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The People v. Matthew A. Souza

May 31, 2012


Court: Superior County: Alameda Judge: Joseph Hurley Super. Ct. No. 122159B

The opinion of the court was delivered by: Cantil-sakauye, C. J.

Alameda County

A jury convicted defendant Matthew A. Souza of the first degree murders of Regina Watchman, Dewayne Arnold, and Leslie K. Trudell (Pen. Code, § 187), and the attempted premeditated murders of Rodney James and Beulah John (Pen. Code, §§ 187, 664).*fn1 An allegation of multiple-murder special circumstance (§ 190.2, subd. (a)(3)) was found true, and defendant was found to have personally used a deadly weapon (an automatic rifle) in the commission of the murder. (§ 12022.5.) Following the penalty phase of the trial, the jury returned a verdict of death against defendant. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)), and imposed a sentence of death, with additional consecutive terms of 25 years to life in prison on each of the three murder convictions plus 10 years for the firearm use, and concurrent life terms on both attempted murder convictions, all of which were ordered stayed pending imposition of the judgment of death. Defendant's appeal is automatic. (§ 1239, subd. (b).) We strike and modify the restitution orders; as so modified, we affirm the judgment.


A. Introduction

In retaliation for an earlier incident in which their mother had been forcibly removed from a house party, defendant Matthew Souza, his brother Michael, and a third, unidentified man*fn2 armed themselves with guns and drove to the apartment of murder victim Regina Watchman. At the party they opened fire on the partygoers; five people were shot, and three of the victims died.

The prosecution sought the death penalty against both brothers but only defendant's case proceeded to the penalty phase because the jury did not find the special circumstance true as to co-defendant Michael Souza.*fn3

B. Guilt Phase

1. The prosecution's evidence

In December 1993, defendant, who was 18 years of age, and Michael, who was 19 years of age, were staying with their mother Rebecca Souza, in a room in Rebecca's cousin's apartment in Oakland, where Rebecca was living. Defendant and Michael did not have a permanent residence, and were dividing their time between relatives, family friends, and their mother's room in the Oakland apartment.

One evening in mid-December, Rebecca, who like all of the victims is Native American, attended a fundraiser at the Hilltop Tavern in Oakland, a popular gathering place for Native Americans. Rebecca, who attended the fundraiser with friends, began drinking alcoholic beverages before arriving at the tavern, and drank between five and 10 more beers while at the tavern, becoming noticeably intoxicated. At some point in the evening, victim Regina Watchman approached Hilary Leonesio and told her that she believed Rebecca was flirting with Leonesio's boyfriend, and that Leonesio should do something about it. When Leonesio confronted Rebecca, Rebecca stated that nothing had occurred, and Leonesio did not pursue the matter further. After the tavern closed, 10 to 15 people, including Rebecca, were invited to Regina Watchman's apartment for an "after party." Rebecca did not know Watchman. Before leaving the bar, Rebecca searched for her purse, but could not locate it. Rebecca apparently had forgotten that she had placed her purse in the trunk of her friend Esther Dale's car for safekeeping.

Watchman's boyfriend Raymond Douglas was at the apartment that evening with Watchman's mother and four young children. When the guests arrived from the Hilltop Tavern at approximately 2:00 a.m. on December 19, 1993, Douglas began drinking with them. He testified that upon arrival, many of the guests appeared to be heavily intoxicated. He also testified that more alcohol was served at the apartment and some members of the group became "pretty drunk."

