Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. MA042977, MA043349 Lisa M. Chung, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Peter Kamekona appeals from the judgment entered following his convictions by jury on count 7 – dissuading a witness by force or threat (Pen. Code, § 136.1, subds. (b) & (c)(1)) and count 8 – assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with a finding as to each offense that appellant committed it for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)), and with admissions that he suffered two prior felony convictions (Pen. Code, § 667, subd. (d)). The court sentenced appellant to prison for 25 years to life, plus five years. We affirm the judgment.
FACTUAL SUMMARY
1. The Prior Offenses: Counts 4, 5, and 6.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on April 13, 2008, Mary Correa lived with her 17-year-old son (hereafter, Minor) in Palmdale. Between about 9:00 p.m. and 9:30 p.m. on that date, Minor was outside his home and talking to his friend, Amanda Banuelos. Marcus Deherrera and a second man drove up in a “light bluish silver” Honda that looked like a Honda Civic. Deherrera and the second man exited the car and approached Minor and Banuelos. Deherrera and the second man committed strong-arm robberies of Minor (count 4) and Banuelos (count 5). Minor recorded a partial license plate number of the Honda and later gave it to the police.
Deherrera is not a party to this appeal.
Prior to trial, Minor and Banuelos identified a photograph of Deherrera as depicting one of the robbers. At trial, Banuelos again identified Deherrera, but Minor did not. Minor admitted at trial that he was afraid to testify because Correa was slashed on her stomach after April 13, 2008, but before Minor’s May 18, 2009, testimony at the trial.
The evidence also established that about 9:30 p.m. on April 13, 2008, Luis Aguilar was walking home in Palmdale. Deherrera and a passenger drove up in a gray Honda Civic. Deherrera and the passenger committed a strong-arm robbery of Aguilar (count 6). Prior to trial, Aguilar identified a photograph of Deherrera as depicting the driver of the car. At trial, Aguilar testified Deherrera “kind of looks like” the person depicted in the photograph. Aguilar, who did not want to testify at trial, was concerned about his safety.
2. The Present Offenses: Counts 7 & 8.
The evidence established that on July 18, 2008, Correa was outside her Palmdale home when a small black car with a spoiler drove up. Shortly thereafter, appellant was standing behind her. Appellant said, “ ‘This is a warning, ’ ” then, using something shiny, slashed Correa’s stomach, leaving a nine-inch wound (counts 7 & 8). Correa’s daughter began to approach, and Deherrera, the driver of the car, said someone was coming. Appellant returned to the car and appellant and Deherrera drove away. Correa did not seek medical treatment because she was afraid.
Prior to trial, Correa identified photographs of appellant and Deherrera as depicting her assailant and the driver of the car, respectively. Correa testified that when she selected the photograph depicting appellant, she did so because she would never forget appellant’s face. She cried and shook when she saw his photograph. At trial, Correa identified appellant and Deherrera. A black car with a spoiler was located in the driveway of the Palmdale home of appellant’s sister and, at trial, Correa was shown a photograph of that car. She testified the car looked exactly like the one she had seen on July 18, 2008.
Los Angeles County Sheriff’s Deputy Tyrone Berry, the People’s gang expert, testified, inter alia, as follows. Berry was the investigating officer as to counts 4 through 8, and was assigned to the unit handling criminal street gangs in Antelope Valley. The Los Compadres Varrio (LCV) gang was an Hispanic criminal street gang. The offenses in counts 4 through 8 were committed for the benefit of LCV.
The violence of a gang member enhanced that gang member’s status in the gang. Gang members would often share the proceeds of the gang’s crimes. When gang members committed a crime against civilians, other gang members would know who committed the crime, and the neighborhood in which the crime occurred would know within about a week. Gang members who committed such crimes would brag about them to other gang members or “to people in their inner circle.” In defense, appellant presented evidence as to counts 7 and 8 that he was misidentified.
ISSUE
Appellant claims the trial court erroneously denied his motion to sever counts 4 through 6 from the present offenses (counts 7 & 8).
DISCUSSION
The Trial Court Properly Denied Appellant’s Motion to Sever.
1. Pertinent Facts.
On September 1, 2008, Berry found appellant associating with LCV gang members and arrested appellant for violating a condition of his parole that he not associate with gang members. Based on the July 18, 2008, incident, the information filed on October 7, 2008, in case No. MA043349 alleged as count 1 the offense of dissuading a witness by force or threat (dissuading), as count 2 the offense of assault with a deadly weapon (assault), and, as to each count, that appellant committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)).
