P. v. Contreras
Filed 7/29/13 P. v. Contreras CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ISMAEL
GONZALEZ CONTRERAS,
Defendant and Appellant.
A135198
(Alameda
County
Super. Ct.
No. CH44529B)
Defendant
Ismael Contreras and Ronnie Padilla were jointly charged in the second amended
information with attempted premeditated
murder and assault with a deadly weapon.
Each count had allegations that each defendant personally inflicted
great bodily harm and committed the offense to promote a
additional gun- and gang-related crimes.
A jury convicted defendant—and Padilla—on the two jointly-charged
counts, for which defendant was sentenced to an aggregate term of 18 years to
life. (Padilla was convicted as charged
on 11 of the charges against him, acquitted on one, and found guilty of a
lesser included offense on the last.)
After
the first consolidated information was filed, which had the two joint charges
and only ten separate charges against Padilla, defendant moved to sever trial
on the joint charges. The obvious ground
for the motion was that the two jointly-charged offenses were alleged to have
occurred on October 3, 2006,
but the remaining counts against Padilla involved offenses for November 12, 2005, December 31, 2005, and March 26, 2008. Immediately after granting the prosecution’s
motion to amend the information with the final charge against Padilla, the
trial court denied defendant’s severance motion, as follows:
“The
motion to sever will be denied. The
basis of that is the cross-admissibility of evidence. Also there’s nothing distinctive about Counts
Three through Thirteen that are inflammatory.
Gang evidence is part of the facts that have to be elicited by the
prosecution to prove the 186.22 allegations.
There’s no danger that Mr. Contreras will be convicted on Counts One and
Two simply by the jury hearing evidence produced by Counts Three through
Thirteen. The only carryover will be the
evidence relating to the pattern of on-going criminal activity. [¶] Further, the limiting instruction
pursuant to CALCRIM 1403 and CALJIC 17.24.3 will protect Mr. Contreras from the
jury using that evidence for any other purpose than that for which they are
instructed.â€
Defendant’s
sole contention is that severance ought to have been granted.
California
has a preference for joint trials. “When
two or more defendants are jointly charged with any public offense
. . . they must be tried jointly†(Pen. Code, § 1098). However, “the court in which a case is
triable, in the interest of justice and for good cause shown, may, in its
discretion order that the different offenses of counts set forth in the accusatory
pleading be tried separately†(Pen. Code, § 954).
“ ‘We review a trial court’s denial
of a severance motion for abuse of discretion based upon the facts as they
appeared when the court ruled on the motion.’
[Citations.] ‘If we conclude the
trial court abused its discretion, reversal is required only if it is
reasonably probable the defendant would have obtained a more favorable result
at a separate trial.’ [Citations.] ‘If the court’s joinder ruling was proper when
it was made, however, we may reverse a judgment only on a showing that joinder
“ ‘resulted in “gross unfairness†amounting to a denial of
(People v. Souza (2012) 54
Cal.4th 90, 109.)
“A trial court’s denial of a motion for
severance of charged offenses amounts to a prejudicial abuse of discretion if
the ‘ “trial court’s ruling ‘ “falls outside the bounds of
reason.†’ †’
[Citation.] . . . ‘The
factors to be considered are these: (1)
the cross‑admissibility of the evidence in separate trials; (2) whether
some of the charges are likely to unusually inflame the jury against the
defendant; (3) 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 (4) whether one of the charges is a capital offense, or
the joinder of the charges converts the matter into a capital case.’ [Citations.]
‘The state’s interest in joinder gives the court broader discretion in
ruling on a motion for severance than it has in ruling on [the] admissibility
of evidence.’ [Citations.]†(Alcala
1205, 1220-1221.)
Defendant
fails to persuade us that the trial court’s ruling satisfies the requirements
for reversal.
The
first of the governing factors—“the cross-admissibility of the evidence in separate trialsâ€â€”was
correctly assessed by the trial court.
Both of the counts against defendant and Padilla had enhancement
allegations that the offense was, quoting the language of Penal Code section
186.22, subdivision (b)(1), “committed for the benefit of, at the direction of,
and in association with a criminal street gang with the specific intent to
promote, further and assist in criminal
conduct by gang members.†“[T]he
‘criminal street gang’ component of a gang enhancement requires proof of three
essential elements: (1) that there be an
‘ongoing’ association involving three or more participants, having a ‘common
name or common identifying sign or symbol’; (2) that the group has as one of
its ‘primary activities’ the commission of one or more specified crimes; and
(3) the group’s members either separately or as a group ‘have engaged in a
pattern of criminal gang activity.’ â€
(People v. Vy (2004) 122
Cal.App.4th 1209, 1222, quoting People v.
Gardeley (1996) 14 Cal.4th 605, 617.)
It
was therefore very likely, as the trial court anticipated, that proving the
gang enhancements in the joint counts would necessarily expand the
chronological attention of the jury beyond October 3, 2006. Whether Contreras might be personally
implicated by that evidence would be pretty much irrelevant, because a mass of
gang-related evidence was going to be
put before the jury. Moreover, all but
one of the crimes charged against Padilla—and that was the one added the date
defendant’s severance motion was denied—were alleged to have occurred prior to
October 3, 2006, the date of the jointly-charged offenses, and thus could be
included in proving the gang’s existence and pattern of criminal activity.
The
second factor—whether some of the charges against Padilla would be likely to
unusually inflame the jury against the defendant—does not aid
defendant. The charges leveled against
Padilla alone were five counts of assault with a firearm; two counts of
shooting at an occupied vehicle; one count of permitting someone to shoot from
a vehicle; one count of kidnapping for ransom; one count of making a criminal
threat; and—the charge added the day defendant’s severance motion was denied—one
count of having custodial possession of a firearm. All but four of these counts were alleged to
have been committed for the purpose of aiding a criminal street gang. These charges do not seem more inflammatory
than the attempted murder and firearm assault charges against defendant the
jury would consider. Padilla’s other
charges would be a matter of degree, but not of kind.
The
third factor—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—is no
more helpful to defendant. To judge from
the ensuing verdicts—which is technically off-limits (see People v. Souza, supra,
54 Cal.4th 90, 109)—the evidence against defendant was if anything stronger
than that against Padilla, given that Padilla was acquitted of one charge and
found guilty on another of a lesser included offense. But neither qualifies as a “weak case.â€
This
never was a capital case, so the fourth factor is inapplicable.
We
conclude that, based on what it knew at the time, the trial court did not abuse
its broad discretion in denying defendant’s severance motion, (People
v. Souza, supra, 54 Cal.4th 90,
109; Alcala v. Superior Court,
joint trial “ ‘ “ ‘resulted in “gross unfairness†amounting to a
denial of due process.’ †’ †(People v. Souza, supra, at
p. 109.)
The
judgment of conviction is affirmed.
_________________________
Richman,
J.
We concur:
_________________________
Kline,
P.J.
_________________________
Lambden, J.
