IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
August 10, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MELODY ANNE WHITTEMORE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F4466, 10F1084)
The opinion of the court was delivered by: Raye , P. J.
P. v. Whittemore
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This appeal concerns separate criminal prosecutions commenced in 2009 and 2010. In the 2009 case, a jury found defendant Melody Anne Whittemore guilty of two counts each (as to two different victims) of first degree burglary, theft from an elder, and petty theft. With respect to the petty thefts, defendant had stipulated that she had 2007 convictions for petty theft. Defendant thereafter entered a negotiated plea of no contest in the 2010 case to two counts of possessing a forged check in exchange for the dismissal of the remainder of the charges in the 2010 case and a severed seventh count in the 2009 case. The trial court sentenced her to prison for the burglaries, staying the remainder of the counts.
Defendant contends on appeal that the trial court abused its discretion in failing to sever the counts in the 2009 case involving one victim from the counts involving the other. She also maintains that the abstracts of judgment in both cases incorrectly identify one of her burglary convictions and one of her forgery convictions as violent felonies. (Pen. Code, § 667.5, subd. (c).) The People concede the latter clerical error. We shall affirm the judgments.
Defendant does not raise any issues with respect to the 2010 case other than the clerical error. We therefore summarize only the facts in the 2009 case.
The first victim was 72 years old at the time of the 2010 trial and had known defendant for over 30 years. She encountered defendant on July 19, 2008, while socializing at the American Legion hall. Defendant asked to borrow her car, asserting that she needed to get her spare key because she had locked her keys in her red Volkswagen. The first victim gave defendant her keys, which had her house key on the ring. Defendant returned about 45 minutes later and bought the first victim a drink.
On the following day, the first victim came home from a brief shopping trip to find that jewelry and coins she valued at about $6,000 were missing. Investigators did not find any point of forced entry.
A neighbor of the first victim, who was outside washing his truck, noticed a blond woman in a red Volkswagen pull through the first victim's carport into the backyard and park for 20 to 30 minutes on the day of the burglary. She kept looking at him. He thought she was in her 30's. (Defendant at the time of trial was 52 and had blond hair; she had a blond daughter who was in her 30's.) He could not positively identify the woman as defendant. The woman drove off, but returned about 30 to 40 minutes later and parked on the corner. He did not pay close attention, and eventually the car was gone.
When a sheriff's deputy questioned defendant about borrowing the first victim's keys, defendant initially denied ever being to the victim's home. After the deputy fabricated a report placing defendant at the home, she admitted stopping by and knocking on the door to thank the first victim for the loan of the car. The deputy described how devastated the first victim felt at the loss of sentimental property; he suggested defendant could put the items in a plastic bag and throw them on the lawn by the following day. Defendant thanked the deputy and hung up.
A couple of weeks later, a stranger came to the first victim's door and handed her a plastic bag with some of the stolen items inside. She said she had found it in front of her house.
The second victim was 69 years old at the time of trial. She lived with a minor grandson. Defendant's grandson and the second victim's grandson played soccer together, and defendant lived nearby.
Their home was the object of three burglaries in June and July of 2008. Items were missing each time, but when they returned to their home on the Fourth of July, the home had also been ransacked. On the first and third occasions, the burglar had walked through the front door (which the victim does not lock); in the second, the burglar broke a window in the front door to gain entry.
On the morning of the Fourth of July, a mother and daughter across the street from the second victim had noticed a bicyclist slowly pass the home and stare at it. This was defendant's daughter. Later that morning, the neighbors saw defendant and another woman in the red Volkswagen drive slowly past the house. Shortly afterward, the red Volkswagen returned and parked in the second victim's driveway. The daughter saw a woman get out and walk toward the front door. The mother went out into the street. A tree blocked her view of the front door, but she saw defendant come from that direction. Defendant "threw some items" into her car. The neighbor's husband had returned home in response to her phone call and tried to block the driveway with his car, but defendant was able to drive off.
DISCUSSION I A
Defendant filed a motion to sever the counts involving the second victim from the counts involving the first victim (and the dismissed seventh count involving a shoplifting incident at a store). Defendant contended the evidence involving the second victim was weak (because the neighbors did not see defendant enter the residence) and certain to result in an acquittal. She claimed it was joined only to bolster it with the stronger evidence involving the first victim, where the neighbor placed her car at the time of the burglary. She contended the evidence was not cross-admissible on the issue of identity because nothing demonstrated a "signature" means of burglary, and defendant's victimization of a longtime friend in the other counts was inflammatory.
After a continuance to allow opposition, defendant filed a new motion also seeking to sever the seventh count from the remainder. At a hearing, the court denied the motion without prejudice.
Defendant renewed the motion before trial, making the same arguments. The court granted the motion as to the shoplifting count but did not find any prejudice from the joinder of the counts against the two victims, undue consumption of time, or risk that the jury would use the evidence in the two cases to find propensity. It did not make any explicit ruling on cross-admissibility.
On appeal, defendant reasserts that the evidence of the two crimes was not cross-admissible because unusual or distinctive circumstances were not present, the circumstances of the first victim being elderly and a friend are inflammatory, and the case involving the second victim is weak. She contends the prejudice from the joinder was her conviction on the weak case.
In challenging the denial of a motion to sever, a defendant must establish an abuse of discretion in the court's evaluation of the relevant factors, which include cross-admissibility of evidence, the inflammatory nature of any charges, and the relative strength of the charges. (People v. Marshall (1997) 15 Cal.4th 1, 27-28.) Moreover, any error in failing to sever is harmless unless "gross" unfairness results that amounts to a violation of due process. (Id. at p. 28.)
Although the People assert that the evidence with respect to the two burglaries was probative of a common method or approach and would be cross-admissible (an issue that the trial court did not explicitly consider), we are not as certain such would have been the case. But we agree with the trial court that the evidence is not especially stronger in the first victim's case (no one having seen her enter that home, either, and her behavior in fleeing the second victim's home being culpable), both victims were elderly, and the circumstance of the first victim being a longtime friend is not particularly inflammatory. We certainly cannot say that any reasonable jurist would have granted the motion to sever. Moreover, our review of the trial does not reveal any unfairness amounting to a denial of due process. We therefore reject her claim.
While the information alleged that the burglaries were violent felonies because a person other than an accomplice was present in the home during their commission (Pen. Code, § 667.5, subd. (c)(21)), the evidence at trial was to the contrary and the jury did not return any finding to this effect. However, a box on the abstract of judgment designates the second burglary conviction as "consecutive 1/3 violent." A similar designation exists with respect to the second forgery count in the 2010 case, which does not come within any of the categories of violent felonies.
Defendant requests that we direct a correction of these apparent clerical errors. The People concede the error.
The judgments are affirmed. The trial court shall prepare corrected abstracts of judgment in the two cases designating the consecutive terms as nonviolent felonies, and forward certified copies of the corrected abstracts to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , J. HOCH , J.
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