IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 15, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROBERT JOHN HEFLIN, JR., DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Affirmed. (Super.Ct.No. RIF139813)
The opinion of the court was delivered by: McKinster J.
P.v . Heflin
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Robert John Heflin, Jr., appeals his conviction on multiple counts of assaultive offenses against two victims, his wife and a woman who lived in a trailer on defendant's property. The sole issue he raises is that the charges pertaining to each victim should have been tried separately. We disagree, and we affirm the judgment.
In case No. RIF139813, defendant was charged with four offenses
allegedly committed in September 2007, against a Jane Doe identified
at trial as defendant's wife, Stacy Heflin. The charged offenses were
infliction of corporal injury on spouse resulting in traumatic
condition (Pen. Code, § 273.5, subd. (a); counts 1 & 4)*fn1
and assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(1); counts 2 & 3). The information
also alleged that defendant had a prior serious felony conviction, for
first degree burglary, within the meaning of sections 667,
subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1).
In case No. RIF142458, defendant was charged with five offenses allegedly committed on or about February 26, 2008, against a Jane Doe identified at trial as F.D. The charged offenses were assault with a deadly weapon, a flashlight, and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 1); assault with intent to commit forcible digital penetration (§ 220; count 2); sexual battery against an unlawfully restrained person (§ 243.4, subd. (d); count 3); kidnapping for purpose of rape (§ 209, subd. (b)(1); count 4); and criminal threats (§ 422; count 5). The information also alleged as to count 1 that defendant personally inflicted great bodily injury within the meaning of sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8).
The prosecution moved to consolidate the two cases for trial. Over defense objection, the court granted the motion.
In the amended information, the counts concerning Stacy Heflin remained counts 1 through 4, while the counts pertaining to F.D. were renumbered as counts 5 through 9. The amended information also alleged that counts 1 through 4 were committed while defendant was out on bail within the meaning of section 12022.1. It also alleged that defendant personally inflicted great bodily injury in the commission of count 5, within the meaning of sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8), and that defendant had a prior serious felony conviction, for first degree burglary, within the meaning of sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1). During the trial, the court granted the prosecution's motion to amend count 6 (assault with intent to commit forcible digital penetration) according to proof, to allege assault with intent to commit rape.
The jury found defendant guilty of all charges except count 1, and found the great bodily injury allegation as to count 5 true. In a bifurcated proceeding, the court found it true that defendant had suffered a prior serious felony conviction.*fn2 The court denied defendant's motion to strike his prior serious felony conviction. It sentenced defendant to an aggregate determinate term of 13 years eight months, to be served consecutively with an indeterminate term of 14 years to life on count 8 (kidnapping for purpose of rape).
Defendant filed a timely notice of appeal.
STATEMENT OF FACTS
Counts 1 through 4
On September 8, 2007, Sergeant David Cardoza was dispatched on a domestic violence call to the home of Robert and Stacy Heflin. At the residence, he spoke to Stacy Heflin and Stephanie Amador. Ms. Heflin had red marks on her forehead, a laceration on the right side of her neck and a bruise on her right arm. She complained of pain to the back of her head and appeared shaken up. She said she was separated from defendant and was staying with Ms. Amador. She had returned to the residence to collect some of her belongings. She believed that defendant would not be there, but he was there when she arrived. During the altercation which ensued, he hit her on the back of the head and knocked her down. He then picked her up by her shirt, tearing the shirt, and threw her onto the bed. She struck her head on a wooden ledge above the bed.
Ms. Heflin told Sergeant Cardoza that the previous day, while she was still living with defendant, they got into an argument about defendant's perception that she was attempting to interfere with visitation by the father of her two older children. She said he knocked her down and dragged her into the bathroom, where he pounded her head on the tile floor. She also told Cardoza that the previous week, while she and defendant were at a restaurant, he grabbed her arm near the elbow and squeezed it hard, causing a bruise.
Cardoza photographed Ms. Heflin's torn shirt and the bruises above her eyebrow and on her arm. He said the wound on her neck appeared to be fresh. He said she was very emotional as she described what defendant had done to her.
At trial, Ms. Heflin, who was still married to defendant, recanted much of her statement to Cardoza. She explained that some of her injuries were from sexual activities with defendant and that she had provoked the fight on September 8 and had lied to Sergeant Cardoza.
