Filed 7/25/14 P. v. Gladney CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064194

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN295896)

FRANKLIN D. GLADNEY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Robert J.

Kearney, Judge. Affirmed.

         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland,

Assistant Attorneys General, Peter Quon, Jr. and Parag Agrawal, Deputy Attorneys

General, for Plaintiff and Respondent.
       A jury convicted Franklin Demetrius Gladney of four counts of robbery (Pen.

Code,1 § 211; counts 1, 4-6) and one count of burglary (§ 459; count 3), and found him

not guilty of one count of attempted robbery (§§ 664, 211; count 2). The court sentenced

Gladney to a total prison term of five years.

       Gladney contends the court prejudicially erred by denying his motion to sever the

charges, thus violating his constitutional right to due process. We affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

Count 1 Robbery

       On June 5, 2011, at approximately 4:15 a.m., Gladney entered the Holiday Inn

Express in Oceanside and pointed a black gun in the face of Nancy Diaz, a front desk

employee. Gladney was dressed in all black clothing including a sweatshirt, pants,

gloves, and a mask that only exposed his eyes. Diaz gave Gladney approximately $130

in bills, and Gladney left the hotel. Diaz described Gladney as "tall" and "skinny."

Although Diaz had previously told police she thought Gladney was Hispanic because of

his accent, at trial she testified that she was uncertain of Gladney's ethnicity. She

explained that when she had spoken to police initially she was "really, really nervous."

Count 2 Attempted Robbery

       On June 12, 2011, at approximately 5:10 a.m., a man entered the Extended Stay

America Hotel in Oceanside and, while standing outside a locked glass door, pointed a

gun at Lucia Nava, an employee who was inside the hotel lobby cleaning a window. This



1      All statutory references are to the Penal Code unless otherwise stated.
                                                2
man was dressed in all black clothing including a hooded sweatshirt, pants, gloves, and a

ski mask that only exposed his eyes. Nava immediately hid in a storage closet. Nava

described this man as "tall" and "skinny." Nava thought this man was "Black."

Count 3 Burglary

       On July 16, 2011, at approximately 4:12 a.m., James Cushing, a night auditor, was

in a back office of a Carlsbad Hampton Inn and saw on the surveillance monitor that

Gladney had entered the lobby, taken money from the front desk cash drawer, and exited

the hotel. Gladney stole approximately $230 in bills. Gladney was dressed in all dark

clothing including a hooded sweatshirt and pants. Cushing described Gladney as a

"thinner person." Cushing could not determine Gladney's ethnicity.

Count 4 Robbery

       On August 6, 2011, at approximately 3:55 a.m., Gladney used an employee back

room to enter the Residence Inn Marriott in Carlsbad. He pointed a dark gray or black

gun at Heather Bosch, the night auditor. Gladney demonstrated familiarity with the

hotel's layout by demanding Bosch get cash from the front lobby. Gladney was dressed

in all black clothing including a hooded sweatshirt, pants, gloves with a white skeleton

bone design, and a mask that only exposed his eyes.

       Gladney asked Bosch if she had any "drops," pointing to a nearby safe with his

gun. When Bosch indicated she had not heard him, Gladney changed his request to

"drugs." Bosch thought the initial request was significant because among hotel

employees, drops referred to extra cash that the attendant removed from the front desk

and placed in a safe. Bosch gave Gladney approximately $270 in bills. Bosch described

                                             3
Gladney as a "taller" and "skinny" person. Bosch thought Gladney was a "very tan,

White male." Bosch testified Gladney had worked with her at the hotel at one point. The

hotel's general manager also testified Gladney had worked at the front desk and as a part-

time night auditor from October 2008 to September 2010.2

Count 5 Robbery

       On August 11, 2011, at approximately 9:35 p.m., Gladney again entered the

Extended Stay America Hotel in Oceanside. He pointed a black gun in the face of

Josephine Perez, a front desk employee, and demanded money. Gladney was dressed in

all black including a jacket with a white zipper and white drawstrings, pants, gloves, and

a mask that only exposed his eyes. Perez gave Gladney money in bills and started taking

out quarters, but Gladney said, "no change." Perez described Gladney as "tall" and

"skinny." Perez thought Gladney was a "medium color" "African-American."

