Filed 3/28/17 P. v. Ramirez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERTO G. RAMIREZ,
Defendant and Appellant.

A144547

(San Francisco City & County
Super. Ct. No. 12003482/SCN218202)


A jury convicted defendant Roberto G. Ramirez of multiple offenses arising from separate incidents several months apart involving assault charges as to a former girlfriend and a police officer. Defendant appeals his conviction, contending (1) the trial court erred in denying his motion for severance of charges related to the two incidents; (2) the prosecutor engaged in misconduct that violated his due process right to a fair trial; and (3) the court erred in imposing and staying one-year enhancements pursuant to Penal Code section 667.5, subdivision (b) for prior felony convictions as to which he also received five-year enhancements under section 667, subdivision (a)(1). We affirm.
I. BACKGROUND
A. Charges
Defendant was charged by amended information filed on August 28, 2014, with domestic violence (§ 273.5, subd. (a); count I), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count II), battery with serious bodily injury (§ 243, subd. (d); count III), assault upon a peace officer with force likely to cause great bodily injury (§ 245, subd. (c); count IV), battery with injury on a peace officer (§ 243, subd. (c)(2); count V), threat to an executive officer (§ 69; count VI), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count VII).
The amended information further alleged enhancements for infliction of great bodily injury on counts I and II (§ 12022.7, subd. (e)), commission of a violent or serious felony while on parole (§ 1203.085, subd. (b)), two prior strikes for second degree robbery and bank robbery, enhancements for two serious felony convictions, and four “prison-prior” convictions (§§ 667, subds. (a)(1), (d), (e), 1170.12, subds. (b), (c), 667.5, subd. (b).)
B. November 3, 2011 Incident
About 2:15 a.m. on November 3, 2011, K.V. and defendant got into an argument while walking down a San Francisco street. The two had been living together for a week and a half and K.V. testified they were boyfriend and girlfriend.
As their argument ended, defendant walked away, angry, then turned back and walked towards K.V. He told her, “Give me my money,” and “Give me my pills.” Defendant grabbed for K.V.’s purse, which contained pills he had given her, and when she said, “No, . . . don’t,” he hit her numerous times with both fists in the face and head. K.V. covered her face with both fists, crouched on her knees into a ball, and screamed for help. As defendant was hitting her, K.V. was bleeding from her eye area, and at one point, urinated on herself. When a man ran out of his house to help K.V., defendant ran away.
K.V. spent two days in the hospital receiving treatment for her injuries. She had nine stitches above her left eye, two black eyes, a laceration on her lip, a swollen nose, and a sore jaw and ear. At the preliminary hearing, K.V. testified she now has a jagged scar below her left eyebrow that runs the length of the eyebrow as a result of the incident.
C. February 3, 2012 Incident
Three months later, San Francisco Police Officer Gabriel Alcaraz, together with four other officers, went to a two-story San Francisco home to arrest defendant. At the time, Alcaraz was in plainclothes wearing a blue raid jacket with “police” emblazoned in yellow letters with department patches on the shoulders, and had his badge and star hanging from his neck. The other officers were similarly dressed.
Once at the house, two officers knocked on the front door and on windows next to the staircase, identifying themselves as police in loud, clear voices. Officer Alcaraz waited at the bottom of the stairs with another officer, while a fifth officer went to the side of the house. About five minutes later, a woman answered the front door. As the officers at the front door spoke with the woman, the officer at the side of the house announced a man matching defendant’s description had come out the back door and was trying to flee. Alcaraz called for back-up, and then followed the other officers into the house looking for defendant.
