Filed 10/7/14 P. v. Hall CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048269

         v.                                                            (Super. Ct. No. 11CF1355)

ADAM HARRISON HALL,                                                    OPINION

     Defendant and Appellant.


In re ADAM HARRISON HALL                                               G049377

     on Habeas Corpus.



                   Appeal from a judgment of the Superior Court of Orange County, Sheila F.
Hanson, Judge. Affirmed.
                    Original proceedings; petition for a writ of habeas corpus, after judgment
of the Superior Court of Orange County. Petition denied.
                   Richard Schwartzberg for Defendant, Appellant and Petitioner.
              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry
Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
                               *             *             *
                                   I. INTRODUCTION
              This is a murder case. Sunday morning, February 13, 2011, Mara Lynnes
Steves was walking a dog, and arrived at the northeast corner of the intersection of
Moulton Parkway and Nueva Vista in Laguna Niguel. William Hall was driving a large
silver Ford Explorer heading north on Moulton. He ran a red light, hit a smaller green
Toyota Forerunner in the intersection, then veered off in a northeasterly direction toward
Mara, killing her. The Explorer slid on to the curved wall beyond Mara, then bounced
off that wall and came to a rest on a small greenbelt about 20 feet north of the
intersection. Hall was under the influence of a number of psychotropic drugs at the time,
including Xanax.
              Hall wasn’t immediately arrested. A number of witnesses looking at the
aftermath of the accident told police they thought the Explorer was turning right from
Nueva Vista and was hit by the Forerunner as it ran the light going north on Moulton.
That impression was a reasonable one given the way the two vehicles had ended up after
the accident, with the Explorer on the greenbelt as if it had been turning right. So Hall
was not immediately arrested. Only after careful reconstruction of the accident did it
become apparent that Hall was the driver who ran the red light on Moulton.
              The police caught up with Hall three months later, when he had his nurse-
girlfriend (herself an addict) forge prescriptions for Xanax. After successfully obtaining
Xanax from a pharmacy in Irvine, he tried the same thing a few days later at a pharmacy
in Placentia. An alert pharmacist phoned to confirm the prescription and discovered it
was a forgery. When Hall left the pharmacy empty-handed, the police were waiting for
him.

                                             2
              Hall was tried both for both Mara’s death and the Xanax prescription
forgeries. The jury convicted him on one count for Mara’s death and three counts for the
prescription forgeries. He now contends it was ineffective assistance of counsel for his
public defender not to have moved to sever the forgery counts from the murder count.
He also contends there was insufficient evidence to show he was the driver who ran the
red light. As we explain at length below, Hall is incorrect as to both assertions.
              We first deal with the substantial evidence of murder issue, because the
ineffective assistance of counsel issue depends, to a significant degree, on the strength of
the evidence against Hall as it relates to the murder issue. As we show below, the case
against Hall was much stronger than he gives it credit for in this appeal. In fact,
considering all the evidence, the case was remarkably strong. As to the ineffective
assistance of counsel issue, Hall is unable to show that the trial court would have abused
its discretion if it had denied the hypothetical severance motion he now claims his trial
counsel should have made. The forgery evidence would have been admissible in Hall’s
murder trial even if no formal forgery charges had been filed. We note that in the murder
trial the prosecution needed to show not only that Hall ran the red light, but also that he
was under the influence of psychotropic drugs at the time. The forgery evidence showed
the degree of Hall’s need for the powerful psychoactive drug to which he had a
continuing addiction, and thus had a tendency in reason to prove malice in the form of
disregarding the danger of using it and driving – a danger of which he had been warned.
                                         II. FACTS
A. Photographic Evidence
              The accident occurred about 11:10 a.m. on Sunday morning, February 13,
2011, at the intersection of Moulton Parkway and Nueva Vista in Laguna Niguel. Here is
what the accident looked like soon after it happened, as shown in People’s exhibit 48:




                                              3
              There is no question the cause of the accident was that one of the drivers
ran a red light going north on Moulton. People’s exhibit 8 shows that Moulton is a major
thoroughfare while Nueva Vista is a residential street:




              Other pictures, also taken in the aftermath of the crash, were entered into
evidence to show the jury how the cars ended up after the collision. The green
Forerunner came to a stop with its left front hood and tire area crunched into a light pole
on the northeast corner of the intersection. However, pictures also showed (one of the


                                             4
most dramatic is People’s exhibit 35) that the Forerunner had sustained considerable
damage to its right hood and tire area – in fact, so much so the vehicle was completely
missing its right front tire. That tire, as it turned out, rolled northward on Moulton and
was found on the right side of the street maybe 40 feet or so beyond the intersection.
People’s exhibit 42 showed that the Forerunner had sustained damages to both its right-
front side engine area – where the tire went missing – and to its right rear passenger door,
but not to its right front passenger door. (The door might have been slightly ajar from the
frame, otherwise it looked pristine.) A straight on view of the Forerunner’s right side
shows a bashed rear passenger door, an undamaged front passenger door, and a totaled
right front wheel area. The significance is that it looks like the Forerunner was hit, spun
around, and hit again.
                Beyond the Forerunner to the northeast, the silver Explorer came to a rest
on the small greenbelt area just in front of the curved wall on the northeast corner of the
intersection. The wall announces a housing development. Prior to the collision, the wall
had the words “Rancho Niguel” on it in large letters. People’s exhibit 46 showed that the
silver Explorer had hit the curved wall, knocked down the letters “anc,” bounced off the
wall and come to rest some feet beyond the wall, facing northwest. The Explorer, as
shown by People’s exhibits 44 and 58, sustained damage to both its right front – and left
front – ends.
                A picture of the intersection also showed a pattern of skid marks that
indicated the green Forerunner had been hit and spun around. Here is People’s exhibit 25
in that regard:




                                               5
              As the picture shows, immediately before the Forerunner’s resting place
there is a circle of skid marks, and before the circle there is a distinctive straight skid
mark pointed right at the wall; the effect is a kind of “q” shape.
              Still more photographic evidence was introduced to show Hall, the driver of
the silver Explorer, had been traveling north on Moulton that morning. People’s exhibit
20 shows a young white male in what could be his 20’s, in wrap-around dark glasses
wearing a black armless shirt, making a purchase at a gasoline station on Moulton which
is south of the Nueva Vista intersection, while several other exhibits show a silver
Explorer at that gas station at about 11:08 a.m. on the morning of the collision. The
young man in the picture appears to have tattoos on his left forearm, but the nature of the
tattoos is somewhat blurry. People’s exhibit 111, on the other hand, shows a definitive
picture of Hall at a pharmacy three months later (trying to negotiate a forged prescription
for Xanax) – no dark glasses and wearing a rumpled bluish sport shirt rolled up showing
his forearms. That picture also shows blurry tattoos on the left forearm.




                                               6
              Of further significance in regard to Hall’s direction of travel is a
comparison of People’s exhibit 19, which is a picture of the left side of a silver Explorer
at the gas station at 11:07:58, and People’s exhibit 41, which is a picture of the silver
Explorer involved in the collision. The picture of the Explorer taken at the gas station
shows that the left rear wheel (not many cars have hubcaps anymore) is shaped into a
kind of five-spoked star. If one thinks of this star in an upright position, so that the two
bottom spokes are like a person’s legs pointing at about 5 and 7 o’clock, the two side
spokes are slightly raised, pointing out at about 2 o’clock and 10 o’clock, and the top
spoke at 12 o’clock, one notices this: On the picture of the Explorer involved in the
collision, there is writing on the left rear tire (“DynaPro A’s” per People’s exhibit 41) that
arcs from the 10 o’clock arm all the way to the 2 o’clock arm, including going over the
12 o’clock top spoke. And there is writing on the tire (“Hancook,” also per People’s
exhibit 41) spanning the 5 to 7 o’clock legs. The rest is black tire. While the exact
writing on the picture of the particular Explorer which was at the gas station that morning
cannot be made out, it appears to follow the same pattern of two arcs, one spanning 10 to
2 o’clock and another spanning 5 to 7 o’clock.
              In regard to Hall’s being on Moulton, the prosecution also introduced the
testimony of a sheriff’s deputy who had a conversation with Hall at the hospital to which
he was taken after the accident (Hall had a broken leg). Hall said he was traveling north
on Moulton after having left a Shell station and thought he “had a green light and
somebody broadsided him.”
B. The Percipient Witnesses to the Accident
              The green Forerunner was being driven by Steven James, a Cal-State
Fullerton anthropology professor. Accompanying him was Anne Gaffney. Gaffney was
his girlfriend at the time; they are now married.
              James testified that they were on their way to meet some graduate students
to go hiking. The grad students were located in the residential tract on the west side of

                                              7
Moulton. Proceeding east on Nueva Vista heading to the Moulton intersection, James
missed the turn off into a residential tract. Nueva Vista being the relatively narrow street
it is, James soon found himself coming up on Moulton with the need to turn around. He
testified he was looking for a place to make a U-turn, went across Moulton and made a
U-turn on a green light, but then, as he put it at trial, “that’s when I was hit.”1 James was
very clear he was never going north or south on Moulton.
                  Anne Gaffney told a similar, but not identical, story. Having missed the
turn off, they “continued to cross Moulton” on a green light looking for a “place to turn
around and come back.” But in Anne’s story they never got to make that U-turn, and
they were unequivocally going east at the time of the collision. She testified: “Well, the
light was green. We went through and we were hit very hard on my right-hand side, on
the passenger side, and we were hit with such force my head broke the window which
had been rolled up.”2 (Italics added.)
                  But there were four more prosecution witnesses. One was a woman named
Carol. Carol was driving south on Moulton, coming up to the intersection at the time of
the collision. Carol slowed for a red light on Moulton, looked down for a moment, and
heard a collision. She looked up and saw at least one vehicle spinning, but didn’t notice
which one. She saw a tire rolling down the road and thought it came from the “gray
vehicle.”3
                  A man named Mark was traveling north on Moulton, and saw the aftermath
of the collision. Mark added one fact of topography that is apparent from both of the

          1       A careful reading of James’ testimony is consistent with two different ways the collision could
have happened. Either James first crossed the intersection going east, got to the other side of Nueva Vista, made his
U-turn, and then, having made a U-turn so he was now going west, proceeded into the intersection and was struck by
the silver Explorer speeding from the south. The other interpretation is that James was proceeding east across
Moulton in order to make his U-turn on the Nueva Vista side of the street, but before he got there he was hit.
          2       Readers should note that Gaffney’s account corresponds to the latter of the two possible scenarios
outlined in footnote 1 above. Cross-examination did not explore the discrepancy between the possibility James had
already made his U-turn and was heading west and Gaffney’s basic story that, because their car was hit on the
passenger side, they had to have been going east.
          3       The photos showed the only vehicle to lose a tire was the green one.