On November 14, 2008, the People filed a motion for joinder which indicated as follows. On April 13, 2008, Deherrera, Michael Lynch, Oswaldo Salazar, and Travis Webb, who were in a silver Honda, approached a family, i.e., a father, mother, and baby, and carjacked the family’s car. Deherrera and Lynch drove away in the Honda. Deherrera and Lynch then committed the strong-arm robberies of Minor and Banuelos. Deherrera and Lynch “then” approached Aguilar, who was walking on the sidewalk “[a short] distance” from the location of the above two robberies. Deherrera and Lynch committed the strong-arm robbery of Aguilar and drove away. Deputies responded to calls pertaining to the robberies and obtained statements from the victims. The above six offenses were alleged in case No. MA042977.
According to the motion, (1) Deherrera, Salazar, and Webb were LCV members, (2) Lynch was an LCV associate and close friend of Deherrera, and (3) appellant was an uncle of LCV members (but a member of the Young Boyz Rifa gang). The motion sought joinder of all offenses and defendants. On November 26, 2008, the court denied the motion without prejudice. On February 26, 2009, the court indicated it would reconsider the matter.
On March 24, 2009, the court asked the prosecutor if he wished to be heard regarding the motion for joinder and/or consolidation. The prosecutor indicated the court previously had denied it, in part because the defendants were at different stages in their respective criminal proceedings, but that was no longer the case. The prosecutor represented that the dissuading and assault offenses involving victim Correa arose from the robbery counts with which Deherrera and Lynch were charged, and the prosecutor argued that evidence of those robberies was cross-admissible as evidence of appellant’s motive to commit the dissuading offense. The court, without objection by appellant, granted the motion to consolidate, indicated the People were to file an amended information, and asked the parties to brief any joinder or severance issues for later consideration by the court.
On March 26, 2009, the People filed an eight-count amended information in the consolidated cases. Each of counts 1 through 3 alleged that on or about April 13, 2008, Deherrera, Lynch, Salazar, and Webb committed carjacking (apparently involving the father, mother, and baby as victims, respectively). Each of counts 4 through 6 alleged that on or about April 13, 2008, Deherrera and Lynch committed second degree robbery involving victims Minor, Banuelos, and Aguilar, respectively. (Appellant was not named as a defendant in counts 1 through 6.) Counts 7 and 8 alleged that on or about July 18, 2008, Deherrera and appellant committed the dissuading and assault offenses, respectively, against Correa (i.e., counts 1 and 2 in the original information were renumbered counts 7 and 8, respectively, in the amended information). The amended information alleged Penal Code section 186.22, subdivision (b) enhancements as to all counts.
Except as otherwise indicated, references to subsequent proceedings are references to proceedings in the consolidated cases.
On March 30, 2009, appellant filed a motion for severance. Appellant did not, in the written motion, argue (as he does here) that the motion should have been granted because mere joinder denied him his “right to a fair trial and due process of law guaranteed by the Fifth, Sixth, and Fourteenth Amendments.”
At the May 8, 2009, hearing on the motion, the court stated, “Regarding... counts 4, 5, 6, 7 and 8, the court notes that there is more cross admissibility. The assault, dissuading charge on Mary Correa is clearly related to the robbery on [Minor] and Amanda Banuelos. It serves to provide a motive. [¶] The robbery as to Luis Aguilar, although separate, occurred very close in time to [Minor], Amanda Banuelos, and has less potential for prejudice and confusion as opposed to the carjacking counts that occurred that involved a husband, wife and newborn baby.” The court granted appellant’s motion to sever as to counts 1 through 3, but denied the motion as to counts 4 through 6.
On May 22, 2009, the People filed a second amended information which was the same as the previous one except the second amended information also alleged appellant’s prior convictions.
2. Analysis.
Appellant claims the trial court erroneously denied his motion to sever counts 4 through 6 from the present offenses (counts 7 & 8), resulting in a violation of his rights under the Fifth, Sixth, and Fourteenth Amendments. We conclude otherwise. To the extent appellant claims the mere joinder of counts 4 through 6 with counts 7 and 8 violated his rights under the Sixth Amendment, appellant waived that issue by failing to object below on that ground. (Cf. People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7.)
