P. v. Cruz

Filed 9/9/08 P. v. Cruz CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Rand S. Rubin, Judge. Affirmed as modified.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellant Angel Cruz appeals from the judgment entered following a jury trial in which he was convicted of first degree murder with a robbery-murder special circumstance, discharging a firearm with gross negligence (Pen. Code, 246.3),^[1]carrying a loaded firearm on the person or in a vehicle while an active participant in a street gang ( 12031, subd. (a)), and two counts of possession of a firearm by a felon ( 12021, subd. (a)). The court sentenced Cruz to life in prison without the possibility of parole, plus three consecutive terms of 25 years to life. ( 667, subds. (b)-(i), 1170.12, subds. (a)‑(d).)

Cruz contends (1) the trial court erred by denying his pre-trial motions to exclude evidence and sever the trial of certain counts, (2) the evidence was insufficient to support the jurys special circumstance finding and its verdict on one of the firearm possession counts, and (3) the trial court improperly imposed a parole revocation fine. We agree that the parole revocation fine must be stricken, but otherwise affirm.

BACKGROUND

Counts 1 through 4: April 3, 2004

Robert Esparza worked as a security guard at Margarita Jones, a restaurant and nightclub on the corner of Figueroa and Flower Streets near Exposition Park in Los Angeles. The nightclub was a hangout of the Mara Salvatrucha gang. By April 2004,^[2]Esparza had worked at Margarita Jones for about two years. Esparza was familiar with Cruz because Cruz was in a wheelchair and went to the nightclub two or three times per week. Esparza had seen Cruz hundreds of times. Esparza had only seen one other person in a wheelchair at Margarita Jones, and that person was there just once or twice. In addition, Esparza had personally ejected Cruz from the club for making gang hand signs on two or three occasions. Each time, Esparza had spoken to Cruz and explained the reason for his ejection. Esparza had also seen other security guards eject Cruz from Margarita Jones on other occasions.

Esparza saw Cruz inside Margarita Jones in the early morning hours of April 3. At about 2:30, after the nightclub closed and most customers had departed, Esparza saw Cruz sitting in the drivers seat of a white car parked on Flower Street, arguing with a Latino male who was standing alongside the passenger side of the car. Cruz fired two or three gunshots out the drivers side window toward the nearby 110 freeway. Cruz exchanged more words with the man near his car, then fired two or three more shots out the drivers window toward the freeway. Esparza wrote down the license plate number of Cruzs car and told his supervisor, who called the police. Cruz drove away. There was no one else in Cruzs car at that time. Esparza examined one of the expended casings from the ground in the area from which Cruz fired his gun and saw that it was stamped .380 caliber. Esparza left the casings on the ground and waited until about 4:00 a.m., but the police did not arrive.

Cruzs friend Jorge Varillas testified that he saw Cruz sitting in his white Nissan Altima on Flower Street, outside Margarita Jones in the early morning hours of April 3. Cruz was arguing with a Latino male who was seated in the passenger seat of Cruzs car. Varillas heard shots as he approached Cruzs car and saw that Cruz was shooting toward the 110 freeway. Varillas told Cruz to stop shooting, but Cruz fired more shots toward the freeway. There was traffic on the freeway. Varillas described Cruzs gun as a flat, silver automatic that was about six or seven inches long. The man seated in Cruzs car got out and left. Varillas told Cruz he should leave because he would get into trouble if the police responded. Cruz and Varillas drove away in their separate cars.

Twenty-one-year-old college student Max Hazlett went with friends to a nightclub in Hollywood on the night of April 2. He was stylishly attired, including a dark gray metallic Guess jacket and a dressy watch and nice dress shoes. He carried a mobile phone, wallet, lighter, and cigarettes. The group left the nightclub in the early morning hours of April 3 and drove to an apartment where one of the group resided. There, Jonathan Pong picked up his car and drove Hazlett to two gas stations because Hazlett wanted to buy alcohol. Neither store carried alcohol, and Hazlett said he wanted to walk home to his apartment near First Street and Figueroa Street in downtown Los Angeles. Hazlett was quiet and seemed thoughtful, but did not appear to be inebriated. Pong left Hazlett at Washington Boulevard and Figueroa Street.

At approximately 2:23 a.m. on April 3, Hazlett used his mobile phone to summon a taxi to pick him up at 500 West Venice Boulevard, near the intersection of Venice Boulevard and Figueroa Street. The Yellow Cab Company dispatched a taxi, but cancelled the call at 2:38 a.m. Yellow Cabs records indicated that the call was cancelled because the taxi driver did not find the customer at the location. Yellow Cab called Hazlett on his mobile phone at 2:35 a.m., but apparently was unable to reach him.

Beginning at around 3:00 a.m. on April 3, someone used Hazletts mobile phone to call Cruzs friends and family, none of whom knew Hazlett. At 3:21 a.m. Hazletts phone was used to call Varillas. Varillas was asleep and did not answer. Mayra Barrera also received a call from Hazletts phone, but she did not answer. At 3:15 and 3:31 a.m. calls were placed to Julio Delgado using Hazletts mobile phone. Delgado answered one of those calls and found that Cruz was the caller. Delgado spoke to Cruz for a minute or two.

