Filed 12/12/13 P. v. Florez CA5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSEPH FLOREZ,
Defendant and
Appellant.
F064311
(Super.
Ct. No. VCF241795)
APPEAL from
a judgment of the Superior Court
of
Han N.
Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael
P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In a
consolidated jury trial, defendant Joseph Florez was convicted of being a felon
in possession of a firearm (former Pen. Code,
§ 29800, subd. (a); count 7), as well as several other counts stemming
from a special circumstance double homicide that occurred during a separate
incident. The jury found true special
allegations that all counts were committed for the benefit of a
section 186.22, subdivision (b)(1). In a
bifurcated proceeding, the trial court found true allegations that defendant
suffered three prior convictions within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(i)).
Prior to
sentencing, defendant filed a motion for
a new trial based on newly discovered evidence. The trial court granted the motion as to all
counts stemming from the murder charges, however, denied the motion as to the
separate felon in possession of a firearm count (count 7). The prosecution subsequently dismissed
without prejudice the charges relating to the murder, and the trial court
sentenced defendant to a total prison term of 28 years to life.
On appeal, defendant
contends the trial court abused its discretion in failing to grant a new trial
as to the gang enhancement on the remaining felon in possession charge, the
trial court abused its discretion in denying his motion to sever the felon in
possession charge from the murder charges, and the resulting trial denied him
due process of law. We reject
defendant’s arguments and affirm the judgment.
FACTS
As
defendant’s new trial motion was granted on the charges stemming from the
murder, his only remaining conviction on appeal is the felon in possession of a
firearm count. To put defendant’s
contentions on appeal in context, however, we also recount some of the evidence
relating to the murder charges and the new trial motion.
Evidence relating to the felon in possession of a firearm
charge, count 7
Blanca
Ortega was a longtime friend of defendant.
In August or September of 2008, she and Tommy Madrid were taking their
infant daughter to a doctor’s appointment when she noticed defendant drive past
them. Defendant exited his car with a
gun and began yelling that Ortega was with a “rat.†Madrid immediately ran away. Defendant continued yelling, calling Madrid
names, and told Ortega she was with a “rat,†that she knew better, that Madrid
had no respect, and Ortega deserved a man “with respect and power.†During the ordeal, Ortega noted defendant had
a semiautomatic firearm which he was holding on the top of the car, although she
did not recall him pointing it at anyone.
Ortega recalled the gun looked heavy.
During the incident, Madrid returned, and defendant said something to
the effect of “it wasn’t over.’
Madrid had
a Norteno tattoo across his chest, but he was a gang dropout according to
Visalia police officer Luma Fahoum, a member of the gang suppression unit at
the relevant time. Madrid had been
working with her and had also agreed to give her information.
The Norteno
street gang uses various symbols relating to the number 14 or the letter N (the
14th letter of the alphabet), including XIV and X4. Common tattoos among Norteno gang members
include the number 14, XIV, XI4, and Visa, which is a specific reference to
Visalia and indicates gang members are “claiming†that area.
Visalia police
officer Mike Verissimo testified as a gang expert. He explained the Nortenos originated from a
prison gang, Nuestra Familia. The gang
is very structured, with members on the street getting orders from those higher
within the organization. Members have to
follow various rules and regulations and “pay taxes†to the gang. If members do not follow the rules of the
gang, they can be sanctioned, beaten, or killed.
The Norteno
gang’s primary activities include murder, attempted murder, assault with a
deadly weapon, drug sales, and vandalism.
Gangs commit crimes such as murder to boost their reputation, making
others perceive them as fearless and ruthless.
This benefits the gang by instilling fear in the community and preventing
witnesses from testifying. Someone who speaks
to law enforcement is perceived as a “rat.â€
There are certain activities frowned upon in the gang culture, including
turning on fellow gang members and being a “rat†or a “snitch.â€
Verissimo
was familiar with defendant through his own personal contacts with him as well
as through reading reports involving him.
He was also aware of conversations obtained through wiretaps where other
gang members discussed raising money for defendant’s defense. Further, he was aware defendant’s father and
brother were also Norteno gang members.