                                                         8
photographs reproduced in this opinion – the intersection of Nueva Vista and Moulton is
at the crest of a hill. He gave a statement to police at the time saying he was following
what “might” have been, or what he “thought,” was a green car. Mark thought this green
vehicle had run a red light on Moulton. In his statement he also said he saw an SUV
(sport utility vehicle) pulling out of the east side of Nueva Vista, heading west. He
“thought” that SUV was “silver.” Mark also thought this SUV had been turning right. At
trial, though, Mark was more equivocal. He said he didn’t see “the directions from which
the cars came prior to the collision” and only remembered the “intersection after the
collision.” While, on the one hand, he said at trial that in “retrospect” he still believed it
was the green car that ran the red light, he also stated “I can’t honestly say which car it
was that I was following” and “As I replay the whole sequence of events leading up to it,
I have no actual visual image in my mind of seeing a green SUV. I know there was an
SUV in front of me.”
                 Another prosecution percipient witness was a woman named Linda.4 Linda
was a passenger in a car being driven by her then 16-year-old son eastward on Nueva
Vista at the time of the collision. Linda was acting as a kind of driving instructor for her
son, so she remembered telling him to “stop a little bit because a car was coming towards
us.” More specifically, she said that vehicle was in a lane that meant it might turn right
or go straight across the intersection. Either way, Linda wanted her son to see that car
and take it into account in making the left turn he was about to make.
                 Linda alluded to the possibility a car might have been on her right, one
which necessarily would have been going east on Nueva Vista. She mentioned a car
“from the side of me.” She further testified a car from the far right lane of northbound
Moulton went into the intersection and crashed into a car coming from her right side.
She remembered that the cars spun and there was a woman at the corner – unfortunately

        4         This is the Linda who drew the green “C” and the green “L” on the picture of the intersection
reproduced earlier.


                                                         9
the pedestrian victim of the collision – who “flew in[to] the air.” Linda didn’t remember
the color of the car that ran the light, or the color of the car going the other way.
However, on cross-examination Linda said she didn’t recall a car passing her on her right.
              The prosecution also presented the evidence of a man named Daniel, who
was jogging with his dog on the west side of Moulton, heading north, at the time. Daniel
was thus catty-corner to the victim Mara, who was standing with a dog on the northeast
corner of the intersection. Daniel was worried Mara would cross the street, and his own
dog would react to her dog. He looked down, and heard a collision, but didn’t see the
actual crash. When he looked up, he saw a silver vehicle “flip up” onto the greenbelt and
the green SUV spin backwards and head into a pole. He was clear that he “did not see
the actual impact or see any of the directions that either of the cars were going.”
              The defense presented three percipient witnesses of its own. One was
Linda’s son John F. He was the 16 year old driving the car in which she had been a
passenger.   John F. said they were heading east on Nueva Vista going into the
intersection, got into the left hand turn lane, and stopped. There was a car on the other
side of Nueva Vista, but John F. didn’t know if it would go through the intersection or
turn right, and it was that vehicle that was hit from a car coming from the right on
Moulton. John F., like his mother, didn’t remember any car passing on his right. He
didn’t remember the colors of any of the vehicles either.
              A second defense witness was a woman named Rose. Just as defense
witness John F. was prosecution witness Linda’s son, so defense witness Rose was
prosecution witness Carol’s daughter. Rose was in the front passenger seat as she and her
mother approached the intersection from the north on Moulton. She noticed a vehicle
coming from the south on Moulton run the red light. Rose also said that the car “coming
north was the green one.” She testified she “looked up and . . . saw a car coming through
the intersection and hit another car.” On cross-examination, however, she did
acknowledge that her placement of the spot of the actual collision was inconsistent with a

