Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F06418
NICHOLSON, J.
A jury convicted defendant Xavier Santino Williams of assaulting Marlon Leon with a firearm on July 7, 2005 (count one; Pen. Code, § 245, subd. (a)(2)), discharging a firearm at an inhabited dwelling house on the same date (count two; § 246), and murdering Danny Valdez (second degree murder) on December 22, 2005 (count three; § 187). As to count one, the jury found true that defendant personally used a firearm (§ 12022.5, subd. (a)(1)), but not true that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to counts two and three, the jury found true that defendant proximately caused great bodily injury or death by personally and intentionally discharging a firearm in the commission of the offenses (§ 12022.53, subd. (d)); as to count three, the jury also found true that defendant committed the offense while on bail (§ 12022.1).
All further undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to 72 years to life in state prison, computed as follows: on count two, five years (the midterm), plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d); and on count three, 15 years to life, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), and two years for the on-bail enhancement, all run consecutively to count two under section 12022.1, subdivision (e). The court ran sentence on count one (the three-year midterm plus four years for the firearm enhancement under section 12022.5, subd. (a)(1)) concurrently to count two.
Defendant contends: (1) the trial court erred prejudicially by denying his motion to sever count three from counts one and two and (2) his sentence constitutes cruel and unusual punishment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Consolidation of the Cases
In case No. 05F06418, the People filed a complaint on July 11, 2005, charging defendant with assault with a firearm on July 7, 2005. (The offense of discharging a firearm into an inhabited dwelling was not alleged at this time.) In case No. 05F11333, the People filed a complaint charging defendant with murder on December 22, 2005, which is not in the record. After preliminary hearings were conducted and defendant was held to answer in both cases, the People filed a consolidated information.
Preliminary hearings
Case No. 05F06418
Sacramento Police Officer Yul Alameda testified that around 7:45 p.m. on July 7, 2005, he took a brief statement from Marlon Leon, the victim, at his residence on Stoddard Street in Sacramento County, and then later did a more complete interview at the hospital.
Officer Alameda found Leon sitting in the threshold of the open front door of his home; his right foot, and its big toe in particular, was bloody. There were shell casings in the roadway in front of the house and two or three bullet holes a few feet to the side of the front door.
Around 10:00 p.m., Officer Alameda interviewed Leon at the hospital. Leon said that earlier that day he and Iris Luna had driven from his house to a nearby fast-food restaurant. He saw a group of five or six Black males there, including Joey Smith. Smith put his hand in his front waistband area. As Leon pulled out of the parking lot and looked back in his rearview mirror at the group, he saw Smith raise his shirt and display what appeared to be the grip of a handgun. After Leon reached home, he saw the group walking down the street toward his house. They tried to provoke him to come out to the street. As he started to walk inside, he saw two members of the group, Smith and “Sandman, ” shooting toward the house and aiming at him. (“Sandman, ” whose real name Leon did not know, was 16 or 17 years old, stood around five feet nine inches tall, and weighed 160 pounds. A shot hit Leon’s right big toe. The group then ran off. Leon claimed he did not fire any shots or even have a gun.
Sacramento Police Officer Mario Valenzuela testified that in the early morning of July 8, 2005, he obtained a statement from a suspect in the shooting, “Sandman” (defendant).
Defendant claimed that Leon and an associate of Leon’s named Sir Byron had the habit of assaulting defendant when they crossed paths with him. On July 7, as defendant walked with friends down Stoddard Street past Leon’s house, Leon brandished a revolver at defendant and his group.
Defendant did not say what his friends did then. He did say, however, that an older male acquaintance, whose name he did not know but whom he called an “OG, ” came by, put a handgun on the hood of a car, and said something like, “[I]f he [defendant] wanted to use it, he could, but he [the O.G.] wasn’t going to hand it to him. He [defendant] would have to pick it up himself.”
As the People’s gang expect testified at trial, “O.G.” is a standard abbreviation for “original gangster, ” meaning a senior gang member who makes decisions for the gang and gives orders to junior members. Defendant testified, however, that to him the term meant “old guy” (or “older adult male”) and had nothing to do with gangs, though it might have done so in the past.
According to defendant, Leon called Sir Byron, who came over. Meanwhile, Leon brandished his weapon at defendant, his friends, and children in the vicinity. Defendant heard Leon fire a shot. In response, defendant picked up the gun from the car hood and fired several rounds toward Leon and Sir Byron. He ran away, throwing the gun into someone’s front yard along the way. At the time of the shooting, he was not aware of anyone there (aside from himself and Leon) having a gun.
Case No. 05F11333
At the preliminary hearing, David Wong, who had accompanied the victim on the date of the crime, and Kalvin Williams, who had accompanied defendant, testified, as did Sacramento Police Detective Thomas Higgins. Wong and Williams portrayed the incident as a classic gang confrontation, but differed as to who started it.
Neither Wong nor Williams was available at trial. Their preliminary hearing testimony was read to the jury during the People’s case-in-chief. So far as the record shows, Williams was not related to defendant. Wong is Hispanic on his mother’s side and identifies with that ethnicity for gang purposes.
Wong testified:
Around noon on December 22, 2005, Wong was with Danny Valdez, his 17-year-old cousin, in the “Freeport” neighborhood of Sacramento. After leaving an acquaintance’s house, where they had two or three beers apiece, they walked toward a park down the street. Neither was under the influence of alcohol or drugs. Neither had weapons. Valdez was wearing a white T-shirt, a red hat, and blue jeans.
According to Detective Higgins, the neighborhood is called Freeport Manor.
At the corner of 38th Avenue and McLaren Avenue, Wong and Valdez encountered defendant, whom Wong did not know but had seen in the neighborhood. Defendant was standing in the middle of the street; a Black male unknown to Wong was walking behind defendant, at least 30 feet back. Defendant was staring at Wong and Valdez and mumbling. They crossed the street to find out what he wanted.