He noted defendant had several gang-related tattoos on his body, including
Visa 14 on his left shoulder, Visa on his stomach, Norteno on his back, and
V-14 on his left hand. In addition defendant
has a tattoo of the phrase “can’t stop, won’t stop,†a common tattoo among gang
members referring to the gang lifestyle.
Based upon his knowledge of defendant, information he had collected from
listening to wiretaps, conversations he has had with informants and other
officers, and reading “kites†from other high-ranking gang members, Verissimo
opined defendant was an active high-ranking Norteno gang member. Specifically, he opined he was a “strong-hold,â€
which would be a person in charge of the tier he is on in the jail. In Verissimo’s opinion active gang members
would never raise money for the defense of a dropout gang member.
Verissimo
noted a gang member’s possession of a firearm enhances a gang’s reputation
because it demonstrates the gang member is fearless and willing to attack his
enemies, such as rival gang members, dropout gang members, or someone the gang
member feels is a “snitch†or a “rat.â€
Gang members seek respect from citizens and from other gang members by
committing crimes and carrying guns. He
opined that having a gun and threatening a gang dropout would benefit the gang
by discouraging people from dropping out of the gang.
The parties
stipulated defendant was a felon and could not legally possess firearms during
the relevant time period.
Evidence relating to the murder charges, counts 1-6
Madrid and
Lisa Bourget were killed in December of 2008 while sitting inside a vehicle
just outside Madrid’s home. The evidence
established both were shot multiple times and two weapons were involved: a .40-caliber handgun and a SKS-type
rifle. The shots came from the front of
the vehicle. Madrid was killed by a .40-caliber
handgun that was recovered approximately three weeks after the shooting in the
possession of Raymond Angel Nilo, a Norteno gang member from Farmersville.
Officers learned
Ayanna Arroyo could have information regarding the murder. After receiving this information, officers
arranged for her parole officer to conduct a parole search of her home. Fahoum was one of the officers who arrived
for the search. Once the officers
arrived, Arroyo told Fahoum she had witnessed the murder. Defendant was placed at the scene by Arroyo. She was subsequently interviewed by
detectives and gave conflicting accounts of the shooting. Arroyo testified she initially told the
detectives she had not witnessed the shooting, but had only heard rumors
defendant was responsible. She claimed
she told officers she saw John Rodriguez walk past her shortly after the
shooting and give her a cold stare, and she told the officers she believed he
was the person who committed the shooting.
However, the officers were only interested in defendant. After detectives threatened to take away her
children and send her to prison for a fraudulent check found in her home during
the parole search, she told them what they wanted to hear.
Arroyo had
also previously testified at the preliminary hearing and was extensively
impeached with her prior testimony. At
that hearing, she testified she had been walking down the street with two
companions when she saw a black car drive by, stop by the car where the victims
were sitting, and two people exited and began firing. The men returned to the car and drove away, and
as it passed she recognized defendant in the front passenger seat.
Arroyo
admitted making these statements at the preliminary
hearing, however, she claimed they were not true. At trial she testified she had been coached
by the police regarding her statements, she was under the influence of
methamphetamine and marijuana on the night of the incident, she was “blind as a
bat,†and she never actually witnessed the shooting. She also stated she was terrified of the
detective questioning her and claimed she was under the influence of Vicodin at
the preliminary hearing.
At trial
Arroyo was adamant she never actually witnessed the shooting but had only heard
the shots from a nearby location and never saw who fired the shots. She claimed she provided the statements the
officers wanted because the officers found a fraudulent check in her home
during the parole search and threatened to return her to prison if she did not
provide the information they wanted.
Robert
Dunlap, an inmate at the Tulare County jail at the relevant times, testified he
spoke to defendant after he was arrested.
Dunlap stated he was a high-ranking Norteno gang member. He explained Nuestra Familia is the founder
of the Norteno gang, and that he was a member of Nuestra Raza, which was just
below Nuestra Familia in the gang structure.
