Filed 9/22/16 P. v Boswell CA4/1
                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                       COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                        DIVISION ONE

                                                STATE OF CALIFORNIA


THE PEOPLE,                                                               D067946

          Plaintiff and Respondent,

          v.                                                              (Super. Ct. No. SCD250082)

JEFF ANTOINE BOSWELL,

          Defendant and Appellant.


          APPEAL from a judgment of the Superior Court of San Diego County, Howard H.

Shore, Judge. Affirmed as modified.


          Nancy J. King, under appointment by the Court of Appeal, for Defendant and

Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A.

Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and

Respondent.

          A jury found Jeff Antoine Boswell guilty of murdering Blanche Griffin while

engaged in the commission or attempted commission of a robbery and burglary (count 1),
and burglary of an inhabited dwelling (count 2). The jury also found Boswell guilty of

two counts of commercial burglary (counts 3, 4) and petty theft (count 5). The trial court

found true certain prior conviction allegations. The court sentenced Boswell to a total

term of life without the possibility of parole, plus 20 years and four months. Boswell

appeals, contending: (1) his burglary conviction should be vacated because it is a lesser-

included offense of the burglary special circumstance attached to his murder conviction;

(2) consolidation of the charges denied him the due process right to a fair trial; (3) the

trial court prejudicially erred in allowing the prosecution to admit certain crime scene and

autopsy photographs; and (4) the abstract of judgment contains clerical errors. We affirm

the judgment as modified to correct the clerical errors in the abstract of judgment.

                         GENERAL FACTUAL BACKGROUND

       Since Boswell does not challenge the sufficiency of the evidence supporting his

convictions, we briefly summarize his offenses.

The Murder

       Eighty-seven-year-old Griffin lived alone in a home in San Diego. Her neighbor,

Ana Murillo, occasionally took Griffin to casinos because Griffin liked to gamble.

Griffin managed her own money and always kept money hidden around the house,

including any winnings from her gambling. Boswell, a drug user, lived with Murillo.

Boswell did not work and Murillo gave him money to buy drugs.

       On July 7, 2013, Murillo took Griffin to a casino where they met Boswell. (All

further date references are to 2013.) Griffin won some money during that trip. Murillo

later escorted Griffin inside her apartment. Boswell was with Murillo that evening, but

                                              2
left in the middle of the night. A few days later, Griffin's son-in-law found Griffin's body

on the floor of her home when he went to check on her after Griffin failed to return some

telephone calls. A medical examiner opined that Griffin died after suffering a physical

assault and strangulation. He classified her death as a homicide.

       The police arrested Boswell on an outstanding warrant for a parole violation, but

released him on July 21. While the police had Boswell in custody they swabbed the

inside of his mouth and scraped his fingernails for DNA. Male DNA recovered from

Griffin's neck shared markers with Boswell's DNA. Boswell was also a possible

contributor to DNA found under Griffin's fingernails. A criminalist opined that a one in

1.2 quintillion possibility existed that the DNA found on Griffin's right hand belonged to

an African-American other than Boswell.

The Theft Crimes

       On January 4, before the murder, Boswell stole a cellular telephone from a

hospital emergency technician and received a citation for petty theft. On July 22 and 30,

two liquor stores were burglarized. Blood left at both crime scenes belonged to Boswell.




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                                        DISCUSSION

                                  I. Lesser Included Offense

A. Additional Background

         Count 1 charged Boswell with murdering Griffin and alleged two special

circumstances, including a special circumstance that Boswell committed the murder

while engaged in the commission or attempted commission of the crime of burglary in

the first or second degree. Count 2 alleged that Boswell committed burglary of the first

degree by unlawfully entering a building occupied by Griffin with the intent to commit

theft.

         The jury convicted Boswell of first degree murder and found true the burglary and

robbery special circumstance allegations. The jury also convicted Boswell of the

burglary count. The trial court sentenced Boswell to a term of 25-years to life for the

burglary, but stayed the sentence under Penal Code1 section 654.

