P. v. Loice
Filed 7/6/12 P.
v. Loice CA2/5
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
HAKEEM L.
LOICE,
Defendant and Appellant.
B235060
(Los Angeles County
Super. Ct. No. YA078816
)
APPEAL
from a judgment of the Superior Court of the County of
James R. Brandlin, Judge. Affirmed.
Sally
Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for
Plaintiff and Respondent.
INTRODUCTION
Following trial, a jury found defendant
and appellant Hakeem Loice (defendant) guilty of the
separate assault on another victim by means likely to produce great bodily
court abused its discretion when it denied his motion to try separately the two
unrelated crimes and that the prosecutor committed various acts of misconduct
that denied him the right to a fair trial.
We hold that the trial court did not abuse
its discretion when it refused to try separately the two charged crimes and
that the prosecutor did not engage in any prejudicial
conviction.
FACTUAL BACKGROUND
1—Attempted Murder of Cole
On April 10, 2010, at approximately 1:45 a.m., Rogers Cole left an
apartment in the vicinity of 94th
Street and Normandie after
visiting two friends, Tanjy and Bud. As
Cole began walking home, he was confronted by “some guys†and he engaged in a
verbal argument with defendant.
Defendant had facial hair, a red or orange cap and shirt, and “a lot of
tattoos on his face.†The argument with
defendant went on for “about five minutes†and then a “group of guys started
fighting each other.†As Cole tried to
walk away, he “got punched†in the face, “fell and got up and started fightingâ€
with “the guy who . . . punched [him].â€
Initially, Cole was in a “one-on-one fight,†but then “a bunch of guysâ€
began hitting and kicking him. After
about a minute, Cole was able to “get up and run.â€
He
ran down a long driveway toward an alley behind his friend’s apartment. After he had run about 30 yards, his
attackers caught up to him and began to hit and kick him again. Cole was able to regain his feet, but as he
did so, he saw “the barrel of a gun and a flash.†Cole fell to the ground and, when he “tried
to get up and run,†he fell back down after taking about five steps because he
had been shot in the hip.
After
unsuccessfully trying to regain his feet and run, Cole began to crawl
away. As he crawled down the alley, he
looked back and saw the man who shot him give the revolver to defendant. Defendant then walked toward Cole who was
crawling. When defendant walked up to
Cole’s location, Cole rolled over on to this back and looked up at defendant
who was standing between Cole’s legs.
Defendant fired approximately four shots.
“walked off.â€
About a minute
later, Cole removed a cell phone from his pocket and called his girlfriend,
Eureka Talbert. He thought she would be
able to take him to the hospital faster than an ambulance. Cole told Talbert the location of the alley
and instructed her to drive through the alley until she saw him. Talbert arrived at the alley at the same time
as Cole’s friends Tanjy and Bud. Bud
helped Cole into Eureka’s car, and she drove him to California Hospital.
Cole underwent
surgery, and when he awoke, he noticed “a long surgery wound
. . . from the top of [his] pubic area to
the bottom of [his] chest.†Two days
later he underwent a second surgery to repair damage from a gunshot wound to
his right arm. Cole also had two gunshot
wounds to his “side area†and one to his “underarm area.†He was hospitalized for five or six days.
When
Los Angeles County Sheriff’s Deputies arrived at the scene of the shooting,
they searched for witnesses and physical evidence, but did not locate any
witnesses or evidence. Similarly, the
detective who investigated the scene confirmed that no firearms, bullets, or
casings were recovered and no DNA or fingerprint evidence was recovered.
About
a month after the shooting, Cole reviewed a photographic lineup and identified
defendant as the man who stood over him in the alley and shot him. Cole also identified defendant in court at
both the preliminary hearing and the trial.
on Chatman
On
the evening of April 25, 2011, the victim, Sayshawn Chatman, visited his friend
Shawntae Perkins at her apartment.