At some point in the evening, Watchman forcibly removed Rebecca from the party. Numerous witnesses observed the altercation. Edward Arnold was a designated driver that evening, and did not consume any alcohol. He testified that he saw Watchman come down the stairway and ask if anyone wanted anything to drink. Rebecca asked who Watchman was, and Watchman responded that "This is my house." Rebecca asked several more times whose house it was, and who Watchman was. Arnold believed from witnessing the interaction that Rebecca was attempting to provoke Watchman. Eventually, Watchman stated "This is my house, and I want you to leave." Rebecca refused to do so, and instead continued to ask whose house it was, and who Watchman was. Eventually, Arnold observed as Watchman grabbed Rebecca by the hair and pulled her about 10 feet to the door. Rebecca was stepping along as Watchman pulled, and Arnold did not observe any hitting or kicking. Hilary Leonesio, Raymond Douglas, Lea Coss, and Martin Jones also witnessed the altercation, and testified similarly to Arnold. None of the witnesses reported seeing any punching or kicking by Watchman, and no one observed any visible injuries or blood on Rebecca. Edward Arnold drove Rebecca home after the altercation, along with Esther Dale and Jeri Davis. The drive to Rebecca's home lasted 20 to 25 minutes. Arnold testified that during the duration of the trip, Rebecca repeatedly stated that she was going to "get even" with "those people." Arnold told Rebecca to calm down, get some sleep, and forget about it. Rebecca responded, "these people aren't going to get away with this. They're going to get -- they will pay for this and I'm going to get even with them." Dale testified that on the ride home from the party, Rebecca cried "a little bit." Rebecca also stated that her head was hurting. Dale did not observe any blood or injuries on Rebecca. Thirty minutes after Rebecca was forced to leave the party, Jeri Davis called and asked Leonesio to look for Rebecca's purse and coat. Leonesio looked for the items, but could not find them.

Rebecca Souza testified that she was intoxicated at the party, and that she argued with Watchman, who told her to leave. She remembered being struck in the back of the head and being knocked down. Thereafter, she lay on her back as Watchman kicked her in the ribs and called her a "whore," and then dragged her along the floor by her hair. She testified that no one else was involved in the altercation, and she believed Watchman was angry with her because of the incident earlier in the evening when Leonesio believed Rebecca was flirting with Leonesio's boyfriend.

At trial, Rebecca could not recall what she said in the car on the way home from the party. Her testimony at the preliminary hearing was admitted into evidence, however, and at that hearing she stated that during the drive home, she had said she "wasn't going to put up" with being thrown out of Watchman's party, claiming "[s]he can't do this to me, who does she think she is," and that she was going to tell her sons. Upon arriving at the apartment, Rebecca was crying, in physical pain, and upset. On direct examination, she testified that she was in a state of shock and may have been "hysterical." Rebecca stated that upon arriving home, she noticed that she was bleeding from the mouth, although she was unsure how she had received the injury. She testified that there was blood on the front of her shirt, which she attempted to clean. After Rebecca changed into a clean shirt, her cousin attempted to clean the stain to no avail, after which Rebecca threw away the shirt. Rebecca did not tell the police about her shirt or her injury, and the cousin did not testify.

Sometime after she arrived home, defendant and his brother awoke, and Rebecca convinced them to take her back to the party. At the preliminary hearing, Rebecca testified that her reason for going back to the party was to "get even with [Watchman]," and that she wanted to "hit [Watchman] on the nose or something." She further testified that she did not show her sons her injury, and "I don't think they knew anything about the injury."

However, at trial, contrary to her preliminary hearing testimony, Rebecca testified that she wanted to return to the party to retrieve her purse, jacket, and identification, having realized her purse was missing sometime after returning home. Rebecca did not mention the missing purse or identification to police, but testified that she told her sons she wanted to return to the party to retrieve her belongings. Upon cross-examination, Rebecca stated that she had "probably" told her sons that she was beaten up, and "probably" showed them the cut on her mouth. She further testified that she told her sons she was assaulted by one woman, not a group of people, and that she may have told them that the woman who assaulted her was also the woman who told her to leave the party.

Rebecca and her sons left the apartment and drove around looking for the party, but could not find it. Although Michael stored a .22-caliber rifle at the apartment, they did not take the rifle with them. During the drive, Rebecca calmed down and stopped crying. When they could not find the party, Rebecca, defendant and Michael drove back to the Hilltop Tavern to look for Dale's car because Rebecca thought she might have left her purse and jacket in Dale's car. They then drove to Jeri Davis's house, but Davis was not home. Thereafter, defendant and Michael took Rebecca home, leaving the apartment again after she went to sleep.