Count 6 Robbery

       On August 24, 2011, at approximately 9:38 p.m., Gladney entered the Residence

Inn by Marriott in Oceanside, demanded money, and pointed a black gun in the face of

Justine Farley, also known as Justine Zechter, a front desk employee. Gladney was

dressed in a hooded long-sleeved sweatshirt with a zipper and drawstrings, pants, gloves,

and a ski mask that only exposed his eyes. Gladney took money in bills and then left the

hotel. Farley described Gladney as "tall" and "thin." Farley could not determine

Gladney's complexion or ethnicity.


2    Separately, a manager testified Gladney had worked at the Hampton Inn in San
Marcos as a night auditor from April 2011 to August 2011.
                                             4
       At approximately 9:50 that night, Mary Helper was on the balcony of her friend's

apartment near the Residence Inn by Marriott. Helper saw a Black, skinny man dressed

in a dark hooded sweatshirt walking down a hill through some bushes. This man walked

to a parking lot, entered a dark car, backed out with his lights off, and drove away

quickly. Helper's friend told police that he believed the car was a "mid-2000 black Ford

Mustang." A bystander in the parking lot testified she saw a black Mustang drive back

and forth a few times.

Police Investigation and Gladney's Arrest

       At trial, different witnesses identified Gladney from images taken from video

surveillance cameras, and from his body build and attire during the different crimes.

Further, expert analysis of Gladney's cell phone records placed him near each crime scene

around the times of the crimes.

       During the crime spree, the Oceanside Police Department issued a bulletin to all

police officers to look for a "hoodie hotel bandit," and provided them his physical

description and that of his car. On August 27, 2011, a few days after the last crime

occurred, Oceanside Police Department Officer Larry Weber stopped a black Mustang.

Gladney was the driver and wore a black sweatshirt with a white zipper and white

drawstrings. In Gladney's car, Officer Weber found black-and-white gloves, a black

cloth that looked to him "like a t-shirt that may have been cut that could be used to cover

your face," and a black plastic gun.

       Gladney was 23 years old, six feet one inch tall, and weighed 170 pounds when he

was booked. Oceanside Police Department Sergeant Billy Weese testified Gladney

                                             5
resided within a block of the Extended Stay America Hotel and the Holiday Inn Express.

In Gladney's residence, Sergeant Weese found a business card from the Residence Inn,

the location of one of the crimes. Police also found a black beanie and a black "do-rag,"

which Sergeant Weese described as a light material worn on the head. Sergeant Weese

further noted Gladney was not at his place of employment during the times the different

crimes took place.

Gladney's Severance Motion

       Gladney moved in limine to sever the charges for trial, arguing that joinder would

be substantially prejudicial. He acknowledged that the complaint alleged "the same

offenses or same class of crimes," but claimed they were "not connected together in their

commission." He pointed out the crimes occurred on different dates, at different times,

and involved different witnesses and evidence. Gladney also claimed the evidence for

each charge was not cross-admissible and the court improperly joined weaker cases with

stronger cases.

       The trial judge, who was different from the magistrate judge, reviewed the photos

of the suspect taken from surveillance cameras at the different hotels and denied the

motion to sever, ruling: "There's a very, very strong probability that the person who

committed one of these offenses committed all the offenses" because of the perpetrator's

distinctive apparel and modus operandi, and all crimes took place at a hotel within certain

times and in a relatively small geographical area. The court also ruled that evidence of a




                                             6
positive identification from one of the charges would be cross-admissible regarding the

other charges under Evidence Code section 1101, subdivision (b).3

       The court stated the evidence would be cross-admissible to show intent and

identification. Specifically, it found "sufficient similarity for identification to the extent

that if one person was identified as committing one [crime], that person could be

convicted of all six, because they are so identical." The court further ruled: "The

evidence of identification . . . the vast majority of it is the same for all six counts. The

stop of the car, the fact that Mr. Gladney is wearing these types of clothes, the fact that he

has the handgun, the hoodie, the pants that are consistent with the later robberies, all of

that would be used six times over in each trial to show identification of the individual for

each one of these six counts."