Cruz also used Hazletts phone to call Angela Arces mobile phone a little after 3:00 a.m. Appellants mother, Amanda Cruz, answered the phone, and Arce heard appellant Cruzs voice during that call. Amanda Cruz appeared to be nervous after she hung up from that call and then said something about not knowing where the gloves were. Amanda Cruz and appellants father, Angel Rodriguez, then left the apartment. By the time Arce awoke at around 7:00 a.m., Amanda Cruz, appellant Cruz, and Rodriguez were back in the apartment.^[3]

Arce testified that later on April 3, Amanda Cruz told her that there had been a dead body in the passenger seat of appellant Cruzs car, Amanda and Rodriguez got into the back seat of the car, appellant Cruz drove them somewhere, and Amanda and Rodriguez took the body out of the car and left it near 3rd Street and Lucas. On the drive back to the apartment, appellant Cruz threw the victims shoes out of the car window. At some later date, Rodriguez admitted to Arce that he had helped remove a body from appellant Cruzs car.

Hazletts body was found on Emerald Street near Second Street -- about one and one-half blocks from 3rd Street and Lucas -- at about 5:45 a.m. on April 3. His jacket, shoes, belt, wallet, phone, watch, lighter, and cigarettes were missing. An autopsy revealed that Hazlett was shot twice in the chest at very close range. One shot was slightly higher than the other, but both inflicted fatal wounds. The trajectory of both shots was left to right, front to back, and downward. A bullet was recovered from one of the two wounds. It was most consistent with .380-caliber or 9-millimeter ammunition.

On April 8, Los Angeles Police Department Detective John Parra began investigating the April 3 shooting outside Margarita Jones. Parra did not know about the Hazlett murder. Parra interviewed Esparza and discovered that the license plate Esparza provided was registered to Cruz. Esparza identified Cruz from a photographic array. Parra could not locate any casings, but he found what appeared to be bullet holes in a tarp on a fence near the club and adjacent to the freeway. Parra drove past Cruzs apartment and saw a car with the license plate noted by Esparza parked in a lot next to the building. Parra telephoned the apartment manager on April 10 to verify that a man in a wheelchair lived in apartment 109. He asked the manager about getting a key to enter the apartment and told her he would be executing a search warrant there. Parra obtained a warrant to search Cruzs apartment, and the police executed this warrant on April 13. Neither Cruz nor his car was present. Parra found nothing pertinent to his investigation during the search.

Cruzs car was towed away on April 14. It had been burned from the inside out, and was missing its license plates and all visible vehicle identification numbers (VIN). It was traced to Cruz through a secret VIN. Cruz reported the car stolen on April 23. Cruz told the police officer who took the stolen vehicle report that he had last driven the car at about 10:00 a.m. on April 19 (five days after the tow company recovered it) and noticed it missing on April 21 at about 10:00 p.m.

The police took Cruz and his parents into custody on March 25, 2005. Although Rodriguez and Amanda Cruz initially denied any knowledge of Hazletts murder, they ultimately admitted in tape-recorded statements that they helped Cruz dispose of Hazletts body after Cruz telephoned them several times from his car. Amanda Cruz and Rodriguez rode in the back seat because the front passenger seat was very bloody. The next day, Amanda Cruz and Rodriguez attempted to wash the interior of Cruzs car and appellant Cruz shredded some papers and an identification card he had taken from Hazlett. Rodriguez denied that he or Amanda Cruz took anything from Hazlett. The detective specifically asked about Hazletts jacket, shoes, belt, and wallet, and Rodriguez denied that they took any of these items. At trial, Amanda Cruz and Rodriguez denied helping Cruz dump Hazletts body and variously claimed they did not admit their participation to the police, they lied to the police, the police told them what to say, or they did not remember. Portions of the tape recordings of their statements and a surreptitiously recorded conversation between Amanda Cruz and Rodriguez were played for the jury. The jury also learned that each of Cruzs parents pled guilty to being an accessory to murder and received probation.

Amanda Cruz told the police that about five days after she and Rodriguez helped Cruz dump Hazletts body, Carolina Morgans father took the license plates off of Cruzs car and drove it away. Another person Amanda knew only as Shady later told Amanda that he (Shady) had burned the car. Rodriguez told the police that Shady took the car away, and that Shady later said he had taken care of things.^[4]

During a search of Cruzs room on the date he was arrested, the police found 15 mobile phones, a credit card in someone elses name, and a state identification card in the name of yet another person. They also found Mara Salvatrucha graffiti written on the walls of the bedroom, photographs of Cruz and others making Mara Salvatrucha gang hand signs, photographs of Carolina Morgan beneath Mara Salvatrucha graffiti, and a notebook with Payaso written on the cover and MS 13, Mara Salvatrucha, Payaso, and Shady written throughout its interior.

