Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C157529
Siggins, Judge
Cornell Morrow appeals following his conviction by a jury for aggravated assault upon one victim and the murder of another that occurred approximately a year later. Morrow argues the consolidation of the charges in one trial was an abuse of discretion and so grossly unfair that it violated due process. We find no abuse of discretion or interference with Morrow’s due process rights. Morrow also contends, and the Attorney General concedes, the court imposed an excessive restitution fund fine and security fee. We modify the judgment to correct the fine and fee. As modified, we affirm.
FACTUAL BACKGROUND
A. The Attack on Muhammad Asif
In August 2006, Muhammad Asif was waiting in line in his container truck at the Maersk Terminal at the Port of Oakland. He saw Morrow approach on foot from behind his truck. Morrow was angry and seemed to believe Asif had cut in front of him in line. Morrow told Asif to come down out of his truck, then punched him in the face and knocked him down. When Asif tried to get up, Morrow hit him again.
Asif suffered four fractures to the left side of his face, and later underwent surgery to install titanium plates in his head. The surgeon testified that a large amount of force was required to cause Asif’s injuries, which were more commonly seen as the result of a car accident or sports injury than a punch to the face. Asif identified Morrow in a photo lineup as his assailant.
Even after the surgery, Asif suffered from pain, swelling, and numbness in his face.
A watchman at the Port saw a younger man, whom he later identified as Morrow, get out of his truck further back in line and walk toward the truck of an older man, who was a regular trucker at the Port. The watchman testified that the younger man yelled at the older man, and hit him three or four times in the face with a closed fist. The older man never hit back.
The watchman testified the older man looked about 60 years old, and the younger man about 30. Asif was 54 years old at the time of the assault, while Morrow was in his late 30’s.
Another watchman/security guard responded to the scene of the incident, where he saw a truck driver leaning against his truck, bleeding from his nose, while another truck driver was walking back to his vehicle. The security guard took down the license plates of both men, and provided the information to his supervisor and to the police. The injured man called the police, and the security guard told both men to wait for the police to arrive, but the assailant drove away. Police determined that the license plate recorded by Port employees belonged to a truck owned by Morrow. Morrow was arrested and charged with assault by means of force likely to cause great bodily injury in September 2006. He posted bail the following month, and was released from custody.
The supervisor recognized the man who was bleeding, and said he had a history of cutting in front of other drivers in line.
B. The Killing of Janet Alston
At approximately 5:30 a.m. on August 14, 2007, a deputy sheriff on duty at Highland Hospital was told there was a woman’s body outside on the ground. He investigated and saw Morrow standing over it. The woman had fractured ribs and facial bones, bruising all over her body, and no heartbeat or brain activity. She was resuscitated and placed on life support. When she continued to show no signs of brain activity, life support was discontinued, and she died. The cause of death was multiple blunt force trauma that caused her brain to fail. The doctor who performed the autopsy determined that Alston was alive when she was injured, and most of the bruises (and the brain injuries) were inflicted within three days of her death.
The deputy who found Alston’s body spoke with Morrow, who claimed he just left his aunt’s house and found the body on the ground. Morrow did not say he knew the victim, nor did he tell the deputy her name. Since he saw no marks on Morrow’s face or hands that would indicate Morrow was in a physical altercation, the deputy allowed him to leave for work after obtaining his contact information.
The deputy later reviewed surveillance footage that showed a car pull up to the hospital at 5:22 a.m., park, and then leave. An Oakland police officer also spoke with Morrow by phone at 5:39 a.m. that morning. Morrow told the officer he discovered the victim’s body and flagged down a nurse for help. Morrow declined to give a formal statement at the police station and said he was busy working.