B. Analysis

         Boswell contends that, under the elements test, burglary is a lesser included

offense of murder committed during a burglary because the offense of murder with a

burglary special circumstance cannot be committed without also committing the crime of

burglary. Thus, he asserts that his burglary conviction must be reversed. The People

disagree, arguing that special circumstances, like enhancements, are irrelevant to the

lesser-included offense analysis. The People have the better argument.



1        Undesignated statutory references are to the Penal Code.
                                               4
       Generally, a defendant may be convicted of multiple offenses arising out of the

same act or course of conduct. (§ 954; People v. Reed (2006) 38 Cal.4th 1224, 1226-

1227.) A defendant, however, may not be convicted of an offense that is included within

another offense. (Id. at p. 1227.) To determine whether one offense is necessarily

included within another, we look to the statutory elements of the offenses. "[I]f the

statutory elements of the greater offense include all of the statutory elements of the lesser

offense, the latter is necessarily included in the former." (Ibid.) Where, as here, the

challenge is to a charged offense, we do not look to the accusatory pleadings. The

pleadings are relevant only when the question is whether a defendant may be convicted of

an uncharged crime. (Id. at pp. 1228-1231.)

       As the People note, our high court has repeatedly stated that sentencing

enhancements are not elements of the offense and cannot be considered in determining

whether an offense is a lesser included offense. (People v. Wolcott (1983) 34 Cal.3d 92,

100-101 (Wolcott); People v. Izaguirre (2007) 42 Cal.4th 126, 128 [enhancement

allegations may not be considered in defining necessarily included offenses for the

multiple conviction rule, Apprendi v. New Jersey (2000) 530 U.S. 466 notwithstanding];

People v. Sloan (2007) 42 Cal.4th 110, 122-123 (Sloan) [same].) In People v. Anderson

(2009) 47 Cal.4th 92 (Anderson), our high court explained that a criminal offense is a

collection of specific factual elements that the Legislature has chosen to define as a

crime. (Id. at p. 101.) On the other hand, a " 'penalty provision prescribes an added

penalty to be imposed when the offense is committed under specified circumstances.'

[Citation.] Under California law, a sentencing enhancement or penalty allegation is not a

                                              5
complete offense in itself. It is 'separate from the underlying offense and does not set

forth elements of the offense or a greater degree of the offense charged. [Citations.]'

[Citation.] Conceptually, a penalty provision is an appendage that attaches to an offense

and, if proven, prescribes additional punishment for the crime." (Id. at p. 115, italics

added.)

   Murder and burglary are two separate crimes that contain different elements. (See,

§ 187, subd. (a) [murder], compare § 459 [burglary].) The statutory elements of burglary

are not necessarily included in the statutory elements of murder. Thus, to make his

argument, Boswell creates a new crime, "murder with a burglary special circumstance."

While the Legislature can create new crimes, Boswell cannot.

       Boswell next attempts to distinguish sentencing enhancements discussed in

Wolcott and Sloan, with special circumstances. Boswell notes that California Rules of

Court, rule 4.405(3) defines an enhancement as "an additional term of imprisonment

added to the base term." In contrast, he points out that a special circumstance under

subdivision (a) of section 190.2 attaches to a first degree murder charge to subject a

defendant to the penalty of death, or imprisonment for life without the possibility of

parole. Thus, instead of adding a more severe sentence, Boswell argues that a special

circumstance removes the possibility of release. We fail to see the difference.

       The jury found Boswell guilty of first degree murder. (§ 187, subd. (a).) The jury

later found true the burglary special circumstance allegation attached to the murder

charge. The burglary special circumstance increased the penalty for Boswell's murder

conviction by adding the death penalty or imprisonment for life without the possibility of

                                              6
parole. (§ 190.2, subd. (a)(17)(G).) The burglary special circumstance is not an element

of murder; rather, it functions similar to a sentencing enhancement to increase Boswell's

penalty for the murder. The burglary special circumstance is irrelevant to the

determination under the statutory elements test of whether Boswell's burglary charge is a

lesser included offense of his murder charge. Accordingly, we affirm Boswell's burglary

conviction.