Alcaraz went through the house and out the back door into the backyard. He walked over to a fence, looking for defendant. Alcaraz heard a noise and turned around. He saw defendant hanging from a window ledge about 12 feet off the ground, grasping the window ledge with one hand and grabbing a drainage pipe with his other hand. Alcaraz and another officer told defendant to get down. Defendant said, “Okay. Okay. I’m coming down,” and dropped. Alcaraz testified defendant made a fist with his right hand, swung his arm, and struck Alcaraz on the right side of his eyebrow as he was dropping down. Once down on the ground, defendant tried to push past Alcaraz, then tried to tackle him. Alcaraz pinned defendant to the ground and other officers came to assist with putting defendant in handcuffs. The officers told defendant to “stop resisting” and ordered him to put his hands behind his back. Defendant refused to put his hands behind his back, moved his arms and tried to push himself up, but the officers were able to pin him down and handcuff him within 10 to 15 seconds. An officer searched defendant and found a plastic bag with two smaller bags of a white crystalline substance.
Alcaraz was treated at the emergency room for a laceration to his eyebrow. Following the incident, he had a black eye and now has a visible one-inch scar on his eyebrow.
D. Verdicts, Sentencing, and Appeal
The jury found defendant guilty of assault with force likely to cause great bodily injury (count II) and battery with serious bodily injury (count III) as to K.V., misdemeanor resisting arrest in violation of section 148 (a lesser included offense of count VI) as to Alcaraz, and possession of methamphetamine (count VII). The jury acquitted defendant of the remaining charges. The jury found true the parole enhancement, the prison prior and serious felony enhancements, and the strike allegations based on the prior convictions.
The court sentenced defendant to an aggregate term of 19 years. The term consisted of four years for the count II assault, three years for great bodily injury on count II, enhanced five years for each of the two serious felony priors (§ 667, subd. (a)(1)), and enhanced one year for each of two prior prison terms not attributable to the serious felonies (§ 667.5, subd. (b)). The court also imposed but stayed two one-year enhancements under section 667.5, subdivision (b) for the prior felony convictions for second degree robbery and bank robbery. This timely appeal followed.
II. DISCUSSION
Defendant asserts his convictions must be reversed because the trial court erred in denying his motion to sever and because a statement by the prosecutor during closing argument constituted misconduct and violated his rights to due process and a fair trial. Defendant also contends the case must be remanded with directions for the trial court to strike two section 667.5, subdivision (b) (section 667.5(b)) enhancements for “prison prior” convictions for which it already imposed enhancements under section 667, subdivision (a)(1).
A. Severance Motion
Charges from the two incidents initially were filed as separate cases, but the court granted consolidation on March 22, 2012. Before trial, defendant moved to sever the counts based on the assault against K.V. from the charges as to Alcaraz. Defendant argued the two cases could not be joined under section 954, joinder would deny him a fair trial because the evidence was not cross-admissible, and evidence of the alleged domestic violence incident would inflame the jury against defendant in the Alcaraz case. The prosecution argued the cases were properly joined because the two incidents were both connected in their commission and of the same class of crimes (assaultive crimes). Defendant, moreover, would not be prejudiced because the evidence was cross-admissible and defendant could not show the other factors relevant to assessing prejudice applied. At the hearing, defense counsel further asserted the evidence was not cross-admissible because there was no evidence defendant was aware the parole warrant was based on the domestic violence incident that occurred three months prior. The trial court denied the motion for the reasons set forth in the prosecution’s opposition. The court acknowledged the passage of time between the two incidents, but stated the prosecution was entitled to proceed on the theory the arrest was for purposes of effecting a parole warrant based on the alleged domestic violence incident.
Defendant contends the trial court’s denial of the severance motion was an abuse of discretion. Alternatively, he argues the judgment of conviction must be reversed because the joinder resulted in gross unfairness so as to deny defendant due process of law and the right to a fair trial.
1. Abuse of Discretion
Under section 954, an accusatory pleading may charge two or more different offenses if they are “connected together in their commission” or “of the same class of crimes or offenses,” and if two accusatory pleadings are filed in such cases, the court may consolidate them. (§ 954; Soper, supra, 45 Cal.4th 759, 771.) The purpose of the statute is to avoid the increased expenditure of funds and judicial resources which may result if the charges were to be tried separately. (Soper, at p. 772.) Because joinder of charged offenses ordinarily promotes efficiency, the law prefers it. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.)
