Opinion
D068994
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS VALDEZ, Defendant and Appellant.
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE33769) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Jose Luis Valdez guilty of the second degree murder of Joseph M. (count 1) and the first degree murder of Daniel R. (count 3), but was unable to reach a verdict on the murder of Francisco C. (count 2). The jury also found Valdez guilty of conspiracy to commit murder (count 4), and found true a multiple murder special circumstance, and street gang and firearm enhancement allegations. Valdez received a total prison term of 65 years to life, plus life without the possibility of parole. Valdez challenges his convictions, contending the trial court: (1) erred in denying his motion to dismiss based on precharging delay; (2) abused its discretion in denying his motion to sever; (3) erred by failing to instruct on imperfect self-defense; and (4) erred in dismissing a juror. He also asserts that the cumulative impact of these errors violated his rights to due process and a fair trial. We disagree with Valdez's assertions and affirm the judgment.
As of January 1, 2017, California Rules of Court, rule 8.90 (Rule 8.90) became effective. Rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only," in order to protect those individuals' privacy. The list of people to whom this rule applies includes victims of crimes. (Rule 8.90(b)(4).) We have decided to refer to the victims in this case by their first name and last initial, and thereafter by first name only, to provide the victims with some measure of anonymity. Our use of first names is in no way intended as a sign of disrespect.
GENERAL FACTUAL BACKGROUND
In 2013, Valdez was charged with Joseph's 2002 murder, Francisco's 2003 murder and Daniel's 2005 murder. At the time of the murders, Valdez was an active member of Notorious Vandals System (NVS), a criminal street gang. Valdez's gang moniker was "Tadow." The charges were filed after an undercover operation in which fellow gang members Daniel Mascareno, John Paul Reyna and Rashad Tariq Lansing became confidential informants for the prosecution. Mascareno received immunity for any testimony that could incriminate him.
Because the parties are familiar with the facts, and Valdez does not challenge the sufficiency of the evidence supporting his convictions, we summarize only the general facts concerning the underlying crimes. We present additional facts concerning the issues on appeal in our discussion below. Count 1 - Joseph's 2002 Murder
On an evening in December 2002, Joseph and Jorge Lozano were visiting Alec Pojas at Pojas's home on Belvia Lane. Pojas was a member of High Life, a rival gang to NVS. The area around Belvia Lane was known to be High Life territory. The men saw a car slowly drive down Belvia Lane and then park in a nearby parking lot. Mascareno drove the car, with Valdez and Ivan Renteria as occupants.
Lozano (armed with a socket wrench), Pojas (armed with a baseball bat), and Joseph approached the car. Valdez and Renteria, rival NVS gang members, got out of the car. Valdez asked the three men, "Where are you from?" After Pojas stated that he was from High Life, Renteria said "Fuck High Life" and starting shooting. The first shot hit Pojas's bat. Pojas ran as Renteria continued to shoot. After Renteria's gun jammed, Lozano chased after him, trying to disarm Renteria by hitting him with the socket wrench.
In the meantime, according to Pojas, Joseph got in a fistfight with Valdez. Pojas believed that Joseph "was getting the better of" Valdez. Joseph and Valdez stumbled. Pojas then saw a flash and heard a bang as Valdez fired a gun at Joseph. Joseph fell and Pojas heard a car speeding off. Mascareno, the driver for Valdez and Renteria that evening, testified that he did not see any punches thrown. Rather, after Renteria fired his weapon, Valdez fired his gun at another person from about five feet away.
Joseph died from a single gunshot wound to the chest. He had bruising on his knuckles and the backs of his hands, consistent with having punched someone a number of times, but no gunshot residue. Renteria was murdered in June 2007. Count 2 - Francisco's 2003 Murder
On an evening in July 2003, two cars were side by side, stopped at a red light. Francisco occupied one car, with the other car occupied by at least two individuals. A big and tall man got out of the passenger side of a sedan, stood next to Francisco's vehicle, pointed a handgun at Francisco, and fired one round at him. Francisco died from complications due to a gunshot wound to the top of his head. Francisco belonged to a rival gang.