                                              10
right turn by a car turning right onto Moulton from Nueva Vista. John G. was going
north on Moulton in the far right hand lane (the one next to the bike lane), and observed a
green SUV. He testified that “they did not appear that they were going to stop” despite
the red light. The green SUV was ahead of him, one lane over, and “more ahead of me
because I was back a little bit.” John G. testified the green SUV did not stop and went
through the intersection. He also saw “a silver pickup truck from the northeast corner
[that] was either going forward or taking a right turn” and “appeared from the northeast
side of the intersection.” That silver vehicle went into the intersection.
                  John G. testified he actually saw the collision – he wasn’t just looking
down at the precise moment of impact – and he was clear he saw the green vehicle run
the red light. John G. also testified that when he stopped to render aid, he heard the
driver of the green vehicle utter the words, “What have I done?” He did acknowledge,
though, that there were “a lot of cars” going north on Moulton that morning, and admitted
there were cars between him and the intersection in both his lane and the next one over.
C. Expert Evidence
                  Both sides presented expert accident reconstruction evidence. The
prosecution’s expert, Wesley Vandiver, opined that the silver Explorer collided with the
green Forerunner so as to cause the Forerunner to spin. Vandiver further opined that
damage to the Forerunner’s radiator and engine had left fluid marks in the road in a radial
pattern. (Readers here might recall the circle in the “Q” in the picture showing the skid
patterns, reproduced above). Vandiver further noted that the Explorer actually sustained
more damage to its front passenger compartment than the Forerunner, which indicated
that the Explorer hit the wall at a relatively high speed. He calculated that speed to be
about 62 miles an hour. He opined a long scuff mark left in the intersection pointing at
the wall (the tail in the “Q” in the second picture) appeared to come from the Explorer’s
left rear tire.



                                                11
                  Vandiver presented a video of his reconstruction, received into evidence as
People’s exhibit 100. In it, a green vehicle traveling east on Nueva Vista going across the
Moulton intersection is hit by a speeding silver vehicle coming north on Moulton. The
green vehicle spins, causing it to hit the silver vehicle in a secondary collision, and comes
to a stop in front of the light pole. Meanwhile, the silver vehicle, traveling fast across
Nueva Vista, is deflected by the green vehicle, slides over the sidewalk, hits the curved
wall, and comes to a stop, having careened off that wall, facing northwestward.
Vandiver’s reconstruction does not show the silver vehicle hitting the pedestrian.
                  The defense’s reconstruction expert was Christopher Gaynor. Gaynor’s
version of the collision was that the green Forerunner was traveling north on Moulton at a
high speed, ran the red light, and hit the silver Explorer as the silver Explorer was coming
from the east side of the intersection and turning left onto Moulton in order to travel
south. Gaynor’s conclusion the silver Explorer was turning left was in part based on a
filament in the vehicle’s left turn signal light, which showed a deformation different from
the brake light bulbs. For Gaynor, the deformation indicated the left turn signal was on,
but the brake lights weren’t, indicating the possibility of a left-hand turn.
                  Gaynor’s video simulation (Defense exhibit 3) encapsulated his theory of
events: The silver Explorer slowly proceeds into the intersection to turn left, at which
point it is hit by a speeding green Forerunner. It is worth noting here that Gaynor’s video
simulation shows the silver Explorer making a very tight left hand turn – so tight, in fact,
that it appears to be heading for the fast lanes of the north-bound side of Moulton, as
distinct from a wider, looser left hand turn that one might make if one were heading for
the south-bound side of a wide parkway.5




        5        A fact that did not go unnoticed by the prosecutor, who argued to the jury in his closing that
Gaynor had set up “an unreasonable pre-collision path for both SUV’s.”


                                                         12
D. Drug Evidence
               Hall was taken to a hospital on the day of the accident, having sustained a
broken leg. Hall’s blood was drawn at the hospital prior to the administration of any
drugs by the hospital, and Hall was found to have Xanax (alprazolam), Valium
(diazepam), Vicodin (hydrocodone), morphine and methamphetamine in his system.
               Hall was not arrested that day. (As we have noted, a number of witnesses
thought the silver Explorer had been turning left from Nueva Vista onto Moulton.)
In fact, he wasn’t arrested for another three months. It turned out that Hall had a
girlfriend (herself addicted to opiates) who worked for an oncologist, and his girlfriend
would call in (phony) prescriptions on Hall’s behalf using her doctor’s authorization
code. Hall succeeded in obtaining Xanax from an Irvine pharmacy on May 20, 2011, and
tried it again at a Walgreens in Placentia four days later. But this time the pharmacist
called the oncologist’s office to verify the prescription and learned it was fake. When
Hall came into the store to pick up the prescription he was sent away empty-handed, and
police were waiting outside to arrest him.
               Additionally, the prosecution introduced evidence of two convictions
previous to the February 2011 collision, where Hall was found to have been driving with
Xanax in his system – one in October 2007 and one in May 2008. In the aftermath of the
May 2008 arrest, Hall took a class in which he learned that causing a death while under
the influence of drugs can lead to a murder charge. (See generally People v. Watson
(1981) 30 Cal.3d 290.)
E. The Trial
               Hall was charged with five counts. A felony complaint was filed May 23,
2011 (three days after the successful Irvine forgery), but it only included




