Filed 7/30/13 P. v. Willis CA2/6
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or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

                                      SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


THE PEOPLE,                                                                 2d Crim. No. B241105
                                                                         (Super. Ct. No. TA117396-01)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

JOHNNY EARL WILLIS,

     Defendant and Appellant.



                   Johnny Earl Willis appeals a judgment following conviction of first degree
murder, attempted murder, and attempted robbery, with findings of personal firearm use
and acts committed to benefit a criminal street gang. (Pen. Code, §§ 187, subd. (a), 189,
664, 187, 664, 211, 12022.53, subds. (b)-(d), 186.22, subd. (b)(1)(C).)1 We conclude that
the trial court did not abuse its discretion by denying Willis's motion to sever the charged
counts, and affirm. (§ 954; People v. Thomas (2012) 53 Cal.4th 771, 797-801.)




1
  All further statutory references are to the Penal Code. References to section 12022.53 are
to the version in effect prior to January 1, 2012.
                         FACTS AND PROCEDURAL HISTORY
                        Attempted Murder and Attempted Robbery
                                     (Counts 2 and 3)
             Marcus Benton, a member of the "20 Crip" criminal street gang, had been
friends with Willis for six months. Benton knew Willis as "J-Bam," a member of the "Bee
Bop Watts" criminal street gang.
             On December 16, 2010, Benton called Willis, seeking to buy a firearm. The
two men agreed to meet near 96th Street and Central Avenue in Los Angeles, an area
Willis assured Benton was claimed by the Crip gang. During an arranged meeting that
night, Willis pointed a gun several inches from Benton's face, demanded his money, and
stated: "Give me the money, blood." Benton turned and ran toward the street. As he ran,
he heard five gunshots. When he reached the street, Benton collapsed with five gunshot
wounds to his back and leg. When Police Officer Jesus Garcia found him lying in the
street, Benton stated that "J-Bam from Bee Bop had shot him."
             Los Angeles Police Officer Francis Coughlin testified as a criminal street
gang expert witness regarding the Bee Bop Bloods gang. He stated that the Bee Bop
Bloods claimed the area of 96th Street and Central Avenue in Los Angeles. Coughlin
described Willis's gang-related tattoos, including the words "Bee Bop," and opined that
Willis committed the crimes against Benton to benefit the Bee Bop Bloods gang.
                                         Murder
                                        (Count 1)
             In 2011, Shontay Burkhardt and her female cousins had a dispute regarding
"Facebook stuff." On March 28, 2011, Burkhardt physically confronted cousin Ebony
McBride and her sisters outside McBride's home. Joseph Herd, Burkhardt's boyfriend,
attempted to break up the altercation, but Willis, Ebony's boyfriend, demanded that the
fight continue. A neighbor also saw Herd and Willis fighting.
             Willis then walked inside the home and returned with a firearm. As Herd
prepared to enter the vehicle in which he and Burkhardt arrived, Willis fired the weapon


                                             2
and shattered the back window. Herd left the vehicle and ran down the street with Willis
in pursuit. Willis fired the weapon two more times, fatally striking Herd.
              At trial, Willis testified and denied meeting or shooting Benton. Willis
stated that he attended a party in San Pedro at the time Benton was shot. He also denied
membership in Bee Bop Bloods, and stated that he belonged to "Bee Bop Money Crew," a
group that "shared [the members'] money."
              Willis also testified that he shot Herd in self-defense after Herd "body
slammed" him and "punch[ed]" him in the face. Willis stated that he shot Herd twice as
Herd walked toward him; Herd then turned and ran.
              Doctor Kevin Booker evaluated Willis and opined that he suffers from
moderate depression and severe chronic post-traumatic stress disorder. Booker also
opined, based upon a hypothetical similar to the incident involving Herd, that Willis would
misperceive Herd's actions as life threatening.
              The jury convicted Willis of murder (count 1), attempted murder (count 2),
and attempted robbery (count 3). (§§ 187, subd. (a), 189, 664, 187, 664, 211.) It also
found that he personally used a firearm causing great bodily injury or death, and
committed the attempted murder and attempted robbery to benefit a criminal street gang.
(§§ 12022.53, subds. (b)-(d), 186.22, subd. (b)(1)(C).) The trial court sentenced Willis to a
prison term of 90 years to life, consisting of 25 years to life for murder, plus 25 years to
life for the firearm enhancement (count 1), and 15 years to life for attempted murder, plus
25 years to life for the firearm enhancement (count 2). Pursuant to section 654, the court
imposed but stayed sentence for attempted robbery (count 3) and the criminal street gang
enhancements (counts 2 and 3).
              Willis appeals and contends that the trial court abused its discretion by
denying his motion to sever count 1 from counts 2 and 3.
                                        DISCUSSION
              Willis argues that the trial court's denial of his severance motion deprived
him of his California and federal constitutional rights to a fair trial and to due process of
law. Specifically, he asserts that the "Bee Bop" gang evidence was prejudicial and unfairly