While at the jail, he was housed on the Norteno gang floor and had
contact with Robert Palomino, a high-ranking member of Nuestra Familia who was
in charge of the gang at the jail. Palomino
shared with him that Madrid had been having an affair with his wife, so he sent
a Norteno to kill him. Sometime later, defendant
arrived at the jail and was housed on the same floor as Dunlap. Defendant stated he was the new “strong holdâ€
in the jail. A “strong hold†is a member
with a lot of gang authority and in charge of everyone within the jail for the
gang. Dunlap testified he had
conversations with defendant where defendant stated he was the one who killed
Madrid for Palomino, and described shooting him while he sat in a car with a
woman.
Subsequently,
defendant was moved to another floor, but Dunlap still received communications
from him in the form of “kites,†which are messages with very small writing
that inmates use to surreptitiously communicate with each other. Dunlap was directed to send out kites to the
gang members on the street informing them of the new leadership and to provide
them with “hit lists†for prior gang members who had become “snitches.†The gang members were being instructed to
kill the people on the lists along with their families. Dunlap wrote out the messages as directed, but
turned them over to correctional officers because he disagreed with the
directive to kill innocent family members.
He also agreed to testify against various gang members.
Dunlap was
in custody on rape, robbery, possession of stolen property, and drug charges, and
had been given an agreement he would serve no more than 15 years on his charges
as a result of his plea in exchange for his truthful testimony.
Other than
the testimony of Dunlap and Arroyo, the case against defendant was
circumstantial, resting upon evidence of his gang membership and his history of
threatening Madrid on multiple occasions due to his status as a Norteno gang
dropout. In addition the prosecution
produced evidence defendant was seen at the victim’s home in a black truck, yelling
at the victim shortly before the shooting.
The prosecution produced additional evidence from which one could infer
defendant had fled the area shortly after the murder and was hiding in Northern
California at the home of his girlfriend’s parents. Further, the prosecution produced evidence of
text messages to defendant from his girlfriend the morning after the murder, telling
him to stay where he was and he should not be out late. Defendant was ultimately arrested coming back
from the Sacramento area weeks after the murder.
At trial, the
defense disputed defendant was an active gang member and claimed he was not the
person who committed the shooting. The
defense discredited Arroyo through her many inconsistent statements and her inability
to observe on the night of the murder.
In addition the defense attacked Dunlap’s credibility, pointing to his
long criminal history and his motivation to testify for a reduced sentence on
his current offenses. The defense
claimed Dunlap received special favors from correctional officers at the
jail. Further evidence was produced at
trial establishing there was a partial footprint near an alley close to the
scene of the murder that was never compared to anyone. Additionally, some evidence was presented
that a witness, who was homeless and intoxicated at the time, indicated someone
carrying a gun had run through the alley shortly after the shooting.
Evidence relating to the new trial motion
Thomas
Wiley, a sentenced prisoner, testified he was housed next to Dunlap at the jail
while awaiting trial on his own charges.
He stated Dunlap boasted he never spoke to defendant about his case, rather,
he gathered information about defendant’s case from other inmates and from
newspaper articles. Dunlap stated he was
going to receive a reduced sentence for testifying against defendant and
expected to receive three to four years rather than the 15 years called for in
his plea agreement. Further, Wiley
claimed Dunlap was receiving special treatment at the jail from the
correctional officers in the form of special food and free telephone calls.
The defense
also produced Rudy Velasquez, a former Norteno gang member, who testified that
just before the shooting he had been talking to a neighbor and walking back
home when he observed a man walk out through an alley. The man passed right by him and Velasquez
looked at him and noticed it was not defendant.
The man walked up to the car where the victims were sitting. Although Velasquez did not see the shooting, as
soon as the man passed and approached the car, he heard the shots. This testimony conflicted with the trial
testimony in that the neighbor Velasquez claimed to be speaking with just prior
to the murder testified he had not been home when the murder occurred.
DISCUSSION
I. Defendant’s Failure to
Request a New Trial on the Gang Enhancement Forfeited the Claim
After the verdicts were rendered,
defendant filed a motion for new trial
based upon newly discovered evidence. After a hearing on the motion, the trial court
granted the new trial motion as to the counts relating to the murder, but
denied the motion as to the separate felon in possession charge. Defendant argues the trial court erred in
failing to grant the new trial motion not as to the underlying felon in
possession charge, but solely as to the gang enhancement attached to that
charge. We conclude defendant’s failure
to request a new trial on the gang enhancement forfeited the claim for review.