Defendant does not challenge the trial court’s decision to consolidate the cases or argue the charged offenses failed to meet the statutory requirements for joinder. Accordingly, defendant must make a “clear showing of prejudice to establish that the trial court abused its discretion in denying . . . defendant’s severance motion.” (People v. Mendoza (2000) 24 Cal.4th 130, 160, italics added.)
In assessing whether the trial court has abused its discretion, we consider the record before the trial court at the time of its ruling. (People v. Ybarra (2016) 245 Cal.App.4th 1420, 1433.) “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.” (People v. Mendoza, supra, 24 Cal.4th at p. 161.)
Defendant has not shown the trial court abused its discretion in denying his motion. As an initial matter, evidence from the separate trials would have been cross-admissible. The parole warrant for defendant’s arrest was based on the alleged domestic violence incident, and evidence defendant attempted to flee and resisted arrest would be admissible in the K.V. case to demonstrate his consciousness of guilt for the prior assault. (See People v. Merriman (2014) 60 Cal.4th 1, 43–45 [evidence defendant fled from police and resisted arrest would be admissible at separate trial on murder charge to show consciousness of guilt]; People v. Garcia (2008) 168 Cal.App.4th 261, 283 [evidence defendant resisted arrest admissible to show consciousness of guilt].) Similarly, evidence of the assault on K.V. would be admissible in the Alcaraz case to show defendant’s motive for resisting arrest and to help explain his behavior when attempting to avoid the police. (See People v. Merriman, at p. 43 [evidence of murder would be cross-admissible in separate trial on resisting arrest charges to help explain intensity of defendant’s efforts to avoid the police].) While defendant contends it was never established at the preliminary examination and hearing on the severance motion that he knew the police were arresting him for the assault on K.V. three months earlier, whether defendant had knowledge of the basis for his arrest goes to the weight, rather than the admissibility, of the evidence. (Id. at p. 44 [theory defendant might have fled police for reasons other than consciousness of guilt demonstrated only that he disputed prosecution’s evidence and inferences that can be drawn from it]; People v. Carter (2005) 36 Cal.4th 1114, 1182 [jury instruction on “flight” does not require knowledge on defendant’s part that criminal charges have been filed or defined temporal period within which flight must commence]; People v. Remiro (1979) 89 Cal.App.3d 809, 845 [remoteness of escape attempt from crime as to which it is offered to show consciousness of guilt goes to the weight rather than admissibility of evidence].)
Even assuming the evidence was not cross-admissible, defendant has not shown a substantial risk of undue prejudice based on the other factors. (§ 954.1; People v. Ybarra, supra, 245 Cal.App.4th at p. 1435 [where charges are properly joined, fact that evidence underlying charges is not cross-admissible is insufficient, standing alone, to establish abuse of discretion by trial court in refusing to sever].) Defendant does not contend, nor do we conclude, any of the charges were unusually likely to inflame the jury, and neither case involved capital charges.
As to whether a weak case has been joined with another weak case (or a strong one) so that the “spillover effect” may alter the outcome as to some of the charges (People v. Vines (2011) 51 Cal.4th 830, 855), defendant asserts joinder permitted the jury to aggregate the evidence and find him guilty on the K.V. assault charges, even though it did not find him guilty of a crime more serious than resisting arrest with respect to the Alcaraz case. Defendant claims the concern expressed by the court in Williams v. Superior Court (1984) 36 Cal.3d 441, 453 (Williams)—“that the jury here would aggregate all of the evidence, though presented separately in relation to each charge, and convict on both charges in a joint trial”—is present here as well. We are not persuaded.
Defendant’s only argument as to the weakness of the Alcaraz case is the jury found him guilty only of the lesser included offense of resisting arrest. In deciding whether the court abused its discretion, however, we look to the record before the trial court when it made its ruling. (People v. Ybarra, supra, 245 Cal.App.4th at p. 1433.) The jury verdicts were not part of the record when the court denied the severance motion before the start of trial. Defendant does not point to any evidence (or lack of evidence) before the trial court at the time it made its ruling demonstrating one or both cases were weak. K.V. and Alcaraz both testified at the preliminary hearing, and thus the charges were supported by eyewitness accounts.