                                        DISCUSSION

       Gladney contends the trial court abused its discretion and violated his rights to due

process and a fair trial under the state and federal Constitutions by failing to sever the

charges, thus permitting "a series of weak counts [to be] joined to help create a more

convincing whole." Gladney argues there was no cross-admissibility of evidence to

justify joinder of the charges, although he concedes the perpetrator wore a distinctive



3      Evidence Code section 1101, subdivision (b) states: "Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, or whether a
defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act
did not reasonably and in good faith believe that the victim consented) other than his or
her disposition to commit such an act."
                                               7
sweatshirt in each crime. But he asserts no evidence was introduced as to the uniqueness

of that sweatshirt. Gladney also relies on a statement the magistrate judge made at the

preliminary hearing regarding section 1118.1.4 Specifically, he argues, "The absence of

any direct identification, the variance in the description of the ethnicity of the suspect, the

absence of any direct link to [himself], and the magistrate's comment that the evidence

would not sustain a section 1118.1 challenge . . . , all indicate an abuse of discretion in

denying the motion."5

       The People counter that the trial court properly denied Gladney's motion to sever

the counts because of 13 commonalities among the charged offenses: "(1) the crimes



4       Section 1118.1 states: "In a case tried before a jury, the court on motion of the
defendant or on its own motion, at the close of the evidence on either side and before the
case is submitted to the jury for decision, shall order the entry of a judgment of acquittal
of one or more of the offenses charged in the accusatory pleading if the evidence then
before the court is insufficient to sustain a conviction of such offense or offenses on
appeal."

5       At the preliminary hearing, defense counsel argued the People's evidence was
weak, and "the best they have done is said they cannot eliminate Mr. Gladney as a
suspect. And that's it. [¶] . . . They have speculation and that's it. So they're asking you
to bind over on the most serious of charges that you have, to ask yourselves [sic] would
or should—and I know this is a different standard. It shouldn't result in a conviction."
The court responded, "Oh, I agree with that. It wouldn't get past [section 1118.1]."
Nevertheless, the court held Gladney to answer to the charges based on the similar
clothing used in the different crimes; his approximate height and age being similar to that
testified to; his car matching witnesses' descriptions; and the fact that Gladney had
worked in the hotel industry and the robber knew where the money was kept in hotel
lobbies. The preliminary hearing judge's comment was not dispositive on the severance
issue because the case had not proceeded to trial, and there was no motion for entry of a
judgment of acquittal; rather, the context of the comment was a preliminary hearing.
Moreover, the court, applying a different legal standard, did find the evidence sufficient
to require Gladney to be held answerable on the charges.

                                               8
targeted the same types of establishments—hotels; (2) all six target locations were in a

relatively small geographical area; (3) four of the six charges occurred between 3:52 and

5:10 a.m., and two (counts 5 and 6) were around 9:30 [p.m.], but only after appellant

found the doors to be locked during the attempted robbery charge and returned at a time

when the doors would not be locked; (4) the perpetrator in all charges was wearing the

same distinctive black sweatshirt, black and white shoes and gloves, and had his face

covered with black material; (5) the robber carried a black gun; (6) the robber's demeanor

was always the same—he was calm and did not yell or panic; (7) the perpetrator always

fled on foot; (8) when committing each robbery, the perpetrator made specific, limited

requests indicating his familiarity with the operations and the layouts of the

establishments; (9) appellant previously worked at two of the locations and during the

robbery spree he was employed at a comparable hotel working the same shift as the

robbery victims; (10) the perpetrator only took [paper bills]; (11) all victims generally

described the perpetrator to be a tall, slender young male; (12) the apparel, similar to

what the perpetrator wore in each robbery and which was recorded by surveillance videos

of each charge, was found in appellant's car; and (13) appellant's cell phone placed him in

close vicinity to all the crimes when they were committed."

A. Applicable Law

       Under section 954, "An accusatory pleading may charge two or more different

offenses connected together in their commission, or . . . of the same class of crimes or

offenses . . . 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

                                                9
set forth in the accusatory pleading be tried separately or divided into two or more groups

and each of said groups tried separately."

       "For purposes of joinder, offenses are deemed to have been 'connected together in

their commission' where there was a common element of substantial importance in their

commission, even though the offenses charged did not relate to the same transaction and

were committed at different times and places and against different victims. [Citations.]