Stephanie Amador, who had known defendant most of her life and considered him an "older brother figure," corroborated the version of events Ms. Heflin related to Sergeant Cardoza. She testified that Ms. Heflin had stayed with her the night before the September 8 incident. She said that the Heflins were getting into arguments and that Ms. Heflin said defendant had hit her, although she never witnessed it. When Ms. Heflin told Ms. Amador that defendant had hit her, she appeared to be "[w]orried, scared, unsure."
On September 8, when they went to the house to retrieve her belongings, Ms. Heflin was worried that defendant would be at the house and was worried about getting into an argument with him. Ms. Amador was worried as well, because Ms. Heflin had told her that defendant sometimes got violent. At the house, they went into the bedroom to retrieve Ms. Heflin's belongings. Defendant was there. He tried to stop his wife from taking her things. He pushed her out of the house, yelling at her "to get out of my house." Ms. Heflin asked Ms. Amador to call the police, so she went outside to make the call. While she was outside, she heard both of them yelling and she heard Ms. Heflin scream. Then Ms. Heflin came out of the house and went into a trailer on the property. Defendant followed her into the trailer. Ms. Amador remained outside. She heard them yelling, then defendant came out, got into his truck and left. When Ms. Heflin came out, she was crying and her shirt was ripped. It was not torn before she went into the trailer. She said defendant had pinned her against the wall while trying to restrain her.
Counts 5 through 9
F.D. was a co-worker of Stacy Heflin. When F.D. left an abusive relationship, she asked if she could live in a trailer on the Heflins' property. Defendant agreed that she could. Her relationship with defendant was always friendly. However, shortly before the incident which is the subject of this prosecution, F.D., who sold drugs, dropped a bag of methamphetamine on the driveway. She asked the Heflins to help her find it. Defendant later told her, via his wife, that she would have to move out. Nothing further was said, and F.D. thought it had "blown over."
On the morning of February 26, 2008, F.D. went to her car to retrieve some clothing. After she returned to the trailer, defendant came up behind her and whispered that she "had to" have sex with him. She told him that she was leaving and walked out of the trailer. Outside, defendant pushed her up against the garage and covered her mouth with his hand. He was wearing gloves. F.D. began to fight and they ended up on the ground with defendant straddling her. Defendant pulled out a flashlight and hit her on the head several times, causing her head to bleed. He took out a knife and said he would cut out her tongue unless she stopped yelling. He picked her up and carried her into his bedroom. He made her put on some green underwear that belonged to someone he was attracted to. He had pornographic films running on both the television and the computer. He made her sit on his lap, and then made her lift her shirt to show him her body. He made her stroke his penis and rubbed her hip. F.D. told him she wanted to wait to have sex with him until his wife got home. She knew they were "swingers," and she was attempting to buy time. Defendant had taken his clothes off and was fondling his penis as they talked.
Defendant's son and then his father came to the bedroom door to speak to defendant. When defendant's father opened the bedroom door to hand him the telephone, F.D. seized the opportunity to leave the house by using the bedroom door which led to the outside. She spoke to defendant's father, whom she saw outside, then went to the trailer and put on a sweatshirt. She asked defendant's cousin, who was sitting in the living room with her husband, to get her "hygiene bag," which was in the bathroom. After the cousin gave her the bag, F.D. drove to her sister's house. Her sister took her to the hospital, where she received six staples to close her head wound. She later had surgery to repair her badly broken finger.
Deputy Dennis Santiago was dispatched to the hospital on February 26 to speak to F.D. When he saw her, she was "obviously very distraught." She was lying on a hospital bed in a "semi-fetal position," crying. She had several staples on the top of her head and one finger was "broken and deformed." She complained of pain. Deputy Santiago observed scratches on her knee, back and chest, and injuries to her feet and left shin, all of which were documented by photographs. She described to him what had happened. She was crying and distraught throughout their conversation.
After speaking to F.D., Deputy Santiago and other deputies went to defendant's home. Defendant was not home. However, Ms. Heflin gave her consent to a search of the premises. Santiago observed 100 to 200 tiny droplets of blood between the trailer and the wooden stairs leading to the bedroom of the main residence. Inside the bedroom, he found blood smears on the bed and sheets. There was a pornographic movie in the DVD player. There was drug paraphernalia in a metal box in the closet, including a spoon with what appeared to be methamphetamine residue.