After word of Alston’s death appeared in the news, Oakland police received a phone call from Monroe Oakley. Oakley knew Morrow and also knew Alston as Morrow’s girlfriend. He had seen them together several times. At about 4:00 a.m. on August 14, while he was on his way home from drinking with friends, Oakley heard two people arguing near Morrow’s parked car. Oakley saw Morrow pull Alston out of the passenger side of the car by her hair, and beat her with his fists. Morrow appeared to be very angry and was swearing at Alston, who pleaded with him to stop beating her. Oakley saw that Alston was bleeding from her nose, and he told Morrow to stop. Morrow said, “I wish someone would try to help you, ” and Oakley was afraid Morrow would turn on him.
Oakley also told police that Morrow said something about Alston sleeping with somebody, but he did not remember the details at the time of trial.
When Alston went to the side of the car, sobbing, Morrow took off his jacket and started beating her again “with wild swings” as she crouched down by the side of the car. Morrow hit her so many times it was hard to count, then dragged her back to the car, saying, ”[g]et your butt up and get in this car.” By then, Alston appeared to be totally unconscious. Morrow picked her up, placed her in his car, and drove away. Oakley identified Morrow in a photo lineup. Oakley said he felt responsible for not doing more to help Alston, and did not receive any money or other assistance from law enforcement or the district attorney’s office in exchange for assisting police or testifying at trial.
About 10 days after her body was found outside the hospital, police spoke with Morrow and he confirmed that he lived with Alston. Blood found in several areas of Morrow’s car was determined to come from a single female individual whose DNA profile matched Alston’s. Police also took photos that showed injuries on Morrow’s knuckles, thumb, palm and forearm.
Terry Schamma testified he became acquainted with Morrow when they were both in county jail, and they communicated through their cell doors and through a vent between their cells. Morrow told Schamma he was accused of murdering his girlfriend, and initially claimed that someone else committed the murder. Morrow also said Alston died while she was trying to get out of a moving car. But when Morrow showed Schamma the autopsy report, he told Morrow her injuries could not have been caused that way, and “[t]his woman was beaten down.” Morrow broke down and cried, and ultimately admitted to Schamma that he “beat [the victim] down” because it drove him crazy that he could not control her. Morrow also admitted that he drove the victim to the hospital and pretended he did not know her.
Schamma had been convicted for auto theft in 2008, making criminal threats in 2000, being a felon in possession of a firearm in 1999, and assault with a deadly weapon in 1996.
Morrow told Schamma he “fucked up” when he denied knowing Alston.
When Morrow learned that Schamma would be released from custody, he told Schamma it would be “beneficial to [Schamma] if [he] could help [Morrow] get [Oakley] to disappear, ” and directed Schamma to a neighborhood where he could find Oakley. Schamma reported Morrow’s statements to a police officer with whom he had a prior relationship as an informant. Schamma said he did not receive any promises or money for his testimony (although he had been paid in the past for information he provided to police), and that he was testifying because “it was the right thing to do.”
C. Procedural Background
The Asif assault and Alston murder charges were originally filed as separate cases. The prosecution moved to consolidate them for trial because both charges involved the same class of offense, and their joinder would not result in substantial prejudice to Morrow. Morrow opposed consolidation. He argued that he would be prejudiced by consolidation because a weak case would be joined with a strong one. There were more witnesses in the assault case than in the murder case, and “[t]here is an assumption that females are easier targets for men to assault than other males are.”
The court granted the motion to consolidate. The court noted the cases were of the same class of offense because they each involved violence against a person, and the incidents were close in time because they occurred only about a year apart. The court also observed “there’s not an argument that’s strong that’s made by the People about cross admissibility of the evidence, but I can certainly see different types of situations that could arise in a trial where, pursuant to 1101(b), particularly on the issues of intent, that cross admissibility is a possibility. It may be that given the differences between the crimes, that cross admissibility does not, in fact, come into play.”