Even if, as defendant urges, we were to consider the outcome of the trial, the risk articulated in Williams does not appear to have been borne out here. In this case, the jury acquitted on certain charges in both cases, and found defendant guilty of the lesser included offense of resisting arrest in the Alcaraz case. These verdicts show the jury considered the evidence in support of and against each charge separately and undermines defendant’s claim of prejudice.
The burden is on defendant to persuade the court that considerations of efficiency and conservation of judicial resources are outweighed by a substantial risk of undue prejudice from trying these two cases together. (Soper, supra, 45 Cal.4th at p. 773.) Defendant failed to demonstrate potential prejudice from joinder of the two cases, and accordingly, failed to meet his burden.
2. Gross Unfairness
Defendant contends even if the trial court did not abuse its discretion in denying his severance motion, his conviction must be reversed because joinder of the offenses deprived him of a fair trial. When a trial court’s severance ruling is correct at the time it was made, a reviewing court still must determine whether the joinder resulted in gross unfairness amounting to a denial of due process. (Soper, supra, 45 Cal.4th at p. 783.) To establish gross unfairness, a defendant must demonstrate a “ ‘reasonable probability’ ” that the joinder affected the jury’s verdicts. (Ybarra, supra, 245 Cal.App.4th at p. 1438.)
Defendant contends by joining the offenses for trial, the prosecution was able to get before the jury “a significant amount of inadmissible character evidence that created a real risk the jury would decide the counts arising from the [K.V.] attack based on evidence of the arrest.” But defendant does not describe any specific inadmissible character evidence (let alone a “significant amount”) nor explain how such evidence prejudiced him.
Defendant also argues the prejudice was heightened because the court did not instruct the jury it could not use the evidence in one case as evidence of guilt in another. Assuming for the sake of analysis the evidence was not cross-admissible, the failure to so instruct the jury is only one factor in the “assessment of whether the resulting trial was grossly unfair, but standing alone the absence of such a limiting instruction does not establish gross unfairness depriving defendant of due process.” (Soper, supra, 45 Cal.4th at pp. 783–784.) Further, as discussed above, the fact the jury found defendant guilty on the assault charges as to K.V., but not as to Alcaraz, tends to show the jury evaluated each charge against defendant based on the specific evidence before it, and undermines defendant’s claim of a “spillover effect” between the two cases. (See Ybarra, supra, 245 Cal.App.4th at p. 1440.) In sum, defendant has not shown a “ ‘reasonable probability’ ” joinder affected the verdicts, and has failed to meet his burden to demonstrate his trial was grossly unfair.
B. Prosecutorial Misconduct
Defendant also argues his conviction must be reversed based on the following statement made by the prosecution during closing argument: “We are in a trial. If every witness who’s going to come up and take the stand and say the exact same thing, we wouldn’t be here. There’s always going to be multiple versions, multiple possibilities thrown out. [¶] But there’s only one truth. [¶] And just because there’s multiple stories put out there, it doesn’t mean that there’s reasonable doubt. You have to look at the different versions and look at whether both are reasonable or only one is reasonable.”
Defense counsel immediately objected to the statement, citing People v. Ellison (2011) 196 Cal.App.4th 1342 (Ellison). The court sustained the objection and told the jury, “You have heard my instruction with regard to how to deal with this issue, and that is the law you should follow.”
On appeal, defendant asserts the prosecutor’s statement to the jury improperly lowered the prosecution’s burden of proof and shifted the burden to defendant to prove his innocence.
“It is improper for the prosecutor to misstate the law generally, and in particular, to attempt to lower the burden of proof. [Citation.] However, we do not reverse a defendant’s conviction because of prosecutorial misconduct unless it is reasonably probable the result would have been more favorable to the defendant in the absence of the misconduct.” (Ellison, supra, 196 Cal.App.4th at p. 1353.)
