1 Filed 6/18/14 P. v. Davis CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. ROBERT EDWARD DAVIS, Defendant and Appellant. C074092 (Super. Ct. No. 11F04134)

On June 4, 2011, an armed man wear ing a hooded sweatshirt and a bandana covering his face entered three different busine sses -- a thrift shop, a Taco Bell, and a gas station market -- and demanded money. Ey ewitness accounts, clothing recovered by police, video surveillance footage from each of the incidents, and phone calls he made while in police custody linked defendant Ro bert Edward Davis to the crimes. Defendant was charged with multiple coun ts of robbery in two separate cases. Prior to trial, the People filed a motion to consolidate the two cases. The trial court granted the motion over defendant’s objection. The jury found defendant guilty of three counts of second degree robbery and two count s of attempted second degree robbery.2 On appeal, defendant contends the tr ial court abused its discretion when it consolidated the two cases. Defendant also ar gues the consolidated trial violated his right to a fair trial. We disagree and affirm. FACTUAL AND PROCEDUR AL BACKGROUND I The Thrift Store Robbery On June 4, 2011, at 2:00 p.m., an “A frican-American” man wearing a “gray” or “black” hooded sweatshirt, a “black beanie” underneath the sweatshirt, and a “dark bandana” or “scarf” covering his face entered The Thrift Store. 1 The man walked up to the cash registers, where two clerks were standing, pulled out a “black, shiny” longbarreled 2 gun, and said “I want your money. I’m not playing” to one of the clerks. After failing to take money from the first register, the man pointed the gun at the other clerk and unsuccessfully attempted to take money out of the other re gister. He left The Thrift Store without taking any money. At trial, both clerks viewed surveillance footage and testified that it accurately depi cted the attempted robbery. II Taco Bell Robbery Approximately 30 minutes after the attemp ted robbery at The Thrift Store, a “black [man] . . . [wearing] a dark gray sweatshirt” “with th e hood over his head,” “dark jeans,” “a blue scarf across his face” and a “r evolver with a long ba rrel,” walked into a Taco Bell. The man walked to the cashier, pulled out the long-barreled “pistol,” which looked like a “cow boy gun,” and told the shift mana ger, “[g]ive me the money or I’ll