The court also did not consider one case more inflammatory than the other. “We’re talking about physical beatings with fists in both situations. One leads to very serious injury and surgery, hospitalization and surgery. The other leads to homicide. So, one is not particularly inflammatory in regard to the other.” Neither case involved the death penalty, and the evidence in each case standing alone appeared to be strong. In the assault case, the beating occurred in front of several witnesses, and medical records supported the allegation that Morrow inflicted great bodily injury. In the murder case, an eyewitness observed the beating, Alston’s blood was found in Morrow’s car, and Morrow gave a false story when he dropped her body off at the hospital, followed by an admission of at least partial responsibility for her fatal assault from which she died. The trial court concluded consolidation would not result in joining a strong case with a weak one, and it would promote judicial resources and economy to try the cases together.
A consolidated information charged Morrow with assault by means likely to produce great bodily injury on Asif, with an allegation that Morrow personally inflicted great bodily injury, and the murder of Alston, with an allegation that it was committed while Morrow was released on bail. Ten prior convictions were alleged as the basis for several sentencing enhancements.
The jury found Morrow guilty of both offenses, and the trial court found true the prior convictions and related enhancements. Morrow was sentenced to 86 years to life in state prison, with 548 days of custody credits, and timely appealed.
Morrow filed a motion in propria persona to expand the opening brief filed by appointed counsel, and to stay the proceedings pending an inquiry into the quality of his representation before this court pursuant to People v. Marsden (1970) 2 Cal.3d 118. The motion to stay the proceedings was denied, and to the extent Morrow was seeking to replace his court-appointed appellate counsel, that request was denied. We also ordered, “[o]ut of caution, ” that the motion to expand the opening brief would be reviewed when the appeal is considered on its merits to determine whether it “raised any matters of which we must take cognizance.” (See People v. Clark (1992) 3 Cal.4th 41, 173 [noting general rule that “[m]otions and briefs of parties represented by counsel must be filed by such counsel, ” except motions regarding representation, and reviewing defendant’s pro se briefs “[o]ut of caution”].) We conclude the motion to expand briefing raises no meritorious issues, and it is hereby denied. (See ibid.) In April and May 2010, this court twice directed the clerk to return unfiled additional documents submitted by Morrow in propria persona, noting he “does not request to replace his appointed counsel and offers no new or different grounds for doing so, but instead seeks to raise legal issues his appointed counsel saw fit to omit from the opening brief. The submission therefore does not fall within the limited exception described in People v. Clark allowing a defendant represented by counsel to file certain motions limited to matters concerning ineffective representation on appeal.”
DISCUSSION
A. Legal Standards
Penal Code section 954 provides in relevant part: “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated... [T]he 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....” Section 954.1 provides: “In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.”
All further statutory references are to the Penal Code.
Our Supreme Court has recently reiterated that for reasons of judicial efficiency and reduction of delay, consolidation or joinder of charged offenses “ ‘is the course of action preferred by the law.’ ” (People v. Soper (2009) 45 Cal.4th 759, 772.) “ ‘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.’ ” (Id. at p. 773.) To establish error in a trial court’s ruling allowing joint trial of charged offenses, a defendant must make a “ ‘clear showing of prejudice to establish that the trial court abused its discretion....’ ” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.)
When we review a decision to consolidate cases under section 954, “we consider the record before the trial court when it made its ruling. (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1220.) The factors to be considered include: “ ‘(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital offense....’ [Citations.] ‘The state’s interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence.’ ” (Id. at pp. 1220-1221.) But “[e]ven if a trial court’s 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.)
B. The Court Did Not Abuse Its Discretion When it Granted the Motion to Consolidate
Morrow contends that because the evidence underlying each of the charges was not cross-admissible, and the benefits of joinder did not outweigh the possible “spill-over” effects from one charge to the other, the court abused its discretion when it consolidated them.
The Attorney General contends Morrow has forfeited this claim by not filing a motion to sever. Morrow responds that it would have been futile to file a severance motion after the trial court had just rejected his opposition to consolidation. We agree and will address the claim on the merits.