About an hour after Rebecca and the others left the party, Leonesio stepped outside to check on her boyfriend, who was asleep in a car. As she unsuccessfully attempted to wake her boyfriend, Leonesio observed a car pull up behind them. She observed what she believed were three people in the vehicle, and it appeared to Leonesio that the occupants of the car were waiting to see what she would do. The occupants of the car watched Leonesio as she walked back to the apartment. Leonesio watched the vehicle, whose engine was still running, from the front gate, and saw a man run to the apartment. Leonesio entered the apartment to tell the others what she had observed, but three men with guns came into the room.*fn4 Leonesio later identified the first man to enter the apartment as Michael, and testified that she focused on him when the three men entered. The three men appeared to be Native American or Hispanic.

Numerous witnesses testified regarding the shootings. Martin Jones testified that approximately one hour after Rebecca left the party, a man later identified as defendant, a man later identified as Michael, and a third man entered the apartment. Michael displayed a shotgun that had been hidden under his jacket, pointed it at Jones's chest and asked, "who jumped my mother?" Jones was experienced with firearms in general, and shotguns in particular, and identified Michael's weapon as a sawed-off 12-gauge pump-action Mossberg shotgun with a pistol grip. Similarly, Raymond Douglas saw a man, whom he later identified as Michael, enter the apartment, pull a shotgun from underneath his jacket, and aim it at Douglas. Douglas was familiar with firearms, and was certain Michael carried a shotgun.

Jones testified that after Michael advanced into the room, forcing Jones backward, two additional men entered the apartment. One of the men was armed with an assault rifle with a magazine that extended three or four inches below the receiver. The third man was armed with a nickel-plated .25-caliber semiautomatic handgun. Both men wore bandannas that covered their mouths and chins. Jones testified that defendant was "definitely" one of the armed men who followed Michael into the apartment. Douglas also identified defendant as one of the men who entered the apartment after Michael. According to Douglas, defendant was armed with a large gun, or possibly a large handgun. The third man was armed with a revolver. Douglas was not certain precisely where defendant positioned himself after entering the apartment, only that it was somewhere near the stairs.

Joyce Gonzales also saw the men waving the guns in front of them and heard Michael repeating, "Who did this to my mom?" or "Who did this to our mom?" Gonzales stepped in front of the men and said, "What are you doing?" and "Your mom's our friend," or "Your mom's my friend."*fn5 Similarly, Douglas heard Michael ask, "Which one of you motherfuckers beat up my mom?" Joyce Coss saw Michael standing in the middle of the room shouting, "who kicked my mother's ass, just show me who did it. Show me which one is the bitch that kicked my mother's ass and stole her purse." Jones testified that the man holding the assault rifle stood at the bottom of the stairs leading to the upper level of the apartment, holding the assault rifle to his face, and aiming it into the room. The man with the handgun stood at the front door, aiming his weapon into the room with both hands. Leonesio's testimony placed the three men in the same positions.

Michael stopped directly in front of a couch in the middle of the room, facing away from the front door. Victims Dewayne Arnold and Regina Watchman were sitting together on the couch. Michael asked where his mother's purse was. Douglas testified that Michael walked over to the couch, pointed the shotgun directly at Watchman, and asked, "Who's the bitch that beat up my mom?" Jones testified that when Michael positioned himself in front of the couch, Dewayne Arnold attempted to stand up, and asked, "what the hell is going on here?" Michael struck Arnold on the head with the butt of the shotgun, but Arnold ducked and avoided the full force of the blow. As Michael attempted to strike Arnold again, Arnold reached for him. Jones testified that Arnold reached for Michael, not for his shotgun. Douglas heard Arnold say, "We don't need any trouble." Douglas and Coss also saw Michael strike Arnold as he attempted to stand up, then heard a lamp break followed by scuffling. Arnold again attempted to stand, and Michael struck him again, causing him to fall back to the floor. Arnold may have reached for Michael's gun when he fell to the floor the second time, but he did not grab the gun. Coss testified that as Arnold fell to the floor a second time, a lamp, or possibly Michael's gun, broke and fell to the floor.

