Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 151324
Kline, P.J.
Appellant Derrell L. Morgan (appellant) was found guilty, following a jury trial, of second-degree murder. On appeal, he contends (1) the jury’s verdict was not supported by substantial evidence and the trial court erred in denying appellant’s motion for acquittal; (2) the trial court abused its discretion when it failed to sever his trial from that of his codefendant; (3) the trial court abused its discretion when it admitted evidence of his codefendant’s prior violent acts; and (4) the trial court erred in admitting a prosecution witness’s multiple hearsay testimony. We shall affirm the judgment.
PROCEDURAL BACKGROUND
On April 8, 2005, codefendant Jarell Maurice Johnson was charged by information with the murder of Maria Catherine King. (Pen. Code, § 187, subd. (a).) On December 6, 2005, the district attorney filed an information also charging appellant with King’s murder, pursuant to Penal Code section 187, subdivision (a). On December 20, 2005, the trial court granted the district attorney’s motion to consolidate the two cases.
All further statutory references are to the Penal Code unless otherwise indicated.
On September 25, 2006, a jury convicted appellant and Johnson of murder in the second degree.
On November 17, 2006, the trial court sentenced both appellant and Johnson to 15 years to life in state prison.
Also on November 17, 2006, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Cynthia Luttrell, a police officer with the Berkeley Police Department, was patrolling northwest Berkeley on the night of February 7, 2005. While talking with the owner of the Marina Liquor Store at University Avenue and Bonar Street, Luttrell observed three young Black men wearing dark clothing enter the store just before midnight. She later learned their names were Jarell Johnson, Korey Usher and Lawrence Dillon. The men purchased snacks, left the store, and walked across the street to the convenience shop at the Shell gas station. About a half hour later, Luttrell saw the young men walking north on Sacramento Street, a few blocks from the liquor store. They were joined by a fourth Black man of the same age group. She saw them turn right on Hearst Avenue, which is near Ohlone Park.
Lawrence Dillon testified that after leaving the stores, he, Johnson and Usher walked toward BART and lounged in the park, smoking and drinking, across the street from the station. Dillon stated that Johnson walked back toward University Avenue to get something from the store and returned in “a little bit.” Johnson did not say anything to Dillon and Usher when he returned. Dillon said, “[h]e just walked past us nonchalant.”
Around 1:00 a.m. on February 8, 2005, Herbert Miller, a resident property manager at an apartment complex on University Avenue, heard a bottle break on the street and “stomping on the ground.” From his office window, he saw two figures wearing dark clothing kick something in the middle of the street. They were on California Avenue, near an Out of the Closet thrift store, approximately 30 to 40 feet from the intersection with University Avenue. They took turns kicking the side of the object, about three to four times each, “[n]ot in any kind of organized fashion, but just kind of back and forth, just kicking, winding up, a kicking, again winding up and kicking again.” Miller saw them begin to walk away, but one of the figures turned around, ran back, and jumped on the object with both feet. They then walked toward Ohlone Park, two blocks away. Miller was not sure the object was a body, but he had a “bad feeling” and called 9-1-1.
Berkeley police and paramedics responded to the emergency call. They found Maria King, a frail and unresponsive woman, lying in the middle of the street, with significant trauma to her face and head. She was transported to Highland Hospital where she was treated for multiple facial fractures and traumatic brain injury. Dr. Miriam Bullard, an attending physician at Highland, testified that King also had bruising to her anterior chest, facial swelling and lacerations to her scalp. King never regained consciousness and died almost two weeks later, on February 21, 2005.
Dr. Sharon Van Meter, a pathologist in Alameda County, performed King’s autopsy on February 22, 2005. The autopsy showed that King had a number of small bruises on her body, but extensive injury to her head, including a skull fracture. Dr. Van Meter concluded that the cause of death was “[b]lunt trauma to the head. [¶] . . . [¶] . . . from multiple blows.”
While emergency responders attended to King, the Berkeley Police Department dispatched several officers to search for suspects in the neighborhood. Officer Skylar Ramey detained two young men wearing dark clothing, Korey Usher and Lawrence Dillon, at the intersection of Hearst and California Avenues, on the south side of Ohlone Park. Officer Stanley Libed spotted a Black man in dark clothing, Johnson, near the intersection of Delaware and California Avenues, on the north side of Ohlone Park. Libed pulled directly in front of Johnson, stated he needed to speak with him, and then immediately handcuffed Johnson. Because of Johnson’s “calm” demeanor, Libed did not think he was involved in the offense. Johnson said “something about getting off the 15 bus” and going to BART. Libed testified that he walked Johnson “back a few steps” to California Avenue and “gestured back towards University where we could see all the lights and everything else just to explain to him why I stopped him.”