Eleven of the mobile phones found in Cruzs room were operable and connected, and the police were able to locate several former owners of the phones. One of the phones belonged to Leslie Rodriguez, who testified that she lost the phone sometime in 2004 at the Guadalinda nightclub where she was socializing with a Latino man named Angel.^[5] The phone was in her purse, which disappeared from a table in the club. Keshawn Brumfield briefly left her mobile phone on a table in a bowling alley, from which it disappeared. A different mobile phone recovered from Cruzs room was using the number for Brumfields phone without her permission. Brumfields aunt, Connie Hudson, told the police that there was a Latino man in a wheelchair at the bowling alley at the time Brumfields phone disappeared. Denise Vasquez testified that her purse, which contained her mobile phone, disappeared from her table at the Guadalinda nightclub in December 2004. She saw a Latino man in a wheelchair in the vicinity of her table. Sandra Rodas testified that she met Cruz at the Guadalinda nightclub in the summer of 2004 when he ran over her foot with his wheelchair.^[6] He introduced himself as Payaso. Rodas lent her mobile phone to her friend Mercy, who in turn lent it to Cruz. Rodas asked Cruz to return her phone, but he repeatedly denied that he had it. Rodas persisted in asking for her phone, and Cruz pointed a gun at her. After Rodas began to walk away, Cruz threw her phone at her.

Delgado, Varillas, and Barrera each testified that prior to April 3, Cruz told them he was a member of the Mara Salvatrucha gang and his moniker was Payaso. Barrera testified that on one night a few months before April 3, Cruz drove around with a gun in his lap and said he was looking for members of rival gangs to shoot. Barrera and her boyfriend were in Cruzs car at that time, and Cruz was very angry because he and his girlfriend had fought. Barrera further testified that Cruz habitually carried gloves, a ski mask, and a gun in his car.

The prosecutions gang expert, Officer Matthew Zeigler, testified about the behavior, operational area, hand signs, symbols, tattoos, graffiti, monikers, criminal activities, cliques, and enemies of the Mara Salvatrucha gang; about the obligation of gang members to put in work for their gang; that Cruzs apartment was located within an area claimed by a rival gang, 10 or 11 blocks from the nearest area claimed by the Mara Salvatrucha gang; that Margarita Jones and the Guadalinda nightclub were hangouts of the Mara Salvatrucha gang in 2004; that Cruzs devil tattoo, text displayed when Cruzs mobile phone was turned on, and the photographs and writing on the walls and in the notebook in Cruzs room were consistent with membership in the Mara Salvatrucha gang; and that the writings in Cruzs room indicated that Shady and Payaso were members of the Mara Salvatrucha gang. Based upon the photographs and writings, tattoo, and incidents of making gang hand signs at Margarita Jones, Zeigler opined that the person known as Payaso was an active member of the Mara Salvatrucha gang. Zeigler further opined that carrying a ski mask and gun in the car, firing shots in the air outside Margarita Jones, and driving around looking for rival gang members to shoot further indicated the person was an active member of the Mara Salvatrucha gang.

Counts 5 and 6: late 2003 to early 2004

Mayra Barrera testified that sometime in late 2003 or early 2004, she was with Cruz at Margarita Jones when Cruzs friend Miguel Salinas was beaten by rival gang members. Barrera intervened to defend Salinas and drove Salinas away from the scene in Salinass car. Barrera then returned to Margarita Jones and found Cruz arguing with some people. She helped Cruz into his car and was driving it away when Cruz retrieved a gun from a small space near the sunroof and fired it in the air.

Verdict and sentence

The jury convicted Cruz of all charges pertaining to April 3: discharging a firearm with gross negligence (count 1), possession of a firearm by a felon (count 2), first degree murder (count 3), and carrying a loaded firearm on the person or in a vehicle while an active participant in a street gang (count 4). The jury also found true the robbery murder special circumstance, and further found Cruz personally and intentionally discharged a firearm in the commission of the murder, causing death or great bodily injury. ( 12022.53 (d).) The jury also convicted Cruz of a second count of possession of a firearm by a felon (count 5), committed sometime in late 2003 or early 2004. It acquitted Cruz of count 6, which alleged Cruz violated section 12031, subdivision (a) at the same time he committed count 5. Cruz admitted allegations he had previously been convicted of two serious or violent felonies within the scope of the Three Strikes Law. ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The court sentenced Cruz to life in prison without the possibility of parole, plus 25 years to life pursuant to section 12022.53, subdivision (d) for count 3, plus two consecutive terms of 25 years to life for counts 1 and 5. The court imposed and stayed terms of 25 years to life for counts 2 and 4.

DISCUSSION

1. Denial of motions to sever and exclude evidence

Cruz filed motions in limine seeking, inter alia, to (1) sever the trial of the murder and discharging a firearm charges (counts 1 and 3) from the firearm possession charges (counts 2, 4, 5, and 6) and (2) exclude all gang evidence, evidence of his possession of guns not shown to be the murder weapon, and evidence of other acts of misconduct, including statements to Barrera about shooting rival gang members and a plan to rob a drug dealer, his possession of the numerous mobile phones, firing shots outside Margarita Jones, and carrying a ski mask and gloves in his car. The trial court denied severance on ground that the gang evidence was cross-admissible, denied the motion to exclude gang evidence for the same reasons, and denied the motion to exclude with respect to most of the categories of evidence.^[7]