The People
claim the issue is not cognizable on appeal for failure to raise it in the
trial court. Specifically, plaintiff
argues defendant never requested a new trial on the gang enhancement; rather, the
motion focused solely on the murder charges.
This argument has merit as nowhere in defendant’s written motion for new
trial does defendant request a new trial on the felon in possession charge or
its corresponding gang enhancement.
Indeed, at a hearing shortly after the motion for new trial was filed, the
trial court questioned whether defense counsel’s motion encompassed the felon
in possession charge. The court asked
“does this motion for a new trial also have possession of a firearm on a
separate date?†The court then commented,
“I don’t think that this [motion] would apply to that.â€
At the
hearing on the motion, no argument was ever made attacking the gang enhancement
defendant now challenges. Defendant
never contended any of the newly discovered evidence had any impact on the
remaining felon in possession count.
Indeed, the only argument related in any way to the felon in possession
charge at the hearing was as follows:
“You
have the incident with Blanco [sic] Ortega
which happened some months earlier for which [defendant] was convicted. And although we don’t have any evidence, new
evidence in that regard, my argument is that these cases were joined together.
“The
government’s theory, [the prosecution] theory, with regards to my motion for
severance, is that these two counts are inextricably intertwined. They cannot be pulled together—I mean, pulled
apart.
“So you
have Blanco [sic] Ortega talking
about what [defendant] did. They
bootstrap it with Robert Dunlap. And
together the effect is very prejudicial.
“So I
think if the murder counts have—fall, which I think they should, then I think
that likewise the gun count, which he was convicted of, should fall also.â€
Defendant
counters his counsel asked for a new trial “in all counts†and therefore his
argument necessarily encompassed the gang enhancement on the felon in
possession charge. This is so, he argues,
because a reversal on the substantive offense would necessarily encompass a
reversal on the enhancement. While
granting a new trial on the substantive offense would have, as a matter of
course, also resulted in setting aside the enhancement, the denial of the new
trial motion on the substantive offense did not itself preserve the issue of a
challenge solely to the enhancement.
It is clear
from the record defendant never argued the newly discovered evidence in any way
affected any of the findings on gang allegations. In asking the felon in possession charge be
set aside, counsel only argued the count should be set aside because it was
joined with the murder count. Counsel
conceded there was no new evidence in relation to that charge.
While
defendant briefly asked during oral
argument that the new trial motion be granted on all counts, he never argued
the gang allegations should fall even if the underlying offenses remain. Even after the trial court denied the motion
as to the felon in possession charge, defendant never argued the gang
allegation should separately fall, nor did he seek a ruling specifically as to
the gang enhancement. Also, there was no
argument whatsoever that the findings on the gang allegations were in any way
affected by the newly discovered evidence.
A defendant must specify the grounds relied upon in making a motion for
new trial, and failure to raise those grounds in the trial court forfeits the
issue for appeal. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 332;
504, 508.) Even assuming defendant’s
arguments could be construed as requesting a new trial solely on the gang
enhancement, defendant’s failure to obtain a ruling on that issue forfeits the
issue on appeal. (People v. Murphy (1962) 207 Cal.App.2d 885, 888-890 [if court fails
to rule upon issue raised by party, it is incumbent upon objecting party to
seek ruling, otherwise issue is deemed forfeited].)
By failing
to raise these issues in the first instance in the trial court, defendant
deprived the court of the opportunity to make the necessary findings.
“In ruling on a motion for new trial based on newly
discovered evidence, the trial court considers the following factors: ‘“1. That the evidence, and not merely its
materiality, be newly discovered; 2. That the evidence be not cumulative
merely; 3. That it be such as to render a different result probable on a
retrial of the cause; 4. That the party could not with reasonable diligence
have discovered and produced it at the trial; and 5. That these facts be shown
by the best evidence of which the case admits.â€â€™â€ (People v. Delgado (1993) 5 Cal.4th 312,
328; see also People v. Sutton (1887) 73 Cal. 243, 247-248.)