“Just on a whim,” Libed used his flashlight to glance down at Johnson’s feet because he was aware that the offense involved stomping or kicking. To his “great surprise,” Libed saw blood on Johnson’s shoe. Almost immediately after, Johnson gestured toward the police lights and stated, “I kicked some lady back there. She grabbed my hair.”
Libed broadcast on the air that he had a detainee with blood on his shoe. Officer William Cocke responded to Libed’s message and came to the site where Johnson was detained. In the presence of the officers, Johnson said, “I kicked her ass. She freaked out on me.” Another officer brought eyewitness Herbert Miller for a field show-up. According to Libed, Miller stated that Johnson’s clothing looked “very similar” to that of the dark figures he saw kicking the body. Subsequently, Libed verbally “Mirandized” Johnson. A few minutes later, Johnson stated, “I beat the shit out of her.”
After a Berkeley police sergeant showed up, the officers determined there was enough probable cause to arrest Johnson for the assault of King. When Johnson asked about the charges, Libed responded that it would depend on the condition of the victim. Libed transported Johnson to the Berkeley Police Department, re-Mirandized him using an admonition form, and took Johnson’s statement. The statement read: “ ‘I’m really sorry it all happened. I didn’t mean for any of this to happen. I really hope she’s okay. Around midnight I was walking west on University towards the BART station to go home. I’d been drinking with some friends in Oakland, and I just got off the No. 15 bus. . . .’ [¶] . . . [¶] ‘I saw a bunch of stuff by the thrift store on University at California. I went looking for some records in the pile. I was hoping to find some Jimmie Hendrix or Bob Marley. There was a homeless person on the sidewalk sleeping next to the pile and I tried not to disturb them. . . .’ [¶] . . . [¶] ‘I had to get pretty close to the person while looking through the box and suddenly the homeless lady reached for the box [and] said, “What the fuck?” and I slapped her hand away. . . .’ [¶] . . . [¶] ‘She then started screaming, grabbed my dreads, and pulled them. She really freaked out. I got scared, and I reacted to defend myself. I studied martial arts. . . .’ [¶] . . . [¶] ‘And the training kicked in and I defensed [sic] myself on instinct. I kicked her while she was on the ground twice. And then I stopped. I realized what had happened, that she was no longer a threat, and I stopped and walked away back towards BART. As I was walking away, I realized what I had done. And I started feeling really bad. So when Officer Libed stopped me a little later I cooperated completely. I’m really sorry. I hope she’s ok.’ ”
Libed testified that this statement was the first indication he had that Johnson had been drinking. Libed did not investigate Johnson’s sobriety level, and stated that he did not remember smelling alcohol on Johnson’s breath. After finishing the statement, Johnson asked Libed to return to the jail and tell him about the condition of the victim.
The following morning, Detective Lionel Dozier and Sergeant Howard Nonoguchi videotaped an interview with Johnson. At trial, a redacted version of the video was played which eliminated all references to appellant. In the video, Johnson confirmed that Officer Libed had read him his rights and that he understood those rights. Johnson stated that he was drinking in Oakland with friends the night before and then took the No. 15 bus by himself to University Avenue. He was walking down University when he saw some junk, boxes, clothes and a homeless lady. He decided to look through the boxes for records, and explained, “I reached for a box BAM, I grabbed the box from where she was at, she tried to reach for it, and she, she said ‘what the fuck’ and she reached for the box and I knocked her hand away and she probably grabbed my collar . . . and she grabbed my hair . . . and I beat the shit out of her, man.”
Johnson described the attack further, stating, “[I] punched her like first she had my hair—BAM—she tried to run from me, I BAM, I gave her another one, I kicked her in her head like three times,” and “she was like ‘what the fuck,’ I’m like ‘Bitch, watch out,’ . . . she tried to grab my collar . . . BAM, ‘Bitch, get the fuck off me, yo.’ [¶] . . . [¶] Hit her in her jaw like twice, like BAM, BAM, I gave her like some uppercuts, BAM, BAM. And then she let me go, she tried to run in the street, I’m, she was running, she was turned around, I BAM.”
The parties stipulated that Johnson never indicated that he went back and stomped on the body with both feet. The court also informed the jury of another stipulation by all parties “that at three different places in the interview in response to questions, the defendant Mr. Johnson told the detectives ‘I was by myself.’ ”
Detective Robert Rittenhouse testified that, on March 29, 2005, he and his partner met with Christon Parker, who was in custody at Santa Rita County Jail for burglary, after being told that Parker had information related to the attack on Maria King. Parker told Rittenhouse that he knew who the second person was who had taken part in the attack because that person had told him about it. Parker said he did not want to give the name while he was in jail because the person would know who had snitched, and Parker was afraid he would be killed. Parker also said Johnson would never name the other attacker because “they [were] like brothers.”