                                             13
two counts, both based on the February 2011 collision: count 1 was for Mara’s murder
(Pen Code, § 187, subd. (a)),6 while count 2 charged Hall with having inflicted bodily
injury on the driver of the green Forerunner and his girlfriend (Veh. Code, § 23153, subd.
(a)). In late June 2011, after Hall’s May 24, 2011 arrest, the felony complaint was
amended to add three counts based on the forgery of prescriptions for Xanax and the
success of the forgery on May 20.7
                 At trial, Hall offered no defense of the three forgery counts, a point noted
by the prosecutor in his closing rebuttal. The jury returned guilty verdicts as to count 1
and counts 3 through 5, but found Hall not guilty of felony causing bodily injury to the
professor and his girlfriend; instead it only found him guilty of misdemeanor causing
bodily injury as a lesser included offense of the felony count. Hall was sentenced to 15
years to life for count 1 (Mara’s murder), plus an additional two years, to run consecutive
to the murder count, for one of the forgery counts. Of the remaining two forgery counts,
one was stayed (see § 654) and the other was to run concurrently. This appeal followed.
                                            III. DISCUSSION
                 Two issues are presented in this appeal: (1) whether substantial evidence
supported the guilty verdict based on Hall’s having caused the collision by running the
red light on Moulton that morning; and (2) whether it was ineffective assistance not to try
to sever the forgery counts from the collision counts.
A. Substantial Evidence
                 Appellant Hall argued that the only substantial evidence that he, rather than
James, ran the red light was Vandiver’s reconstruction; James and Gaffney obviously lied
– lest James be found liable for Mara’s death, as well as for their own and Hall’s injuries
– and all the other eyewitnesses saw the green Forerunner run the red light. Given that

         6        All undesignated statutory references in this opinion are to the Penal Code.
         7        Count 3 was for the successful forgery on May 20 (Health & Saf. Code, § 11368), count 4 was for
the forgery necessary to attempt the unprescribed Xanax on May 24 (also Health & Saf. Code, § 11368) and count 5
was for the same thing (forgery), except under a different statute (Bus. & Prof. Code, § 4324, subd. (a)).


                                                       14
Vandiver was not there, the evidence supporting the conviction is insufficient. (Cf.
People v. Johnson (1980) 26 Cal.3d 557, 578 [“We think it sufficient to reaffirm the basic
principles which govern judicial review of a criminal conviction challenged as lacking
evidentiary support: the court must review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial evidence – that is,
evidence which is reasonable, credible, and of solid value – such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.”]; see People v. Hillhouse
(2002) 27 Cal.4th 469, 496 [quoting Johnson]; People v. Carter (2005) 36 Cal.4th 1215,
1257-1258 [quoting Hillhouse quoting Johnson].)
               But this is simplistic. It turns out that not only was there substantial
evidence to support the jury’s finding Hall ran the red light, it is hard to imagine a
reasonable jury coming to any other conclusion. Hall’s briefing understates the evidence
considerably. The evidence that Hall ran the light on Moulton consisted of far more than
merely Vandiver’s reconstruction. In fact, Vandiver’s reconstruction was not even
needed to establish guilt.
               First, no one offered any evidence that the cause of the collision (and
concomitantly Mara’s tragic death) was anything other than a vehicle going north on
Moulton running a red light. All eyewitnesses, including the defense’s best witness, John
G., either directly testified to that fact or – if they didn’t actually see the collision –
testified to an impression of the accident consistent with it. And if the accident was
caused by a motorist going north on Moulton, the jury had both the gas station photos
and Hall’s admission to a deputy sheriff at the hospital to support a conclusion Hall was
that motorist and could have stopped there.
               Second, James and Gaffney both testified consistently that they had been
coming from Nueva Vista at the time of the accident; James testified he was in the
process of making a U-turn, Gaffney testified they were crossing the intersection in order
to make one. Further, James and Gaffney both presented a credible and consistent reason

                                               15
to be traveling on Nueva Vista (to visit a grad student or students), and there was no
evidence Hall had any reason to be coming westward on Nueva Vista that morning.
Again, the evidence suggests it was Hall who was northbound.
                 Third, James and Gaffney told reasonably consistent stories about the
circumstances of the accident given the suddenness of the impact that clearly surprised
them both. A reasonable jury could find it at least plausible that James was going
through the intersection heading east, planning to make a sloppy U-turn in the
intersection, was about to make one, and was suddenly hit by a speeding car from
Moulton.8 Gaffney might not have been aware that James was about to commence a U-
turn, and, from her point of view, the collision seemed exactly as Vandiver reconstructed
it – a green vehicle traveling east on Nueva Vista crossing the intersection was hit by a
speeding silver vehicle traveling north on Moulton running a red light. Moreover, the
fact that James and Gaffney told slightly different stories does not diminish their
credibility. As husband and wife by the time of trial they no doubt could have rehearsed
every detail of their stories to make them identical. So there was no dispositive reason to
disbelieve James and Gaffney, despite their obvious self-interest in a story in which they
had the green light.
                 Fourth, John G., the witness on whom the defense relied the most, did not
have a totally clear view of the collision. He admitted on cross-examination that there
were two to three cars in the lane ahead of him, plus cars between him and the green
vehicle he believed he saw run the red light. Compounding that visual obstruction, as
witness Mark explicitly stated – and what is fairly obvious from many of the pictures of
the accident scene – a person traveling north on Moulton heading toward the Nueva Vista




          8       Likewise, a reasonable jury would be justified in not reading too much into James’ statement after
the collision, “What have I done?” A conscientious and innocent person might readily say same thing under similar
circumstances.