Chatman was wearing an expensive gold chain that evening. Some of Perkins’s “home girls†and a “couple
of male friends†were also there, including Perkins’s cousin “Do-Boy.†Chatman and the others drank vodka and gin
that night, and eventually Chatman fell asleep.
Chatman
woke up about 1:00 p.m. the next day and discovered that his gold chain was
missing. When Chatman told Perkins his
gold chain was missing, she told him to calm down and assured him she would find
it. Chatman stepped outside the
apartment for a moment, and Perkins brought him his chain.
About
1:15 p.m. that afternoon, Perkins left the apartment “to get something to
eat.†Shortly after Perkins left, Do-Boy
emerged from a back room and opened the apartment door for defendant—whom
Chatman had seen a week or two earlier walking down the street—and another
man. Do-Boy walked past Chatman toward
the bathroom, but then turned around and punched Chatman in the side of the
face. Then Do-Boy, defendant, and the
other man began punching, kicking, and stabbing Chatman. During the attack, Chatman was “balling upâ€
in a defensive position with his eyes closed, barely able to defend himself. Chatman estimated that he was punched over 20
times and stabbed approximately five times.
He was also kicked while he was on the ground causing him to lose a
tooth.
Chatman
was able to escape from his attackers and run down the street to where some
neighbors were gathered watching their children. One of the neighbors called an ambulance.
After
the attack, Chatman noticed that his gold chain was missing. Photographs of Chatman’s injuries confirmed
that he sustained gash wounds around his right eye, a cut over his left eye, a
cut under his chin, and cuts on the back of his head. During treatment for his wounds, Chatman
received eight stitches above his right eye, three stitches in his left
eyebrow, and nine staples in the back of his head.
A
Los Angeles County Sheriff’s deputy who arrived at the scene of the attack
noticed a blood trail on the stairs leading to the apartment and, inside the
apartment, he observed a broken wooden table in the center of the floor,
various items scattered on the floor, and blood on the kitchen walls, floor,
countertop, and refrigerator door.
A
detective showed Chatman a photographic lineup, and Chatman was able to
identify defendant as one of his attackers.
Chatman also later identified defendant in court at the
PROCEDURAL BACKGROUND
In
an information, the Los Angeles County District Attorney charged defendant in
count 1 with the attempted murder of Cole in violation of Penal Code sections
664 and 187, subdivision (a)
name="_ftnref4" title="">[4]
and in count 2 with an assault on Chatman by means likely to produce great
bodily harm in violation of section 245, subdivision (a)(1). The District Attorney alleged as to count 1
that defendant personally and intentionally discharged a firearm which caused
great bodily harm within the meaning of section 12022.53, subdivision (d) and
that defendant had suffered a prior serious felony conviction within the
meaning of section 667, subdivision (a)(1).
The District Attorney further alleged as to counts 1 and 2 that
defendant had suffered a prior serious or violent felony conviction within the
meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions
(a) through (d). The District Attorney
also alleged that defendant had suffered four prior felony convictions for
which prison terms were served.
Defendant
pleaded not guilty and denied the special allegations. Following trial, the jury found defendant
guilty on counts 1 and 2 and found the firearm enhancement true. Thereafter, the trial court found the strike
and prior serious felony allegations true, struck the prior prison term
allegations, and denied defendant’s motion to strike the true finding on the
prior strike allegation.
The
trial court sentenced defendant to an aggregate sentence of 50 years comprised
of an upper term nine-year sentence on count 1, doubled to 18 years based on
the prior strike finding, plus an additional term of 25 years to life on the
firearm allegation, and a consecutive seven-year sentence on count 2.
DISCUSSION
Defendant
contends that the trial court abused its discretion when it denied his motion
to sever and try separately counts 1 and 2.
According to defendant, trying the two unrelated charges jointly was
prejudicial because the evidence as to each count was not cross-admissible and
the identification and other evidence as to each count was weak.