Cruz contends that the denial of his motions for severance and to exclude evidence, combined with the resulting admission of purportedly irrelevant and inflammatory evidence deprived him of his federal constitutional right to due process. In particular, Cruz points to the evidence of gangs and his own active gang membership; witnesses fear of retaliation; his possession of weapons not used in the charged crimes; and the uncharged crimes of driving around looking for rival gang members to shoot, asking Barrera to help him rob a drug dealer, refusing to pay a large mobile phone bill he ran up on Barreras phone, and possession of other individuals mobile phones and identifications.

a. Motion to sever

Offenses that are of the same class of crime or connected in their commission may, in the trial courts discretion, be charged and tried together. ( 954.) Cross-admissibility of evidence is not required. ( 954.1; People v. Ochoa (2001) 26 Cal.4th 398, 423.) However, severance may be required if joinder would be so prejudicial that it would make the trial unfair. (Peoplev.Musselwhite (1998) 17 Cal.4th 1216, 1243-1244 (Musselwhite).) Relevant factors include whether evidence would be cross-admissible in separate trials; whether some of the charges are unusually likely to inflame the jury against the defendant; whether the prosecution has joined a weak case with a strong case, so that there might be a spillover effect from the aggregate evidence; and whether any of the charges carries the death penalty or their joinder turns the matter into a capital case. (Id. at p. 1244.) Where the evidence supporting the charges would be cross-admissible in separate trials, any inference of prejudice is dispelled, and a severance motion is properly denied. (People v. Carter (2005) 36 Cal.4th 1114, 1154.) The party seeking severance must clearly show a substantial risk of prejudice from joinder, and that the substantial danger of undue prejudice outweighs the benefits of joinder, such as timely disposition of criminal charges and conservation of judicial resources and public funds. (Musselwhite, supra, 17 Cal.4th at p. 1244; People v. Bean (1988) 46 Cal.3d 919, 939-940 (Bean).) Denial of a motion to sever is reviewed for abuse of discretion in light of the showing made to the trial court and the facts then known, not in light of what happened at trial. (Musselwhite, supra, 17 Cal.4th at pp. 1244, 1246.)

The ballistics evidence supported an inference that the same gun was used in counts 1 and 3, in that the murder weapon was consistent with a .380-caliber gun, and Esparza picked up a .380-caliber casing apparently ejected by Cruzs gun as he fired outside Margarita Jones on April 3. Moreover, the time interval between the shooting outside the club and the murder was less than one hour. The murder and negligent discharge of a firearm charges (counts 1 and 3) were therefore connected in their commission and properly joined under section 954. The firearm possession charges pertaining to April 3 (counts 2 and 4) were connected in their commission with the murder and negligent discharge of a firearm charges (counts 1 and 3), in that Cruzs possession and use of the gun when he fired it at the freeway and at Hazlett constituted the violations charged in counts 2 and 4. Thus, counts 1 through 4 were properly joined under section 954. Counts 5 and 6 charged the same types of offenses as counts 2 and 4, respectively, and were therefore properly joined under section 954 because they were of the same class of crimes. Accordingly, the joinder of all counts was statutorily proper, and Cruz bears the burden of showing he was prejudiced by the joinder.^[8]

Cruz argues that prejudice resulted from the admission of gang evidence and evidence that he was a felon,^[9]which he argues was not cross-admissible with respect to the murder charge.

Cruz argues the absence of cross-admissibility is shown by the prosecutors arguments and concession that most of his evidence about proving that this guy is a killer had nothing to do with gang stuff. Cruzs hindsight focus is inappropriate, however, because denial of a motion to sever is reviewed in light of the facts known to the trial court and the showing made at the time the court ruled on the motion, not in light of what happened at trial. (Musselwhite, supra, 17 Cal.4th at pp. 1244, 1246.) Moreover, the prosecutors arguments do not determine the cross-admissibility of the evidence.

Cruz also inappropriately attempts to limit the analysis to a one-way focus upon a narrow selection of evidence that was essential to proof of the murder charge, as opposed to the greater body of evidence that was relevant and admissible to prove counts 1 and 3. Cruz never disputed that count 1, negligently discharging a firearm, was properly joined with the murder charge. The evidence proving either count 1 or the murder charge was both cross-admissible and necessary to prove counts 2 and 4. Proof of count 4 also required proof that Cruz was an active participant in a criminal street gang. ( 12031, subd. (a)(2)(C).) Similarly, Cruzs status as a felon was necessary to prove count 2. ( 12021, subd. (a).)