In Ellison, the prosecutor made repeated statements to the jury during closing argument incorrectly stating the law on the “beyond a reasonable doubt” standard of proof. Specifically, the prosecution told the jury several times it must decide whether the defendant’s claim of innocence was reasonable. (Ellison, supra, 196 Cal.App.4th at pp. 1351–1352.) The court held such statements were improper because they attempted to lessen the prosecution’s burden of proof. (Id. at p. 1353.) However, even though the statements persisted after multiple objections and curative instructions, the jury was properly instructed, the court admonished the jury to follow its instructions, and the jury acquitted on three of the most serious charges, showing it understood and applied the correct burden of proof. (Ibid.) Under such circumstances, the court held the prosecutor’s misconduct did not require reversal. (Ibid.)
In this case, the prosecution’s statement suggested the jury must determine whether defendant’s version of events, and thus his claim of innocence, was reasonable. Although the prosecutor’s statement to the jury was improper, we do not find reversal appropriate here. First, prior to making the statement, the prosecutor read a portion of the jury instruction on reasonable doubt. Second, unlike in Ellison, defendant challenges only one misstatement as part of a lengthy closing argument. Third, the judge sustained defense counsel’s immediate objection and admonished the jury to follow the court’s instructions. Fourth, the jury was properly instructed by the court on principles of law related to presumption of innocence and proof beyond a reasonable doubt, and defendant does not contend otherwise. Finally, the jury acquitted on several counts, was unable to reach a verdict on a lesser included offense as to the K.V. domestic violence charge, and found defendant guilty only of the lesser included offense of resisting arrest as to Alcaraz. Such findings suggest the jury understood and applied the appropriate burden of proof. Because defendant has not shown it is reasonably probable a different result would have been obtained absent the misconduct, reversal is not warranted.
C. Sentencing
Relying on People v. Jones (1993) 5 Cal.4th 1142 (Jones), defendant contends the trial court erred in imposing but staying two one-year enhancements under section 667.5(b), and asserts the proper remedy was to strike them. We asked the parties to provide supplemental briefing addressing whether the trial court erred in view of People v. Brewer (2014) 225 Cal.App.4th 98 (Brewer). Having considered the parties’ arguments, we conclude the trial court’s decision to impose but stay the section 667.5(b) enhancements was correct.
At the trial of this case, the jury found true allegations that defendant had been convicted for a 1986 federal bank robbery and a 1991 second degree robbery. At the sentencing hearing on March 5, 2015, the court imposed two five-year enhancements for the prior “serious felonies” under section 667, subdivision (a)(1). The court also imposed but stayed two one-year enhancements pursuant to section 667.5(b) for prison terms served for the same convictions.
A court cannot impose enhancements under both sections 667 (prior serious felony conviction) and 667.5(b) (prior prison term) based on the same prior conviction. (Jones, supra, 5 Cal.4th at p. 1153.) In Jones, the trial court imposed both a five-year enhancement under section 667, subdivision (a)(1) and a one-year enhancement under section 667.5(b) based on the same prior felony conviction. Construing section 667, the Jones court held “the most reasonable reading of subdivision (b) of section 667 is that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (Id. at p. 1150.) With no discussion of the proper remedy, the court remanded the case to the trial court with directions to strike the section 667.5(b) enhancement. (Jones, at p. 1153.) Defendant argues we must do the same here.
While Jones clearly established time cannot be served for enhancements under both section 667, subdivision (a) and section 667.5(b) for the same prior conviction, there is a split of authority among appellate courts whether section 667.5(b) enhancements must be stricken in such circumstances. One line of cases, following Jones, concludes the appropriate remedy is to strike the section 667.5(b) enhancements. (See People v. Johnson (2002) 96 Cal.App.4th 188, 209, disapproved on other grounds by People v. Acosta (2002) 29 Cal.4th 105, 134, fn. 13; People v. Perez (2011) 195 Cal.App.4th 801, 805 (Perez).) Other authority asserts the appropriate procedure is to impose but stay the term for the section 667.5(b) enhancement. (See Brewer, supra, 225 Cal.App.4th at p. 104; People v. Lopez (2004) 119 Cal.App.4th 355, 364–365 (Lopez); see also Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2015) ¶ 12.5, pp. 12-17 to 12-19 [when defendant has both a prior prison term under section 667.5(b) and a prior serious felony enhancement under § 667, subd. (a) for the same offense, “likely the better practice is to impose, then stay, any lesser enhancement under the authority of [California Rules of Court, r]ule 4.447”].)