Section
954 provides in pertinent part: “An
accusatory pleading may charge . . . two or more different offenses of the same
class of crimes or offenses, under separate counts . . . .†That section further provides that “the court in which a case is
triable, in the interests of justice and for good cause shown, may in its
discretion order that the different offenses or counts set forth in the
accusatory pleading be tried separately or divided into two or more groups and
each of said groups tried separately.â€
Because joinder of charged offenses generally promotes efficiency, it
“‘is the course of action preferred by the law.’†(People v. Soper (2009) 45 Cal.4th
759, 772 (Soper).) “[P]ursuant to
section 954 an accusatory pleading may charge two or more different offenses so
long as at least one of two conditions is met:
The offenses are (1) ‘connected together in their commission,’ or (2)
‘of the same class.’†(Soper, supra,
45 Cal.4th at p. 771.)
“A defendant, to
establish error in a trial court’s ruling declining to sever properly joined
charges, must make a ‘“clear showing of prejudice to establish that the
trial court abused its discretion . . . .â€â€™ [Citation.]
A trial court’s denial of a motion
to sever properly joined charged
offenses amounts to a prejudicial abuse of discretion only if that
ruling ‘“‘“‘falls outside the bounds of reason.’â€â€™â€â€™ [Citation.]
We have observed that ‘in the context of properly joined offenses, “a
party seeking severance must make a stronger showing of potential
prejudice than would be necessary to exclude other-crimes evidence in a severed
trial.â€â€™ [Citations.] [¶] . . . [¶]
In determining whether a trial court abused its discretion under section
954 in declining to sever properly joined charges, ‘we consider the record
before the trial court when it made its ruling.’ [Citation.]
Although our assessment ‘is necessarily dependent on the particular
circumstances of each individual case, . . . certain criteria have emerged to
provide guidance in ruling upon and reviewing a motion to sever trial.’
[Citation.]†(Soper, supra,
45 Cal.4th at p. 774.)
“First, we
consider the cross-admissibility of the evidence in hypothetical separate trials. [Citation.]
If the evidence underlying the charges in question would be
cross-admissible, that factor alone is normally sufficient to dispel any
suggestion of prejudice and to justify a trial court’s refusal to sever
properly joined charges. [Citation.] Moreover, even if the evidence underlying
these charges would not be cross-admissible in hypothetical separate
trials, that determination would not itself establish prejudice or an abuse of
discretion by the trial court in declining to sever properly joined
charges. [Citation.] Indeed, section 954.1 [citation] codifies
this rule—it provides that when, as here, properly joined charges are of the
same class, the circumstance that the evidence underlying those charges would
not be cross-admissible at hypothetical separate trials is, standing alone,
insufficient to establish that a trial court abused its discretion in refusing
to sever those charges.†(Soper,
supra, 45 Cal.4th at pp. 774-775.)
“If we determine
that evidence underlying properly joined charges would not be cross-admissible,
we proceed to consider ‘whether the benefits of joinder were sufficiently
substantial to outweigh the possible “spill-over†effect of the “other-crimesâ€
evidence on the jury in its consideration of the evidence of defendant’s guilt
of each set of offenses.’
[Citations.] In making that
assessment, we consider three additional factors, any of which—combined with
our earlier determination of absence of cross-admissibility—might establish an
abuse of the trial court’s discretion:
(1) whether some of the charges are particularly likely to inflame the
jury against the defendant; (2) whether a weak case has been joined with a
strong case or another weak case so that the totality of the evidence may alter
the outcome as to some or all of the charges; or (3) whether one of the charges
(but not another) is a capital offense, or the joinder of the charges converts
the matter into a capital case.
[Citations.] We then balance the
potential for prejudice to the defendant from a joint trial against the
countervailing benefits to the state.†(Soper,
supra, 45 Cal.4th at p. 775.)
Here,
the two charges were unrelated, but both crimes were of the same class in that
each involved assaultive behavior. And
although the evidence underlying the two charges may not have been
cross-admissible, that factor, standing alone, was insufficient to establish
the prejudice necessary to justify severance.