In addition, the gang evidence was relevant and admissible with respect to counts 1 and 3 to show that inconsistencies between the testimony and prior statements of witnesses Delgado, Varillas, and Barrera resulted from a fear of gang retaliation. Delgado testified that he did not initially tell the police that it was Cruz who called him in the early morning hours of April 3 because he was scared that Cruz would harm him or his family. Varillas testified that his fear caused him to tell the police he did not see who was shooting outside Margarita Jones on April 3 and made him reluctant to testify against Cruz because they could do something to him or his family. Barrera testified that she denied all knowledge about this case when she first spoke to the police because she was afraid something would happen to her, her children, or her family. Cruz was an active member of a criminal street gang, whose success and very existence depends in large part on witness intimidation. As a member of Mara Salvatrucha, Cruz clearly benefits from the reluctance of witnesses to report crimes to the police and render testimony in court that aids the prosecution. Nevertheless Cruz now complains of the consequences of the prosecutor utilizing Evidence Code section 1235 and CALJIC No. 2.20 (jury may consider witnesss attitude toward testifying) to bring forth the circumstances under which the witnesses gave their statements to the police and their trial testimony. The court merely gave the prosecutor an opportunity to show why neither the prior out-of-court statements of Delgado, Varillas, and Barrera nor their hesitancy when testifying against Cruz undermined the credibility of their testimony inculpating Cruz in the charged crimes. Intimidation and fear on the part of a witness is relevant in that it assists the jury in assessing the witnesss attitude toward the action and toward testifying, whether the intimidation was authorized by the defendant or by others on the defendants behalf, without the defendants encouragement. Absent evidence of the witnesses fear and the reasons for their fear -- which included their knowledge that Cruz was a member of a street gang -- the defense would have been able to unfairly portray the witnesses as completely incredible. Evidence of Cruzs gang membership helped to provide the jury with a more balanced understanding of the circumstances that likely weighed upon the minds of these reluctant witnesses.

The gang evidence also supported Esparzas testimony identifying Cruz and describing the April 3 shooting outside Margarita Jones that formed the basis of count 1. Evidence that Esparza on several occasions ejected Cruz for making gang hand signs and explained the grounds for the ejection to Cruz strengthened the credibility of Esparzas testimony that he recognized Cruz on sight and remembered him, which in turn strengthened Esparzas testimony regarding the count 1 shooting. Cruz argues that the gang evidence was not essential to Esparzas identification and his opening brief inaccurately portrays the state of the contested issues at trial by arguing that there was no dispute whether [Cruz] was responsible for [the count 1] shooting or his identity as the killer. Although Cruzs appellate characterization is a fair assessment, in hindsight, of the strength of the prosecutions evidence, identity was very much a contested element of the prosecutions proof, both at the time the court ruled upon the motion to sever and during the trial. As illustrated by defense counsels opening statement and closing argument, Cruz contended he did not kill Hazlett and contested the credibility of Esparzas identification testimony. The gang testimony was therefore an important factor in explaining and strengthening the reliability and credibility of Esparzas identification testimony, which was essential to the prosecutions case against Cruz. Accordingly, the gang evidence was cross-admissible as part of the identification testimony. In addition, the gang evidence established at least one motive for Cruz to keep a gun in his car, which provided additional support to the prosecutions proof regarding counts 1 through 3.

Accordingly, the gang evidence and evidence that Cruz had a prior felony conviction was cross-admissible with respect to counts 1 and 3. This dispels any inference of prejudice from the trial courts denial of the motion to sever. Trial of the joined charges was not likely to mislead the jury into convicting an innocent man. (People v. Fujita (1974) 43 Cal.App.3d 454, 473.)

Moreover, none of the remaining factors used to assess the prejudicial potential of a single trial of the joined charges supported severance. Cruz admits the inapplicability of the fourth factor, i.e., whether any of the charges carries the death penalty or their joinder turns the matter into a capital case. The People elected not to seek the death penalty in this case. Cruz argues, however, that the prosecution joined a weak case for first degree murder with a strong case on the other charges. In this regard, he admits in his opening brief that he was shown to be Hazletts killer (though of course he did not admit this at trial), but argues there was no evidence of his state of mind or that the killing occurred during a robbery. We disagree that the strength of the prosecutions murder case differed from that of the remaining charges. At the time the court denied the severance motion, it knew that Cruz and Hazlett were strangers, Cruz stole Hazletts property, and killed him. From this, the court could reasonably conclude that the prosecution would present a strong felony murder case. (People v. Turner (1990) 50 Cal.3d 668, 688 [when one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery].) Moreover, the evidence that proved that Hazlett was murdered in the course of a robbery had nothing to do with counts 2 and 4 through 6, gangs, or Cruzs status as a felon. The robbery was instead shown by evidence that Cruz took Hazletts mobile phone, wallet, shoes, and possibly other property from him, coupled with evidence of Cruzs possession of a large number of mobile phones.^[10] This evidence would have been admissible even if the court had severed counts 2 and 4 through 6. Accordingly, severance was not required due to a disparity in the strength of the charges.

Cruz also argues that the gang evidence was highly inflammatory. The pertinent factor with respect to severance, however, is whether some of the charges are unusually likely to inflame the jury against the defendant. Count 3 charged a murder in which Cruz apparently deceived a college student into getting into his car, thereby isolating him and rendering him more vulnerable to predatory behavior. Cruz then robbed the victim of a mobile phone, wallet, shoes, and perhaps other property and fatally shot the victim twice at close range. Cruz then enlisted the assistance of his own parents to dump the victims body and destroy evidence of his commission of the crime. The trial court could reasonably conclude that, in comparison with the murder, the firearm possession charges were not unusually likely to inflame the jury against Cruz, even though they entailed evidence that Cruz was an active participant in a criminal street gang and had a prior felony conviction. All of the legal principles and authorities Cruz cites in support of his argument regarding the inflammatory nature of some of the evidence pertain to a trial courts decision whether to admit gang evidence under Evidence Code sections 352 and 1101, subdivision (b), which is not the same as the analysis of a trial courts denial of a severance motion. [T]he trial courts discretion under section 954 to deny severance is broader than its discretion to admit evidence of uncharged crimes under Evidence Code section 1101 because additional factorsfavor joinder. (Bean, supra, 46 Cal.3d at pp. 935-936.) A ruling on a motion to sever is based on a weighing of the probative value of any cross-admissible evidence against the prejudicial effect of evidence the jury would not otherwise hear, but in the weighing process the beneficial results of joinder are added to the probative value side. Therefore a defendant seeking severance must make an even stronger showing of prejudicial effect than would be required in determining whether to admit other-crimes evidence in a severed trial. (Id. at p. 936.) In the context of properly joined offenses, we assess potential prejudice not under Evidence Code section 352, but instead in the context of the traditional four factors outlined above: cross-admissibility of charges; tendency of the charges to inflame the jury; the bolstering of a weak case; and the conversion of noncapital charges into a capital case. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1223, fn. 11.)