Defendant said: “[Y]ou are in my hood” (or something similar). He also told Wong: “I know you, but I don’t know your cousin.” Defendant pushed his fist into Valdez’s chin. Wong stepped between them and told defendant not to do that. Raising his fist to Wong, defendant told him: “[S]tay out of my area.”
The man who had been walking behind defendant (i.e., Williams) came running up to the left of Wong. Expecting Williams to hit him, Wong turned that way. Defendant and Valdez then started fighting, with defendant’s back toward Wong. Wong could not see who threw the first punch. When Wong turned back the other way, Williams hit him in the face. Wong slipped and fell. As he started to get up, he heard, but did not see, two shots fired. Then he saw Valdez hit the ground.
Defendant was holding a smoking silver gun that looked like a.38 revolver, standing over Valdez and pointing the gun at him. Defendant then put the gun in the front of his pants and ran off with Williams down McLaren Avenue. Valdez subsequently died of his injury.
Having been granted use immunity, Williams testified:
He was under 18 years old. He had suffered a juvenile adjudication for theft.
He encountered defendant in the neighborhood on the morning of December 22, 2005. They shared a 40-ounce beer at an acquaintance’s house, but did not drink anything else or do any drugs.
After leaving, they walked to and from a Walgreen’s on Freeport Boulevard, three or four blocks from the house. Defendant walked ahead of Williams, who was text messaging as he walked. When defendant reached the intersection of 38th Avenue and McLaren Avenue, Williams was in midblock, at least 30 feet behind.
Williams saw two Hispanic-looking strangers approaching defendant at the intersection, apparently trying to block defendant’s path. One said something like “[W]hatch [sic] you looking at[?]” The other was trying to hold him back from attacking defendant. The first man (Valdez) was face-to-face with defendant; the second man (Wong) was face-to-face with Williams. Defendant did not do or say anything challenging; he asked the strangers to go on and leave him alone. Williams did not see any guns, but the strangers’ outfits might have hidden weapons.
Valdez said something in Spanish about a gang. Defendant replied, “[T]his Freeport.” Valdez “was just like [‘]F[__] Freeport. Man, this is Norte[’] and then just socked him.”
Williams claimed he had never heard the term “Freeport Crips.” He was not a member of that gang and did not know if defendant was. He had heard that “Norte” is a gang.
Wong hit Williams, who retaliated; Wong fell, then got up immediately and came at Williams again. Williams could not see the fight between defendant and Valdez after the first punch.
As Wong came after Williams again, Williams heard one shot; he did not see who fired and did not know if anyone had been hit. He ran to his grandmother’s house a couple of blocks away; defendant caught up with him at the door. Williams’s sister opened the door to them. Williams’s mother, who lived nearby, came in, saying she had heard about the shooting. Defendant and Williams claimed ignorance.
Defendant got a ride from Williams’s mother. Williams did not go along. He did not know where she was going to drop defendant off.
The police interviewed Williams about the shooting that evening. Confronted with the interview transcript during the preliminary hearing, Williams claimed he did not remember saying that “Sandman” told Williams, “I can’t believe I just shot... this dude” and urged Williams not to tell anyone about it. Williams also claimed he did not remember saying that Wong might have been trying to break up a fight between defendant and the victim, or that Williams heard two gunshots, or that he did not know defendant.
Detective Higgins testified:
Around 6:20 p.m. on December 22, 2005, Detective Higgins interviewed Earnest Ware about an incident that had occurred at approximately 2:45 p.m. outside the home of Ware’s cousin on McLaren Avenue. While watching television there, Ware heard arguing outside and went to the front door, which was open behind a closed security door.
Ware testified at trial that the house actually belonged to his wife’s cousin, who was not there that day.
As Ware opened the security door and looked out, he saw someone falling and spinning backwards; then he saw another person pull a chrome or silver handgun out of his waistband and fire two shots at the first person. The shooter was a light-skinned Black or mixed-race male, 5 feet 10 or 5 feet 11 inches tall, weighing 150 to 160 pounds, with bushy hair pulled back into a ponytail, wearing a dark sweater or jacket and blue jeans with white spots on them.
After the victim fell, the shooter’s friend said, “[L]et’s go.” They “trotted” past the house. Ware called 911.
Detective Higgins showed Ware two photographic lineups, one including defendant, the other including Kalvin Williams. Ware could not identify Williams, but said defendant looked like the shooter.
The consolidated information and the motion to sever
The People filed a consolidated information on June 2, 2006, charging the counts and enhancements on which the case went to trial.
An amended information filed on November 5, 2007, changed defendant’s alleged age on the date of counts one and two from 17 to 16 years old, and added the language “to wit, a revolver, ” to the enhancement for personally and intentionally discharging a firearm as to count two.
On October 23, 2007, defendant filed in limine motions, including a motion to sever counts one and two from count three. Defendant argued: (1) the offenses were unconnected in their commission, (2) the evidence was not cross-admissible, (3) there was a disparity between the gravity of the offenses, and (4) joinder would bring inflammatory gang evidence as to count three before the jury considering counts one and two.
The People replied: (1) the offenses were crimes of the same class within the meaning of section 954 and were connected together in their commission, even though committed months apart: they occurred within a few blocks of each other in the same neighborhood and Williams was with defendant on both occasions and (2) defendant had not shown a danger of undue prejudice from joinder because neither case was significantly weaker or more inflammatory than the other. During argument in limine, the prosecutor added that because defendant had said the person who gave him the gun on July 7 was an “O.G., ” a gang-related term not known to the ordinary juror, gang expert testimony would be relevant to counts one and two as well as count three
The trial court denied defendant’s severance motion, finding: (1) the offenses were of the same class of crimes; (2) there was “a connection of sorts” between the offenses; (3) some evidence, particularly the gang expert’s testimony, would be cross-admissible; and (4) neither case appeared significantly weaker or stronger than the other.