We agree with our colleagues in the First Appellate District in Brewer and find its reasoning more persuasive.
In Brewer, the defendant was charged with two enhancements pursuant to section 667.5, subdivision (a) based on prior prison terms imposed after violent felony convictions, and two enhancements pursuant to section 667.5(b) for the same prison terms. (Brewer, supra, 225 Cal.App.4th at pp. 102–103.) All four enhancements were found true, and the trial court imposed a sentence based on the two section 667.5, subdivision (a) enhancements but stayed the section 667.5(b) enhancements pursuant to section 654. (Brewer, at p. 103.) Observing the stay was improper under section 654, the court nonetheless concluded the stay was appropriate under California Rules of Court, rule 4.447 (rule 4.447). (Brewer, at p. 104.)
Rule 4.447 authorizes a stay when an enhancement that would otherwise have to be imposed or stricken is barred by an overriding statutory prohibition. (Brewer, supra, 225 Cal.App.4th at p. 104, citing Lopez, supra, 119 Cal.App.4th at p. 365; see 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 346, p. 350 [enhancement must be stayed not stricken when imposition of the term is prohibited by law or exceeds limitations on imposition of multiple enhancements].) In Brewer, the imposition of the two 667.5(b) enhancements was prohibited by law under the express statutory language of section 667.5(b). (Brewer, at p. 104; section 667.5(b) [authorizing use of the enhancement “[e]xcept where subdivision (a) applies”].) Because the section 667.5(b) enhancements were precluded by statute, a stay was authorized under rule 4.447. (Brewer, at p. 104.)
Here, although the greater enhancement is under section 667, subdivision (a)(1), not section 667.5, subdivision (a), the rationale articulated in Brewer applies. The section 667.5(b) enhancements in this case are prohibited by law, as stated unequivocally by the California Supreme Court’s holding in Jones, supra, 5 Cal.4th at page 1153. Because the trial court was barred by law from imposing the section 667.5(b) enhancements, rule 4.447 authorized the stay. The approach taken by the trial court to impose but stay the section 667.5(b) enhancements avoids violating the statutory prohibition while preserving the possibility of imposing the stayed term should the section 667, subdivision (a)(1) enhancements be later reversed on appeal. (See Brewer, supra, 225 Cal.App.4th at pp. 104–105; Lopez, supra, 119 Cal.App.4th at p. 365.)
Though defendant insists Jones mandates the section 667.5(b) enhancements be stricken, the Jones court did not discuss the proper remedy when a jury finds enhancement allegations true under both statutes. (Lopez, supra, 119 Cal.App.4th at p. 364.) The propriety of staying the section 667.5(b) enhancement was not at issue in Jones, because the trial court there, unlike in this case, imposed but did not stay the section 667.5(b) enhancement. Nor did the high court discuss rule 4.447. Cases are not authority for propositions not discussed. (Lopez, at p. 364, citing People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
In his supplemental briefing, defendant also argues the court must strike the section 667.5(b) enhancements in light of the following statement by the California Supreme Court in People v. Langston (2004) 33 Cal.4th 1237, 1241 (Langston): “Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken.” As the Brewer court observed, however, Langston does not mention rule 4.447, and the authorities cited in Langston on this issue concerned discretionary determinations to not impose an enhancement, not situations where the enhancement was prohibited by law. (Brewer, supra, 225 Cal.App.4th at p. 106, fn. 9.)
Finding no error in the trial court’s decision to impose but stay the section 667.5(b) enhancements, we affirm.
III. DISPOSITION
The judgment is affirmed in full.






_________________________
Margulies, Acting P.J.


We concur:


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Dondero, J.


_________________________
Banke, J.