Cruz also errs by analogizing the severance motion to a motion to bifurcate a gang enhancement allegation. Severance of charged offenses is a more inefficient use of judicial resources than bifurcation because severance requires selection of separate juries, and the severed charges would always have to be tried separately; a bifurcated trial is held before the same jury, and the gang enhancement would have to be tried only if the jury found the defendant guilty. (People v. Hernandez (2004) 33 Cal.4th 1040, 1050.) Neither the effect nor the analysis of Cruzs motion to sever was analogous to a motion to bifurcate a gang enhancement allegation.

b. Motion to exclude evidence

Cruz argues that the prejudice resulting from the denial of the severance motion was exacerbated by the trial courts denial of his motion to exclude the following evidence: (1) evidence of Cruzs status as an active gang member, (2) Delgados testimony that Cruz possessed a gun six months before the murder, (3) Barreras testimony that Cruz drove around with a gun on his lap looking for rival gang members to shoot, (4) Rodass testimony that Cruz pointed a gun at her when she demanded the return of her mobile phone, and (5) evidence Cruz habitually kept a gun and ski mask in his car. Cruz argues that all of this evidence was inadmissible under Evidence Code section 1101, subdivision (b), which provides that evidence of other offenses or misconduct is inadmissible to prove criminal propensity, but may be admitted to prove other matters, such as motive, intent, identity, or a common design or plan. (Evid. Code, 1101, subds. (a), (b).)

Evidence proving Cruzs active gang membership was offered to prove a fact other than propensity, i.e., that he was an active participant in a criminal street gang. This was an essential element of the crimes charged in counts 4 and 6. Similarly, Barreras testimony that Cruz once drove around with a gun in his lap looking for gang members to shoot was highly relevant to prove Cruzs active gang membership. Delgados testimony that he saw Cruz with a gun about six months before April 3 showed that Cruz possessed a gun before or at the time of the prior shooting outside Margarita Jones, as charged in counts 5 and 6. Rodass testimony that Cruz pointed a gun at her when she demanded that he return her mobile phone was admitted to show Cruzs intent to rob Hazlett, which was relevant to proving a felony murder charge and special circumstance. Barreras testimony about the ski mask and gun in Cruzs car tended to show Cruz was prepared to conceal his identity and use a gun to commit crimes, which tended to support inferences that Cruz intended to rob Hazlett and that Cruz was an active participant in a criminal street gang. Such preparation is different than a propensity to commit crimes.

Cruz also argues that evidence of his possession of mobile phones that were taken from women who left their phones unattended in public places was insufficiently similar to robbing Hazlett of his phone and other property at gunpoint to be admissible under Evidence Code section 1101, subdivision (b). He further argues that the Rodas incident and his refusal to pay a bill for a mobile phone Barrera lent him were also too dissimilar to be admissible. Very little similarity between the charged and uncharged acts is required where the evidence of uncharged acts is admitted under Evidence Code section 1101, subdivision (b) to prove a mental state, such as intent or motive. The charged and uncharged acts only need to be similar enough to support an inference that the defendant probably had the same intent in each instance. (Peoplev.Ewoldt (1994) 7 Cal.4th 380, 402.) The surreptitious theft of some of the mobile phones found in Cruzs room and the incident regarding Rodass phone demonstrated Cruzs intent to steal mobile phones from others, which appeared to be at least part of his motive for robbing Hazlett. The crimes were similar enough to support an inference that Cruz probably acted with the same motive and intent in robbing Hazlett and stealing or attempting to steal mobile phones from the women who testified at trial. The matter of Cruzs phone bill was not addressed by the parties or court when the motion to exclude was considered. Cruz also failed to object when Barrera testified that her friendship with Cruz suffered as a result of his failure to pay the bill he ran up on her mobile phone. Accordingly, Cruz forfeited his Evidence Code section 1101, subdivision (b) objection to this evidence, which was, in any event, insignificant in comparison to the conduct underlying the charged offenses.

Cruz also argues that Barreras testimony that he asked her to knock on a drug dealers door so that Cruz and others could enter and rob the dealer was insufficiently similar to the robbery of Hazlett for admission under Evidence Code section 1101, subdivision (b). The evidence was admissible, however, to show that Cruz was an active gang member (counts 4 and 6) because Cruz apparently contemplated involving others in addition to Barrera, and it is very likely his accomplices would be his fellow gang members. In addition, the evidence demonstrated the close relationship between Cruz and Barrera, which was relevant to Barreras credibility.