Trial evidence
We first recount the evidence pertaining specifically to each incident, then follow with the gang expert testimony.
Counts one and two
Prosecution case
Marlon Leon testified:
On July 7, 2005, he was 23 years old and on informal probation. He and defendant, whom he knew as “Sandman, ” were once friends, but had not been for some time before that date. Leon had done nothing to create problems; people in the neighborhood just stopped getting along.
He did not specify the offense for which he was on probation at that time.
In July 2005, Leon was staying in his grandmother’s house on Stoddard Street with his girlfriend, Iris Luna. Defendant had visited him there when they were still friends.
On the afternoon of July 7, 2005, Leon and Luna decided to go to A&W, a nearby fast-food restaurant. Leon drove Luna’s white rental car and she rode as a passenger.
At the A&W parking lot, Leon saw defendant’s friend Joey Smith, with whom Leon had “problems.” Luna told Leon that Smith was reaching down as if to pull something out of his sock. Fearing trouble, Leon did not go into the restaurant.
Leon drove next door to the Airway Market, where he saw defendant with three to five friends. Defendant and another man were running out of the store. Leon saw one of the group using a cell phone and another holding a gun.
Leon yelled something to them because he thought they were about to jump him. Then he hopped back in the car and drove to his grandmother’s house, “doing a hundred all the way[.]” He owned a gun, but did not have it in the car.
Leon and Luna ran into the house. Leon grabbed a cordless phone and called his best friend, Sir Byron (a person a little older than himself), who did not get along with defendant’s group. Leon wanted Sir Byron’s help because defendant and his group had come running up there; there were “like 30 people in front of my house.” All the neighbors were also outside.
Leon went to the garage to get a.38 revolver, which he set down in the hallway by the front door. Sir Byron was still on the phone, but never reached the scene.
Leon and Luna went outside to confront the crowd, which included defendant, Joey Smith, and Kalvin Williams; it also included a female who was calling out Luna to fight, egged on by the others. They were standing by the white rental car Leon had parked on the street. Amending his prior testimony, Leon now recalled getting two guns from the garage, one of which (a.38 revolver) he was holding as he went outside; the other was for Luna, but he did not remember if she had picked it up or if it was still in the hallway.
Smith ran up onto the driveway. Leon told him to get away before something happened. Leon did not see Smith with a gun at any time during the incident.
A neighbor urged Leon to go inside. As Leon tried to do so, shots were fired from defendant’s position. Leon saw defendant pull out a gun and shoot toward Leon and the house. He did not see anyone else with a gun.
The last shot hit Leon in his big toe, breaking three bones. It took him four to six months afterward to walk correctly. He was still in pain.
After being shot, Leon walked inside, then came back out and fired one or two shots, aiming toward defendant. The crowd took off running.
Leon was reluctant to testify because he still had “problems on the street” with defendant’s friends. Recently, defendant’s brother had confronted him several times in the neighborhood, threatening to kill him one day. Defendant had called him a snitch and thrown rocks at his car.
Leon admitted a felony conviction for assault with a deadly weapon in 2005. During his time on the stand, he was also shown to have made numerous prior inconsistent statements to the police and others.
He did not testify as to his sentence for this offense.
Luna testified, telling roughly the same story Leon had told. Like him, she was impeached with prior inconsistent accounts.
Her account differed on three points: (1) she did not mention any challenge to her to come out and fight; (2) she saw Smith as well as defendant firing; and (3) she saw only one gun in the house, although Leon had tried to get her to testify that there were two.
Officer Mario Valenzuela testified at trial, stating that the police had not found the gun defendant used.
Sacramento Police Officer Denise Wong testified that she found ten.40-caliber shell casings on the street outside the victim’s house, and two spent bullet rounds, one on the street and one in the trunk of a parked white Hyundai; she also saw three bullet holes on the outside of the house. Inside the house, there was a spent bullet round close to the front door. There was blood in the front doorway and on the front step. In the driveway, there was a parked brown Chevrolet with body damage, leaking gasoline.
A firearms expert opined that all the shell casings came from a single.40-caliber weapon, while the spent bullets came either from a single.40-caliber weapon or from two similar ones. (He also opined that a.40-caliber weapon can fire smaller-caliber ammunition, but was not specifically asked about.38-caliber ammunition.) A forensic investigator testified that the shell casings and bullet rounds did not produce latent prints.
Defense case
The defense called police officers and the prosecutor’s investigator to show Leon’s and Luna’s prior inconsistent statements.
Defendant testified on his own behalf as follows:
In July 2005 he was 16 years old. He lived just outside the Freeport Manor neighborhood, but had lived in it for years, and his grandmother still did. He knew gang members there and “associated” with them as an acquaintance, but was not in a gang. He had been called “Sandman, ” his present nickname, since he was little.
On July 7, 2005, defendant and a few friends, including Williams, were at the market when Leon drove up in a white car with Luna and yelled at them. After words were exchanged, he drove off, saying, “I’ll kill you.”
Defendant and his friends walked toward the house of a friend’s grandmother, a route which happened to take them past Leon’s residence. There were five or six in the group, including a 12-year-old. Defendant did not have a gun.
As they passed Leon’s residence, Leon was standing on the sidewalk; he threw his hands up as if to challenge them, then walked away toward his parked Chevrolet in the driveway. Two of defendant’s friends started walking toward Leon, followed by defendant. A few neighbors were outside.
Leon opened the driver’s-side door of the Chevrolet and pulled out a revolver and a cell phone. He walked up to his porch, where Luna was already standing. As Leon and defendant’s group argued, Leon waved the gun back and forth toward them. More people from the neighborhood “just started popping up, ” including some defendant knew only by street name, such as “O.G.s and things like that.” Defendant went to the back of the rental car Leon had parked on the street.