                               II. Consolidation of Charges

A. Additional Background

       The People initially filed a complaint charging Boswell with one count of murder

with a robbery special circumstance, a prior serious felony conviction, and a prior strike

conviction. The People later filed an amended complaint adding a burglary special

circumstance to the murder charge, and two additional counts of commercial burglary.

Just before trial, the district attorney filed a consolidated amended information which

included a charge of petty theft based on Boswell's theft of a cellular telephone, and also

added an additional prison prior. Defense counsel did not oppose the consolidated

amended information. Defense counsel indicated that when the district attorney elected

not to seek the death penalty, he re-analyzed the matter and elected not to request

severance of the theft charges. Defense counsel believed the burglary charges explained

Boswell's conduct after the murder. The court arraigned Boswell on the consolidated

amended information.




                                             7
B. Analysis

       Boswell contends the charges related to the homicide should have been severed

from the lesser charges, and the failure to do so deprived him of his Fourteenth

Amendment rights to due process and a fair trial on the more serious offense. Boswell

admits that he failed to object to the consolidation or move to sever the charges, but

asserts the issue is reviewable for gross unfairness. Belatedly, in his reply brief, Boswell

asserts ineffective assistance of counsel. We address each argument.

       Boswell's failure to move for severance forfeited the issue on appeal. (People v.

Maury (2003) 30 Cal.4th 342, 392.) To avoid forfeiture, Boswell contends we may

reverse his convictions, despite his failure to seek severance, because consolidation of the

charges caused gross unfairness that deprived him of a fair trial. If a trial court's

severance or joinder ruling is correct at the time it was made, a reviewing court must

reverse the judgment if the "defendant shows that joinder actually resulted in 'gross

unfairness' amounting to a denial of due process." (People v. Arias (1996) 13 Cal.4th 92,

127.) Our Supreme Court, however, "never has adopted the position urged by

[Boswell]," i.e., that a defendant can claim gross unfairness in the absence of a motion to

sever. (People v. Rogers (2006) 39 Cal.4th 826, 851.) Like the Supreme Court in People

v. Rogers, "[w]e need not decide whether review for gross unfairness is available in the

absence of a motion to sever or an objection to joinder, for even if such review is

available, gross unfairness did not result in the present case." (Ibid.)




                                              8
       Here, the evidence underlying the murder and theft offenses was distinct and

straightforward. (People v. Soper (2009) 45 Cal.4th 759, 784 [where evidence pertaining

to joined charges is simple and distinct, the prejudicial effect of joinder usually does not

rise to a level of gross unfairness].) The trial court instructed the jury with CALCRIM

No. 3515 that each count charged a distinct crime and had to be considered separately.

The jury also received instructions on the elements of the offenses, the mental state

required for each charge, and the prosecution's burden of proving the charges beyond a

reasonable doubt. We presume the jury followed these directions. (People v. Sanchez

(2001) 26 Cal.4th 834, 852.) Boswell cited to nothing in the record suggesting the jury

expressed any confusion about the charges. Accordingly, Boswell has not demonstrated

any gross unfairness that denied him due process or a fair trial.

       A defendant claiming ineffective assistance of counsel must show not only that his

or her counsel's performance fell below an objective standard of reasonableness under

prevailing professional norms, but also that it is reasonably probable, but for counsel's

failings, the result would have been more favorable to the defendant. (Strickland v.

Washington (1984) 466 U.S. 668, 687, 694.) To prevail on a claim of ineffective

assistance of counsel based specifically on counsel's failure to move for severance,

Boswell "must show that reasonably competent counsel would have moved for

severance, that such motion would have been successful, and that had the counts been

severed an outcome more favorable to him was reasonably probable." (People v. Grant

(1988) 45 Cal.3d 829, 864-865.) Assuming, without deciding, that reasonably competent



                                              9
counsel would have moved for severance, Boswell cannot demonstrate that a motion to

sever would have been successful.

       "Joinder of criminal charges for trial benefits the public by reducing delay in the

disposition of criminal charges, and it benefits the state by conserving judicial resources

and public funds." (People v. Hill (1995) 34 Cal.App.4th 727, 735.) Section 954

contains the statutory rules governing the joinder and severance of criminal charges.

