People v. Carr CA2/5 ( 2021 )

Filed 3/9/21 P. v. Carr CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B301824
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA464580)
v.
DAVON CARR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Affirmed.
Julie Caleca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
Davon Carr was charged with three separate shootings. A
jury convicted him of shooting at an occupied motor vehicle, and
acquitted him of the other charges. On appeal, his principal
argument is that the joinder of the three counts violated his right
to a fair trial. He also complains that the trial court improperly
imposed statutory fines and assessments. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Freeway Shooting
On December 2, 2016, at about 6:00 p.m., Javier Carrillo
was driving his pickup truck on Pacific Coast Highway. His 13-
year-old son was in the front passenger seat. Appellant was
driving a silver BMW down the center divider next to Carrillo’s
lane of traffic when he collided with Carrillo’s truck. Carrillo
kept driving until appellant cut him off, forcing Carrillo to stop.
Appellant exited the BMW, cursing at Carrillo and
grabbing his waistband. Carrillo drove away, and appellant
followed him in the BMW. When Carrillo merged on to the
freeway, he heard gunshots. One shot hit his bumper, another
the taillight, and a third the truck’s differential. Carrillo looked
back and could see a gun being held out of the driver’s side of the
BMW. Carrillo reached over to grab his son and told him to get
down. A bullet then entered through the middle of his rear
windshield, shattering it, and exited out of the front windshield.
Carrillo slammed on his brakes and appellant attempted to
pass him on the right-hand shoulder lane. Appellant’s car hit the
corner of Carrillo’s truck, causing the truck to spin out. When
Carrillo regained control of his truck, he saw appellant exiting
the freeway. Carrillo sped up and rear-ended the BMW to
disable it. Appellant and a passenger exited the car and fled on
foot before the car caught fire.
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Carrillo and his son exited their truck and called 911. The
police arrived and found a handgun in the grass near the driver’s
side door of the BMW. The handgun’s magazine was designed for
ten bullets; six bullets were left in the chamber and magazine.
While the police were investigating, appellant’s mother arrived at
the crime scene and told the police an “unknown friend” had told
her appellant had been involved in an accident. Appellant’s
mother was the registered owner of the BMW. A few days later,
Carrillo went to the police station and identified appellant’s photo
from a photographic array.
2. The Informant
In February 2017, detective Francis Hardiman was
investigating an unrelated murder, when he spoke with a
suspect, D.E., as part of the investigation. D.E. was a gang
member and knew appellant. Detective Hardiman asked D.E. if
he could provide information about certain other shootings. D.E.
said he knew of three shootings appellant had committed: the
Carrillo shooting, and two others. D.E. agreed to be a witness
against appellant in exchange for a reduced sentence. He was
facing over 14 years in state prison for firearm charges, but
negotiated a plea under which he received a 365-day county jail
sentence and three years of probation.
3. The Charges
Appellant was charged in a single information with the
three shootings D.E. had reported. The information alleged one
count of shooting at an occupied motor vehicle (Pen. Code, § 246;
count 1),1 one count of willful, deliberate, and premeditated
1 All further undesignated statutory references are to the
Penal Code.
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attempted murder (§§ 664/187, subd. (a); count 2), and another
count of shooting at an occupied motor vehicle (§ 246; count 3).
Gang and firearm enhancements were alleged as to all counts
(§ 186.22, subds. (b)(1)(C), (b)(4); 12022.53, subds. (b)–(d)).
Appellant pled not guilty.
4. Evidence at Trial
a. The Carrillo Shooting
Carrillo testified at trial that appellant shot at him about
four times on the highway. The parties stipulated that
appellant’s mother showed up at the crime scene and told the
police an “unknown friend” informed her that appellant had been
involved in an accident in her car. Officers testified that a
handgun was recovered next to the BMW’s driver’s side door and
that four bullets were missing from the gun’s chamber. D.E.
testified that appellant told him he had been in a car accident on
Pacific Coast Highway. D.E. also testified that appellant told
him that he had shot at some people during the incident.
Appellant asked him to go to the accident scene and recover his
car.
b. The Miller Shooting
A police officer testified that, on October 24, 2016, Victor
Miller was shot several times on the street. Miller then drove to
a gas station where help was summoned. The police recovered 13
nine-millimeter shell casings from the crime scene. D.E. testified
that, in October 2016, appellant told him that he had shot Miller.