1 The Thrift Store is the name of a thrift shop located in Sacramento.

2 The second clerk could only descri be the pistol as “long-barreled.”3 shoot.” The shift manager handed him $177 and the man left. At trial, the shift manager viewed surveillance footage and testified that it accurately depicted the robbery. III Hites Market Robbery At approximately 6:00 p.m. on the same day, an “African-American” man wearing a “gray” or “black” hooded sweatshirt, “black [beanie] cap,” and a “[gray] bandana” “tied around his nose and mouth,” entered Hites Mark et. The man walked toward the counter of the store, pulled out a “black-colored revo lver” with a “longer barrel” that was either a “.38 or .357,” and told the two clerks “[y]ou know what this is, you know what this is,” indicating it was a robbery. The clerk who was standing behind the cash register retrieved approximately $200 to $300 from the register, while the man held the gun on the other clerk and told him not to move. The man took the money from the clerk then left Hites Market. Immediately after the robbery, one clerk grabbed a pistol from inside the store and led the other clerk outside to “try to hold” th e man who robbed them. Both clerks ran out the door and the clerk carrying the gun yelled “ [f]reeze” or “[h]old on” to the man. As the man turned toward the clerks with his gun drawn, the clerk shot him, and the man ran away. The clerks continued to pursue the man and saw him again with his mask and hood off. The man fired four to fi ve shots at the clerks and fled. Defendant was admitted to Kaiser Ho spital with a gunshot wound about 20 minutes after the Hites Market robbery occu rred. Around the same time, police, who arrived at Hites Market, took the clerks to the same hospital to identify a man with a gunshot wound who police thought was the r obbery suspect. Because defendant was in surgery, the clerks could not identify him as the robbery suspect. The police then took the clerks back to Hites Mark et to inspect clothing found on the robbery suspect at the hospital and discovered in a lot behind Hite s Market. The clerks identified a “black hooded sweatshirt or jacket” w ith a “Carhartt emblem on the [left-hand] side of it” and a4 bullet hole in it, a “black skull cap or beanie,” a “gray piece of cloth,” “a pair of jeans,” a gray shirt with a bullet hole in it, basketball shorts, and underwear as the clothes defendant wore during the r obbery. The police also show ed both clerks a six-photograph lineup within one to two hour s of the robbery and both cl erks identified defendant’s photo. At trial, one of the clerks viewed surveillance footage and testified that it accurately depicted the robbery. Both clerks also testified that they clearly saw the robber after his mask and hood were off and it was defendant. IV Police Officer Testimony Regarding The Robberies Sacramento Police Officer Pamela Prathe r saw defendant at the hospital after he was admitted for a gunshot wound approximately 20 minutes after the Hites Market robbery. Officer Prather also viewed hosp ital surveillance footage of defendant arriving and testified defendant was wearing “dark” clothes. Detective Joseph Ellis view ed the surveillance footage from The Thrift Store and Taco Bell robberies and still photos from the surveillance footage of the Hites Market robbery. In both The Thrift Store and Taco Bell robberies, Detective Ellis testified that the man was “African-American,” and was “wea ring the exact same clothing,” “black hooded sweatshirt [with] . . . a white or very light colored emblem on the left breast of the sweatshirt,” black or dark blue “basketball style shorts,” bright or light blue tennis shoes, and had a “dark-colored re volver.” Detective Ellis also testified that the suspect in the Hites Market robbery appeared to be the same person who robbed The Thrift Store and Taco Bell because the pers on was wearing the same “b lack hooded sw eatshirt [with] . . . the white- or light-colored logo on the breast,” and the only di fference in clothing was that he was wearing pants not shorts. Detective Ellis also testified that the gun in the surveillance footage and photos looked similar and the susp ect in the footage held the gun in a similar manner, distinctive from othe r robberies with which the detective was5 familiar. Specifically, he testified that the suspect held the gun in his right hand “loosely” and with a “limp wris t,” which is different from other robberies where suspects generally hold the gun in their pocket or point it at the victim’s face. V Phone Calls Made By Defendant From Jail While awaiting trial, defendant made phon e calls while in custody that discussed the various robberies. Over the course of the calls defenda nt stated, “I needed some dough . . . and . . . I did what I did and . . . I wasn’t expecting . . . to have two holes in my body.” “[T]hey not playing w ith robberies.” “They have not been for a while and then I -- I discharged -- I discharged a firearm.” “I heard they added two or three cases to . . . my stuff.” “Yeah basically . . . it’s some . . . different sh it from the same day they added on. I already knew it was coming but just a matter of time.” “[T]hey gonna build something, they’re gonna find what they’re gonna find and they found what they gonna found. And now I got three cases instead of one.” At trial, the jury heard each phone call and received a written transc ript of each call. VI Motion To Consolidate Prior to trial, the People made a motion to consolidate two separate complaints that contained charges for all three robberie s, arguing the crimes we re all of the same class and involved some of the same eviden ce. In opposition to the motion, defendant argued that although “they can be joined” by statute, the ev idence regarding identity was not cross-admissible under Evidence Code 3 section 1101. Although defendant admitted he had not seen all of the surveillance footag e, he argued that the identification evidence was not strong enough to meet the cross- admissibility standard of section 1101.