On April 29, 2005, Rittenhouse returned to Santa Rita County Jail after learning that Parker wanted to talk to him and his partner again. During this interview, Parker told the detectives that he was driving with appellant the day after the attack and, as they passed California and University Avenue—where the attack occurred—appellant said, “You know that’s where we went dumb on that woman. That’s where we beat her up. That’s where it happened.” Parker asked the detectives about whether he might get “some consideration” for helping the police, and Rittenhouse said he would let the district attorney know that Parker had been cooperative.
At a third interview on May 6, 2005, Parker reiterated what appellant had told him as they drove past the scene of the attack. When Rittenhouse asked what “going dumb” was, Parker said it meant “to beat, stomp, kick.” Rittenhouse thereafter called the deputy district attorney handling Parker’s burglary case and told him that Parker had cooperated with police.
Parker had testified earlier in the trial that he and appellant were associates and hung out together, maybe a couple of times a week. He had driven past the crime scene with his father and then with friends, but not with appellant. Parker said he never spoke with appellant after the attack and appellant never said he “went dumb” on King. When Parker told the police that appellant was involved in the attack, he had gotten this information from “somebody,” not from appellant. Parker acknowledged he was in custody for ignoring a subpoena to testify in this case. He denied that he was scared; he just did not want to be a snitch. When asked if he talked to the officers about the attack in hopes of getting a deal on his own case, Parker responded, “Not really.” He said he was never made any promises and did not get any deal.
Lawrence Dillon’s ex-girlfriend, Sashay Long, also testified about what Dillon had told her regarding the identity of the attackers. The day after the attack, Dillon first jokingly told Long that he had “stomped that bitch.” When she said that “wasn’t funny,” he got serious and told her that, the night before, appellant and Johnson had walked past him. They were “giggling,” but would not tell Dillon why they were laughing. Dillon then told Long that appellant told him that he and Johnson “ran into an old white lady” with a box. They were trying to rob her and Johnson grabbed the box. The woman grabbed Johnson and Johnson “took off on the lady.” After they left, appellant said, “Let’s go back and kill this bitch,” so they went back and beat her again.
Some time later, Dillon and Long saw appellant at a liquor store. Dillon said, “What’s up with that,” and appellant dropped the liquor bottle he was holding. Just after that encounter, Dillon commented on appellant dropping the bottle because he was nervous.
Long eventually went to the police with the information that Dillon had given her because “it ate me up that I knew someone died and then I knew who did it.” She did not use her real name when she told the police what she knew because she was scared, having been “taught not to snitch,” although her real name eventually came out. She asked the police about the reward while she was there, but the police said she would have to testify, “and I didn’t want to. I didn’t want anything to do with it after that.”
Long then moved out of state without telling the police where she was going. She was later contacted by someone in the district attorney’s office and flew back to testify. She was not in court voluntarily; she was scared to come back to California.
During his testimony earlier in the trial, Dillon had denied that appellant ever said anything about being involved in the attack. Dillon had also denied discussing the attack with Long, and said he had never joked with her about being involved in the attack himself.
DNA analysis of the blood on Johnson’s shoe was “consistent” with a blood sample taken from Maria King. There was a one in 990 billion chance among Caucasians, one in 2.2 trillion chance among African-Americans, and one in 7.6 trillion chance among Hispanics that an unrelated individual would have had the same DNA profile as the blood found on Johnson’s shoe.
The prosecution also introduced evidence of a prior similar incident between Johnson and a homeless person. Maurice Thompson testified that, in 2003, a man smashed a bottle on his head while he was sleeping on the sidewalk with other homeless people. Thompson identified Johnson as the attacker. As Thompson chased after Johnson, Johnson and his friend continued to throw more bottles and garbage until they were all detained by police officers near the scene. Thompson recalled that when Johnson was sitting in the police car waiting to be transported, he was “still smiling and laughing” at Thompson.
The two young men detained for the attack on Thompson were Johnson and Korey Usher. Officer Kenneth McKellar of the Oakland Police Department took Thompson’s statement on the night of the incident. The statement identified Usher as the man who broke the bottle over Thompson’s head.
Defense Case
The victim, Maria King, a homeless woman living on the street for many years, had “mental problems” and was arrested on various occasions for trespassing or public drunkenness. On one occasion in May 2004, she resisted arrest by flailing, kicking and using foul and discriminatory language. She kicked the window of a patrol car and an officer’s kneecap.
Charles Davis testified that he met appellant at about 6:00 p.m. on the night of the attack. They drank alcohol together for about 45 to 50 minutes, and then Davis dropped appellant off at his home. Appellant’s mother, brother, and second cousin all testified that appellant arrived home that evening at about 8:00 or 9:00 p.m., and that he was intoxicated. None of them had told the police that appellant was at home that evening. They had only told appellant’s attorney.