                                                        16
intersection is cresting a hill. Given those visual obstructions, a reasonable jury could
discount John G.’s recounting of events as simply mistaken.
                  Fifth, and particularly in regard to the possibility of visual mistakes, there
was no doubt that both (a) the accident happened very fast (which is what one would
expect if a vehicle ran a red light going 60 miles an hour) and (b) the silver Explorer
ended up in a position that, at a superficial glance, suggested it was coming from Nueva
Vista, and in the process of making a right hand turn at the time of the collision. Of the
six percipient witnesses other than James, Gaffney, and John G., four of them (Carol,
Mark, Daniel and Rose) all testified in some way that they didn’t actually see the
collision – they looked up afterwards. Under such circumstances, it is not surprising they
might remember a vehicle (most could not remember the colors) that was turning right
onto Moulton coming west on Nueva Vista – because that’s what a person who didn’t see
the accident, but who immediately looked up afterwards, might naturally think.9 Of the
two other witnesses, mother and son Linda and John F., both were preoccupied with
young John F.’s driving, and could naturally be expected to remember a car ahead of
them, either coming or going on Nueva Vista, in the intersection. As with the other
witnesses, Linda and John F. retroactively believing they saw a vehicle turning right
would be a natural conclusion given the way the silver Explorer ended up on the
greenbelt.10
                  Sixth, and most dispositively, the jury had plenty of pictures of the scene
right after the accident. One need not to be versed in accident reconstruction or able to
calculate centers of gravity or “friction values” to see that, intuitively, the prosecutor’s
version of the collision was a reasonable one: A heavy Explorer traveling north at a high

         9        People can remember things that didn’t happen. (Cf. Trear v. Sills (1999) 69 Cal.App.4th 1341,
1345-1346 [recounting story of the famous developmental psychologist Jean Piaget who vividly, but falsely,
remembered being kidnapped as a child – in reality his nurse fabricated the story and he remembered it as true].)
         10       The strength of the eyewitness testimony in this regard (a vehicle turning right) is also somewhat
undercut by the fact that the police made them wait for more than an hour before taking their statements, during
which at least some of the eyewitnesses talked among themselves or overheard others talking about the accident.


                                                         17
rate of speed hit a green Forerunner, causing the Forerunner to spin, while the Explorer
was deflected in a northeast direction toward the wall, and was going so fast it still had
enough momentum to bounce off the wall and go another 20 or so feet. By contrast, the
defense version of the collision had no eyewitness support at all – no one testified any car
was turning left into southbound Moulton.11 Given such evidence, and the conclusions
that could reasonably be drawn from it – whether or not we ourselves would draw them –
we cannot say the jury’s verdict was unsupported by substantial evidence.
B. Ineffective Assistance and The Motion to Sever
                  We summarize Hall’s ineffective assistance of counsel argument this way:
At least seven disinterested eyewitnesses did not corroborate the prosecution’s version of
the collision – all of them, as discussed above, had a car turning right – and one of those
witnesses (John G.) was unequivocal in testimony that would have meant Hall’s acquittal
of the murder charge. On top of that, there was the jury’s inconsistent refusal to convict
Hall of causing great bodily injury to James and Gaffney.12 So the case was winnable.
But Hall’s defense was effectively contaminated by trial of the three forgery counts. The
presence of those counts allowed the prosecutor to weave the pungent and indefensible
theme of “Hall-the-incorrigible-druggie” into a case that otherwise revolved around the
painstaking and somewhat tedious reconstruction of a traffic collision. Had the three
forgery counts been severed, the prosecutor would not have been able to remind the jury
as often as he did that Hall has a serious drug addiction problem, and without those
reminders the jury might have been more readily disposed to conclude there was a
reasonable doubt as to Hall’s running the red light on the morning of February 13, 2011.



         11        The defense’s video was particularly problematic, showing a silver Explorer turning suicidally
into oncoming northbound traffic.
         12        Inconsistency in the verdict is no basis for reversal. In 1927 the Legislature amended section 954
to make it clear a verdict on one count does not affect a verdict on another. (See People v. Brown (1985) 174
Cal.App.3d 762, 769.) The basic theory is that an inconsistent verdict is either the result of jury confusion or an act
of mercy. (See People v. Amick (1942) 20 Cal.2d 247, 251-252.)


                                                          18
              Hall has also filed a petition for habeas corpus, in which he makes this
same basic argument, but includes the declaration of his appellate counsel, who declares
that in his professional expert opinion as a lawyer of 36 years focused on criminal
defense that there was no reason a competent lawyer would not have brought a motion to
sever the three forgery counts. And, as Hall’s reply brief notes, the Attorney General’s
office has offered no declarations or any evidence in rebuttal to that declaration.
              We agree with Hall’s appellate counsel on the question of whether Hall’s
trial lawyer might have had a tactical reason not to bring a motion to sever. We can’t
think of any good reason either. The Attorney General’s office says not making the
motion invited the jury to come to a “compromise verdict” in which Hall would be
acquitted of murder but convicted of forging prescriptions. That is, the forgery
prescriptions had the tactical effect of distracting the jury so as to allow Hall’s argument
about not running the red light to seem more “reasonable.”
              We think not. The theory of a tactical reason is wishful thinking on the
Attorney General’s part. Hall presented no defense to the forgery counts, so their
presence simply allowed the prosecutor yet more opportunity to drive home the fact of
Hall’s drug habit. Going into the trial, the focus of the case was obviously going to be
the murder and great bodily injury counts, so the ability of the forgery counts to distract
the jury or otherwise invite a compromise verdict was negligible: A jury was not going
to let Hall off a murder charge just to convict him of crimes that were basically a given to
begin with and carried relatively less severe penalties. And nothing in counsel’s trial or
argument of the case fits with that tactic. If the motion was not brought for that reason,
we would have expected to see signs of counsel trying to take advantage of it. We see
none.
              But just because trial counsel may not have had a good reason not to make
a severance motion does not mean it was ineffective assistance not to make it. The
standard for ineffective assistance is not whether trial counsel might have done something

