by the doctor that relate specifically to the facts of this case[,] including any opinion as to the accuracy of the victims identification and testimony about specific facts of this case and how it might have affected the victims identification. Defendants trial counsel stated at the in limine hearing that she did not intend to elicit such testimony. The court noted that no such testimony was going to be elicited, and it did not explicitly rule on the prosecutions motion.

Geoffrey Loftus thereafter testified for the defense as an expert on human perception and human memory. He testified on direct examination that people can report memories with a great deal of confidence but memories that are just dead wrong in many important respects. Loftus said that the large majority of those who have been wrongly convicted of crimes have been convicted on the basis of faulty eyewitness identification testimony. He identified four factors that could render a memory inaccurate. First, the environment at the time of the event, such as a lack of sufficient lighting, may preclude a clear assessment of the details. Events perceived at night under dim illumination may produce memories that lack color and fine detail. Second, the eyewitness may be stressed or otherwise debilitated at the time of the event. For instance, the eyewitness may not pay attention to other details when his or her attention is focused on a weapon. Third, the time between the event and the recollection of the memory may cause the witness to forget things or to reconstruct the memory based on information acquired after the event. Finally, the procedures used to elicit the recollection of the memory may be suggestive and cause distortion of the memory.

After Loftuss extensive testimony on direct examination, the prosecutor began his cross-examination by asking Loftus to clarify that he had no opinion about whether defendant had committed the alleged crimes. Loftus confirmed as much. The prosecutor also asked Loftus whether he had visited the crime scene or tested the lighting levels there. Loftus confirmed that he had not. The prosecutor later had Loftus confirm that he had not been present during the trial or heard the evidence or seen the exhibits that had been introduced at trial.

Defendants trial counsel noted in her closing argument that Loftus wasnt here to decide if the I.D. was accurate. Thats your job. [] What he was here to do was to provide tools to you so that you can evaluate how to determine the accuracy and the credibility of that identification, thats what he was here to do, to educate, and thats what he did.

b. Analysis

Defendant contends on appeal that the prosecutor committed misconduct by obtaining an in limine ruling restricting the direct examination of [Loftus], and then improperly exploiting this ruling on cross-examination. This contention lacks merit. The prosecutor did not obtain an in limine ruling restricting Loftuss testimony. Defendants trial counsel stated at the in limine hearing that she did not intend to offer the type of testimony that the prosecutor sought to bar. Hence, a ruling on the prosecutors motion was unnecessary. Since the defense never intended to elicit such testimony, there was nothing for the prosecutor to improperly exploit[]. The prosecutors brief inquiry asking Loftus to confirm that he was not commenting on the particular facts of this case was entirely properly and was not misconduct.

IV. Conclusion

I would find no abuse of discretion in the trial courts denial of defendants severance motion, no denial of due process, and no other prejudicial errors. Accordingly, other than requiring the trial court to correct the abstract of judgment to correctly describe the Penal Code section 245, subdivision (a)(1) conviction as Assault with a deadly weapon rather than Indecent exposure[,] I would affirm the judgment.

_______________________________

Mihara, J.

People v. Earle

H031525

Trial Court: Santa Clara County

Superior Court Nos.: CC57954 &

CC762479

Trial Judge: The Honorable Rene Navarro

Attorney for Defendant and Appellant Fred Schnider

Cameron Earle: under appointment by the Court of

Appeal for Appellant

Attorneys for Plaintiff and Respondent Edmund G. Brown, Jr.,

The People: Attorney General

Dane R. Gillette,

Chief Assistant Attorney General

Gerald A. Engler,

Senior Assistant Attorney General

Ren A. Chacn,

Supervising Deputy Attorney General

Joan Killeen,

Deputy Attorney General

People v. Earle

H031525

In re Earle on Habeas Corpus

H032982

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[1] Defendant contends that the trial courts ruling was deficient because the court did not explicitly mention cross-admissibility. There is no requirement that a trial court ruling on a severance motion detail its reasoning. The critical question in ruling on a severance motion is whether the defendant has shown a substantial danger of prejudice. The trial court explicitly stated that defendant would not be prejudiced by a joint trial. No further explanation was required.