Appellant’s mother had previously pleaded guilty to welfare fraud; appellant’s brother had previously admitted committing an assault with great bodily injury; and appellant’s cousin, as a juvenile, had been in trouble for trying to cash a stolen check and for possession of marijuana.
Dan Mahomes, who had known appellant all his life, testified that, on the night of the attack, he was with appellant at a liquor store at Bancroft and San Pablo Avenues in Berkeley between approximately 10:00 and 11:00 p.m. Johnson was also there.
Rebuttal
Johnson punched a fellow inmate, John Ellwanger, at Santa Rita Jail on September 3, 2006, during the course of the trial. Ellwanger had joked that it sounded like Johnson and his cellmate were having sex. Johnson hit Ellwanger more than once. Ellwanger required seven stitches, but did not file a complaint.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends the jury’s verdict was not supported by substantial evidence and the trial court erred in denying appellant’s motion for acquittal.
A. Factual Background
After the prosecution’s case, appellant moved, under section 1118.1, for a judgment of acquittal on the ground that the evidence was insufficient to sustain the murder charge. The trial court denied the motion after finding that there was substantial evidence of the existence of each element of the offense charged.
Section 1118.1 provides in relevant part: “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.”
B. Legal Analysis
“When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Little (2004) 115 Cal.App.4th 766, 771, citing People v. Johnson (1980) 26 Cal.3d 557, 578.)
“Although the appellate court must ensure the evidence is reasonable in nature, credible and of solid value [citation], it must be ever cognizant that ‘ “it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends . . . .” ’ [Citations.] Thus, if the verdict is supported by substantial evidence, this court must accord due deference to the trier of fact and not substitute its evaluation of a witness’s credibility for that of the fact-finder. [Citations.]” (People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
“ ‘The test to be applied by a trial court in deciding a section 1118.1 motion is the “ ‘same test applied by an appellate court in reviewing a conviction: whether from the evidence, including reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’ ” ’ [Citations.] On appeal from the denial of such a motion ‘the appellate court must assume in favor of the judgment every fact from which the jury could have reasonably deduced from the evidence that the offense was committed by the defendant. . . . The test on appeal is not whether the appellate court believes the evidence at trial established the defendant’s guilt beyond a reasonable doubt, but whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” ’ [Citations.]” (People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1638-1639.)
In the present case, appellant argues that the only evidence connecting him to the assault on King was “unreliable multiple hearsay to the effect that appellant told someone who told someone else that he was involved.” Specifically, he avers that the double hearsay testimony from Sashay Long regarding Dillon’s statements about what appellant had told him and the double hearsay testimony from Sergeant Rittenhouse regarding what Christon Parker had told him about what appellant had said were not sufficient to support the verdict.
Appellant does not claim that Sergeant Rittenhouse’s testimony was inadmissible and, although he argues that Long’s testimony was inadmissible, he is incorrect. (See pt. IV.B., post.) This testimony was admissible multiple hearsay, and it was the jury’s job, not ours, to determine the credibility of the witnesses and the weight to give this evidence. (See People v. Zapien (1993) 4 Cal.4th 929, 956 [multiple hearsay testimony was admissible as prior inconsistent statements and was “sufficient to support a finding by the jury that the disputed statement was made. [The witness’s] credibility, although challenged, was for the jury to determine”].)
Appellant asserts that both Parker and Long had reason to fabricate their prior statements: Parker hoped to make a deal with the district attorney in his criminal case and Long hoped to receive a $15,000 reward. In addition, he observes that Dillon and Parker both testified that none of appellant’s alleged admissions were in fact made. This does not, however, render the evidence in question insufficient to support the evidence. Instead, as we have already explained, these potential biases and subsequent denials were for the trier of fact to evaluate in reaching its decision. (See People v. Barnes, supra, 42 Cal.3d at p. 306 [“Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment,” since it is for the jury to determine credibility of witnesses].)
Rather than discounting Dillon and Parker’s original statements based on the their trial testimony, the jury could—and presumably did—just as reasonably conclude that Dillon and Parker did not want to admit they had revealed what appellant had told them. Moreover, contrary to appellant’s assertion, the jury could reasonably choose to believe Detective Rittenhouse’s testimony that Parker made the statements implicating appellant rather than Parker’s denial that he ever made the statements. Finally, although both Dillon and Parker denied making the statements attributed to them, the jury could find the unlikelihood that two independent witnesses (Parker and Long) would falsely implicate appellant as the second assailant bolstered the witnesses’ credibility.