That night, other deputies went to the property to look for defendant. Defendant left the premises on an off-road vehicle, or ATV, known as a "quad." The following day, Deputy Santiago returned to the property and found a Mag-Lite flashlight consistent with F.D.'s description of the flashlight defendant used to hit her on the head. The flashlight was taped to the quad. The quad had not been present the day before when Santiago conducted the search.
THERE WAS NO ERROR IN CONSOLIDATING THE TWO CASES
Section 954 provides that if two or more accusatory pleadings are filed in the same court and charge crimes which are "of the same class of crimes," the trial court may order them consolidated. However, "in the interests of justice and for good cause shown, [the court] may[,] in its discretion[,] order that the different offenses or counts set forth in the accusatory pleading be tried separately."
Defendant contends that the prosecution motion to consolidate should have been denied because (1) the offenses charged with respect to Stacy Heflin were not of the same class of offenses as those charged with respect to F.D., and (2) trying the two sets of offenses together substantially prejudiced his right to a fair trial.
Same class of offense
Whether two or more offenses are of the same class of offense is a question of law which we review independently. (People v. Cunningham (2001) 25 Cal.4th 926, 984.) Assaultive crimes against the person are of the same class. (People v. Maury (2003) 30 Cal.4th 342, 395 [murder and rape as assault crimes of the same class].) Defendant argues, however, that because several of the crimes committed against F.D. were violent felonies within the meaning of section 667.5 and were sexual in nature, they were not of the same class of crimes as the less serious assaults against Stacy Heflin.
A similar contention was addressed in Coleman v. Superior Court (1981) 116 Cal.App.3d 129. In that case, the court held that it was proper to join charges of rape, sodomy and murder during the commission of rape and sodomy against an adult victim with charges of lewd acts against a child under the age of 14 and two counts of rape and one count of oral copulation against another child, also under the age of 14. The court held that all of the crimes were assaultive in nature, and the fact that neither of the minors was injured "does not turn forcible rape, oral copulation, and lewd and lascivious touching into nonassaultive crimes." (Id. at pp. 132, 135.) Similarly, the fact that the assaults against Stacy Heflin did not involve a weapon or more than minor injury and were not sexual in nature does not render them not of the same class of offense, i.e., assaultive crimes, as the sexual assaults and assault with a deadly weapon against F.D.
Severance in the interest of justice
Even if joinder is proper under section 954, the court has the discretion to sever the offenses for trial "in the interests of justice and for good cause." (§ 954.) When exercising its discretion, the court must balance the potential prejudice of joinder against the state's strong interest in the efficiency of a joint trial. (People v. Soper (2009) 45 Cal.4th 759, 771-773 (Soper).) Because the prosecution has the right to try properly joined charges together, the burden is on the defendant to "clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." (Id. at p. 773.) And, because of the public policy factors favoring joinder, a party seeking severance must make a stronger showing of prejudice than would be necessary to exclude other-crimes evidence in a severed trial. (Id. at pp. 773-774.) On appeal, to demonstrate error in the trial court's ruling denying severance, the defendant must make a clear showing of prejudice to establish that the trial court abused its discretion. A trial court's denial of a request to sever properly joined charges amounts to a prejudicial abuse of discretion only if that ruling falls outside the bounds of reason. (Id. at p. 774.) We consider the record which was before the trial court when it made its ruling. (Ibid.) However, even if the ruling was correct when made, we must reverse if the defendant shows that joinder actually resulted in "gross unfairness," amounting to a denial of due process. (People v. Arias (1996) 13 Cal.4th 92, 127.)
Joinder is generally proper when the offenses would be cross-admissible in separate trials, since any inference of prejudice is dispelled if the evidence of both offenses or sets of offenses would have been admissible in any event. (Soper, supra, 45 Cal.4th at pp. 774-775; see also § 954.1.)*fn3 We agree with defendant that the crimes were not cross-admissible in this case. However, joinder is often permissible even when cross-admissibility is not present: "[W]hen, 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, at p. 775.)
