Filed 11/15/13 P. v. Hudson CA1/5


             NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
          Plaintiff and Respondent,                                      A134881
                   v.
UMAR R. HUDSON,                                                          (San Francisco City and County
                                                                         Super. Ct. No. 208349)
          Defendant and Appellant.

          Appellant Umar R. Hudson was convicted after a jury trial of one count of first
degree murder (Pen. Code, § 187, subd. (a)), two counts of lewd acts on a child (id.,
§ 288, subd. (a)), one count of forcible oral copulation (id., former § 288a, subd. (c)(2)),
and one count of aggravated sexual assault of a child (id., § 269, subd. (a)(4)). On
appeal, appellant challenges (1) the trial court’s denial of his severance motion, and (2) a
jury instruction regarding false or misleading statements. We reject these challenges and
affirm.
                                                  BACKGROUND
          In late 2006 and early 2007, appellant lived with his girlfriend, J.S., and their
child. J.S.’s other children also lived with them, including eight-year-old A.S. and 13-
year-old M.S. A.S. testified that appellant committed a lewd act against her in her
bedroom, and DNA analysis indicated semen found on A.S.’s comforter was likely
appellant’s. M.S. also testified to incidents in which appellant sexually molested her.

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       When A.S. told her mother what appellant had done, J.S. kicked him out of the
house. A.S. reported the incident to the police, who subsequently also spoke to M.S.
About two months after A.S. first talked to the police, appellant stabbed J.S. 45 times and
killed her. The prosecution’s theory was appellant committed the murder to retaliate
against J.S. for supporting her daughters in reporting appellant to the police. Appellant
did not dispute that he killed J.S., but argued a different motive justified a conviction of
manslaughter.
                                       DISCUSSION
I. Severance Motion
       Before trial, the trial court denied appellant’s motion to sever the murder charge
from the four molestation charges. Appellant concedes the offenses were all of the same
class and joinder was therefore proper under Penal Code section 954, which authorizes
joinder of “two or more different offenses of the same class of crimes or offenses.” He
argues the trial court nonetheless should have exercised its discretion to sever the
charges.
       In an appeal challenging a trial court’s refusal to sever properly joined charges,
“[the] defendant must show that the trial court’s ruling was an abuse of discretion.
[Citation.] In order to establish an abuse of discretion, [the] defendant must make a
‘clear showing of prejudice.’ [Citation.]” (People v. Thomas (2012) 53 Cal.4th 771,
798.) “We consider first whether the evidence of the two sets of offenses would have
been cross-admissible if the offenses had been separately tried. [Citation.] If the
evidence would have been cross-admissible, then joinder of the charges was not
prejudicial.” (Ibid.) If the evidence would not have been cross-admissible, “[w]e
consider ‘[1] whether some of the charges are likely to unusually 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 total evidence may alter the outcome of some or all of the charges;
and [3] whether one of the charges is a capital offense, or the joinder of the charges
converts the matter into a capital case.’ [Citation.] ‘We then balance the potential for


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prejudice to the defendant from a joint trial against the countervailing benefits to the
state.’ [Citation.]” (Id. at pp. 798-799.)
       Appellant concedes evidence of the molestation charges would have been
admissible in a separate trial on the murder charge as evidence of motive; however, he
contends evidence of the murder would not have been admissible in a separate trial on the
molestation charges. We need not decide whether evidence of the murder would have
been cross-admissible because the cross-admissibility of the molestation evidence alone
is sufficient to justify joinder. (People v. Zambrano (2007) 41 Cal.4th 1082, 1129 [“it is
enough that the assaults were admissible in the murder case; ‘two-way’ cross-
admissibility is not required”], disapproved of on another ground by People v. Doolin
(2009) 45 Cal.4th 390, 421 & fn. 22; People v. Cunningham (2001) 25 Cal.4th 926, 985
[“complete cross-admissibility is not necessary to justify the joinder of counts”].)
Accordingly, the trial court did not abuse its discretion by denying severance.
II. Jury Instruction
       Over defense objection, the trial court instructed the jury pursuant to CALCRIM
No. 362: “If the defendant, Umar Hudson, made a false or misleading statement relating
to the charged crime knowing the statement was false or intending to mislead, that
conduct may show he was aware of his guilt of the crime and you may consider it in
determining his guilt. [¶] If you conclude that the defendant made the statement, it is up
to you to decide its meaning and importance. However, evidence that the defendant
made such a statement cannot prove guilt by itself.”
       Appellant contends there was no evidence of a false or misleading statement to
support this instruction. A police officer testified at trial that, shortly after the murder
and near the scene of the crime, he asked appellant to identify himself and appellant
responded with a false name. This evidence is sufficient to support the challenged
instruction. (People v. Watkins (2012) 55 Cal.4th 999, 1028 [CALJIC version of
CALCRIM No. 362 “was supported by evidence that [the] defendant gave a false name
. . . upon arrest”].)


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       Appellant argues the jury might have improperly considered the challenged
instruction in connection with the molestation charges because the trial court did not limit
it to the murder charge. In light of the other evidence presented on the molestation
charges, it is not reasonably probable a more favorable result would have occurred if such
a limiting instruction had been provided; any error in failing to provide one was therefore
harmless. (People v. Watson (1956) 46 Cal.2d 819, 836.)
                                      DISPOSITION
       The judgment is affirmed.




                                                 SIMONS, J.



We concur.




JONES, P.J.




BRUINIERS, J.




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