As Michael prepared to strike Arnold a second time, Jones saw the man with the assault rifle step forward and point the weapon at Arnold. Because Jones believed the man with the assault rifle was preparing to fire, Jones hid behind the refrigerator. As he reached the refrigerator, Jones heard 15 or more gunshots, lasting 10 to 15 seconds. In his estimation, the gunshots were not fired quickly enough to have come from a fully automatic weapon, but rather sounded like they came from a semiautomatic weapon. One of the gunshots was not as loud as the others. Jones emerged from behind the refrigerator after the shooting stopped, and he heard footsteps and the sound of an automobile driving away.

Douglas dropped to the floor when he heard gunfire. He did not see who did the shooting. Before he dropped to the floor, Douglas saw, out of the corner of his eye, a muzzle flash either in the center of the room, or somewhere on that side of the room. Douglas did not observe where defendant was standing after the lamp broke, and did not see whether defendant walked toward Michael after first positioning himself near the stairs. After hearing five or six gunshots, Douglas saw legs running out the door.

After witnessing Michael's assault on Arnold, Coss left the apartment through a sliding glass door leading into the backyard. As she rose, she heard the first of "a lot" of gunshots, but could not see who was shooting or where the shooting was coming from. Although at the preliminary hearing she testified that she saw a flash from a gunshot fired from the middle of the room, at trial she could not remember where the flash had come from, but she stated she heard a shot from the middle of the room.

As Arnold attempted to rise from the floor, Leonesio heard gunfire, and saw a flash of light from Michael's gun discharge toward Arnold. Leonesio ran onto the patio with Coss, and heard more gunfire. Although she initially testified that the gunfire lasted for 20 to 30 seconds and was continuous, she later stated that there were pauses between groups of shots, but all of the shots appeared to be coming from the same gun. She heard bursts, followed by pauses, followed by bursts, and there were several such bursts and pauses.

After the three men left the apartment, Jones observed Trudell lying near the refrigerator with a pool of blood around his head. He appeared to be dead. Dewayne Arnold too was lying on the ground in a large pool of blood, and also appeared to be dead. Watchman was on the couch, with her eyes open and blood patterns on her chest. Jones observed her exhale but she did not inhale again. Victim James was sitting in a chair by the front door and had been shot in the shoulder. He was breathing very heavily and appeared to be in shock. Joyce Gonzales also observed the aftermath of the shooting, and testified that she saw her best friend Beulah John in the kitchen, lying in a pool of blood. John was shot in the leg, just below the hip. The other witnesses corroborated Jones's and Gonzales's recollections of the crime scene and the locations of the victims. The police arrived five to 10 minutes after the shootings.

Page Nelson was Watchman's neighbor. Nelson was awake at 5:00 a.m. and heard extremely loud gunfire. When Nelson looked out the window, he saw a car drive away approximately one minute after the shooting stopped, seeing it clearly when it drove under a street light. Nelson believed the car depicted in exhibit No. 24, photo No. 8, which was a photograph of Michael's car, looked very similar to the car he saw.

Later that day, police found Michael's car parked in Oakland. They kept the car under surveillance, but when people began loitering around the car, the police impounded it. Inside the trunk, police found three shotgun shells.

Officer Monica Russo, an evidence technician working for the Oakland Police Department, processed the physical evidence at Watchman's apartment. Russo found 14 rifle casings spread around the room in "almost a complete 360." Although some furniture in the apartment had been moved by emergency personnel, Russo found casings in locations where it was unlikely they had been disturbed by emergency workers, such as in a basket on top of a table, on top of the kitchen counter, and on top of a blue patio-type chair. Russo found two bullet holes in the apartment walls, but neither bullet was recovered. Russo found five major pools of blood on the floor, and one .25-caliber pistol casing, and two slugs or bullets of unspecified caliber. She found no evidence that a shotgun had been fired in the room.

Lansing Lee, an Oakland Police Department criminalist, analyzed the ballistics evidence. He determined that all 14 of the .223-caliber casings recovered from the apartment were fired by the same rifle. One of the slugs recovered from the apartment was .25 caliber and one was .223 caliber. One slug removed from Watchman, four bullets removed from Arnold, and one of the fragments removed from Trudell were .223 caliber. Of the six .223-caliber bullets he was provided, Lee could determine that five were fired from the same weapon. According to Lee, one fragment recovered from Trudell and one recovered from Watchman were also "likely" fired from that weapon. The remaining fragments were too small to identify or compare. Lee testified that none of the fragments appeared to have come from a shotgun.