Similarly, within the meaning of section 954, offenses are 'of the same class' if they

possess common characteristics or attributes." (Aydelott v. Superior Court (1970) 7

Cal.App.3d 718, 722.) The law prefers consolidation or joinder of charged offenses in

the interests of judicial economy (Alcala v. Superior Court (2008) 43 Cal.4th 1205,

1220), and the language "connected together in their commission" in section 954 reflects

legislative intent for a "very broad test for joinder." (Id. at p. 1217.)

       In People v. Soper (2009) 45 Cal.4th 759 (Soper), the California Supreme Court

addressed the legal principles relevant to the severance of properly joined criminal

charges. (Id. at pp. 771-772.) The prosecution is entitled to join offenses (id. at p. 773);

thus, "[t]he burden is on the party seeking severance to clearly establish that there is

substantial danger of prejudice requiring that the charges be separately tried." (Ibid.) To

establish that a trial court abused its discretion in declining to sever properly joined

charges, the defendant must make a "clear showing of prejudice"; that is, that the ruling

fell "outside the bounds of reason." (Id. at p. 774.) A party seeking severance must make

a stronger showing of potential prejudice that outweighs the countervailing

considerations of conserving judicial resources and public funds. (Ibid.)

                                              10
       In determining whether a trial court abused its discretion under section 954, we

consider the record before the court when it made its ruling (Soper, supra, 45 Cal.4th at

p. 774), and undertake the following four-factor analysis as outlined in Soper: First, we

consider the most important factor, the cross-admissibility of the evidence in hypothetical

separate trials. (Id. at pp. 774-775.) "If the evidence underlying the charges in question

would be cross-admissible, that factor alone is normally sufficient to dispel any

suggestion of prejudice and to justify a trial court's refusal to sever properly joined

charges. [Citations.] Morever, even if the evidence underlying these charges would not

be cross-admissible in hypothetical separate trials, that determination would not itself

establish prejudice or an abuse of discretion by the trial court in declining to sever

properly joined charges." (Ibid.)

       "If we determine that evidence underlying properly joined charges would not be

cross-admissible, we proceed to consider 'whether the benefits of joinder were

sufficiently substantial to outweigh the possible "spill-over" effect of the "other-crimes"

evidence on the jury in its consideration of the evidence of defendant's guilt of each set of

offenses.' [Citations.] In making that assessment, we consider three additional factors,

any of which—combined with our earlier determination of absence of cross-

admissibility—might establish an abuse of the trial court's discretion: (1) whether some

of the charges are particularly likely to inflame the jury against the defendant; (2)

whether a weak case has been joined with a strong case or another weak case so that the

totality of the evidence may alter the outcome as to some or all of the charges; or (3)

whether one of the charges (but not another) is a capital offense, or the joinder of the

                                              11
charges converts the matter into a capital case. [Citations.] We then balance the

potential for prejudice to the defendant from a joint trial against the countervailing

benefits to the state." (Id. at p. 775.)

       "[T]here exists a continuum concerning the degree of similarity required for cross-

admissibility, depending upon the purpose for which introduction of the evidence is

sought: 'The least degree of similarity . . . is required in order to prove intent. . . . In

order to be admissible [to prove intent], the uncharged misconduct must be sufficiently

similar to support the inference that the defendant " 'probably harbor[ed] the same intent

in each instance.' " ' " (Soper, supra, 45 Cal.4th at p. 776.) "The greatest degree of

similarity is required for evidence of uncharged misconduct to be relevant to prove

identity. For identity to be established, the uncharged 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 distinctive as to be like a signature.' "

(People v. Ewoldt (1994) 7 Cal.4th 380, 403.) "The inference 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 combination when

considered together. [Citation.] [¶] . . . [¶] [T]he likelihood of a particular group of

geographically proximate crimes being unrelated diminishes as those crimes are found to

share more and more common characteristics." (People v. Miller (1990) 50 Cal.3d 954,

987-989.)



                                              12
B. Analysis

       Here, we agree with the trial court that the evidence was cross-admissible to prove

intent. A necessary element of the crime of robbery is the intent to permanently deprive

the owner of his or her property. (See People v. Anderson (2011) 51 Cal.4th 989, 994.)