Particularly
pertinent to this case is the third of these five factors. “‘[T]he trial court may consider the
credibility as well as the materiality of the evidence in its determination
[of] whether introduction of the evidence in a new trial would render a
different result reasonably probable.’ (People
v. Beyea (1974) 38 Cal.App.3d 176, 202 [disapproved on other grounds in
769, 808].)†(People v. Delgado, supra, 5 Cal.4th at p. 329.)
“It [would] not [be] improper for the
trial court to deny defendant’s motion if it believed [the affiant’s] proffered
affidavit lacked credibility and would not have changed the result on retrial.â€
(People v. Cole (1979) 94
Cal.App.3d 854, 860, disapproved on another ground in In re Kelly (1983)
33 Cal.3d 267, 277, overruled on other grounds in People v. Langston (2004) 33 Cal.4th 1237, 1246.) “The weight and credibility to be attached to
the affidavit and testimony in support of defendant’s motion was for the trial
judge.†(People v. Hill (1969) 70
Cal.2d 678, 699.) “‘“[I]n determining
whether there has been a proper exercise of discretion on such motion, each
case must be judged from its own factual background.â€â€™â€ (People v. Delgado, supra, at p. 328; see People
v. Dyer (1988) 45 Cal.3d 26, 52.)
As conceded
by defendant in his opening brief, the
trial court never “explicitly rule[d] on whether to grant a new trial on the
gang enhancement for count 7.†This is
true in large part because defendant never sought such a ruling. By failing to argue the newly discovered
evidence justified a reversal on the gang enhancement, the issue was never
factually developed. The trial court was
never given the opportunity to determine whether the newly discovered evidence
had any bearing on the gang enhancements, whether the evidence as viewed in
context of the gang allegations was credible, whether the gang evidence provided
by Dunlap was merely cumulative of the other gang evidence presented at trial, or
whether there was a reasonable probability of a different result on the gang
enhancements in light of the newly discovered evidence.
The trial
court could not have erred by failing to grant a new trial motion on a ground
never raised by that motion. Thus, by
failing to raise these issues in the trial court, defendant has forfeited the
claim on appeal. (People v. Verdugo (2010) 50 Cal.4th 263, 309; People v. Masotti, supra,
163 Cal.App.4th at p. 508; People v.
Pratt (1947) 77 Cal.App.2d 571, 578.)
II. Defendant’s Motion to Sever
Was Properly Denied
Defendant
claims the trial court abused its discretion in denying his motion to sever the
felon in possession charge from the murder charges. The resulting trial was grossly unfair,
denying him due process of law. We
disagree.
A. The Trial Court Properly
Denied the Severance Motion
Prior to
trial, defendant moved to sever the trial of the felon in possession of a
firearm charge from the murder charges, contending that allowing evidence of
the felon in possession charge would prejudice his right to a fair trial on the
murder counts. The defense claimed the
felon in possession charge would not be cross-admissible as to the murder
charges, and thus constituted improper character evidence. After a hearing on the issue, the trial court
denied the motion, explaining:
“Clearly,
in my estimation this is cross-admissible evidence. This goes to motive. This goes to intent. The fact that it wasn’t reported until two
months later is certainly a subject on cross-examination, but I’m not going to
determine that it’s so incredible that I would not allow that in.
“And
all evidence which tends to show guilt in the broad sense is prejudicial, but
this certainly has probative value, which potentially outweighs under 352.
“So I
will deny that motion.â€
Section 954
permits the joinder of “two or more different offenses connected together in
their commission, … or two or more different offenses of the same class of
crimes or offenses.†The law favors
joinder of counts because it promotes efficiency. (People v. Myles (2012) 53 Cal.4th 1181,
1200.) Even when joinder is proper, the
trial court may, “in the interests of justice and for good cause shown,â€
exercise its discretion to order that different offenses or counts be tried
separately. (§ 954; see People
v. Thomas (2012) 53 Cal.4th 771, 798.) “‘“The burden is on the party seeking
severance to clearly establish that there is a substantial danger of prejudice
requiring that the charges be separately tried.†[Citation.]’†(People v. Bradford (1997) 15 Cal.4th
1229, 1315.)