Smith ran up onto Leon’s lawn. Leon pointed his gun at Smith and told him to back up; Smith returned to the street. Someone threw a beer can at the porch. Smith ran to the passenger side of the Chevrolet in the driveway and began to kick it, while Williams and his sister kicked the rental car in the street. By now there were 20 to 25 people in front of the house, including children and neighbors.
Leon fired a shot at Smith. Leon then got a bat and held it under his arm, still holding his gun in one hand and pointing it at the crowd as he talked on his cell phone.
As defendant stood by the rental car, “an O.G. -- this dude who we -- everybody in the neighborhood referred to as O.G. -- old adult male” said he had a handgun that he would not give to defendant, but defendant could use it; “O.G.” then put a semiautomatic on the car. “O.G.” was Black and in his 40’s, about defendant’s height and weighing around 180 pounds, with braided hair; defendant had seen him more than 10 times in the neighborhood riding a bike, but did not know his name or where he lived. After putting the gun down, “O.G.” “took off.”
On cross-examination, defendant admitted that “O.G.” at one time “[p]robably” meant “original gangster, ” but claimed that it no longer did. Since 2005 he had heard the term used only to mean “older people.”
Just then, Leon fired at defendant. In a “quick reaction, ” defendant picked up the gun from the car and fired toward Leon until the gun ran out of ammunition. He aimed not at Leon but “above him.” He did not know whether any of his shots hit Leon.
The rest of the crowd started running when the shots began. Once out of ammunition, defendant did the same. As he ran, he threw the gun into someone’s yard on McLaren Avenue.
Count three
Prosecution case
The jury heard the preliminary hearing testimony of Williams and David Wong, who were unavailable at trial.
Earnest Ware testified that while watching TV at his wife’s cousin’s house on McLaren Avenue on December 22, 2005, he heard noise outside. As it continued, he opened the front security door and looked out. He saw four males outside, two Hispanic and two Black (one of whom was “like albino kind of looking”), facing each other and arguing loudly. (He could not identify anyone in the courtroom with certainty as one of the four; however, he saw one person who was light-complected, like one of those at the scene.) He could not hear what they were arguing about. He did not see any physical conflict.
One of the young Hispanic males stepped back; then two shots were fired and he went down. The gunman put the weapon back into his pocket or his waist.
Ware went inside and called 911. As he spoke on the phone, he heard one of the Black males holler, “[C]ome on, let’s go, ” then saw them cross in front of the security door and run across the lawn. The other Hispanic male was hollering, “Call an ambulance.”
Ware was interviewed by Detective Higgins, who showed him a photo lineup in which he was able to identify the shooter.
Brian Bagerly, who lived in the area of the crime scene, heard the sound of a backfire on the afternoon of December 22, 2005, but did not think anything of it. As he drove up to the scene, he saw one boy holding another, screaming, “[H]elp me. My cousin’s been shot.” Bagerly called 911 on his cell phone. He did not see any guns or anyone leaving the scene.
Sacramento Police Officer Dustin Smith and other officers at the scene did not find any guns. Receiving a report of suspects in a white Ford Explorer in the area of Zelda Way, Officer Smith found and detained a female Black adult and two other subjects.
Marian Vanhook, the mother of Williams, testified that on the afternoon of December 22, 2005, she picked up her daughter from school in her white Ford Explorer, then drove to her grandmother’s house on Zelda Way to pick up her son. As she neared her grandmother’s house, she noticed that police officers had blocked off a nearby street. She asked a young man walking down the street what had happened and was told someone had been killed. When she arrived at her grandmother’s house she was upset to find defendant there with her son because defendant had been having trouble with men in the neighborhood and she did not want Williams hanging out with him. She asked if they knew about what had happened. They said they did not. She told Williams she was taking him home with her and asked defendant if she could drop him off somewhere because he could not stay there. He said yes and directed her to an apartment complex near Florin Road and Greenhaven Drive where he said he was going to visit a friend; he got out there. Williams was not with them because he had stayed behind to pack clothes. She did not see any guns on defendant. After she dropped him off, she returned to the Zelda Way house, where the police contacted her; they searched the Explorer, but did not find any weapons.
Shown items of clothing in an exhibit, Vanhook identified a blue hat as her son’s.
Forensic pathologist Dr. Mark Super opined that Danny Valdez died of a single wound from a gunshot which entered at the neck, went through the right carotid artery, fractured the second vertebra in the neck, cut the spinal cord, causing an acute subarachnoid hemorrhage, then exited from the back of the neck. Soot on Valdez’s chin and around the wound showed that the shot had been fired from close range or a position possibly “loosely in contact” with the skin. The trajectory of the bullet showed that it had moved slightly upward through the body. The evidence was consistent with Valdez taking a step backward while looking down to his right as the shot was fired. Valdez also had abrasions on his hands that could have come from a fistfight.
Defense case
Sacramento Police Officer David Topaz testified that when questioned at the scene, David Wong smelled heavily of beer.
Sacramento Police Officer Frank Woo testified that items of clothing seized at the scene included a red cap and a blue cap. The blue cap said “Freeport” on the back and “Cali Kal” on the front.
Kal is a short form of Williams’s first name.
Forensic laboratory analysts testified that blood samples from Valdez’s autopsy showed cocaine metabolite in his system and a blood-alcohol content of.13 percent. Based on the blood samples and the preliminary hearing transcripts, a clinical neuropsychologist opined that the substances in Valdez’s system on December 22, 2005, could have caused him to feel paranoid and to act aggressively and recklessly.
Defendant testified as follows:
He met Williams at someone’s house in the neighborhood on the morning of December 22, 2005; then they went to another acquaintance’s house and stayed a few hours, sharing a 40-ounce beer. After that, they walked out to do an errand, with Williams lagging behind because he was text messaging. Williams was still behind as they approached the corner of 38th Avenue and McLaren Avenue.