                                               3
affected adjudication of the murder count. Willis relies upon the court's statements during
argument of the motion that the gang evidence was "substantially prejudicial" regarding
the murder count. He adds that reversal is required pursuant to any standard of review.
              Section 954 permits joinder of "'two or more different offenses of the same
class of crimes or offenses.'" (People v. Thomas, supra, 53 Cal.4th 771, 798.) Although
the requirements for joinder are satisfied, the trial court "in the interests of justice and for
good cause shown, may in its discretion order that the different offenses or counts set forth
in the accusatory pleading be tried separately . . . ." (§ 954.) On appeal, defendant must
establish that the court's ruling was an abuse of discretion. (Thomas, at p. 798.) Defendant
must show a clear showing of prejudice to establish an abuse of discretion. (Ibid.)
              In determining whether the trial court abused its discretion, we consider
whether evidence of the two sets of offenses would have been cross-admissible if they had
been tried separately. (People v. Thomas, supra, 53 Cal.4th 771, 798.) If the evidence is
cross-admissible in separate trials, then joinder is not prejudicial. (Ibid.) If the evidence is
not cross-admissible, we next consider whether the benefits of joinder outweigh any
prejudicial effect of the other crimes evidence. (Ibid.) Thus, we consider whether 1) some
charges are likely to unusually inflame the jury against the defendant; 2) 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) one charge is a capital offense, or the joinder
of the charges converts the prosecution into a capital case. (Id. at pp. 798-799.)
              The trial court did not abuse its discretion by denying the severance motion.
As Willis concedes, the three counts were "of the same class" pursuant to section 954.
(People v. Stanley (2006) 39 Cal.4th 913, 933-934 [murder, attempted murder, and robbery
are crimes of the same class pursuant to section 954].) Moreover, we need not decide
whether evidence of the crimes would have been cross-admissible in separate trials
because cross-admissibility is not dispositive whether the trial court abused its discretion in
denying severance. (People v. Myles (2012) 53 Cal.4th 1181, 1201; People v. Thomas,
supra, 53 Cal.4th 771, 798.)


                                                4
              The murder and attempted murder charges involved Willis running after and
shooting unarmed men. Evidence of each crime was strong; Benton and the witnesses to
Herd's murder knew Willis. Benton informed police officers that J-Bam from Bee Bop
shot him. Benton also possessed a note stating J-Bam's name and phone number, among
others. Joinder did not involve joining a weak case with a strong case or a capital case.
(People v. Thomas, supra, 53 Cal.4th 771, 799.)
              Evidence regarding the Bee Bop gang was relatively brief and filled only 36
pages of trial transcript. The trial court instructed with CALCRIM No. 1403, limiting the
jury's consideration of the gang evidence to counts 2 and 3 and the gang enhancement.
The court also instructed that Willis was not involved in the gang predicate offenses and
that the offenses were relevant only to establish that Bee Bop was a criminal street gang.
We presume that jurors generally understand and follow instructions. (People v. Myles,
supra, 53 Cal.4th 1181, 1212.)
              In view of the strong evidence in each case and the limiting jury instructions,
the gang evidence was not likely to influence the verdict in the Herd murder count.
Weighing against the small risk of prejudice are the substantial benefits of joinder that
include efficiencies in the trial and appellate courts. (People v. Thomas, supra, 53 Cal.4th
771, 800.) Willis has not established that the trial court abused its discretion.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                           GILBERT, P.J.
We concur:



              YEGAN, J.



              PERREN, J.
                                               5
                                Allen J. Webster, Jr., Judge

                          Superior Court County of Los Angeles

                          ______________________________


             Robert E. Boyce, under appointment by the Court of Appeal, for Defendant
and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, Toni R. Johns Estaville, Deputy Attorney General,
for Plaintiff and Respondent.




                                             6
