P. v. Bellazain
Filed 7/29/13 P. v. Bellazain CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE
DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
PAUL BELLAZAIN,
Defendant and Appellant.
A133985
(San Francisco City and County
Super. Ct. No. 212437-03)
Paul
Bellazain (appellant) appeals from a final judgment of conviction of numerous
felonies following a jury trial.
Appellant contends the trial court erred in denying his
FACTUAL
AND PROCEDURAL BACKGROUND
On
January 4, 2010, Latanya Gaitlin lived on Redondo Street in
Francisco with several of her family members. Around 3:00 p.m. on that day, officers
responded to a report of a burglary in
progress at Gaitlin’s home. San
Francisco Police Officers Misaghi and Hargreaves were the first to arrive, and
they directed other responding units to set up a perimeter. Shortly thereafter, Misaghi observed three
males walk out of the house toward the front gate. The males were approximately 12 feet from
Misaghi.
Appellant
was walking behind two of the males, DeShawn Christopher and Terence Smith, and
Misaghi immediately recognized appellant’s face from a “photo†he had
seen. Misaghi ordered the men to raise
their hands to ensure they were unarmed.
Smith and Christopher immediately complied, but appellant turned and ran
back into the house. As appellant did
so, Misaghi observed him make a “furtive throwing motion†in the hallway. A gun was later recovered from a box in the
hallway.
Misaghi
radioed for other officers to pursue appellant while he proceeded to take Smith
and Christopher into custody. Appellant
ran out the back of the house and was seen jumping over a fence. After detaining the two other suspects,
Misaghi pursued appellant. A short time
later, Misaghi encountered appellant midway down the next block as he was
scaling a nearby fence. Misaghi ordered
appellant to stop, but he continued to climb over the fence.
Misaghi
then lost sight of appellant. After
following appellant over several more fences, Misaghi found him sitting on top
of a fence, which separated a backyard area from a road. Appellant was uncooperative, but he was
eventually taken into custody.
Around
the same time appellant was arrested, officers received a report of another
person, a juvenile, who was attempting to flee from police. The juvenile was taken into custody in
connection with the burglary of a different house in the same area. Police recovered a silver iPod and a package
of cigars along the flight path of the juvenile.
Later
that afternoon, Gaitlin was notified at her workplace that her house had been
burglarized. She returned home to find
that her bedroom and several other areas of the house had been disturbed. Handbags, jewelry, and a purple iPod were
missing from the house. These items were
later found in the possession of either Smith or Christopher. Gatlin reported that the box of cigars and
the silver iPod recovered from the juvenile did not belong to any of her family
members.
The
jury trial commenced on August 16, 2011, and the three men were jointly
tried. On August 22, the San Francisco
District Attorney filed a second amended information charging appellant with
Code, § 459) (count 1); receipt of stolen property (id., § 496, subd. (a)) (count 2); illegal possession of a
firearm by a felon (id., former
§ 12021, subd. (a)(1), now § 29800, subd. (a)(1)) (count 3);
possession of a loaded firearm (id.,
former § 12031, subd. (a)(1), now § 25850, subd. (a)) (count 4); and
two counts of resisting arrest (id.,
§ 148, subd. (a)(1)) (counts 5 & 6).
Counts 1 and 2 also alleged an enhancement for use of a firearm (
on counts 1, 2, 3, 5, and 6, and acquitted him on count 4.
appellant to an aggregate term of eight years in prison. Appellant filed a timely notice of appeal.
DISCUSSION
Appellant
contends the trial court erred in refusing to order a mistrial when Smith
offered a defense that conflicted with his own.
We disagree. Although appellant
and Smith took different paths in defending against the charges, the defenses
were not mutually exclusive. The jury’s
acceptance of Smith’s approach would not foreclose the possibility the jury
could also have believed appellant’s theory.
Prior
to trial, appellant brought a motion to sever based on concerns the prosecution
planned to introduce statements by Smith and Christopher that implicated
him. The prosecutor indicated he did not
plan to use the statements, and the court denied the motion as “largely moot.†Appellant does not challenge that ruling on
appeal. At the close of the
prosecution’s case, appellant made a motion for a mistrial based on the court’s
failure to sever his case from those of Christopher and Smith. Appellant challenges the ruling denying that
motion.