Defendant was dressed in a black coat, blue jeans, and a black knit cap; Williams was wearing dark clothes, including the blue cap introduced as an exhibit. Defendant did not have a gun.
Defendant did not state what kind of hairstyle he was wearing that day.
Two individuals approaching (Valdez and David Wong) caught defendant’s attention because they were talking loudly and looking at him continuously. They crossed the intersection and cut him off, getting right in front of him. Valdez was wearing the red hat introduced as an exhibit and a big fluffy coat.
As they walked up to defendant, Valdez said: “What you are looking at?” (Sic.) Defendant said: “[W]hat do you mean what I’m looking at?” Valdez said: “[T]his is Norte.” Defendant knew this referred to a Mexican gang called Norteños, but did not understand why Valdez was saying this to him; it made him mad and caused him to think the two of them were about to start something.
Defendant said: “[Y]ou’re in my neighborhood. You’re in Freeport.” Valdez and David Wong spoke to each other in English; Wong said he knew defendant, but defendant did not remember ever seeing him. Because Valdez had gotten up in his face, defendant put his hands up and said, “[B]ack up out of my space”; he did not touch Valdez. Wong told defendant to get his hands out of Valdez’s face. Defendant was mad, but did not lose his temper. By this time, Williams was reaching the scene.
On cross-examination, defendant denied that he was trying to “represent” (i.e., proclaim gang membership) as a Freeport Crip: “I was telling him where he was at.” He assumed that when Valdez said, “[T]his is Norte, ” he was referring to the neighborhood, not “representing” as a Norteño, because “I have family members who are northerners too.” He thought that after they had exchanged information about the neighborhood, they would go about their business. However, when asked why he had answered Valdez by saying, “[Y]ou’re in my neighborhood, this is Freeport, ” he replied: “I can’t tell you why[.]”
As defendant looked at Wong, Valdez punched him in the face. Defendant fell. From this point, he could not see what was going on between Williams and Wong.
Valdez bent over defendant, trying to get on top and continuing to swing. As defendant tried to get back up, he saw Valdez pull out a revolver and hold it in his hand.
Defendant grabbed for the gun, pushing up on Valdez’s hand with both of his own. As they struggled for the gun, a single shot went off. Defendant did not know who pulled the trigger -- “[i]t just happened too quick.” Because defendant was pushing the gun up, the shot went away from him and toward Valdez. The impact separated them; defendant stepped back and Valdez fell backward. Valdez let go of the gun, but defendant’s hand was still on it.
Defendant put the gun in his pocket and ran down McLaren Avenue, with Williams in front of him. They reached Williams’s grandmother’s house and went in.
Defendant said to Williams: “I think he got shot.” Williams described his own fight and asked if defendant had seen it; defendant said “no.” Williams asked if defendant had shot the victim; defendant said, “I just seen him fall.” Defendant then told Williams not to talk about it because defendant was scared and did not know what might happen.
After Williams’s mother arrived, she asked if defendant needed a ride; he said he did and directed her to a friend’s residence at an apartment complex. He denied knowing about what had happened when asked by Williams’s mother. They reached his destination in five or 10 minutes; she dropped him off and left. He threw the gun in a garbage bin at the complex.
The next day, defendant learned he was a suspect. After hiding out for two weeks because he was afraid, he turned himself in at his church.
Gang evidence
Sacramento Police Detective Steven Hansen, an expert on Black gangs who had also been trained as to Hispanic gangs, explained that the main Black gangs in Sacramento are the Bloods and Crips. Crips identify with the color blue, Bloods with the color red. If a Crip calls a fellow Crip “Cuz, ” it is a term of endearment, but if he calls a Blood “Cuz, ” it is a challenge or an act of aggression. If a Blood walks through a Crip neighborhood wearing red, it is an act of aggression. Freeport Manor is claimed by the Freeport Crips.
The main Hispanic gangs in Sacramento are the Norteños, who identify with the color red and the letter N, and the Sureños, who identify with the color blue. “Norte, ” an abbreviation of Norteño, is sometimes yelled out by Norteño members.
The Sacramento Police Department confirms or validates a person as a gang member if he meets any two of 11 criteria, such as admission of gang membership, wearing of gang-related clothing, gang tattoos, and involvement in gang-related crimes. Not all gang members have been confirmed; some “slip under the radar.”
The highest-status Crips -- “O.G.’s” or original gangsters -- are the “shotcallers” or decision makers, while others are “soldiers” who must “put in work” for the gang to gain respect and climb the ladder. Some O.G.’s started out with the gang in the early 1980’s, but a younger person can also become an O.G.
Status, or “respect, ” is “of the utmost importance” to gang members, both within their gang and outside it. It is gained by “intimidating and instilling fear within the community and rival gang members.” If a gang member is successfully challenged, or “disrespected, ” he will lose respect within his gang. The ultimate means to gain status is murder.
A typical challenge is “if someone’s throwing out [i.e., provocatively announcing] where they are from” -- “letting this other person know, hey, you’re not dealing with only me. You’re dealing with... all Crips.” Someone who enters a neighborhood claimed by a gang must receive its consent to conduct business there; denial of consent is a sign of disrespect. If one is disrespected in front of witnesses, the word will spread quickly.
Gangs often seek to intimidate witnesses from testifying in court. To be labeled a “snitch” is dishonorable in gang culture; it can also be fatal. Someone who testifies against a gang member can have “problems on the street” afterward.
Detective Hansen had investigated defendant, including review of the preliminary hearing transcripts, classification reports from the juvenile hall probation department, and a similar report from the Sacramento Sheriff’s Department. In Detective Hansen’s opinion, although the Sacramento Police Department has not confirmed defendant as a Crip, he is one.
Jail classification forms are used to make sure that inmates are not endangered by being housed with members of rival gangs. An inmate gets to pick where he wants to be assigned.