3 All further section referen ces are to the Evidence Code.6 Defendant argued it was improper for identific ation evidence from The Thrift Store and Taco Bell robberies to be “bootstrapped” wi th the stronger identif ication evidence from the Hites Market robbery. The trial cour t granted the motion to consolidate the two complaints because the People represented that they vi ewed each of the surveillance videos, the robbery suspect appeared to wear the same clothes and hold the gun in a similar manner in each of the surveillance vi deos, the robberies occurred on the same date, in the same geographic area, a nd are the same clas s of crimes. At trial, the jury found defendant guilty of three counts of second degree robbery and two counts of attempted second degree robbery. DISCUSSION Defendant asserts that the trial court abused its discretion in consolidating the two cases prior to trial. Defendant also contends consolidation of the two cases resulted in an unfair trial because the eviden ce of the three robberies was not cross-admissible. We disagree. The trial court did not abuse its disc retion and defendant recei ved a fair trial. I The Trial Court Did Not Abuse Its Discreti on In Granting The Motion To Consolidate Defendant argues the trial court abused its discretion in consolidating the cases because the identification evidence was not cross-ad missible. We disagree. Penal Code section 954 permits consolidatio n of separate criminal cases where the accusatory pleadings charge “two or more different offenses connected together in their commission” or are “two or more different offenses of the same class of crimes or offenses.” The trial court “ ‘in the interest of justice and for good cause shown, may, in its discretion,’ ” sever or cons olidate different offenses. ( People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 281.) “The party se eking severance has the burden to establish a substantial danger of prejudice requiring the ch arges to be separately tried. [Citation.] Refusal to sever may be an abuse of discreti on where . . . evidence of the crimes to be jointly tried would not be cross-ad missible in separate trials . . . . If evidence on each of7 the joined crimes would have been admissible in a separate trial of the other crimes, then such cross-admissibility ordinarily disp els any inference of prejudice.” ( Gonzales and Soliz , at pp. 281-282.) Section 1101, subdivision (b), allows “the admission of evidence that a person committed a crime . . . when rele vant to prove some fact (such as . . . identity . . .) other than his or her disposition to commit such an act.” “[T]here exists a continuum concerning the degree of sim ilarity required for cross-ad missibility, depending upon the purpose for which introduction of the evid ence is sought[,] . . . the highest degree of similarity is required to prove identity.” ( People v. Soper (2009) 45 Cal.4th 759, 776.) “For identity to be established, the uncha rged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distin ctive as to be like a signature.’ ” ( People v. Ewoldt (1994) 7 Cal.4th 380, 403.) “The inferen ce of identity, moreover, need not depend on one or more unique or nearly unique common features; features of substantial but lesser distinctiveness may yield a distinctive comb ination when considered together.” ( People v. Miller (1990) 50 Cal.3d 954, 987.) We review a trial court’s decision to consolidate separate counts for abuse of discretion “based on the record when th e motion was heard.” ( People v. Gonzales and Soliz , supra , 52 Cal.4th at p. 281.) At the hearing on the moti on to consolidate, the Peop le provided sufficiently distinctive evidence to support a reasonable c onclusion that the robber in both cases was defendant. The People proffe red that the robber who app eared in each of the three surveillance footage videos wore “identical clothing,” used the sa me revolver gun, and held the gun in the same manner. The People also asserted the clothes defendant wore when he was admitted to a local hospital fo r a gunshot wound were taken by police as evidence and were identical to the clothes the robber wore. In addition to the physical evidence, the geographical proxim ity of the crimes and the fa ct the robberies occurred on8 the same date both support an inference defe ndant committed all of the robberies. Taken together, the arguments presented by the Peopl e demonstrated a distinctive combination of features regarding defendant’s identity th at provided a sufficien t basis for the trial court to grant the mo tion to consolidate. II Consolidating The Cases Did Not Result In Gross Unfairne ss To Defendant Defendant contends conso lidation of the two cases resulted in an unfair trial because the eviden ce of the three robberies was not cr oss-admissible. Defendant does not point to any objection he made during trial to the cross-admissib ility of the evidence. In any event, we reject hi s argument -- the evidence was cross-admissible. “[E]ven 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 resulted in gross unfairness depriving the defendant of due pr ocess of law.” ( People v. Gonzales and Soliz , supra , 52 Cal.4th at p. 281.) Howe ver, “ ‘the difficulty of showing prejudice from denial of severance is so great that the courts almost invariably reject the claim of abuse of discretion.’ ” ( People v. Matson (1974) 13 Cal.3d 35, 39.) Here, had the trial court severed the char ges, evidence of the separate robberies would have been admissible in separate trials pursuant to section 1101, subdivision (b), to prove identity. Although eyewitn esses at The Thrift Store and Taco Bell robberies did not provide as detailed testim ony as the eyewitnesses in the Hites Market robbery, the surveillance footage of the ro bberies, police testimony, and defendant’s inculpatory phone calls all reasonably supported the co nclusion that defendan t committed all three robberies.9 In making his argument against cross-admi ssibility, defendant completely fails to mention that there was video surveillance f ootage corroborating eyewitness testimony for each robbery regarding his identity. Eyew itness testimony from The Thrift Store and Taco Bell robberies generally pr ovided an accurate and simila r description of the person who robbed each location. Th e eyewitnesses also identified defendant’s bloodied hooded sweatshirt with the light colo red logo on the left breast that police recovered from the Hites Market robbery, which police testified de fendant wore in the other two robberies. More importantly, video surveillance evid ence and police testimony indicating the perpetrator of all three robberies was defenda nt demonstrated that the various robberies shared sufficiently distinctive and common features. In the surveillance footage, the gun used in each robbery that day was a black “l ong barreled” revolver pistol that looked like a “cowboy gun,” and the robber held the gun in a similar manner in each incident. Because the surveillance footag e showed the ro bber using the same revolver pistol and wearing the same clothes in each of the th ree robberies, the evid ence was sufficiently distinctive to prove identity. The phone calls made by defend ant while in custody, whic h defendant also fails to address in his brief, support the conclusion th at defendant committed all three robberies and validate the eyewitness test imony and video surveillance evidence of the crimes. Defendant essentially admitted to being shot after he robbed Hites Market, discharging a firearm, and anticipating the police would lin k the three robberies together and charge him with crimes arising out of each robbery. When considered together with the other identification evidence, the phone calls supp ort the inference that defendant committed all three robberies. The cross-admissibility of the evidence of the three robb eries dispels any inference of prejudice, and the trial court’s conso lidation of the cases did not result in any unfairness to defendant.10 DISPOSITION The judgment is affirmed.

ROBIE , Acting P. J.

We concur:

BUTZ , J.

DUARTE , J.