With respect to the section 1118.1 motion for acquittal, the evidence of appellant’s statements to Parker and Dillon, along with evidence that appellant and Johnson were friends, supported the trial court’s determination that the motion should be denied. (See People v. Guiterrez, supra, 232 Cal.App.3d at pp. 1638-1639.)
We observe that, at the point in the trial at which the court denied the section 1118.1 motion, appellant’s alibi witnesses had not yet testified.
In addition, this evidence, combined with evidence adduced during the defense case—including Dan Mahomes’s testimony that he saw appellant and Johnson together between 10:00 and 11:00 p.m. on the night in question near the scene of the attack—provide substantial evidence to support the verdict. (See People v. Barnes, supra, 42 Cal.3d at pp. 303-304; People v. Little, supra, 115 Cal.App.4th at p. 771.)
II. Failure to Sever the Trials
Appellant contends the trial court erred when it failed to sever his trial from that of codefendant Johnson.
A. Trial Court Background
Johnson and appellant were originally charged separately with the murder of Maria King. The prosecutor filed a motion to consolidate the two cases, pursuant to section 1098. Appellant’s counsel opposed the motion, arguing that the stronger case against Johnson would bolster the weaker case against appellant.
The trial court granted the motion to consolidate. Responding to appellant’s counsel’s argument that the stronger case against Johnson would “spill over” and “simply carry along” appellant, the court stated: “But I don’t see the evidence that, you know, it would tend to spill over. In other words, your client probably has an identification defense. The codefendant’s possibly not an identification defense. So there’s—it escapes me how one could spill over on the other.”
B. Legal Analysis
“Section 1098 expresses a legislative preference for joint trials. The statute provides in pertinent part: ‘When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.’ [Citations.] Joint trials are favored because they ‘promote [economy and] efficiency’ and ‘ “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” ’ [Citation.] When defendants are charged with having committed ‘common crimes involving common events and victims,’ as here, the court is presented with a ‘ “classic case” ’ for a joint trial. [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman).)
Several nonexclusive factors guide the court’s discretion in ruling on a severance motion, “such that severance may be appropriate ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ ” (Coffman, supra, 34 Cal.4th at p. 40, quoting People v. Massie (1967) 66 Cal.2d 899, 917.) In addition, “less dramatic measures than severance, such as limiting instructions, often will suffice to cure any risk of prejudice. [Citation.]” (Coffman, supra, 34 Cal.4th at p. 40.)
Appellant argues section 954, which concerns severance of counts, rather than defendants, is also relevant here. Section 954 applies when a defendant is charged with “two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts.” On appeal, the factors to be considered in such a situation include whether “ ‘ “(1) evidence on the crimes to be tried jointly 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.]” ’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1030.)
The denial of a severance motion is reviewed for abuse of discretion, “judged on the facts as they appeared at the time of the ruling. [Citation.] Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial. [Citation.]” (Coffman, supra, 34 Cal.4th at p. 41.)
Moreover, even if the trial court properly denies a motion to sever, after trial, “ ‘the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law.’ [Citation.]” (People v. Cleveland (2004) 32 Cal.4th 704, 726.)
In the present case, appellant argues that the joint trial was fundamentally unfair because inflammatory evidence was admitted against Johnson that would not have been admissible against appellant in a separate trial. According to appellant, the strength of the case against Johnson—especially in light of the prejudicial nature of much of the evidence against him—spilled over and “could not help but persuade the jury that appellant, Johnson’s friend, was a person of similarly violent character and was likely guilty.” (See People v. Kraft, supra, 23 Cal.4th at p. 1030.)
In particular, appellant asserts that the evidence of Johnson’s statements to police could not have been admitted against appellant in a separate trial without an opportunity for cross-examination. (See Crawford v. Washington (2004) 541 U.S. 36.) Appellant notes that these inflammatory statements included, inter alia, Johnson’s calling the victim a “bitch” and his acknowledgement that he “beat the shit out of her.” He cites Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 941, in which the appellate court found undue prejudice where the defendant in a murder case was forced to join his codefendant in a trial at which the codefendant was charged with premeditated murder based on an “entirely separate,” especially heinous episode, regarding which the court stated: “One would have to be almost saintly not be aroused by such evidence.” (Ibid.)
Appellant also asserts that evidence of Johnson’s two prior violent assaults—which were admitted pursuant to Evidence Code sections 1101 and 1103—could not have been admitted against appellant at a separate trial, since appellant “would have avoided admission of evidence of Johnson’s violent character if severance had been granted.” Appellant claims that admission of this highly prejudicial evidence at the joint trial violated his due process rights, citing two cases from other jurisdictions. (See Erman v. State (Md.App. 1981) 434 A.2d 1030, 1038 [admission of increasingly prejudicial prior bad acts evidence against one defendant in joint trial required vacation of conviction against other defendant and new, separate trial]; (cf. Panzavecchia v. Wainwright (5th Cir. 1981) 658 F.2d 337, 341-342 [admission of evidence of prior in defendant’s trial for murder and unlawful firearm possession, without any instruction limiting its applicability to firearm charge, violated due process].)