The classification reports from the juvenile hall probation department, dated July 2005 and January 2006, showed that after defendant’s interviews he was classified as a Crip member. An incident report from May 2006 described a fight with a fellow inmate who, according to defendant, was “disrespecting [defendant’s] hood” and “told [defendant] that he was not a real Crip.” The sheriff’s department classification report, dated February 2007, said: “[S]eparate [defendant] from Bloods.” And on a classification form dated June 2007, defendant “basically admitted to being a Crip per him.”
Jennifer Yoshida, a Sacramento County juvenile probation officer, testified that defendant’s classification forms showed him to be an “admitted Crip associate, ” which was not necessarily the same thing as a member. For classification purposes, the department did not care whether an inmate was an associate or a member because the need to separate him from inmates affiliated with rival gangs would be the same in either case.
David Wong was confirmed as a Norteño in 2003 by the Sacramento Police Department. A MySpace photograph of Danny Valdez shows him wearing a red hat bearing the letter N and a red sweater bearing the number 14 (both signifying Norteño affiliation), and (along with another person) holding up fingers indicating the same number.
The prosecutor gave Detective Hansen the following hypothetical: Two persons, at least one of whom is associated with the Norteños, and one of whom is wearing a red hat that says “Sacramento, ” observe a Crip member and his friend, who is wearing a blue hat that says “Cali Kal”; a staring match or “mugging match” ensues; one group yells, “[W]hat are you looking at?”; the Crip says, “[Y]ou’re in my hood.... [S]tay out of my area”; he adds, “This is Freeport”; one of the other individuals responds, “F[__] Freeport, man. This is Norte”; a physical conflict ensues; finally, the Crip pulls out a gun and fatally shoots one of the opposing individuals. Based on these facts, Detective Hansen opined the incident was gang-related: the wearers of opposing colors came in contact, leading to mutual statements of aggression or “disrespect, ” and deadly violence inevitably followed.
DISCUSSION
I
Defendant contends the trial court prejudicially abused its discretion by denying his severance motion because (1) the offenses were not connected together in their commission; (2) the evidence was not cross-admissible; (3) evidence admitted in support of counts one and two suggested defendant had a propensity for violence, impacting the evidence used to convict defendant on count three, in derogation of the Evidence Code; and (4) the unfair joinder of the counts allowed the People to try two weak, unrelated cases together. We conclude the trial court acted reasonably within its discretion in denying the motion and the joinder of the counts did not prejudice defendant.
Defendant does not renew his pretrial argument that the disparity in gravity of the alleged offenses weighed against joinder. His appellate argument here about improper “propensity” evidence, though not found in his pretrial briefing, was raised orally in limine. (See below.)
There is a statutory preference for consolidating trial of separately charged offenses if “connected together in their commission, ” or if they constitute “different statements of the same offense or two or more different offenses of the same class of crimes or offenses.” (§ 954; see Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).) Because consolidation serves the important purposes of efficiency and judicial economy, the burden is on the defendant to show that these considerations “are outweighed by a substantial danger of undue prejudice.” (People v. Bean (1988) 46 Cal.3d 919, 939, fn. omitted.)
Offenses are “‘of the same class’” for purposes of joinder if they possess common characteristics. (People v. Leney (1989) 213 Cal.App.3d 265, 269 (Leney).) They are “‘connected together in their commission’” if they share a “‘common element of substantial importance’” (Alcala, supra, 43 Cal.4th at p. 1218, italics omitted) -- a requirement which may be satisfied “‘even though the offenses charged do not relate to the same transaction and were committed at different times and places against different victims.’ [Citation.]” (Leney, supra, 213 Cal.App.3d at p. 269.)
Whether the conditions for joinder exist is a pure question of law which we review independently. (People v. Alvarez (1996) 14 Cal.4th 155, 187-188.) However, our standard of review for the grant of a consolidation motion or the denial of a severance motion is abuse of discretion. (People v. Osband (1996) 13 Cal.4th 622, 666 (Osband).)
Consolidation may be an abuse of discretion if (1) the evidence is not cross-admissible, (2) the joined charges are inflammatory, (3) a weak case is joined with a strong case, and (4) one of the crimes is punishable by death. (Osband, supra, 13 Cal.4th at pp. 666-667.) Cross-admissibility is not required for consolidation, but suffices to negate prejudice. (Id. at p. 667.)
If joinder was proper under section 954, the defendant must make a clear showing of prejudice to demonstrate abuse of discretion. We assess the trial court’s ruling based on the record when the ruling was made. However, if in hindsight it proves that consolidation resulted in gross unfairness depriving the defendant of due process of law, we would be required to find prejudice. (Alcala, supra, 43 Cal.4th at p. 1220; People v. Zambrano (2007) 41 Cal.4th 1082, 1130, dispproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.)
The trial court’s ruling
Defendant does not and cannot dispute the offenses charged here were “of the same class of crimes”: all were assaultive offenses allegedly committed with firearms. That fact alone justifies joinder. (§ 954; Alcala, supra, 43 Cal.4th at p. 1220; Leney, supra, 213 Cal.App.3d at p. 269.)
Furthermore, the offenses were also “connected together in their commission” (§ 954) because they had more than one “‘common element of substantial importance[.]’” (Alcala, supra, 43 Cal.4th at p. 1219.) Both incidents occurred in the neighborhood defendant and his gangster acquaintances claimed as their own even after defendant had moved away. Defendant allegedly brought a gun to each crime scene, but claimed he acquired both guns by happenstance on the spot. Each time, Kalvin Williams accompanied and actively assisted him. And each time, verbal conflicts quickly escalated to deadly force. This is more than enough to satisfy this prong of section 954. (See Leney, supra, 213 Cal.App.3d at p. 269.)