If the
trial court denies a motion to sever, the ruling is reviewed on appeal for
abuse of discretion. (People v. Ramirez
(2006) 39 Cal.4th 398, 439.) In
determining whether a trial court abused its discretion, we consider the record
before the trial court when it made its ruling. (People v. Thomas, supra, 53 Cal.4th at p. 798.)
“We consider first whether the evidence
of the two sets of offenses would have been cross-admissible if the offenses
had been separately tried. [Citation.] If the evidence would have been
cross-admissible, then joinder of the charges was not prejudicial.†(Ibid.)
If the
evidence is not cross-admissible, “we next inquire ‘whether the benefits of
joinder were sufficiently substantial to outweigh the possible “spill-overâ€
effect of the “other-crimes†evidence on the jury in its consideration of the
evidence of defendant’s guilt of each set of offenses.’ [Citations.] We consider ‘[1] whether some of the charges
are likely to unusually inflame the jury against the defendant; [2] 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 [3]
whether one of the charges is a capital offense, or the joinder of the charges
converts the matter into a capital case.’ [Citation.] ‘We then balance the potential for prejudice
to the defendant from a joint trial against the countervailing benefits to the
state.’ [Citation.]†(People v. Thomas, supra, 53 Cal.4th at pp. 798-799.)
Defendant
does not argue the counts were improperly joined under section 954; his sole
argument focuses on the denial of his severance motion. He claims the trial court abused its
discretion by failing to sever the charges.
Thus, we will address that issue.
We must first
address defendant’s severance motion as made in the trial court. Defendant had moved to sever the firearm possession
charge on the basis it was unduly prejudicial to the homicide charges. On appeal, defendant abandons that argument and
argues the exact opposite: the homicide
charges were unduly prejudicial to the firearm possession charges. As defendant failed to present this argument
in the trial court, he has forfeited the argument on appeal. (People v. Stanley (1995) 10 Cal.4th
764, 798 [asserted ground for severance forfeited where not raised at trial].)
Even if we
were to consider defendant’s argument, we would find no error. The initial factor to consider in determining
whether charges should be severed is the cross-admissibility of the
evidence. Here the trial court held the
gun possession would be cross-admissible to the murder charge as it provided
evidence of both defendant’s motive and intent to commit the murders. Defendant does not challenge this finding on
appeal. Instead he argues the trial
court’s failure to consider the remaining factors constituted an abuse of
discretion. Not so. As our Supreme Court made clear in
when considering whether a motion to sever should be granted, the first inquiry
is to assess the cross-admissibility of the evidence. If the evidence is cross-admissible, this “factor
alone is normally sufficient to dispel any suggestion of prejudice and to
justify a trial court’s refusal to sever properly joined charges.†(Id.
at p. 775.) If the court finds the
evidence of the joined charges was not cross-admissible, the court then
considers “‘whether the benefits of joinder were sufficiently substantial to
outweigh the possible “spill-over†effect of the “other-crimes†evidence on the
jury in its consideration of the evidence of defendant’s guilt of each set of
offenses.’†(Ibid., quoting People v. Bean
(1988) 46 Cal.3d 919, 938.)
Having
found the evidence was in fact cross-admissible, the trial court did not abuse
its discretion by failing to proceed to the remaining factors. Even assuming the trial court was required to
evaluate the remaining factors, it appears the court actually considered
whether the joining of the charges would have a prejudicial effect on defendant. The court found the probative value of the
evidence outweighed any prejudice under Evidence Code section 352.
Further, even
considering defendant’s claim in the manner he raises the issue, we find it
lacks merit. As this was not a capital
case, that factor has no application here.