Even assuming appellant is correct that neither Johnson’s statements nor his prior bad acts would have been admissible against appellant in a separate trial, we disagree that admission of this evidence “allowed the prosecutor to portray Johnson and, by association, appellant, as a violent, sadistic hoodlum, inflaming the jurors against both defendants.” While the evidence of Johnson’s guilt plainly was stronger (based both on his admissions and the DNA evidence) and more inflammatory, the evidence against appellant was nonetheless substantial (see pt. I., ante), and the record does not suggest that the jury used the evidence admitted against Johnson to find appellant more culpable than it otherwise would. (See Coffman, supra, 34 Cal.4th at p. 43 [no prejudicial association with codefendant found where evidence showed both defendants took an active role in committing offenses]; compare Calderon v. Superior Court, supra, 87 Cal.App.4th at p. 941[defendant was prejudiced by joinder of weak murder case against him with strong separate murder case against codefendant].)
Rather, the evidence showed that Johnson and another person had repeatedly kicked King in the head and the jury addressed two distinct questions with respect to Johnson and appellant. The question for the jury regarding Johnson was his state of mind when he attacked Maria King. The question for the jury as to appellant was one of identity: Was he or was he not the second, unknown assailant who fully and actively participated in the attack with Johnson? (See Coffman, supra, 34 Cal.4th at p. 43.)
In addition, the court’s limiting instructions made clear that the evidence of Johnson’s statements and prior acts were admissible solely as to him. (See Coffman, supra, 34 Cal.4th at p. 40 [court’s limiting instructions “often will suffice to cure any risk of prejudice”].) After closing arguments, when the court instructed the jury, it gave CALJIC No. 2.08, stating: “Evidence has been received of a statement made by a defendant after his arrest. At the time the evidence of this statement was received, you were instructed that it could not be considered by you against the other defendant. Do not consider the evidence of this statement against the other defendant.” The court also gave CALJIC No. 2.07, stating: “Evidence has been admitted against one of the defendants, and not admitted against the other. At the time this evidence was admitted, you were instructed that it could not be considered by you against the other defendant. Do not consider this evidence against the other defendant.” Finally, the court gave CALJIC No. 17.00, stating: “You must decide separately whether each of the defendants is guilty or not guilty. If you cannot agree upon a verdict as to both the defendants, but do agree upon a verdict as to one of them, you must render a verdict as to the one as to whom you agree.”
In his reply brief, appellant asserts that no instruction told the jury that it could not consider Johnson’s prior violent acts against appellant. As will be discussed in more detail in part III., post, the relevant instructions made clear that this evidence could be used only against Johnson. (See CALJIC No. 2.50; Evid. Code, § 1103.)
The arguments of counsel also indicate an understanding that these statements and prior acts were relevant only to Johnson and his state of mind during the attack. For example, in his closing argument, the prosecutor first focused on Johnson, discussing the evidence—including Johnson’s statements to police and prior violent acts—and argued that it showed that Johnson was guilty of murder, rather than any lesser offense. As to appellant, the prosecutor looked at evidence that showed appellant was with Johnson on the night of the offense, including evidence that the two men were friends and the evidence from Long, Parker (via Detective Rittenhouse), and Mahomes. The prosecutor argued that all of this evidence demonstrated that appellant was the unnamed man who participated in the attack. Finally, the prosecutor commented on the weaknesses in the evidence provided by appellant’s alibi witnesses.
The argument of appellant’s attorney similarly shows that the focus, with respect to appellant, was on the evidence that purported to prove that he was present during the attack. Counsel attempted to depict the Berkeley Police Department’s investigation as inept and discussed Long and Parker’s motives to lie in implicating appellant as the second assailant.
In his closing argument, Johnson’s attorney focused on Johnson’s state of mind, referring to appellant only when arguing that the evidence showed it was appellant who suggested going back to kill King and that appellant was the one who went back and stomped on her.
Appellant also claims that Johnson’s attorney acted as a “second prosecutor” by arguing that the testimony of Long and Parker showed that appellant was the one who went back and stomped on the victim, making him guilty of second degree murder. According to appellant, this argument was “the last straw, making appellant’s conviction on insubstantial evidence inevitable.” Our Supreme Court has stated: “The fact that the prosecution would be in a position to put on its case ‘then sit back and watch as defense counsel became the real adversaries’ [does] not warrant separate trials. [Citation.]” (People v. Morganti (1996) 43 Cal.App.4th 643, 673, quoting People v. Turner (1984) 37 Cal.3d 302, 312.) Moreover, any potential prejudice from counsel’s comments was alleviated by the trial court’s instructions to the jury that statements made by the attorneys during trial were not evidence. (See Coffman, supra, 34 Cal.4th at p. 40.)