Section 954 provides, in part: "An accusatory pleading may charge two or more different

offenses connected together in their commission, or . . . two or more different offenses of

the same class of crimes or offenses, under separate counts . . . ." (§ 954.)

       Here, the threshold statutory requirements for joinder are met as the crimes were

connected together in their commission with the "element of intent to feloniously obtain

property run[ning] like a single thread through the various offenses." (People v. Mendoza

(2000) 24 Cal.4th 130, 160 [robberies and a murder committed on sequential days were

connected together in their commission]; People v. Stewart (1985) 165 Cal.App.3d 1050,

1058 [proper to join murder and robbery charges involving different victims where the

offenses occurred during a one-month period and therefore grew out of a "continuing and

intertwined sequence of criminal activity"].) Nonetheless, Boswell may be entitled to

severance of the charges "in the interests of justice and for good cause shown." (§ 954.)

       To have prevailed on a motion to sever, Boswell had the burden of demonstrating

substantial prejudice requiring that the charges be separately tried. (People v. Bradford

(1997) 15 Cal.4th 1229, 1315.) " 'Refusal to sever may be an abuse of discretion where:

(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate

                                             10
trials; (2) certain of the charges are unusually likely to inflame the jury against the

defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak"

case, so that the "spillover" effect of aggregate evidence on several charges might well

alter the outcome of some or all of the charges; and (4) any one of the charges carries the

death penalty or joinder of them turns the matter into a capital case. [Citations.]' " (Ibid.)

       As the People note, evidence cross-admissibility existed because the police linked

Boswell's DNA to three of the four crime scenes. Police obtained Boswell's DNA profile

from fingernail scrapings on Griffin's right hand and from samples taken from her neck.

From this evidence, police connected Boswell to the two commercial burglary cases that

occurred a few weeks after the murder. In addition, the evidence presented concerning

the commercial burglaries and petty theft was less inflammatory than the murder

committed during a burglary and robbery. The commercial burglaries occurred when the

stores were closed and unoccupied. Additionally, Boswell stole the cellular telephone

after the owner of the telephone had left the room. Thus, it is unlikely that these theft

crimes inflamed the jury into convicting Boswell of murder because it determined he was

a thief.

       As for coupling a weak case with a strong case, strong evidence demonstrated

Boswell's culpability for each charge. Boswell admitted stealing the cellular telephone

and stealing cigarettes at the two commercial establishments where he left his blood.

Although Boswell denied killing Griffin, DNA evidence collected from her neck and

under her fingernails connected him to the crime. The jury also heard evidence that

Griffin told her gardener that she did not trust Boswell and was "afraid of him." This is

                                              11
not a situation where the "spillover" effect of aggregate evidence on several charges

might have altered the outcome of the murder charge.

       We conclude that joinder was proper; thus, had defense counsel opposed the

consolidation or moved for severance, these requests would have been denied.

Accordingly, defense counsel was not ineffective in failing to object to the consolidation

and not moving for severance.

                         III. Admissibility of Photographic Evidence

A. Additional Background

       The prosecutor moved in limine to admit crime scene and autopsy photographs.

The prosecutor argued that the photographs would help the medical examiner present his

testimony, and assist the jury in determining whether Griffin's death was due to trauma

and whether Boswell possessed the requisite mental state. The trial court ruled that the

prosecution could show the photographs to witnesses, but before any photograph was

published or offered into evidence, the defense could object and the court would rule on

the objection.

       During the medical examiner's testimony, defense counsel objected to numerous

photographs of Griffin taken during the autopsy. The court overruled the objections and

later allowed the photographs into evidence. During the testimony of Griffin's daughter,

defense counsel objected to the publication of exhibits 2S and 2T, showing the position

of Griffin's body at the crime scene. The court allowed the prosecutor to ask Griffin's

daughter about the photographs, and would then, depending upon the answers, make a

final ruling as to whether they could be published. Defense counsel renewed the

                                            12
objection before the photographs were published to the jury, but the court overruled the

objection.