(See People v. Myles (2012) 53
Cal.4th 1181, 1201 [when two crimes of the same class are joined,
cross-admissibility is not required].)
Rather, it was incumbent on defendant—based on the record before the
trial court at the time it made its ruling—to make a clear showing that the
potential “spill over†effect from the evidence of the two unrelated crimes
outweighed the benefits of joinder. For
the reasons discussed below, we conclude that defendant failed to make the
requisite showing.
Defendant’s
contention concerning the severance issue is based on the assertion that this
was a “close case†in which the evidence of guilt was weak. The preliminary hearing testimony that was
before the trial court at the time it denied the motion to sever, however, does
not support that assertion. The victims
of each crime positively identified defendant in court at the preliminary
hearing. Those identifications were
based, in part, on the distinctive tattoos on defendant’s face. Moreover, each victim had the opportunity to
observe defendant’s face at close proximity:
Cole saw defendant take the gun from the man who initially shot Cole and
then looked up at defendant from the ground as defendant walked toward him,
stood over him, and then shot him; and Chatman had seen defendant before the
attack walking in the neighborhood, and, on the day of the attack, he was in
the living room of Perkins’s apartment when defendant entered that room with
another man at Do-Boy’s invitation just prior to the assault on Chatman. That evidence shows that the District
Attorney did not join a strong case with a weak case or join two weak cases
together. Each count was supported by
substantial, independent evidence, such that it was not reasonably likely that
a jury would use evidence on one unrelated charge to convict defendant on the
other charge.
The
preliminary hearing testimony provided strong evidence of defendant’s guilt on
both charges and supported the trial court’s conclusion that there was no
reasonable probability that defendant would be prejudiced by a joint trial on
those charges. Therefore, the trial
court did not abuse its discretion when it denied the motion to sever.
B. Prosecutorial
Misconduct
Defendant
argues that the prosecutor engaged in prejudicial misconduct by repeatedly
delaying the disclosure of certain evidence.
Defendant further contends that the prosecutor engaged in additional
misconduct by asking a witness, Cole, improper questions concerning his fear of
retaliation and misstating the evidence of the attack on Chatman during
Principles
“The
standards under which we evaluate prosecutorial misconduct may be summarized as
follows. A
prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction
a denial of due process. Conduct by a
prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves the use of
deceptive or reprehensible methods to attempt to persuade either the trial
court or the jury.†(
44.)
“Furthermore . .
. when the claim focuses upon comments made by the prosecutor before the jury,
the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
fashion. (People v. Ayala (2000)
23 Cal.4th 225, 283-284 [96 Cal.Rptr.2d 682, 1 P.3d 3].)†(People
v. Morales, supra, 25 Cal.4th at p. 44.)
“At closing argument a party is entitled both to discuss the evidence
and to comment on reasonable inferences that may be drawn therefrom. (See People v. Bemore (2000) 22
Cal.4th 809, 846 [94 Cal.Rptr.2d 840, 996 P.2d 1152]; People v. Sandoval
(1992) 4 Cal.4th 155, 183 [14 Cal.Rptr.2d 342, 841 P.2d 862] [both speaking of
the prosecutor’s entitlement in this regard].)â€
(People v. Morales,
draw inferences from the evidence presented at trial, mischaracterizing the
evidence is misconduct. (People v.
Avena (1996) 13 Cal.4th 394, 420 [53 Cal.Rptr.2d 301, 916 P.2d 1000]; see
also People v. Lucas (1995) 12 Cal.4th 415, 472 [48 Cal.Rptr.2d 525, 907
P.2d 373] [failure to object forfeited claim of misconduct for misstating
facts favorable to his or her side ‘does not excuse either deliberate or
mistaken misstatements of fact.’ (People
v. Purvis (1963) 60 Cal.2d 323, 343 [33 Cal.Rptr. 104, 384 P.2d
424].)†(People v. Hill (1998) 17 Cal.4th 800, 823.)