“The
Legislature has expressed a preference for joint trials.†(People
v. Carasi (2008) 44 Cal.4th 1263, 1297 (Casari).) “When two or more defendants are jointly
charged with any public offense, whether felony or misdemeanor, they must be
tried jointly, unless the court order[s] separate trials.†(Pen. Code, § 1098.) “A ‘classic’ case for joint trial is
presented when [the] defendants are charged with common crimes involving common
events and victims. [Citation.]†(People
v. Keenan (1988) 46 Cal.3d 478, 499-500.)
“We review a trial court’s denial of a severance motion for abuse of
discretion based on the facts as they appeared when the court ruled on the
motion. [Citation.]†(People
v. Lewis (2008) 43 Cal.4th 415, 452.)
If the court’s ruling was proper at the time it was made, a reviewing
court may reverse a judgment only on a showing that the joint trial
“ ‘resulted in “gross unfairness†amounting to a denial of due
process.’ †(People v. Mendoza (2000) 24 Cal.4th 130, 162.)
“A
trial court should grant a mistrial only when a party’s chances of receiving a
fair trial have been irreparably damaged . . . . [Citation.]â€
(People v. Silva (2001) 25
Cal.4th 345, 372.)
“ ‘ “Whether a particular incident is incurably prejudicial is
by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions.†[Citation.]’ †(People
v. Harris (1994) 22 Cal.App.4th 1575, 1581.)
Initially,
appellant argues severance was warranted because he was prejudiced by the
testimony of Smith’s father, Alfred Terrell, who told jurors that Smith
acknowledged he had made “a huge mistake,†and felt remorse over the
incident. Appellant seems to contend
this was tantamount to testifying to a confession by Smith. Even if this properly characterizes Terrell’s
testimony, severance was not required.
Confessions by codefendants require a severance only if they implicate
other jointly tried defendants. (
895 [“if the prosecutor in a joint trial seeks to admit a nontestifying
codefendant’s extrajudicial statement, either the statement must be redacted to
avoid implicating the defendant or the court must sever the trialsâ€], overruled
on another ground by People v. McKinnon
(2011) 52 Cal.4th 610, 637-643; accord, People
v. Gamache (2010) 48 Cal.4th 347, 379.)
While the statement suggested Smith was guilty of some crime, it did not
implicate appellant. At no point during
his testimony did Terrell refer to appellant by name or suggest appellant was
in any way involved.
Second,
appellant contends severance was required because Terrell’s testimony created
conflicting defenses among the codefendants.
He argues Smith’s approach was essentially to admit guilt to possessing
stolen property, maintain his innocence as to the burglary charge, and cast
himself as remorseful and cooperative.
Appellant, on the other hand, continued to maintain he was mistakenly
identified as the third perpetrator. But
this conflict did not mandate separate trials.
As our Supreme Court has explained, in order to justify severance, a
defendant must demonstrate “ ‘ “that the conflict is so prejudicial
that [the] defenses are irreconcilable, and the jury will unjustifiably infer
that this conflict alone demonstrates that [all] are guilty.†’ [Citation.]â€
(People v. Souza (2012) 54
Cal.4th 90, 111.) Even defense theories
that are hostile to one another or attempt to cast blame on codefendants do not
warrant separate trials. (
162 (Tafoya).) Instead, conflicting defenses warrant
severance only “where the acceptance of one party’s defense precludes the other
party’s acquittal. [Citation.]†(Carasi,
supra, 44 Cal.4th at p. 1296.)
Smith’s and appellant’s defense theories were not irreconcilable: Jurors
could have believed Smith was guilty of only possession of stolen property and
felt remorseful for his actions, and also that appellant had been misidentified
by police as the third perpetrator simply because he was in the wrong place at
the wrong time.
Finally,
appellant contends separate trials were required because Smith’s counsel
“consistently†and “repeatedly†referred to the third person by name as
appellant, in conflict with appellant’s theory he had been misidentified by
police.
comments, they did not warrant trial severance.
The jury was instructed that neither counsel’s questions nor her closing
argument were evidence and could not be used as a basis to decide the case. “We assume that the jury followed this
instruction.†(People v. Wilson (2008) 44 Cal.4th 758, 798.) Additionally, as noted above, hostile defense
theories that attempt to cast aspersions on codefendants are an insufficient
basis for severance. (
DISPOSITION
The
judgment is affirmed.
SIMONS,
J.
We concur.
JONES, P.J.
BRUINIERS, J.
counts 1 and 2, and the jury found them guilty on both counts.
never provides any citation in his briefing to a place in the record where
Smith’s counsel actually did so.