Burglary is committed when a person enters a building with intent to commit a grand or

petit larceny or any felony. (People v. Montoya (1994) 7 Cal.4th 1027, 1041.) When

Gladney entered each hotel, his intent in committing all of the crimes was to steal money,

as shown by the following circumstantial evidence: Gladney previously worked as a

night auditor at two hotels; he was familiar with the operations of the night shift and

elected to commit all crimes during that shift, including at a hotel where he had been

employed; when he entered each hotel, he wore a mask to conceal his identity; and he

carried a gun and demanded money from the night auditors. Such evidence was cross-

admissible to prove Gladney's intent for all charges.

       Gladney argues that evidence related to intent "would only be relevant, and thus

admissible, if the evidence had previously established identity; [here,] it did not." The

Soper court rejected a similar argument, reasoning: "There is no requirement that it must

be conceded, or a court must be able to assume, that the defendant was the perpetrator in

both sets of offenses." (Soper, supra, 45 Cal.4th at p. 778.)

       Separately, a significant amount of cross-admissible evidence established

Gladney's identity: During each crime, the perpetrator wore a distinctive black hooded

sweatshirt with white drawstrings and a white zipper, black and white shoes and gloves,

and a face covering of black material. The suspect carried a black or dark handgun in

                                             13
each instance. Witnesses described the perpetrator as a tall and skinny man. When

Gladney was arrested three days after the last crime, he was wearing clothes matching

those worn by the perpetrator. Booking information showed Gladney was young, tall,

and thin when arrested, matching the trial witnesses' descriptions. Some witnesses

indicated the suspect was Black, had a tan, or had a medium complexion. Finally, within

a three-month span, the perpetrator carried out all crimes during the night shift and at

hotels that were "geographically proximate." Based on analysis of his cell phone,

Gladney was near all crime scenes at the relevant times. Testimony regarding each

incident was therefore cross-admissible to prove Gladney's identity on all charges.

       Contrary to Gladney's claim, the witnesses' conflicting testimony regarding the

suspect's ethnicity was not sufficient to sever the charges because their testimonies "[did]

not contradict the shared distinctive marks" of Gladney's attire in the different crimes.

(Verzi v. Superior Court (1986) 183 Cal.App.3d 382, 387-388.) The witnesses'

inconsistent testimony is not unexpected in light of the fact that the perpetrator wore a

mask, the victims could only see a little bit of his skin, and the incidents lasted only a

brief moment, during which the victims were threatened with a gun. But the impact of

their inconsistency regarding his ethnicity is vitiated because they gave consistent

testimony regarding the perpetrator's clothing and physical build.

       Under the circumstances, we conclude Gladney has failed to establish that the trial

court's ruling fell outside the bounds of reason. (Soper, supra, 45 Cal.4th at p. 774.) The

court carefully analyzed the issue of severance in light of the relevant law. Such a



                                              14
determination of cross-admissibility "dispel[s] any prejudice and justif[ies] a trial court's

refusal to sever the charged offenses." (Alcala v. Superior Court, supra, 43 Cal.4th at

p. 1221.) Therefore, we need not analyze the remaining factors described above. (Ibid.)

       Although we find the trial court's denial of Gladney's severance motion proper at

the time it was made, "[b]ecause the issue is raised on appeal following trial, we must

also consider whether, 'despite the correctness of the trial court's ruling, a gross

unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or

due process of law.' " (People v. Sandoval (1992) 4 Cal.4th 155, 174.)

       There is no prejudicial effect from joinder when the evidence of each crime is

simple and distinct. (Soper, supra, 45 Cal.4th at p. 784.) Here, the evidence underlying

the different crimes was relatively straightforward. There was no great disparity in the

nature of the six charges. Contrary to Gladney's assertion, the trial court did not combine

weaker cases with stronger cases. Further, the trial court correctly instructed the jury

with CALCRIM No. 3515 to "consider each count separately and return a separate

verdict for each one." We conclude Gladney failed to show that denial of severance

deprived him of a fair trial.




                                              15
                                  DISPOSITION

      The judgment is affirmed.




                                                O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


AARON, J.




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