Lee testified that .223-caliber rifles can be automatic or semiautomatic. An automatic weapon is capable of firing more than one round with each trigger pull, while a semiautomatic weapon fires only one round with each trigger pull. The number of automatic weapons available to the public is "very limited" and assault rifles are only semiautomatic. The maximum capacity of assault rifle magazines ranges from five to 50 or more rounds.

Dr. Sharon Van Meter, a board-certified pathologist, conducted the autopsies of the three murder victims and testified regarding her findings. Watchman was shot three times, and bled to death from the gunshot wounds -- dying within three to 20 minutes. She did not necessarily lose consciousness before dying. A mark around one of the bullet holes on Watchman's clothing indicated that one shot had been fired from a distance of approximately two feet. Watchman's blood-alcohol level was 0.12 percent. Dewayne Arnold was shot seven times, and died within one or two minutes from these wounds. Arnold's blood-alcohol level was 0.54 percent, and testing revealed a "fairly high level" of methamphetamine in his system. Trudell was shot twice, and died within a few heartbeats. The marks surrounding the wounds indicated to Van Meter that Trudell was shot from a distance of greater than three feet. Van Meter found no evidence that a shotgun was fired at the scene.

Evidence was presented regarding a photographic lineup conducted on December 21, 1993, two days subsequent to the shooting. Witnesses Douglas, Jones, and Coss were shown a lineup that contained photographs of defendant and Michael. All of the witnesses identified Michael as the first armed man to enter the apartment. None of the witnesses identified defendant's photograph as one of the armed men who entered the apartment with Michael. But at the physical lineup conducted on December 28, 1993, Douglas and Coss identified defendant as the second armed man to enter the apartment.

2. The defense evidence

In his defense, defendant re-called Officer Russo, the evidence technician, who described in further detail the locations of the shell casings and bullet holes she found in Watchman's apartment. Lansing Lee, criminalist from the Oakland Police Department, also was re-called to the stand, and testified that a shotgun slug could create a single bullet hole, but he found no evidence that a shotgun slug had been fired in the present case. He further testified that a .223-caliber rifle ejects spent shell casings to the right, sometimes as far as 30 feet, and the casings could ricochet. Lee further explained that if a .223-caliber rifle is fired from a single position, the casings would not be spread widely throughout the room.

Defendant presented the testimony of Officer Thomas Swisher of the Oakland Police Department, who testified regarding the investigation of the case. Swisher, who was the primary investigator, interviewed the witnesses to the shooting, and soon learned of the altercation between Watchman and Rebecca Souza. Thereafter, he learned the names of her sons, defendant and Michael. Using this information, he created the photographic lineup. For defendant and Michael, he used photographs obtained from the Department of Motor Vehicles (DMV). For the remainder of the photographs, he requested that the police photography lab make the photos appear to look like DMV photographs. Swisher was aware that some of the witnesses were Native American, but he was not aware of the ethnicities of any of the people depicted in the photographs used in the lineup, choosing photographs based solely upon the physical similarly between the men depicted and the photographs he had of defendant and Michael. Swisher oversaw the search for defendant and Michael, which included conversations between Swisher and the Souza family. Defendant and Michael surrendered on December 27, 1993, and the physical lineup was held one day later.

C. Penalty Phase 1. The prosecution's evidence

Leslie Miller, a tribal chairman and a relative of victims Watchman and Arnold, testified regarding their good nature. Miller emphasized that Watchman had four young children who were sleeping upstairs when the shooting started. Two of the children were under the age of three, and although one of the older children seemed to be coping with Watchman's death, the other older child remained deeply disturbed, and was not adjusting well.

Dewayne Arnold's daughter Angel testified that her father's murder left her and her three siblings fatherless. She was 18 years of age at the time of her father's murder, and her youngest sibling was 11 years of age. She testified that her father was a good man, and her family was deeply affected by his death.