Miller and appellant were members of the Rollin’ 40’s gang, and
appellant shot him because Miller had been stealing from him.
c. The Bingham Shooting
A police officer testified that, on June 16, 2016, Resan
Bingham was shot while driving, and crashed his car into a light
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pole. The police recovered three .40-caliber shell casings and one
.40-caliber round from the crime scene. He was taken to the
hospital and survived, but refused to talk to the police. D.E.
testified that appellant admitted he had shot Bingham. Bingham
was a fellow member of the Rollin’ 40’s gang and had threatened
to kill appellant. Appellant drove to Bingham’s house and shot
Bingham in his car using a .40-caliber semiautomatic pistol.
5. The Verdict
The jury found appellant guilty of shooting at Carrillo’s
truck, but acquitted him of the Miller and Bingham shootings.
The jury also found the firearm allegation true, but the gang
allegation not true. The trial court sentenced appellant to the
high term of seven years to run concurrent with a term he was
currently serving for first degree burglary.2 He timely appealed.
DISCUSSION
1. The Preference for Joinder
Penal Code section 954 governs joinder and provides in
part: “An accusatory pleading may charge . . . two or more
different offenses of the same class of crimes or offenses, under
separate counts . . . provided, 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 . . . .” “The
law prefers trying charged offenses together because doing so
2 The People did not ask for a sentence based on the firearm
enhancement because “[g]iven that the jury found the Gang
Allegation pursuant to Penal Code section 186.22(b)(1)(c) to be
not true, the Gun Allegations pursuant to Penal Code section
12022.53(c) and (b) do not apply per statute.”
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ordinarily promotes efficiency.” (People v. Anderson (2018)
5 Cal. 5th 372, 388.)
Even if joinder is proper, the trial court has discretion to
order the counts tried separately. (Anderson, supra, 5 Cal.5th at
p. 388.) When “ ‘the statutory requirements for joinder are met, a
defendant must make a clear showing of prejudice to establish
that the trial court abused its discretion in denying the
defendant’s severance motion.’ [Citation.] ‘In determining
whether a trial court’s refusal to sever charges amounts to an
abuse of discretion, we consider four factors: (1) whether
evidence of the crimes to be jointly tried is cross-admissible;
(2) whether some charges are unusually likely to inflame the jury
against the defendant; (3) whether a weak case has been joined
with a stronger case so that the spillover effect of aggregate
evidence might alter the outcome of some or all of the charges;
and (4) whether any charge carries the death penalty or the
joinder of charges converts the matter into a capital case.’ ” (Id.
at pp. 388–389.)
2. Joinder Did Not Result in Gross Unfairness
Appellant argues the trial court erred in allowing the
joinder of the Carrillo shooting with the Miller and Bingham
shootings. He acknowledges that he did not object to the joinder
in the trial court, but contends he is still entitled to reversal
because the joinder resulted in gross unfairness, depriving him of
his constitutional right to a fair trial.
The trial court has “ ‘no statutory duty to order severance
on its own motion,’ ” and appellant forfeited any claim that the
trial court abused its discretion in permitting joinder. (People v.
Romero and Self (2015) 62 Cal. 4th 1, 29.) However, even when
the trial court was correct at the time it permitted the
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consolidation of charges, “we must further inquire whether
events after the court’s ruling demonstrate that joinder actually
resulted in ‘gross unfairness’ amounting to a denial of defendant’s
constitutional right to fair trial or due process of law.
[Citations.]” (People v. Merriman (2014) 60 Cal. 4th 1, 46.)
“In resolving a claim that joinder resulted in gross
unfairness in violation of a defendant’s right to a fair trial and
due process, we have observed that a judgment will be reversed
on this ground only if it is ‘reasonably probable that the jury was
influenced [by the joinder] in its verdict of guilt.’ [Citation.]”
(Merriman, supra, 60 Cal.4th at p. 49; People v. Grant (2003)
113 Cal. App. 4th 579, 588.) As our Supreme Court decided in
Rogers, we need not reach the issue of “whether review for gross
unfairness is available in the absence of a motion to sever or an
objection to joinder, for even if such review is available, gross
unfairness did not result in the present case.” (People v. Rogers
(2006) 39 Cal. 4th 826, 851; cf. People v. Simms (1970)
10 Cal. App. 3d 299, 308–309 [the court reached the merits of a
claim that joinder had rendered a trial fundamentally unfair,
even though there was no motion to sever in the trial court].)
Appellant argues the joinder prejudiced him, influencing
the jury in its verdict of guilt, because the evidence of the Miller
and Bingham shootings would not have been admissible in
severed trials, was inflammatory, and strengthened the Carrillo
case. Even where evidence of separate crimes was not cross-
admissible, there is no due process violation where evidence of
the defendant’s guilt was “relatively straightforward and
distinct” and “independently ample.” (People v. Soper (2004)
45 Cal. 4th 759, 784.) That is certainly the case here: Carrillo
testified that appellant shot at him, and had subsequently
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identified appellant, a stranger, in a photographic array.