Contrary to appellant’s assertion, the prosecutor’s observation that appellant and Johnson were friends was not an improper effort to show guilt by association. Instead, these remarks clearly were part of the prosecutor’s overall attempt to place appellant at the scene on the night in question. As we have already concluded (see pt. I., ante), the evidence admitted at trial against appellant was sufficient to support his conviction for second degree murder. The record does not show that the jury was “unable or unwilling to assess independently the respective culpability of each codefendant or [was] confused by the limiting instructions.” (See People v. Ervin (2000) 22 Cal.4th 48, 69.)
“In sum, given the prosecution’s independent evidence of defendants’ guilt and the trial court’s carefully tailored limiting instructions, which we presume the jury followed [citation], . . . we find no abuse of discretion in the denial of severance. For the same reasons, [appellant’s claim] that the joint trial deprived [him] of [his] federal constitutional rights to due process [and] a fair trial . . . likewise must fail.” (Coffman, 34 Cal.4th at pp. 43-44.)
III. Admission of Johnson’s Prior Violent Acts
Appellant contends the trial court abused its discretion, under Evidence Code section 352, when it admitted evidence of his codefendant’s prior violent acts. He also claims that admission of this evidence violated his due process right to a fair trial.
A. Factual Background
Before trial, the prosecutor moved to admit evidence of Johnson’s prior attack on Maurice Thompson, pursuant to Evidence Code section 1101, subdivision (b). Appellant’s attorney joined in Johnson’s objection to admission of the evidence. The trial court found that the attack on Thompson was sufficiently similar to the present case as to be admissible to show intent, common scheme and plan, and motive or bias.
Evidence Code section 1101, subdivision (b), provides in relevant part: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.”
During the trial, Johnson’s attorney moved to admit evidence of the victim, Maria King’s, violent character pursuant to Evidence Code section 1103, subdivision (a)(1). The prosecutor objected, arguing that, under Evidence Code section 352, the evidence was more prejudicial than probative. Appellant’s attorney joined in the prosecutor’s objection. The trial court granted the motion, but also ruled that the prosecutor would then be permitted to introduce the evidence of Johnson’s prior violent act evidence to show, not only his intent, but also his character for violence under Evidence Code section 1103, subdivision (b).
Evidence Code section 1103 provides, in relevant part: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:
After closing arguments, the trial court instructed the jury that evidence admitted against one defendant only could not be used against the other defendant. (CALJIC No. 2.07; see pt. II., B. ante.) The court also instructed the jury that it could consider the evidence of Johnson’s prior bad acts only as possible evidence of Johnson’s intent and character for violence.
The jury specifically was instructed, pursuant to CALJIC No. 2.50: “Evidence has been introduced for the purpose of showing that the defendant Jarrell Johnson committed a crime other than that for which he is on trial, to wit: the alleged assault upon Maurice Thompson on June 18, 2003. Except as you will shortly be instructed, this evidence, if believed, may not be considered by you to prove that the defendant Jarrell Johnson is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show a characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case, which would further tend to show the existence of the intent, which is a necessary element of the crime charged.
“The existence of the intent, which is a necessary element of the crime charged, is a motive for the commission of the crime charged. For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose.”
The jury was further instructed, pursuant to Evidence Code section 1103, in relevant part: “With respect to the alleged assault upon Maurice Thompson by the defendant Jarrell Johnson on June 18, 2003, in addition to the limited purposes I have previously described, you may also consider the evidence of these events to determine whether or not it tends to show the defendant Johnson’s character for violence, or a trait of character for violence, and if so, whether or not it tends to prove the conduct of the defendant Johnson in conformity with this character or trait of character in the case before you.
“You may also consider the evidence of the events of September 3rd, 2006 involving the alleged assault upon John Ellwanger by the defendant Jarrell Johnson to determine whether or not it tends to show the defendant Johnson’s character for violence, or a trait of character for violence, and if so, whether or not it tends to prove the conduct of the defendant Johnson in conformity with this character or trait of character in the case before you.”
B. Legal Analysis
Appellant argues that the trial court abused its discretion, under Evidence Code section 352, when it admitted evidence of Johnson’s prior violent acts pursuant to Evidence Code sections 1101, subdivision (b), and 1103, subdivision (b), because the probative value of the evidence was substantially outweighed by the danger of undue prejudice to appellant. According to appellant, this evidence had no substantial probative value as to appellant, since it did nothing to show whether appellant was the unidentified second assailant but, instead, merely proved that Johnson is a hateful, violent person.