Joyce Arnold, Dewayne Arnold's sister, testified that she continued to receive therapy at the time of trial, five years after the shooting. She had made efforts to forget the shooting, but was unable to do so, continuing to have traumatic flashbacks.

Trudell's sister Patricia Gordon testified that her brother was a Vietnam Veteran who initially had great difficulty readjusting to civilian life. Eventually, he found personal satisfaction in teaching children, and devoted much of his time and energy to a nonprofit organization called Indian Youth of America. Gordon explained that Trudell also engaged in a great deal of other volunteer work with children.

2. The defense evidence

Defendant presented the testimony of numerous witnesses, who testified regarding his good character, his gentle nature, his difficulties in school, and his close relationship with Michael.

Defendant's father Harry Souza, Jr., testified that defendant was one of four children, and that defendant and his siblings had a close relationship and never fought. Defendant's grandparents and other relatives played an active role in the children's lives. When defendant was six years old, he was diagnosed with a hearing problem and a learning disability, for which he received treatment, but which caused him to be held back one year in school. Defendant was very good at drawing and mathematics. Defendant and Michael were particularly close, and as the older sibling, Michael was the leader. Defendant's parents divorced when he was 13 years of age. Rebecca Souza initially retained custody, and disappeared with the children for one year. When Harry Souza located the children, it was decided they should live with him temporarily. However, after approximately one week, Rebecca Souza told Harry she did not want the children, and they should continue living with him, a circumstance that greatly upset defendant and his siblings. Harry never received reports of misbehavior from defendant's school, and testified that defendant was a very shy, caring child who had never been in a fight.

Defendant's other brother Mark Souza described defendant as a happy, affectionate child. Mark also had a close relationship with defendant. Mark never knew defendant to be violent or aggressive, and described him as the animal lover in the family. Mark owned several guns, which he and his brothers would shoot on camping trips, and occasionally on a shooting range or on back roads. Mark testified that defendant was an "okay" shot. Defendant helped Mark, who was the assistant manager of the Shattuck Apartments, with his work responsibilities, and was one of the better employees Mark ever had.

Defendant's sister Marcie Souza described defendant as a shy, artistic child who was very close to his older brother Michael, who was the leader. He was never violent with her or with anyone else, and she had never known defendant to have a girlfriend because he was too shy.

David Bard was the manager of the Shattuck Apartments, where defendant lived for some years, and where defendant's grandmother had worked for 32 years before she died. Bard described the Souza family as close and loving, and defendant as well-behaved, polite, and respectful. Bard never saw any indication that defendant was involved with gangs, or abused alcohol or drugs.

Lee Williams was a friend of defendant's father, and babysat defendant and Michael when they were children. He testified that defendant was a well-behaved, happy, and affectionate child. He described defendant as a talented artist, and warm and engaging, but very shy. He never saw defendant engage in violent or aggressive behavior, and described Rebecca Souza as a good parent. Williams rarely saw the Souza children after defendant's parents divorced.

Harry Souza's friend, neighbor and employer Gary Nichols testified that defendant was a well-behaved child and that all of the Souza children were very close to and protective of their mother. Cathleen Thomas, who lived with the Souzas briefly during defendant's childhood, testified that defendant was a happy, well-behaved child who was a "little bit" shy.

Ruth Underwood knew the Souza family throughout defendant's childhood. She testified that defendant was shy, more likely than the others to stay in the background, and that she never saw defendant in a fight. She recounted that after the divorce, Rebecca Souza began drinking excessively, and that during this period, defendant and his siblings were not attending school. Defendant's uncle Randy Souza testified that during the time defendant's parents were married, he observed Rebecca intoxicated in front of the children. Rebecca often became violent and belligerent while drinking.

Five of defendant's teachers testified regarding his performance in school, and his status as a special education student. They uniformly described defendant as well-behaved, and a hard worker, but noted that his attendance in school was sometimes sporadic. In elementary school, defendant was calm, shy, and respectful. Defendant had a learning disability that affected his ability to read and write, but he was a strong performer in mathematics and was good at problem solving. Defendant's high school special education coordinator described defendant's intelligence and his grades as higher than average. Defendant's high school mathematics teacher described him as a good student with a positive attitude toward learning. Defendant was quiet, diligent, and shy.