                                             19
that might have made a difference. Rather, as Strickland v. Washington (1984) 466 U.S.
668, 687, framed the standard, the question is whether trial counsel’s deficiency was so
serious that the defendant was deprived of a fair trial, i.e., counsel’s deficiency produced
a result that is unreliable.13 Under the Strickland standard, not only must trial counsel
have been deficient, but the deficiency had to be prejudicial. Elaborating, Strickland was
clear that in evaluating prejudice, courts should use a reasonable probability of a
different outcome standard. (See id. at p. 694 [“The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”].) Our own high court has been
reiterating the reasonable probability standard since 1987 in People v. Ledesma (1987) 43
Cal.3d 171, 218, and continues to do so to the present (see In re Champion (2014) 58
Cal.4th 965, 1007).
                  Based on a reasonable probability standard, we can hardly say this trial
counsel’s failure to bring a motion to sever constituted ineffective assistance. There are
two basic reasons: First, as a matter of simple stare decisis, the California Supreme Court
has held that a predicate to a successful ineffective assistance argument for failing to
bring a motion to sever is that it must be shown it would have been an abuse of discretion
for the trial court not to have granted such a hypothetical motion. (See People v. Maury
(2003) 30 Cal.4th 342, 392 [rejecting ineffective assistance of counsel claim where “trial
court would not have abused its discretion by denying a motion to sever” that was never


          13       Here is the Strickland court’s own summary of the doctrine: “A convicted defendant’s claim that
counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components.
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted
from a breakdown in the adversary process that renders the result unreliable.” (Strickland, supra, 466 U.S. at p. 687,
italics added.)


                                                         20
made]; People v. Hawkins (1995) 10 Cal.4th 920, 941 [no ineffective assistance for
failing to make motion to server where it would not have been abuse of discretion to deny
motion had it been made].14)
                  Here, a trial court would have been within its discretion to deny a
hypothetical motion to sever the three forgery counts. Under section 954, different
offenses within the same “class of crimes” may be joined together in an accusatory
pleading. The Supreme Court has defined “class of crimes” within the meaning of the
statute to be those “possessing common characteristics or attributes.” (People v. Kemp
(1961) 55 Cal.2d 458, 476.) Under section 954.1, such same-class offenses may even be
joined together even if evidence as to one or more of them is not admissible as to the rest.
                  What constitutes the “same class of crime” can be illustrated by People v.
Koontz (2002) 27 Cal.4th 1041, 1074-1075. There, the prosecution was allowed to
consolidate a petty theft from a department store with charges of murder, robbery and
vehicle taking committed a month later at a different location. As our Supreme Court
described appellant’s argument, he complained that “the requirements of section 954
were not met in his case because the petty theft and murder are offenses of different
classes and the Woolworth’s theft and the Martinez homicide were not connected in their
commission. Further, he argues, evidence of the two offenses was not cross-admissible,
and the theft charge served only to prejudice him in the jury’s eyes by casting doubt on
his veracity. He contends that had the trial court denied joinder, it is reasonably probable
he would have achieved a more favorable result at trial.”

          14       Hawkins is not cited in any of the briefs, including the Attorney General’s. Legal computer
databases typically red flag the opinion because of a reference to it in People v. Lasko (2000) 23 Cal.4th 101, 109-
110. Lasko, however, disapproved Hawkins on an entirely different point than what Hawkins said about the motion
to sever. Specifically, Lasko went to some pains to point out that an “unlawful killing without malice (because of a
sudden quarrel or heat of passion) is voluntary manslaughter, regardless of whether there was an intent to kill.”
(Italics added.) In the process, the Lasko court rejected the “fleeting observation” made in a 1917 case, Drown v.
New Amsterdam Casualty Co. (1917) 175 Cal. 21, 24, to the effect that there must be an intent to kill for voluntary
manslaughter. In its sweep of disapproval of that statement, the Lasko court cited a number of cases that had
“repeated” Drown’s fleeting observation, including Hawkins. (See Lasko, supra, 23 Cal.4th at pp. 109-110.) We
may therefore take Hawkins as good law on ineffective assistance of counsel.