Appellant is correct that this evidence did nothing to prove his identity as the second assailant, since the evidence related solely to Johnson’s prior acts and was intended solely to show Johnson’s possible intent and character for violence. (See CALJIC No. 2.50; Evid. Code, § 1103.) The instructions explicitly told the jury that this evidence had been admitted only against Johnson and that the jury was to consider the evidence only for the purposes set forth in the instructions. There is no reason to believe the jury was confused by or did not follow the court’s instructions. (See People v. Ervin, supra, 22 Cal.4th at p. 69.) Accordingly, appellant was not prejudiced by admission of this evidence (see Evid. Code, § 352), and there was no abuse of discretion or due process violation.
In his reply brief, appellant asserts the instructions did not state that the prior acts evidence was admissible only against Johnson and, therefore, the jury was not precluded from “consideration of evidence of Johnson’s prior violent assaults and character for violence to prove appellant’s character for violence and guilt by association.” We disagree. The instructions given pursuant to CALJIC No. 2.50 and Evidence Code section 1103 repeatedly told the jury that the evidence related solely to Johnson and could be used only for certain purposes as to Johnson. In addition, CALJIC No. 2.07 further emphasized that evidence admitted against one defendant could not be considered against the other defendant.
IV. Admission of Sashay Long’s Multiple Hearsay Testimony
Appellant contends the trial court erred in admitting Sashay Long’s testimony regarding what Lawrence Dillon told her appellant had said about the attack on Maria King. Appellant claims the erroneous admission of this evidence violated his due process rights.
A. Factual Background
At the start of trial, appellant brought a motion in limine to exclude as inadmissible hearsay Sashay Long’s testimony that Lawrence Dillon told her about a conversation with appellant in which appellant admitted participating in the attack on Maria King. The trial court found the evidence admissible and denied the motion.
During the trial, after Dillon testified that he had never talked to Long about the attack on Maria King and that appellant had never said he was involved in the attack, the prosecution presented Long’s testimony regarding what Dillon had told her appellant said about his participation in the attack.
B. Legal Analysis
The hearsay rule provides that “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated” is inadmissible, except as provided by law. (Evid. Code, § 1200.) Multiple hearsay is admissible if each statement satisfies an exception to the hearsay rule. (Evid. Code, § 1201.)
The exceptions to the hearsay rule relevant in this case include Evidence Code section 1220, under which “[e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party,” and Evidence Code section 1235, which provides that “[e]vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.”
Evidence Code section 770 provides: “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:
In the present case, Sashay Long’s multiple hearsay testimony was properly admitted because both appellant’s statement and Dillon’s statement were admissible under exceptions to the hearsay rule. First, appellant’s statements to Dillon regarding his participation in the attack were admissible under Evidence Code section 1220, as a party admission. Second, Dillon’s statements to Long were admissible under Evidence Code section 1235, as prior inconsistent statements. Dillon, who testified at trial and was subject to cross-examination, claimed that he had never talked to either Long or appellant about the attack. The prosecution was thus entitled to impeach Dillon with Long’s contrary testimony. (See People v. Zapien, supra, 4 Cal.4th at pp. 951-952, 956 [multiple hearsay testimony is admissible if each hearsay level satisfies an exception to the hearsay rule, and the witness’s “credibility, although challenged, [is] for the jury to determine”]; accord, People v. Barnes, supra, 42 Cal.3d at pp. 303-304, 306.)
Appellant nonetheless avers that admission of Long’s hearsay testimony rendered his trial fundamentally unfair, in violation of due process, because both Long and Dillon had strong motivations to lie. However, both witnesses were cross-examined thoroughly. The jury heard evidence that, when she approached the police with her information, Long was pregnant and asked about the $15,000 in reward money. The jury also heard evidence implying that Dillon could have fabricated his comments to Long to protect himself from suspicion that he might have been the second, unknown assailant in the attack. Long’s testimony was admissible, and it was for the jury to determine her credibility. (See People v. Zapien, supra, 4 Cal.4th at pp. 951-952, 956; People v. Barnes, supra, 42 Cal.3d at pp. 303-304, 306.)
There was no violation of appellant’s due process rights.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Richman, J.
According to appellant, section 954 is relevant here because the joint trial resulted in admission of evidence of separate uncharged crimes committed by Johnson only. Although we have doubts that section 954 is directly applicable to the present circumstances, we are nonetheless willing to consider the section 954 factors raised by appellant, given that the factors to be considered under section 1098 are nonexclusive. (See Coffman, supra, 34 Cal.4th at p. 40.)
“(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. [¶] . . . [¶]
“(b) In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”
“(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or
“(b) The witness has not been excused from giving further testimony in the action.”