Defendant's aunt testified that defendant and his siblings were very well-behaved, and had a loving relationship with their grandparents. Defendant appeared to be protective of his mother. Three members of the Eaves family, with whom the Souza family lived briefly when defendant was 11 years of age, testified that defendant and his siblings were extremely well-mannered, well-behaved children, and that Rebecca Souza was a good cook and homemaker. Jerry Eaves, with whom Harry Souza played music, testified that defendant was particularly kind to animals, and was very close with and considerate towards his grandparents.

The educational coordinators of the adult school district that included the Santa Rita jail testified that defendant was a diligent and dedicated student during his incarceration, and was working toward fulfilling the requirements for a regular high school diploma at the time of trial. They testified that after moving to another jail from the Santa Rita jail, defendant had been mailing in his school assignments.

II. DISCUSSION A. Asserted Errors Affecting the Guilt Phase of Trial 1. Denial of defendant's severance motion

Defendant contends the trial court erred in denying his pretrial motion for severance, violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and parallel provisions of the California Constitution, requiring reversal of the guilt and penalty judgments. For the reasons outlined below, we conclude that the trial court did not err.

(a) Facts

Before trial, defendant moved to sever his trial from that of co-defendant Michael. Defendant contended that a joint trial would be unfair because the uncertain state of the evidence made it likely that the co-defendants would present antagonistic defenses. Specifically, defendant asserted that because the evidence as to the identity of the actual shooter was disputed -- some witnesses' testimony indicated that Michael was the individual who fired the fatal shots using the shotgun, but the physical evidence suggested that the shots were fired from a semiautomatic rifle rather than a shotgun -- each co-defendant was likely to defend by asserting that it was the other who fired the fatal shots. As defendant observes, the identity of the person who fired the fatal shots was crucial to establishing the truth of the special circumstance finding of multiple murder, and that circumstance also could be used as an aggravating factor in the penalty phase of the trial. (See §§ 190.2, subd. (a)(3), 190.3, subd. (j), and 190.2, subd. (c) [in order for an aider and abettor to be eligible for the death penalty for any non-felony-murder special circumstance, the prosecution must establish intent to kill].) Defendant also contended that severance was required in light of incriminating out-of-court statements Michael had made that the prosecution might offer into evidence at trial. Defendant made a concurrent motion in limine to exclude Michael's out-of-court statements.

The trial court granted defendant's motion to exclude Michael's out-of-court statements but denied the motion to sever the trials. Upon appointment of a different trial judge, the court revisited the motion to sever the trials, although counsel declined the opportunity to orally argue their positions. The trial court again denied the motion, noting that a defendant's natural tendency is to shift blame to a co-defendant, but that such blame shifting is not sufficient grounds for severance.

(b) Discussion

Our Legislature has expressed a strong preference for joint trials. (People v. Burney (2009) 47 Cal.4th 203, 236 (Burney); People v. Lewis (2008) 43 Cal.4th 415, 452 (Lewis); People v. Boyde (1988) 46 Cal.3d 212, 231, 250; cf. People v. Soper (2009) 45 Cal.4th 759, 771-772 [expressing judicial preference for joinder in context of joined charges].) "Section 1098 provides in pertinent part: 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.' The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a co-defendant, or if the defendants will present conflicting defenses." (Lewis, supra, at p. 452, citing People v. Avila (2006) 38 Cal.4th 491, 574-575 (Avila I); see also People v. Massie (1967) 66 Cal.2d 899, 917.) "Additionally, severance may be called for when 'there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.' " (Lewis, supra, at p. 452, quoting Zafiro v. United States (1993) 506 U.S. 534, 539 [addressing severance under Fed. Rules Crim.Proc., rule 14, 18 U.S.C.]; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman).)