Morrow’s emphasis on the absence of cross-admissible evidence is not persuasive. The trial court did not place any emphasis on possible cross-admissibility of the evidence when it granted the motion to consolidate. While Morrow vigorously disputes the Attorney General’s argument that the evidence of the assault would have been admissible to establish intent or absence of mistake on the murder charge, or that the charges contained common elements, the absence of cross-admissible evidence does not compel separate trials. (§ 954.1; People v. Soper, supra, 45 Cal.4th at pp. 775, 779-780.) Even if the evidence was not cross-admissible, the remaining factors to be considered under section 954 support the court’s order. (See ibid.)
The district attorney’s points and authorities in support of the motion to consolidate did not argue the evidence was cross-admissible, but instead contended joinder was proper under section 954 because the two offenses involved the same class of crimes.
Neither charge was significantly more likely to inflame the jury against Morrow. Both involved vigorous physical assaults that inflicted significant injuries. The evidence of each offense was sufficiently strong and included eyewitness testimony to both beatings, and neither charge was a capital offense.
Morrow’s argument that if tried separately, each charge would present a closer case for the jury does not trump the section 954 factors assessed by the trial court. Morrow claims there was evidence Asif “had a reputation at the terminal for cutting in line, ” but the victim’s propensity to cut in line would not be a valid defense to assault, nor did Morrow advance such an argument when he opposed consolidation. The same is true of the alleged inconsistency in Asif’s testimony regarding whether he tried to strike back at Morrow and any conflict in the evidence as to whether Morrow hit Asif after he knocked him to the ground. None of that evidence would justify Morrow’s conduct.
Morrow also contends that in the absence of the assault charge, the jury might have concluded he lacked malice when he beat his girlfriend because he acted under the belief she had been unfaithful and because he brought her to the hospital. Once the jury heard the evidence of the prior assault on Asif, Morrow argues, “it became unavoidable that the jury would find that [he] subjectively appreciated the risks of his assaultive conduct because his punches had previously resulted in serious injury to another.” Again, this argument was not raised in his opposition to the motion to consolidate the two cases. Moreover, the case he relies upon for this proposition does not address or consider improper joinder. (Cf. People v. Olivas (1985) 172 Cal.App.3d 984, 987-988 [discussion of subtle differences between “ ‘conscious disregard for life’ ” and “ ‘conscious indifference to the consequences’ ” of conduct in a vehicular homicide case].)
“A mere imbalance in the evidence... will not indicate a risk of prejudicial ‘spillover effect, ’ militating against the benefits of joinder.... Furthermore, the benefits of joinder are not outweighed... merely 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.” (People v. Soper, supra, 45 Cal.4th at p. 781.)
“Whenever a defendant is tried for multiple crimes of the same class, the jury will be presented with evidence that the defendant committed multiple offenses. This necessary concomitant of joinder is not sufficient to render the joinder unduly prejudicial. If it were, joinder could never be permitted. The danger to be avoided in joinder of offenses is that strong evidence of a lesser but inflammatory crime might be used to bolster a weak case on another crime.” (People v. Hill (1995) 34 Cal.App.4th 727, 735-736 [allowing joinder of robbery-murder and robbery-attempted murder where “neither case was so weak in evidentiary support that the aggregate evidence was likely to have affected the jury’s verdict”]; cf. People v. Earle (2009) 172 Cal.App.4th 372, 378-379, 401-402 [reversing where “extremely strong” misdemeanor indecent exposure charge that was essentially conceded, was joined with weaker felony sexual assault].)
There is no basis here to conclude the trial court abused its discretion because it determined neither charged offense to be significantly more inflammatory or disparate in evidentiary strength than the other. (See Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1284 [prejudicial spillover that prohibits joinder requires “extreme disparity between weak and strong cases, or between inflammatory and noninflammatory offenses”].) Moreover, Morrow has not demonstrated that the potential for prejudice from a joint trial outweighed the systemic economies gained by the joint proceedings. (See People v. Soper, supra, 45 Cal.4th at pp. 775, 782 [“a single trial of properly joined charges promotes important systemic economies” and their severance “denies the state the substantial benefits of efficiency and conservation of resources otherwise afforded by section 954”].) The two charges were permissibly consolidated.