Furthermore, as the trial court found, defendant’s story about getting his gun on July 7 from an “O.G.” (a term usually meaning “original gangster, ” i.e., a senior gang member) made the gang expert testimony offered as to count three cross-admissible as to counts one and two. Thus, though cross-admissibility is not required for joinder, the cross-admissibility of this evidence suffices to negate prejudice from joinder. (Osband, supra, 13 Cal.4th at p. 667.) Contrary to defendant’s apparent view, the cross-admissibility criterion does not require that all the evidence in one case must be cross-admissible in the other.
Finally, the evidence before the trial court when it ruled on the severance motion did not show that counts one and two were stronger or weaker than count three. As to both incidents, interested witnesses had given conflicting accounts. Physical evidence in both incidents tended to inculpate defendant, but did not conclusively prove guilt. There was disinterested and apparently credible eyewitness evidence as to count three, but not as to counts one and two. On the other hand, defendant’s claim as to the first incident that someone he called an “O.G.” (but who was not an “original gangster, ” even though that is what the abbreviation normally stands for) had furnished defendant a gun for no apparent reason, then disappeared, was so implausible as to suggest consciousness of guilt, but he had made no statement about the second incident. In short, as the trial court found, the evidentiary strengths and weaknesses of the two cases were roughly in balance.
For all of the foregoing reasons, the trial court’s denial of defendant’s severance motion was well within its discretion.
Prejudice in light of the whole record
Propensity evidence
Seeking to establish prejudice from joinder in hindsight (cf. Alcala, supra, 43 Cal.4th at p. 1220; People v. Zambrano, supra, 41 Cal.4th at p. 1130), defendant asserts: “[T]he admission of evidence in support of counts 1 and 2 had no purpose vis-a-vis count 3 except the inadmissible purpose of suggesting [defendant] had a propensity or the disposition to commit a crime of violence.” Defendant cites the prosecutor’s remarks in closing argument that because defendant, a Crip, carried and fired a gun in the first incident, the jury could conclude that he did so in the second incident as well. However, although evidence of defendant’s gang ties was not directly relevant to counts one and two because Marlon Leon was not shown to belong to a rival gang and defendant’s acts appeared motivated by a strictly personal feud, the gang evidence was relevant to show defendant’s motive and intent as to count three (Evid. Code, § 1101, subd. (b)); thus it could not have been prejudicial as to that count. And if the jury believed defendant’s testimony, it would have concluded he did not carry a gun on either occasion and would have discounted the prosecutor’s remarks. If the jury did not believe defendant’s testimony as to the first occasion, it was not because the counts were joined but because defendant’s story about how he got the gun on that occasion was unbelievable.
Defendant’s written severance motion in the trial court did not argue that joinder would violate Evidence Code section 1101. As defendant points out, however, trial counsel belatedly raised this theory during argument in limine.
“Spillover” effect
Defendant also asserts that in light of the whole record, joinder “created a ‘spillover’ effect in which the inflammatory evidence from count 3 became propensity evidence as to counts 1 and 2, and vice-versa.” This point is unpersuasive because defendant supports it by improperly characterizing the evidence most favorably to himself.
First, defendant states as to count three: “[T]he sole issue was, who pulled [out] the gun?” Defendant asserts that the only evidence on this point came from himself and eyewitness Earnest Ware. Then he asserts that Ware testified at the preliminary hearing that he saw defendant pull out the gun, but at trial Ware “said only that he saw Valdez step back and then saw [defendant] fire two shots.” Defendant’s second point is doubly erroneous. First, Ware did not testify at the preliminary hearing, and Detective Higgins’s testimony in that proceeding, which conveyed Ware’s account indirectly, was not before the jury. Second, at trial Ware testified that after defendant fired the shots “he put the pistol back in his pocket or his waist” (italics added), logically implying that it was there to begin with.
Defendant concludes that because the jury requested a readback of Ware’s testimony, the case as to count three was close. Even if so, it was not necessarily because the jury doubted that defendant pulled out the gun. Rather, the close question appears to have been whether his conduct was first degree murder, as the prosecutor argued, or second degree murder, as the jury ultimately found.
Furthermore, defendant’s claim that (1) Valdez pulled out the gun while hovering over defendant, (2) defendant pushed Valdez’s hand up with his own hands from below, (3) the gun went off as they struggled, and (4) Valdez fell backward only after the gun fired did not square with either Ware’s account of the sequence of events or the pathologist’s finding that the fatal shot was fired with the gun very close to or touching Valdez’s neck as he stepped backward. The jury evidently resolved this conflict against defendant.
Lastly, to decide whether defendant’s claim that Valdez pulled out the gun was credible, the jury had to put it in the context of defendant’s entire story about the incident. This included the ludicrous assertion that when Valdez blocked his path and said “Norte” to him and he replied with “Freeport, ” he thought they were merely exchanging geographical information about the neighborhood and would then go about their business. If the jury disbelieved that, as any reasonable jury would, it was unlikely to believe anything else defendant said about the incident.
For all of these reasons, we conclude the jury’s verdict on count three did not depend on any speculative “spillover effect” from the other counts.
Defendant’s reverse “spillover” argument as to counts one and two is just as inappropriately weighted in his favor. He asserts: “[I]n those charges a credibility contest even more beneficial to the defense presented itself” -- the contest between his credibility and Leon’s. Although Leon’s credibility was seriously impeached by his prior inconsistent statements, his admitted felony conviction, and his apparent attempt to persuade Iris Luna to testify falsely, defendant’s claim that he was the more credible of the two is untenable. Nothing Leon said defied credulity as much as defendant’s story about the “O.G.” If the jury disbelieved that story, it could not reasonably have credited anything else defendant said about the July 7 incident that rested only on his word.