"We review a trial court's denial of a severance motion for abuse of discretion based upon the facts as they appeared when the court ruled on the motion." (Burney, supra, 47 Cal.4th at p. 237; see also Lewis, supra, 43 Cal.4th at p. 453; People v. Hardy (1992) 2 Cal.4th 86, 167 (Hardy).) "If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable the defendant would have obtained a more favorable result at a separate trial." (Burney, supra, at p. 237; see also Lewis, supra, at p. 453; Coffman, supra, 34 Cal.4th at p. 41; People v. Keenan (1988) 46 Cal.3d 478, 503 (Keenan).) "If the court's joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder ' "resulted in 'gross unfairness' amounting to a denial of due process." ' " (Lewis, supra, at p. 452, quoting People v. Mendoza (2000) 24 Cal.4th 130, 162; see also People v. Soper, supra, 45 Cal.4th at p. 783 [" 'if a trial court's ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts or defendants for trial resulted in gross unfairness depriving the defendant of due process of law.' "].)

We conclude the trial court did not abuse its discretion in denying defendant's motion for severance in the present case. As in Burney and Lewis, defendant and co-defendant Michael were charged with having committed " ' "common crimes involving common events and victims." ' " (Burney, supra, 47 Cal.4th at p. 237; accord, Lewis, supra, 43 Cal.4th at pp. 452-453, quoting Keenan, supra, 46 Cal.3d at p. 500.) Thus, as in our prior cases, the trial court was presented with a " 'classic case' " for a joint trial. (Burney, supra, at p. 238; see also Lewis, supra, at p. 453; Avila I, supra, 38 Cal.4th at p. 575; Coffman, supra, 34 Cal.4th at p. 40; Keenan, supra, at pp. 499-500.)

Nevertheless, defendant contends he was prejudiced by the denial of the severance motion because the defense presented by his co-defendant -- that defendant, not Michael, fired the fatal shots -- was antagonistic to his defense that it was Michael, not defendant, who shot the victims for purposes of the multiple-murder special-circumstance allegation.*fn6 Defendant asserts that the evidence presented at the joint trial did not establish beyond a reasonable doubt that either Michael or defendant fired the fatal shots. Moreover, because Michael's counsel argued the evidence showed that defendant, not Michael, fired the fatal shots, defendant contends that his own defense was precluded. Defendant claims, therefore, that if the jury believed that Michael's defense theory was correct and Michael was not the shooter, then it would have no choice but to conclude that defendant was the actual shooter, regardless of whether the evidence established this fact beyond a reasonable doubt.

Defendant's contention is meritless. "The court's discretion in ruling on a severance motion is guided by the nonexclusive factors enumerated in [Massie, supra, 66 Cal.2d at p. 917], such that severance may be appropriate 'in the face of an incriminating confession, prejudicial association with co-defendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a co-defendant would give exonerating testimony.' " (Coffman, supra, 34 Cal.4th at p. 40.) Nevertheless, "[i]f the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials 'would appear to be mandatory in almost every case.' " (Hardy, supra, 2 Cal.4th at p. 168, quoting People v. Turner (1984) 37 Cal.3d 302, 312-313.)

"Thus, '[a]ntagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.' [Citation.]" (Hardy, supra, 2 Cal.4th at p. 168.) " 'Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.' " (Ibid., quoting United States v. Davis (1st Cir. 1980) 623 F.2d 188, 194-195.) If "there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance." (Coffman, supra, 34 Cal.4th at p. 41.)

In the present case, it was undisputed that all of the victims were shot with a rifle, and that the rifle was wielded by only one shooter. Witnesses identified both brothers as being present and armed with guns.*fn7 The eyewitness testimony, however, conflicted with the physical evidence as to which brother fired the fatal shots. Most notably, Leonesio testified that she saw gunfire come from Michael's gun toward Dewayne Arnold. Coss saw a flash from a gun, and although she testified at trial that she could not identify where it came from, at the preliminary hearing she testified that it came from Michael's position. Douglas similarly testified that he saw a flash and a shot from Michael's position in the room. Witnesses Jones and Douglas -- who were both familiar with firearms and closely observed the gunmen -- testified that Michael was armed with a shotgun. Jones further testified that the second gunman, identified by others as defendant, carried a rifle. Thus, although no witnesses testified that defendant carried a shotgun or that Michael carried a rifle, no witnesses testified that defendant actually shot the rifle.

Conversely, the physical evidence established conclusively that all of the victims were shot with a ...

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