Even if that issue was not waived, we conclude, for the reasons discussed below, that appellant’s claim lacks merit. The law prefers consolidation of charges. (People v. Manriquez (2005) 37 Cal.4th 547, 574.) When statutory requirements for joinder are met, a defendant must clearly show prejudice to establish an abuse of discretion by the trial court in failing to sever. The pertinent factors to be considered are whether (1) the evidence of the crimes would be cross-admissible in separate trials, (2) some of the charges are unusually likely to inflame the jury against the defendant, (3) a weak case has been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses, and (4) any one of the charges is a death penalty offense, or whether joinder converts the matter into a capital case. A determination that evidence is cross-admissible ordinarily dispels any inference of prejudice. (People v. Marshall (1997) 15 Cal.4th 1, 27-28 (Marshall).) (We refer to the above four factors as the Marshall factors.)
Finally, even if a trial court has not abused its discretion in denying a pretrial severance motion based on the then-existing record, the judgment must be reversed if the defendant shows that joinder resulted in gross unfairness amounting to a denial of due process. (People v. Macklem (2007) 149 Cal.App.4th 674, 698.)
In this matter, the court reconsidered the prosecutor’s motion for joinder, and there is no dispute as to the accuracy of the factual representations of the parties concerning the joinder and severance issues. The amended information alleged Deherrera and Lynch committed counts 4 through 6. Deherrera was an LCV gang member, Deherrera and Lynch were close friends, and Lynch was an LCV associate. The amended information alleged Deherrera and appellant committed counts 7 and 8. Appellant was a gang member and an uncle of LCV gang members. The amended information alleged gang enhancements as to all counts.
In light of the above, we believe evidence of the April 13, 2008, robberies of Minor, Banuelos, and Aguilar (counts 4 through 6, respectively) committed by Deherrera and Lynch was relevant and cross-admissible on the issue of appellant’s gang-related motive to commit the July 18, 2008, dissuading and assault offenses against Correa, Minor’s mother (counts 7 & 8).
In particular, given all of the information before the trial court at the time the court ruled on appellant’s motion to sever, including information concerning the various alleged gang and other affiliations between Deherrera, Lynch, and appellant, it was reasonably inferable appellant committed the dissuading and assault offenses (counts 7 & 8) against Correa, Minor’s mother, as an implied warning to Minor not to assist law enforcement in the investigation of the concurrent robberies of Minor and Banuelos (counts 4 & 5), and not to testify concerning those robberies, in part so Deherrera and Lynch could avoid responsibility for those robberies.
Moreover, the Aguilar robbery occurred, as the trial court observed, very close in time to the Minor and Banuelos robberies. The Aguilar robbery also occurred a short distance from those two robberies. Deputies responded to calls pertaining to the three robberies and took statements from the victims.
The trial court reasonably could have concluded that after the Aguilar robbery, but before the dissuading and assault offenses committed against Correa, appellant became concerned that (1) deputies would view the Aguilar robbery as related to the Minor and Banuelos robberies, and (2) deputies would believe appellant could provide information concerning who committed the Aguilar robbery. It was thus reasonably inferable appellant committed the dissuading and assault offenses (counts 7 & 8) against Correa as an implied warning to Minor not to assist law enforcement in the investigation of the robberies of Minor and Banuelos, and not to testify concerning those two robberies, in part so Deherrera and Lynch could avoid responsibility for the Aguilar robbery. Evidence of the Minor, Banuelos, and Aguilar robberies provided much needed context for appellant’s warning to, and assault upon, Correa.
Although appellant denies there was evidence linking him to the Minor, Banuelos, and Aguilar robberies, appellant concedes “avoidance of criminal responsibility... may have provided the motive for the crimes charged in counts 7 and 8.” Even if appellant intended this concession to apply only to Deherrera’s motive, the rationale of the concession equally applies to provide a motive for appellant. Similarly, appellant concedes the prior robberies had the “independent significance” of “proving Deherrera’s motive” to commit the dissuading and assault offenses against Correa. We believe said robberies had similar significance to prove appellant’s motive as to the offenses against Correa.
In this case, the cross-admissibility of evidence dispels any inference of prejudice. None of the other Marshall factors compels a conclusion that the denial of appellant’s motion for severance as to counts 4 through 6 was erroneous. Nor does the record after the trial court’s partial denial of the motion demonstrate joinder resulted in gross unfairness amounting to a denial of appellant’s right to due process. We note the testimony of Berry, the gang expert, supported a reasonable inference appellant knew about the Minor, Banuelos, and Aguilar robberies shortly after they occurred, and this inference supports our earlier conclusion that evidence of those robberies was admissible on the issue of appellant’s motive to commit the dissuading and assault offenses against Correa. The jury knew it had heard no testimony that appellant was a perpetrator of those three robberies. The trial court did not err, constitutionally or otherwise, by denying appellant’s motion to sever counts 4 through 6 from counts 7 and 8.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P.J., CROSKEY