Defendant finally asserts he was prejudiced from joinder in that the jury did not convict him of the gravest possible charges as to either incident, finding only second degree murder as to count three and rejecting the allegation as to count one that he personally inflicted great bodily injury. On the contrary: the fact that defendant obtained relatively lenient verdicts as to both incidents is strong evidence that the joinder of the charges did not prejudice him. (See People v. Soper (2009) 45 Cal.4th 759, 784 (Soper).)
In defendant’s reply brief, he asserts that “the balancing test set forth in our Supreme Court’s new Soper case” compels a finding in his favor. However, Soper cites the same factors justifying consolidation as the earlier decisions on this issue. (Soper, supra, 45 Cal.4th at pp. 774-775.) As we have documented, all of those factors are present here. Thus, even assuming Soper created a new “balancing test, ” it does not change the result.
II
Defendant contends that his sentence of 72 years to life in prison (consisting of seven years determinate followed by 65 years indeterminate) constitutes cruel and unusual punishment under the United States Constitution and cruel or unusual punishment under the California Constitution. We disagree. Even assuming that this contention is not forfeited for failure to raise it in the trial court (see People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5; but see People v. Norman (2003) 109 Cal.App.4th 221, 229 ; People v. DeJesus (1995) 38 Cal.App.4th 1, 27), it fails on the merits.
The federal claim
Under the proscription of “cruel and unusual punishment” in the Eighth Amendment to the United States Constitution (applicable to the states via the Fourteenth Amendment), a “‘narrow proportionality principle’... ‘applies to noncapital sentences.’” (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117] (lead opn. of O’Connor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 [115 L.Ed.2d 836, 866].)
Objective factors guiding the proportionality analysis include “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” (Solem v. Helm (1983) 463 U.S. 277, 292.) But only in the rare case where the first factor is satisfied does a reviewing court consider the other two factors. (Harmelin v. Michigan, supra, 501 U.S. at p. 1005 [115 L.Ed.2d at pp. 871-872] (conc. opn. of Kennedy, J.).)
Defendant cannot get past the first proportionality factor. He was convicted of second degree murder, assault with a firearm, and discharge of a firearm at an inhabited dwelling, all extremely grave crimes of violence. The jury also found multiple enhancements: defendant personally used a firearm as to count one, proximately caused great bodily injury or death by personally and intentionally discharging a firearm in the commission of counts two and three, and committed the offense charged in count three while on bail on the other charges. Thus, the gravity of defendant’s offenses is extreme.
Defendant asserts that his crimes were “mitigated by the manner in which they arose and were carried out.” Even assuming defendant may raise this argument for the first time on appeal, it fails. As to count three, he cites only his own story about how the confrontation began, which the jury was not required to credit. As to the other counts, the jury evidently found, contrary to defendant’s testimony, that he and his associates were the aggressors. In any event, offenses as to which the jury found multiple enhancements true cannot reasonably be called “mitigated.”
At sentencing, trial counsel argued for leniency as to the determinate term because defendant was youthful when he committed the crimes (16 at the time of the first incident, 17 at the time of the second) and had no prior criminal record. Defendant renews these points on appeal. But the trial court could reasonably find them insignificant given the nature of the offenses.
Defendant’s sentence did not violate the Eighth Amendment to the United States Constitution.
The state claim
Article I, section 17 of the California Constitution proscribes “[c]ruel or unusual punishment.” Although this language is construed separately from the federal constitutional ban on “cruel and unusual punishment” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085), the method of analysis is similar: the reviewing court considers “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society”; the comparison of “the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses”; and the comparison of “the challenged penalty with the punishments prescribed for the same offense in other jurisdictions....” (In re Lynch (1972) 8 Cal.3d 410, 425-427, original emphasis.) The purpose of this analysis is to determine whether the punishment is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (Id. at p. 424, fn. omitted.)
Defendant argues only the first of these factors. Therefore we need not consider the others.
Applying this analysis, we do not find that this is one of those extremely rare cases where the sentence is so disproportionately harsh as to shock the conscience or to offend fundamental notions of human dignity, whatever these broad concepts may entail. (See People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.) The nature of defendant’s offenses shows he poses an immense, sustained danger to society. His youth when he committed them, if anything, underscores his dangerousness, because it shows him to be a hardened criminal who went from a one grievous, violent crime to another, worse one, murder, nearly six months later, while out on bail and awaiting trial on his first violent crime.
Defendant relies on People v. Dillon (1983) 34 Cal.3d 441, in which the court vacated a 17-year-old defendant’s life sentence for first degree felony murder. Dillon is inapposite. The majority there found the sentence disproportionate to the defendant’s “attenuated individual culpability” (id. at p. 486) because he was “an unusually immature youth” who “had had no prior trouble with the law” and shot the victim in “response to a suddenly developing situation that defendant perceived as putting his life in immediate danger”; furthermore, none of the other minors who participated with him in the same offenses had even been convicted of homicide or sent to state prison, though all were coconspirators or aiders and abettors in the defendant’s crime. (Id. at p. 488.) Here, by contrast, defendant was the only person accused of the violence charged, and the jury found that he directly perpetrated it all. Though he had no known prior record when he shot at Marlon Leon, he was on bail on the charges stemming from that incident when he murdered Danny Valdez. Finally, unlike the defendant in Dillon, defendant was a Crip gangster who committed murder in the course of a gang-related confrontation which the jury necessarily found he incited.
Defendant’s sentence is not “cruel or unusual” under the California Constitution.
III
The recent amendments to section 4019 do not operate to modify defendant’s entitlement to credit, as he was committed for a serious or violent felony. (§ 4019, subds. (b)(1), (2) & (c)(1), (2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.
Defendant and Leon were tested for gunshot residue, but the tests did not yield highly probative results.
Defendant’s reply brief also relies on People v. Earle (2009) 172 Cal.App.4th 372, in which the court reversed a conviction on one count due to improper joinder under the Soper test. However, since the joinder issue in each case depends on the facts of that case, comparisons between different cases with different facts are unhelpful.