Carrillo’s testimony that four shots were fired was corroborated
by the examination of the handgun, missing four bullets, found
by the driver’s side door of the car appellant was driving.
Appellant’s car was registered to his mother, and his mother
arrived at the crime scene and told officers her son had been
involved in the accident. Finally, D.E. independently identified
appellant as the shooter based on appellant’s admissions to him.3
We also observe that all three shootings were
inflammatory: they all involved shootings that could have killed
the targeted victims. (See People v. Elliott (2012) 53 Cal. 4th 535,
553 [“To discharge his burden of showing prejudice from the
joinder of the charges arising from the two incidents, defendant
must show that one of the charged offenses was substantially
more inflammatory than the other . . . .”].) While the prosecution
3 We reject appellant’s argument that “the evidence
supporting each case was objectively weak, such that it is likely
that the combination of the evidence against appellant could have
reasonably resulted in the guilty verdict on count one.” The
evidence of the Miller and Bingham shootings may have been
weak—no percipient witnesses testified, the prosecution relied
almost exclusively on an informant’s testimony about what
appellant had told him—but evidence of the Carrillo shooting was
strong: eyewitness identification, motive, appellant’s mother
confirmed appellant was driving her car, the gun found near the
car appellant was driving had four empty chambers, and Carrillo
testified four shots were fired. If the jury had convicted appellant
of the Miller and Bingham shootings and acquitted him on the
Carrillo incident, then appellant’s argument might have some
weight. Instead the jury concluded that the evidence of two of
the three shootings was just too weak and acquitted. Not so for
the Carrillo shooting, the one count that was exceptionally
strong.
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argued that appellant shot his fellow gang members Bingham
and Miller after a perceived slight, the Carrillo shooting was
more likely to alarm the jury as it involved appellant shooting at
a total stranger and his child after a fender-bender on a public
street.
The trial court instructed the jury to consider the charges
separately.4 Even if the prosecution’s closing arguments
occasionally “ ‘encouraged the jury to aggregate the evidence,’ ”
(Gomez, supra, 6 Cal.5th at p. 277), the jury demonstrably
followed the court’s instruction and not the prosecution’s
argument, as evidenced by the mixed verdict. Appellant has not
demonstrated a reasonable probability that he would have
obtained a more favorable result if counts 2 and 3 had not been
joined with count 1. The jury’s mixed verdict shows it “ ‘was
capable of and did differentiate among’ ” the charges. (People v.
Gomez (2018) 6 Cal. 5th 243, 277.)
Appellant’s claim for ineffective assistance fails for the
same reason: even if no rational tactical reason supported not
moving to sever the counts, there was no prejudice for the
reasons we have already given. (See People v. Maury (2003)
30 Cal. 4th 342, 393–394 [defendant failed to establish prejudice
from counsel’s omission where defendant did not establish
prejudice from joinder of charges].)
3. The Imposition of a Fine and Assessments
Appellant argues that the trial court violated his federal
and state right to due process by imposing a $300 restitution fine
4 The court instructed the jury with CALCRIM No. 3515:
“Each of the counts charged in this case is a separate crime. You
must consider each count separately and return a separate
verdict for each one.”
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(§ 1202.4), a $30 court facilities assessment (Gov. Code, § 70373),
and a $40 court operations assessment (§ 1465.8). Relying on
People v. Dueñas (2019) 30 Cal. App. 5th 1157, appellant argues
the court violated his right to due process by imposing these
amounts without first determining his ability to pay them.
Our Supreme Court has granted review to decide whether,
as Dueñas holds, a court must consider a defendant’s ability to
pay before imposing or executing fines, fees, and assessments.
(People v. Kopp (2019) 38 Cal. App. 5th 47, review granted Nov. 13,
2019, S257844.) Even if the Supreme Court concludes
consideration of ability to pay is required, we would not reverse
pursuant to Dueñas here. Any error by the trial court in failing
to consider, sua sponte, defendant’s ability to pay the fine and
assessments totaling $370 is harmless in light of the long
custodial sentence imposed. (People v. Johnson (2019)
35 Cal. App. 5th 134, 139–140.)5
5 Because we conclude any Dueñas error was harmless, we
need not address the Attorney General’s argument that the issue
has been forfeited by appellant’s failure to object at trial.
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DISPOSITION
The judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
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