2. Discovery Misconduct
Defendant
claims that the prosecutor delayed in turning over the following evidence to
the defense: the police reports relating
to Cole’s prior juvenile convictions; the field identification cards relating
to Chatman; Cole’s statement to Talbert in the hospital; and crime scene
photographs relating to the assault on Chatman.
Although
it does not appear that the prosecutor engaged in misconduct with respect to
most, if not all, of the delayed discovery claims, even assuming discovery
misconduct occurred, defendant has failed to demonstrate how he was prejudiced
under either the federal or state standard for determining prejudice discussed
above. For example, although defendant
complains that the prosecutor failed to turn over a file concerning one of
Cole’s juvenile adjudications, he ignores that the prosecutor summarized the
contents of the file for defense counsel in an e-mail sent immediately after
the file was obtained and further offered to stipulate to the underlying facts
of the adjudication in question. Given
the timely summary of the file and the offered stipulation, there was no
potential that defendant was prejudiced by this claimed discovery misconduct.
Similarly,
on the issue of the field identification cards, the prosecutor offered to
stipulate to the factual information set forth in the cards, and the trial
court offered defense counsel the opportunity to move for a continuance to
investigate the cards and to request a jury instruction on late discovery, but
suggested course of action, thereby conceding that defendant’s case had not
been prejudiced by the timing of the disclosure of the field identification
cards.
As
for the disclosure of Talbert’s statement to Cole at the hospital, the
prosecutors provided information about the statement to the defense as soon as
the information was discovered by the prosecutor and, in any event, the trial
court excluded the statement as cumulative.
As to this claimed discovery misconduct, defendant fails to explain how
he was prejudiced by a statement that was excluded and about which his counsel
was informed in a timely fashion.
Defendant
also complains that crime scene photographs that showed a blood trail at the
scene of the assault on Chatman were not timely disclosed. But the trial court excluded the photographs,
and defendant fails to explain how timely disclosure of them would have aided
the defense.
3. Other Misconduct
Defendant
also challenges two other instances during which he claims the prosecutor
engaged in misconduct. First, he
contends that during the direct examination of Cole, the prosecutor improperly
elicited that Cole had relocated out of state due to concerns for his safety
based on his cooperation in this case.
Second, defendant contends that during rebuttal argument, the prosecutor
misstated the evidence when she argued that Do-Boy telephoned “his friends,
including defendant.â€
The
challenged line of questioning merely elicited that Cole had moved due to his
fear of retaliation for cooperating in the case. It did not, as defendant contends, suggest or
imply that defendant or someone associated with him had threatened Cole. Moreover, the trial court offered to allow
defense counsel to question Cole, either in the presence of the jury or outside
the jury’s presence, about whether defendant or anyone associated with him had
threatened Cole and also indicated that it would consider giving a limiting instruction
concerning a witness’s fear. Defense
counsel, however, did not question Cole about the issue and did not request a
limiting instruction. Therefore, even
assuming that the prosecutor’s questions about Cole’s fear and relocation were
misconduct, defendant failed to demonstrate how he was prejudiced by those
questions.
The
prosecutor’s assertion during argument that Do-Boy had telephoned his friends,
including defendant, to assist in the assault on Chatman was based on a
reasonable inference drawn from the evidence.
Chatman testified that Perkins left the apartment, and shortly
thereafter Do-Boy emerged from a back room and opened the apartment door for
defendant and the other male assailant.
The timing of the arrival of the two men shortly after Perkins left and
Do-Boy’s apparent awareness that the two men had arrived at the door, suggested
that their arrival had been prearranged, presumably by Do-Boy in a telephone
call. Because the prosecutor had wide latitude
during argument to draw such an inference from the evidence, the challenged
argument did not constitute misconduct.
The judgment of conviction is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MOSK,
J.
We concur:
ARMSTRONG,
Acting P. J.
KRIEGLER,
J.
name="_ftn1" title="">
to Cole, somewhere between five and 15 men assaulted him.
name="_ftn2" title="">
to Cole, the revolver did not fire each time defendant pulled the trigger.