In determining potential prejudice from the joint trial of non-cross-admissible charges, we consider (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. 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, only factors 1 and 2 are involved. Defendant does not directly address these factors or argue that the trial court abused its discretion. Rather, after arguing that the crimes were not of the same class and that the evidence was not cross-admissible, he contends that "there can be little doubt that [defendant] was prejudiced and that joinder of the two cases deprived him of [d]ue [p]rocess." His argument appears to be that each case was weak and that each bolstered the other to such an extent as to amount to a deprivation of due process. He contends that "[i]dentity was a key issue in the case involving [F.D.]," referring to the defense assertion that F.D. was injured not by defendant but by her abusive ex-girlfriend, and that she accused defendant to get back at him for evicting her. Also, he points out, there was no DNA evidence connecting defendant to the crimes against F.D. From that premise, he concludes that "[t]here is therefore a strong inference that evidence of the alleged abusive behavior towards Stacie [sic] improperly spilled over and tainted the jurors in the case involving [F.D.]" He goes on to assert that the case involving Stacy was also weak because Stacy testified that defendant had not abused her and that she had, in fact, abused him.
In reality, neither case was weak. Sergeant Cardoza observed, and documented, that Stacy Heflin had fresh injuries and torn clothing when he spoke to her shortly after the incident occurred. He also observed that she was very upset. Her statement to Cardoza was corroborated by Stephanie Amador. Cardoza's and Amador's testimony provided ample evidence from which the jury could conclude that Ms. Heflin was telling the truth when she made her statement to Cardoza and that her recantation was not truthful. In F.D.'s case, Deputy Santiago described the injuries he observed when he spoke to F.D. at the hospital. He also described her emotional state. There was physical evidence consistent with her description of the incident. Jurors also heard a full description of the incident from F.D. and had the opportunity to assess her credibility.
Moreover, the jury acquitted defendant on one count of domestic violence, indicating that the jury was not so inflamed or influenced by F.D.'s testimony that it was unable to deliberate meaningfully as to all offenses and to judge each on its own merits.
Defendant relies in part on Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, in which the court found that consolidation of two murder cases deprived the defendant of due process. The court reached that conclusion because the evidence as to one murder was compelling, while the evidence as to the other was much weaker, and because, although the evidence was not cross-admissible, the prosecutor repeatedly urged the jury to "consider the two sets of charges in concert, as reflecting the modus operandi characteristic of Bean's criminal activities." Furthermore, some of the court's instructions failed to differentiate correctly between the two sets of charges. Taking all of those facts into account, the court concluded that the jury "could not 'reasonably [have been] expected to "compartmentalize the evidence" so that evidence of one crime [did] not taint the jury's consideration of another crime,' [citation], when the State's closing argument and the import of several of the instructions it heard urged it to do just the opposite." (Id. at pp. 1084-1085.)
The court went on to say that "prejudice generally does not arise from joinder when the evidence of each crime is simple and distinct, even in the absence of cross-admissibility." (Bean v. Calderon, supra, 163 F.3d at p. 1085.) The court also noted that "This is not a case where acquittal on one joined charge establishes that the jury successfully compartmentalized the evidence." (Ibid.) Here, the evidence as to each set of crimes was simple and distinct, and the jury did display the ability to judge each charged offense on its own merits. Consequently, defendant has not shown that his due process rights were violated by the joinder.
Defendant cites United States v. Lewis (9th Cir. 1986) 787 F.2d 1318, in which the court discussed a number of social science studies which have concluded that "joinder of counts tends to prejudice the jurors' perception of the defendant and the strength of the evidence on both sides of the case." Because defendant did not present those studies to the trial court in support of a motion to sever, the studies and their conclusions have no bearing on the trial court's exercise of its discretion. (See Soper, supra, 45 Cal.4th at p. 774 [reviewing court considers record at time ruling was made].) And, although those studies might be persuasive in an individual case, they do not, as defendant seems to imply, mandate a finding of prejudice or deprivation of due process in all cases. It is the law of this state that joinder is preferred, if the charged offenses meet the criteria of section 954, and severance is not required merely because a joint trial "might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried." (Soper, at p. 781.) Rather, the defendant has the burden of proving that in his or her particular case, the joinder was substantially prejudicial or resulted in "gross unfairness." (Id. at pp. 773-774.) Defendant has not met that burden.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: /s/ Ramirez P.J. /s/ Hollenhorst J.