                                                         21
                 This is, of course, indistinguishable from the argument made here. The
Supreme Court rejected it, explaining, “[W]e may reasonably conclude these offenses fall
within the same class, in that they share the common characteristic of the wrongful taking
of another’s property. [Citations.] As such, their joinder was proper.” By parity of
reasoning, driving under the influence of a drug and forging a prescription for the
obtaining of the very same drug, are of the same class, in that they share the common
characteristic of the wrongful use of drugs.
                 Furthermore, it might well be said that the common characteristic here is
not just Xanax, but Hall’s evident uncontrollable need to medicate himself with Xanax
even after having two previous convictions for driving under the influence. Cravings for
Xanax link killing someone while driving under the influence of Xanax with forging a
prescription to obtain Xanax. (See People v. Earle (2009) 172 Cal.App.4th 372, 418
[sexual motivation was enough to link together assault with intent to commit rape and
indecent exposure].)
                 Beyond the commonality of all the counts, the three major factors bearing
on motions to sever would hardly compel severance here. The factors were recounted in
Alcala v. Superior Court (2008) 43 Cal.4th 1205: (1) cross-admissibility of the evidence
of the counts; (2) whether some counts may have a tendency to inflame the jury; and (3)
the relative strengths of the counts, i.e., have weak counts been joined with strong ones to
give the weak counts an unfair boost. (See id. at pp. 1220-1221.15) These three factors
militate, if anything, in favor of denying a severance motion:
                 (1) The forgery evidence was relevant to the murder charge, because it
went directly to the malice count in the murder charge a la Watson. (See Watson, supra,
30 Cal.3d at p. 300 [“malice may be implied when defendant does an act with a high
probability that it will result in death and does it with a base antisocial motive and with a

         15      Alcala’s recapitulation of the factors included a fourth – whether joinder of some counts might
convert a murder charge into a capital case – but that factor is obviously not applicable here.


                                                        22
wanton disregard for human life”].) Even after being arrested twice for driving under the
influence of Xanax and other psychoactive drugs, and after having been in a terrible
accident in which a person was killed in which Hall was driving under the influence of
Xanax (even if, arguendo, it was not Hall’s fault), Hall was still willing to go to
considerable lengths to obtain Xanax. It must also be remembered, in this regard, that
Hall pled not guilty to all five counts, which meant the prosecution faced the burden of
showing that Hall had voluntarily ingested Xanax prior to the accident and wasn’t just
given it at the hospital after the accident to calm him down.
              (2) The forgery evidence, in the context of the case as a whole, did not
have a tendency to inflame the jury. The forgery evidence involved no direct victims and
the factual evidence was prosaic – someone called in a false prescription to a pharmacy,
Hall showed up to collect it. What inflammatory evidence there was in the case arose out
of Mara’s death, not the forgeries. Moreover, the prosecution was going to be able to
emphasize Hall’s drug addiction at considerable length anyway, given Hall’s two prior
DUI convictions.
              (3) As we have shown now in considerable detail, joinder of the forgery
counts did not pose the danger of bolstering a weak case involving murder by including a
strong case involving drug forgeries. The murder case was quite formidable in its own
right, and included its own significant Xanax component as well.
              Hall’s appellate counsel attempts to convert the very relevance of the
forgery evidence into a prejudicial factor, by explicitly noting its tendency to prove Hall’s
malice. He points out that the evidence showed Hall wasn’t willing to curb his Xanax
addiction after the February 2011 accident, which, addiction being what it is, had a
tendency to prove he wasn’t willing to curb it prior to the February accident. In pointing
this out, however, he has merely emphasized the basic cross-admissibility of the
evidence.



                                             23
              We might also illustrate the cross-admissibility of the forgery evidence, and
underscore our conclusion that Hall cannot show prejudice from the inclusion of those
counts, with this hypothetical: Suppose trial counsel, presciently in tune with what
appellate counsel now argues, simply convinced Hall to plead guilty to all three forgery
counts. Would that tactic have prevented the forgery evidence from being presented to
the jury? We think not. The prosecution would still have been able to present it as
relevant to the issue of Hall’s continuing addiction as it related to the accident and
subsequent hospitalization. And – taking the hypothetical one step farther – would trial
counsel have been able to prevent that relevant evidence from coming in as
disproportionately prejudicial in relation to its probity? (See Evid. Code, § 352.) Again,
we think the answer is no: As we note in the text above, the forgery evidence was dry,
consisting of proof that someone had called in a false prescription for Hall and Hall
showed up to collect it. The failure to make a motion to sever really made no difference.
              Finally, the overall effect of inclusion of the forgery charges can hardly be
said to rise to the Strickland level of having denied Hall a fair trial. The overarching fact
in this case is that the jury was presented with hard, photographic evidence that made
coming up with a scenario in which Hall didn’t cause the accident highly implausible.
That a lighter Forerunner supposedly coming north on Moulton hit a heavier Explorer
with such force that the Explorer was pushed so hard against the curved wall as to take
off three letters and still go another 20 feet or so is, to say the least, counterintuitive. And
the jury was still going to hear evidence of Hall’s ill-fated May foray into Xanax
prescription forgery, since it was relevant to the malice issue arising out of the February
accident as showing Hall’s enduring inability to cure his drug habit. In the totality of the
case, the three forgery counts added only marginally to the murder case.




                                              24
                                 IV. DISPOSITION
            The judgment is affirmed. The petition for writ of habeas corpus is denied.




                                              BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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