Cruz also argues that the prejudicial effect of the evidence regarding the plan to rob a drug dealer, the Rodas incident, and his possession of other persons mobile phones and identification outweighed its probative value. Evidence Code section 352 provides that the court may, in its discretion, exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. In this context, unduly prejudicial evidence is evidence that evokes an emotional bias against the defendant without regard to its relevance to material issues or creates a tendency to prejudge a person or cause on the basis of extraneous factors. (People v. Kipp (2001) 26 Cal.4th 1100, 1121; Peoplev.Zapien (1993) 4 Cal.4th 929, 958.) As noted, the evidence cited by Cruz was probative of his intent to steal Hazletts mobile phone and Cruzs status as an active gang member. Under the circumstances of this case, especially the strong evidence of Cruzs ruthless and cold-hearted conduct towards Hazlett, the trial court acted well within its discretion by concluding that the risk of undue prejudice flowing from this evidence did not substantially outweigh its probative value.

c. Due process

Although we conclude that the trial court properly denied Cruzs severance motion, we must nonetheless consider the actual effect of joinder upon the trial. (Bean, supra, 46 Cal.3d at p. 940.) Cruz would be entitled to reversal if he demonstrated that joinder actually resulted in gross unfairness amounting to a denial of due process. (Peoplev.Arias (1996) 13 Cal.4th 92, 127.)

Considering the evidence actually introduced at trial, we find neither actual nor potential prejudice rendering Cruzs trial grossly unfair. The jurys verdict of acquittal on count 6 demonstrates that the jury was not inappropriately influenced by the joinder of the charges or the admission of the evidence of which Cruz complains. Moreover, given the ample and persuasive evidence of Cruzs brutal and pointless murder of Hazlett in the course of a small-stakes robbery and Cruzs egregious conduct in the ensuing cover-up, it is not reasonably probable that the joinder of the dramatically less serious charges and/or the admission of the gang and other misconduct evidence improperly swayed the jury. Furthermore, the prosecutors arguments clearly informed the jury that the murder was not gang-related, and defense counsel told the jury that the prosecutor introduced the gang evidence to inflame the jurors and convince them Cruz was a bad person. The trial court instructed the jury with the following modified version of CALJIC No. 2.50: Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. [] This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [] The existence of the intent which is a necessary element of the crime charged; [] A motive for the commission of the crime charged. [] Evidence has also been presented for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crimes for which defendant is on trial. [] This evidence, if believed, may not be considered by you to prove the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you for the limited purpose if it tends to show: [] That the defendant was an active participant in a criminal street gang. [] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose. Under the circumstances, jurors were well aware that the gang evidence had nothing to do with the murder and that they were prohibited from relying upon a propensity inference. We therefore find no due process violation.

2. Sufficiency of evidence: special circumstance

Cruz contends the evidence was insufficient to support the jurys true finding on the robbery-murder special circumstance.^[11] To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the finding, so that a reasonable jury could find it true beyond a reasonable doubt. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1138.)

In order to find a robbery-murder special circumstance allegation true, the jury must find that the defendant committed the murder during the commission of, attempted commission of, or immediate flight after committing or attempting to commit robbery. (Pen. Code, 190.2, subd. (a)(17)(A).) The robbery must not simply be incidental, e.g., an afterthought, to the murder. (People v. Valdez (2004) 32 Cal.4th 73, 105.) The prosecutor was required to prove that Cruz formed the intent to steal before or while killing Hazlett. (Ibid.)

Undisputed evidence established that Cruz stole Hazletts dressy shoes, phone, and wallet. Cruz most likely achieved this by enticing Hazlett to get into his car, which is entirely consistent with an intent to rob him, as it would isolate Hazlett from sources of assistance or refuge and prevent him from running away. The two men were strangers, and no motive other than robbery was suggested by the facts. As the prosecutor argued to the jury, Hazletts dressy clothing, shoes, and watch and his use of his mobile phone while walking alone in the early morning hours in a relatively unsafe area made Hazlett an appealing and vulnerable target for a robbery. Cruzs possession of numerous mobile phones demonstrated that he was unusually fond of mobile phones. His theft of mobile phones from others, coupled with his theft and use of Hazletts phone, strongly supported an inference that he formed the intent to steal Hazletts mobile phone before or while killing him. Cruzs possession of a credit card and identification card belonging to other persons, coupled with his possession of Hazletts papers and identification card, supported an inference Cruz formed the intent to steal identification and/or credit cards from Hazlett before or while killing him. Nothing in the record would require the jury to conclude that Cruz took Hazletts property merely to obtain a memento of the incident or hinder identification of the victim. Cruzs act of discarding Hazletts shoes on the ride home after dumping Hazletts body does not, as Cruz argues, negate an inference that he intended to steal the shoes. Cruzs intent to steal them was shown by the very fact he took them from Hazlett. Discarding them later suggests he reconsidered either his desire for the shoes or the wisdom of keeping them. Viewing the whole record in the light most favorable to the judgment, we conclude substantial evidence supported the jurys finding on the special circumstance.