The remaining factors to consider are whether the joined charges are
inflammatory and whether the strength of the cases are such that joinder would
lead to the possibility of one case being bolstered by the other. Defendant focuses his argument on the
inflammatory nature of the murder charges, arguing that after the jury heard
that evidence, it was prejudiced against him in deciding the felon in
possession charge. He claims the
prejudice was compounded by the fact the joinder resulted in two weak cases
being tried together, increasing the risk the outcome on the felon in possession
charge was altered by the murder charges.
We disagree.
A similar
argument was made and rejected in People
v. Cummings (1993) 4 Cal.4th 1233.
There, the defendant was jointly tried for both murder and several
robberies stemming from separate incidents.
The trial court held the evidence of the robberies was admissible as
evidence of motive on the murder charge. (Id.
at p. 1284.) On appeal, the defendant
argued the trial court erred in denying his severance motion, claiming evidence
of the murder may not have been admissible in a trial on the robbery
counts. The California Supreme Court
rejected the argument, noting “complete cross-admissibility is not necessary to
justify joinder.†(Ibid.) “The state’s interest
in joinder gives the court broader discretion in ruling on a motion for
severance than it has in ruling on admissibility of evidence.†(Ibid.) The court found the jury was not unduly
influenced in its determination of guilt on the robbery charges as a result of
the joinder with the murder charges; the
evidence of robberies was strong, further dispelling any prejudicial effect of
joinder in that case. (
Likewise
here, the evidence relating to the felon in possession charge was fully
admissible in the trial of the murder charges, thus dispelling any suggestion
of prejudice on that charge. Even if we
were to assume evidence relating to the murder charges would not have been
admissible at a separate trial on the felon in possession charge, it is
apparent the joinder of the offenses did not result in prejudice to
defendant. We disagree with defendant’s
characterization that the joinder of the offenses resulted in two weak cases
being joined together. Rather, it is
apparent the felon in possession charge was quite strong. The evidence was based upon Ortega’s
eyewitness account of the incident.
Further, the felon in possession charge itself was distinct from the
murder charge, occurring on a separate day and resting upon the testimony of
separate witnesses. The jury was
instructed to consider each offense separately, and nothing in the record
suggests the jury disregarded this instruction.
Moreover, the
evidence relating to the murder charges, when viewed at the time of the motion,
was also strong. An eyewitness identified
defendant as the shooter and defendant confessed his involvement to a jailhouse
informant. Defendant seeks to discount
this evidence based upon the witnesses’ testimony at trial, however, it is well
settled that in evaluating the prejudice we consider the facts known at the
time of the motion. (
632, 640.)
When
considering prejudice to a defendant in joining charges, it is important to
remember the “danger to be avoided is ‘that strong evidence of a lesser but
inflammatory crime might be used to bolster a weak prosecution case’ on another
crime.†(People v. Mason (1991) 52 Cal.3d 909, 934, quoting
623.) That danger was not present here, as
it was in fact the felon in possession charge that was strong.
Furthermore,
in weighing any potential prejudice to defendant against the benefits of
joinder, we note the felon in possession charge carried with it an enhancement
that it was committed for the benefit of a criminal street gang. This charge would have necessarily included
the extensive evidence relating to defendant’s gang association, as well as his
other encounters with Madrid. Separating
the cases would have required the duplication of evidence regarding the felon
in possession charge as well as the evidence relating to the gang
enhancement. Not only would Ortega have
to testify twice regarding the same issue, but the evidence relating to
defendant’s gang involvement would have to be produced multiple times. The duplication of evidence is a significant
factor weighing against severance in this case.
Moreover, another jury panel would have to be selected, and all of the
attendant costs of another trial would be incurred by the state. As our Supreme Court has explained,
“severance of properly joined charges denies the state the substantial benefits
of efficiency and conservation of resources otherwise afforded by section 954.â€
(People
v. Soper, supra, 45 Cal.4th at p.
782.)
Weighing
the considerable benefits of joinder in this case against the possibility of
prejudice from hearing the evidence of the murder, we conclude the trial court
did not abuse its discretion in denying the motion to sever.
B. The Joint Trial of the
Charges Did Not Deprive Defendant Due Process of Law
Defendant
contends that even if the trial court’s ruling denying his severance motion was
correct, the trial resulted in actual unfairness, denying him his right to due
process of law. We disagree.