C. Joinder of the Offenses Did Not Result In a Trial That Was Grossly Unfair
Morrow also argues that consolidation of the charges for trial was so grossly unfair as to violate due process. We disagree. The evidence on each charge amply supported the verdict, neither charge was significantly more inflammatory than the other, neither case was significantly weaker than the other, and the jury was properly instructed on the elements of the offenses, the burden of proof, and to separately consider the evidence and decide each count. (See People v. Soper, supra, 45 Cal.4th at pp. 783-784.)
The jury was instructed under CALJIC No. 17.02: “Each count charges a distinct crime. You must decide each count separately. [¶] The defendant may be found guilty or not guilty of either or both of the crimes charged in counts one and two. Your finding as to each count must be stated in a separate verdict.”
In spite of these dynamics, Morrow contends there was “a real risk that the jury would not decide either case on the basis of the evidence because they had been offered evidence that [he] acted violently on another occasion.” He says this risk was heightened because “the jury here was never told that they could not use the evidence in one case as evidence of guilt in the other.” But there is no requirement that the court give such an instruction and it is sufficient to instruct the jury, under CALJIC No. 17.02, that each count charges a distinct crime and must be decided separately. (People v. Geier (2007) 41 Cal.4th 555, 578-579.) The jury was so instructed in this case.
Morrow also supports his constitutional claim by saying the prosecutor “made sure [the two crimes] were linked in the minds of the jury, ” but the record does not demonstrate that the prosecutor did anything improper or for a nefarious purpose. Unlike the case Morrow cites in support of this argument, the prosecutor here did not “repeatedly encourage[] the jury to consider the two [] charges in concert, as reflecting the modus operandi characteristic of [the defendant’s] criminal activities.” (See Bean v. Calderon (1998) 163 F.3d 1073, 1084; cf. also People v. Earle, supra, 172 Cal.App.4th at pp. 409-410 [the prosecutor “mentioned the indecent exposure at every opportunity, on every conceivable pretext, and for every possible purpose, ” and said it was “ ‘[p]robably the most powerful evidence’ ” that defendant committed a sexual assault].) Instead, in his opening statement, the prosecutor said that at the time of the murder, Morrow was on bail for the assault on Asif. In closing argument the prosecutor observed that no legal justification permitted Morrow to assault Asif or to kill Alston, and that the jury should be cautious in considering defense counsel’s arguments regarding Morrow’s state of mind at the time of either crime. In fact, it was defense counsel who specifically suggested that joinder could possibly effect the jury’s consideration when she told the jury: “you heard these two charges, completely separate, separate victims at separate times, and I submit to you they were put together and tried in front of you together to try to sway you, to try to see that one might help you decide that another one is true.”
Morrow’s bail status at the time of the murder was alleged as an enhancement on the murder count.
In context, the prosecution made no argument that the evidence or existence of one of the charges should influence disposition of the other. Morrow has not met his “high burden” to show that the joinder of the two cases resulted in a trial that was so grossly unfair that it violated due process. (See People v. Soper, supra, 45 Cal.4th at p. 783.)
D. The Restitution Fines and Court Security Fees
The Attorney General concedes that because the case was consolidated for trial, the restitution fund and parole revocation fines were limited to $10,000 each. (See §§ 1202.4, subd. (b); 1202.45; see also People v. Ferris (2000) 82 Cal.App.4th 1272, 1276-1278 [only one set of restitution fines may be imposed in jointly tried cases].) The Attorney General also concedes that the court security fee when Morrow was sentenced in February 2009 was $20 per count (for a total of $40). (See former § 1465.8, as amended by Stats. 2009, 4th Ex. Sess., ch. 22, § 29 [increasing fee to $30 per count effective July 28, 2009].) The judgment is to be modified accordingly.
DISPOSITION
The judgment is modified to reflect imposition of a total restitution fund fine of $10,000, a parole revocation fine of $10,000, and a court security fee of $40. As modified, the judgment is affirmed.
We concur: McGuiness, P.J., Pollak, J.