Cruz relies, almost exclusively, upon People v. Morris (1988) 46 Cal.3d 1, which he argues is strikingly similar to his case. In Morris, the victim was killed at about 5:00 a.m. in a public bathhouse while wearing only socks and shoes. A man not identified as the defendant subsequently attempted to use a Sears credit card that a third person had lent to the victim, but there was no evidence the victim had the card with him at the bathhouse. The defendant told an acquaintance that he had been making money off dates with homosexuals and that he killed one. (Id. at pp. 10-11.) He gave no reason for the killing except that he had to kill one. (Id. at p. 20.) The California Supreme Court held that this evidence was insufficient to support the robbery-murder special circumstance. The court noted that [t]he record contains noevidence that any personal property was in the victims possession at the time of the murder, or that any personal property of the victim was ever recovered subsequent to the murder with the possible exception of the credit card. (Id. at p. 20.)

In Morris, therefore, evidence existed that the defendants motive for visiting the bathhouse was to prostitute himself, and the victims near nudity suggested his participation in sexual activity with the defendant. This, in turn, suggested that the motive for the murder may have been an altercation or some inter-personal matter. In Hazletts murder, however, the record supports no motive other than robbery. Furthermore, it is undisputed that Cruz took several items of personal property from Hazletts person or presence, whereas in Morris, the victims near nudity supported a strong inference that the defendant took no property from the victims person. There was also no evidence indicating that the defendant took property from the victims presence. The missing credit card was not found in the defendants possession and there was no evidence that the victim even had the card with him at the bathhouse. Accordingly, the Morris case is not at all similar to the present case and does not support Cruzs insufficiency of evidence contention.

3. Sufficiency of evidence: Count 5

Cruz contends that insufficient evidence supported his convictions in counts 5 and 6. The jury apparently agreed with respect to count 6, of which Cruz was acquitted. Appellant argues that he fired the gun in defense of a friend who was under attack by gang members.

In order to obtain a conviction on count 5, the prosecutor was required to prove that Cruz had a prior felony conviction; that he owned, purchased, received, or was in possession or control of a firearm; and that Cruz knew of the presence of the firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922, 924.) Cruz stipulated to his prior felony for the purpose of proving this count and count 2. Mayra Barreras testimony established all of the remaining elements: she saw appellant holding a gun in his hand and firing it into the air outside Margarita Jones one night in late 2003 or early 2004.

Although a felon is entitled to use a gun to defend himself or others (Peoplev.King (1979) 22 Cal.3d 12, 24), the record does not support Cruzs defense of others claim. Barrera testified that she drove Miguel Salinas -- the person who was being attacked by gang members -- away from Margarita Jones, then returned without Salinas and got into Cruzs car. As she and Cruz drove away, Cruz pulled out his gun and fired in the air, apparently in anger. Clearly, Cruz was not defending Salinas, who was no longer present or under attack, and nothing indicated that Cruz was attempting to defend anyone else when he fired the shots. Moreover, Barreras testimony clearly demonstrated that Cruz had the gun in his car before and after the shooting, and his possession of the gun during these periods violated section 12021, subdivision (a), without regard to whether he justifiably fired the gun to defend Salinas. Accordingly, substantial evidence supported the verdict on count 5.

4. Parole revocation fine

The trial court imposed and stayed a $5,000 parole revocation fine under section 1202.45. Cruz contends, and respondent concedes, that this was error.

Cruzs sentence did not include a determinate term, and the parole revocation fine was therefore improperly imposed and must be stricken. (People v. Brasure (2008) 42 Cal.4th 1037, 1075; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1185.)

DISPOSITION

The $5,000 Penal Code section 1202.45 fine is stricken. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

NEIDORF, J.^*

We concur:

MALLANO, P. J.

ROTHSCHILD, J.

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^[1] Unless otherwise noted, all further statutory references pertain to the Penal Code.

^[2] Unless otherwise noted, all dates refer to 2004.

^[3] Appellant Cruz, his parents, and Angela Arce resided in the same apartment.

^[4] Carolina Morgan was Cruzs girlfriend. She testified that Shady was her brother-in-law.

^[5] Leslie Rodriguez was not able to identify Cruz as the man to whom she referred.

^[6] Rodas identified Cruz from photographs shown to her by the police.

^[7] The court excluded testimony regarding Cruzs statement to Barrera threatening to shoot the porch light on her house and prior acts of misconduct to which Angela Arce could testify. The prosecutor agreed not to introduce an inoperable .32-caliber revolver. Defense counsel did not refer to any other guns, and the court did not rule upon the admissibility of any other guns.

^[8] Respondent argues that all offenses were connected together in their commission because the same gun was used in all. The record does not establish this.

^[9] Cruz stipulated to a prior felony conviction for the purposes of counts 2 and 5, and the jury was informed of this stipulation.

^[10] Evidence of these matters was before the trial court at the time it ruled on the severance motion because the court had read the preliminary hearing transcript, which included this evidence. Additional evidence demonstrating a robbery was introduced at trial, as discussed in part two of this opinion.

^[11] He does not contest the sufficiency of the evidence to support the murder conviction.

^*Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.