Even where
we have determined a motion to sever was properly denied, we must still “‘determine
whether, in the end, the joinder of counts or defendants for trial resulted in
gross unfairness depriving the defendant of due process of law.’†(People
v. Soper, supra, 45 Cal.4th at p.
783.) Reviewing the record in light of
the evidence actually introduced at trial, as well as considering the
subsequent evidence developed in the new trial motion, we conclude the joinder
did not deprive defendant of his constitutional right to a fair trial and due
process.
Defendant’s
argument centers upon the actual trial testimony of Arroyo and the fact
defendant was granted a new trial based on newly discovered evidence as to the
murder counts. Essentially, defendant
reiterates his argument that evidence of the murder charges was so inflammatory
it swayed the jury to convict on the felon in possession charge. Defendant’s argument fails because the
evidence relating to the murder charges had little bearing on his guilt on the
felon in possession charge. None of the
newly discovered evidence related in any way to Ortega’s testimony that
defendant confronted Madrid with a gun in September. At trial, the issue related to the murder
charges was one of identity. Arroyo and
Dunlap supplied the evidence that defendant was the one who committed the
shooting through Arroyo’s eyewitness account and Dunlap’s testimony that
defendant admitted committing the shooting.
Because doubt was cast on this testimony through Arroyo’s statements at
trial, and the subsequent evidence produced at the new trial motion, defendant
argues, the jury was never able to consider the murder charges in light of the
new evidence, which resulted in an unfair finding on the felon in possession
charge.
Defendant’s
argument hangs upon the premise the evidence relating to the murder charges
affected the jury’s decision on the felon in possession charge. We disagree with this underlying
premise. As we have explained, the issue
at trial on the murder charges was one of identity. The issue regarding the felon in possession
charge rested solely upon Ortega’s credibility.
As none of the evidence defendant cites goes to the issue of Ortega’s
credibility, it is difficult to see how any of that evidence could have
prejudiced the defendant on the felon in possession charge. Further, the crimes were factually separate, occurring
at different times and places, reducing the likelihood of prejudice. (People
v. Mendoza (2000) 24 Cal.4th 130, 163 [no due process violation in trying
multiple robberies with a murder, arson and rape where offenses were factually
distinct].)
As we stated
previously, the evidence on the felon in possession charge was strong. The evidence was based upon the testimony of
Ortega who witnessed defendant confront the victim with a gun while calling him
a “rat.†While other evidence relating
to the murder was also admitted, it was admitted solely for the proof of those
charges. The two offenses were properly
joined, and the joint trial of the offenses was not prejudicial. The jury was instructed to consider the
offenses separately, and nothing in the record indicates the jury did not follow
this instruction. Granted, the actual
trial testimony in the murder case was somewhat weaker than anticipated due to
Arroyo’s inconsistent testimony and the newly discovered evidence. Ultimately, however, the strength of the
felon in possession charge was not similarly affected.
The
weakening of the murder charge does not lead to the conclusion defendant’s
trial was grossly unfair. When
considering prejudice to a defendant in joining charges, the “danger to be
avoided is ‘that strong evidence of a lesser but inflammatory crime might be
used to bolster a weak prosecution case’ on another crime.†(People
v. Mason, supra, 52 Cal.3d at p. 934,
quoting People v. Walker,
case at trial was the murder charge, not the felon in possession charge. Because the murder charges were reversed in
the new trial motion, defendant cannot be heard to complain as to the
prejudicial effect of the joinder of the evidence on the murder charges. Considering the totality of the evidence, we
find defendant has failed to carry his burden in establishing his trial was
grossly unfair as to the felon in possession charge.
We also
reject defendant’s argument, presented for the first time in his reply brief,
that the evidence presented at the motion for new trial cast doubt upon the
evidence relating to the gang enhancement.
We decline to consider an argument raised for the first time in the
reply brief. (People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2.)
DISPOSITION
The
judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
LEVY, Acting P.J.
________________________________
CORNELL, J.
name="_ftn1" title="">[1]All
further references are to the Penal Code unless otherwise indicated.