       Defense counsel also objected to exhibits 12A through 12E, photographs of

Griffin's face, arguing that they were the "most gruesome in detail." The court stated it

would allow the photographs into evidence because they depicted areas of Griffin's body

which were discussed in the testimony, and were not "unduly prejudicial when compared

with the[ir] probative value."

B. Analysis

       Boswell contends the trial court abused its discretion in overruling his Evidence

Code section 352 objections to the photographs because the photographs were

cumulative, unduly prejudicial and inflammatory. We find no prejudicial error.

       A trial court has the discretion to "exclude evidence if its probative value is

substantially outweighed by the probability that its admission will (a) necessitate undue

consumption of time or (b) create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury." (Evid. Code, § 352.) Specifically, admission into

evidence of victim photographs is within the broad discretion of the trial court when a

claim is made that the photographs are unduly gruesome or inflammatory. (People v.

Crittenden (1994) 9 Cal.4th 83, 133.) We will not disturb the trial court's exercise of its

discretion unless the probative value of the photographs clearly is outweighed by their

prejudicial effect. (Id. at p. 134.) Appellate courts "have rejected the contention that

photographs of a murder victim must be excluded as cumulative simply because

testimony also has been introduced to prove the facts that the photographs are intended to

                                             13
establish." (Id. at pp. 134-135.) Prosecutors "are not obliged to prove their case with

evidence solely from live witnesses," and a jury is "entitled" to see photographs of a

victim's body "to determine if the evidence supports the prosecution's theory of the case."

(People v. Gurule (2002) 28 Cal.4th 557, 624.)

        We have examined the photographs and find they are not of such a nature as to

overcome the jury's rationality. The trial court properly admitted the two photographs of

Griffin's body at the crime scene to corroborate and illustrate the testimony of Griffin's

daughter and the investigating officers about the condition in which they found the crime

scene. Generally, the autopsy photographs depicted the external injuries to Griffin's

body, the inside of her mouth, her eyes and internal skull. These photographs were

relevant to establish that a murder had occurred and assist the jury in understanding the

medical examiner's testimony. The photographs supported the prosecution's theory of

felony murder in the commission or attempted commission of robbery and burglary.

Exhibits 12A through 12E, photographs of Griffin's injuries taken at the crime scene,

similarly assisted the jury in understanding and illustrating the medical examiner's

testimony that some type of trauma caused the injuries to Griffin's lip, hands, ear and

skin.

        We conclude that the trial court did not abuse its discretion in determining that the

risk of undue prejudice did not substantially outweigh the probative value of each of the

admitted photographs. Even assuming the trial court abused its discretion in allowing

their admission, the assumed error is harmless given the strength of the evidence

connecting Boswell to the murder. (Chapman v. California (1967) 386 U.S. 18, 24 [error

                                              14
will be deemed harmless if reviewing court can conclude beyond a reasonable doubt that

a rational jury would have found defendant guilty absent the error]; People v. Allen

(1986) 42 Cal.3d 1222, 1258 [any error in admitting photographs was plainly harmless

given the evidence linking defendant to the slayings].)

                                   IV. Abstract of Judgment

       Boswell contends, the People concede, and we agree that the trial court erred in

imposing a parole revocation fine under section 1202.45 because Boswell was sentenced

to life without the possibility of parole. Section 1202.45 does not apply where, as here,

there will be no parole period. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.)

Boswell contends, the People concede, and we agree that the trial court stayed Boswell's

sentence on count 2 under section 654, but that the stay is not indicated in the abstract of

judgment. We order that the judgment be modified to delete the parole revocation fine

and to reflect the stay of sentence on count 2.




                                             15
                                      DISPOSITION

       The judgment is modified to strike the parole revocation fine under Penal Code

section 1202.45, and to correct the abstract of judgment to reflect that sentence on count

2 is stayed under Penal Code section 654. The clerk of the superior court is directed to

prepare an amended abstract of judgment and to forward a certified copy of the amended

abstract to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, subd.

(a), 1216.) As modified, the judgment is affirmed.



                                                                             PRAGER, J.*

WE CONCUR:



NARES, Acting P. J.



HALLER, J.




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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