One eyewitness identified Valdez as the shooter from a photographic lineup, but was not sure of his identification. The same eyewitness tentatively identified Renteria as the shooter from a live lineup. Mascareno testified that Valdez was the shooter. Valdez's defense for this count was third party culpability, namely that Renteria had committed the murder. The jury could not reach a verdict on this count and the court declared a mistrial. Count 3 - Daniel's 2005 Murder
On an evening in October 2005, Mascareno drove Lansing, Valdez and Daniel. Valdez had Mascareno pull over so that he could write on a bridge with spray paint. Valdez and Daniel got out of the car. Mascareno heard a gunshot. Valdez then jumped back into the car, saying "let's go." Once in the car, Valdez informed Mascareno that he had shot Daniel in the head. Lansing similarly testified that when Mascareno stopped the car under a bridge, Valdez and Daniel got out of the car, but only Valdez returned to the car. Mascareno and Lansing claimed that Valdez wanted to kill Daniel because Daniel had "snitched" about Valdez. Mascareno also related that Reyna, another NVS member, had a motive to kill Daniel.
A body, later identified as Daniel, was discovered lying on the side of a highway under a bridge. Daniel was a member of another gang, but was accepted by NVS gang members. He died from a gunshot to the left side of his head. Investigators found paper in Daniel's pocket with two phone numbers and the name "Tadow," Valdez's gang moniker. Investigators called the numbers on the paper and reached a man who identified himself as Jessie. This man claimed to have no knowledge as to who the victim might have been. It was later discovered that Valdez used the name "Jessie" so as not to reveal his true identity.
DISCUSSION
I. Precharging Delay
A. Additional Background
Defense counsel moved to dismiss all of the charges due to pre-accusation delay. The People opposed the motion, and provided a timeline of the events leading to the charges. The trial court tentatively ruled that Valdez could not prevail under federal due process principles because nothing indicated that the prosecution delayed charging Valdez to gain a tactical advantage. As to Valdez's state law claim, the court concluded that Valdez suffered prejudice from the delay as to all counts. Accordingly, it held a hearing on the motion to consider evidence regarding the prosecution's justification for the delay.
After hearing the evidence and argument, the trial court denied the motion, concluding that the seriousness of the charges justified the delay. After trial, defense counsel brought a renewed motion to dismiss the charges. The trial court denied the motion to dismiss, finding nothing during the course of the trial suggested a violation of Valdez's due process rights. The court thus adopted its prior ruling on the issue.
Valdez does not contest the People's presentation regarding how the investigations unfolded; rather, he disputes the legal conclusions drawn from the presentation. For brevity's sake, we will not summarize the investigation timeline; rather, we integrate this material into our discussion. We also focus on the two murder counts that resulted in convictions. B. Legal Principles
California's due process clause states, in part, that "[p]ersons may not . . . be deprived of life, liberty, or property without due process of law." (Cal. Const., art. I, § 15.) We analyze precharging delay as a due process claim. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505.) "The due process clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment. Rather, the task of the reviewing court is to determine whether [such] delay violates the fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency. Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt." (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 914.) "[T]o prosecute a defendant following investigative delay does not deprive the defendant of due process, even if his or her defense might have been somewhat prejudiced by the lapse of time." (Id. at p. 915.) Whether a defendant met the initial burden of showing prejudice is a factual question for the trial court. (People v. Hill (1984) 37 Cal.3d 491, 499.)
We employ a three-part test to determine if a defendant's due process right to a fair trial has been violated because of precharging delay: "(1) the defendant must show that he has been prejudiced by the delay, whereupon (2) the burden shifts to the People to justify the delay, and (3) the court balances the harm against the justification." (People v. Pellegrino (1978) 86 Cal.App.3d 776, 779.) Prejudice from pre-arrest delay is not presumed. (People v. Nelson (2008) 43 Cal.4th 1242, 1250.) To avoid criminal charges on this basis, the defendant "must affirmatively show prejudice." (Ibid.)
"[W]hether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (People v. Nelson, supra, 43 Cal.4th at p. 1256.) We review the trial court's ruling on a motion to dismiss for prejudicial precharging delay for abuse of discretion, deferring to any underlying factual findings supported by substantial evidence. (People v. Cowan (2010) 50 Cal.4th 401, 431.) C. Analysis
Valdez contends that the nearly 11-year delay between Joseph's December 2002 murder and his arrest in September 2013, and the eight-year delay between Daniel's October 2005 murder and his 2013 arrest prejudiced his ability to defend against the two murder charges, violating his rights to a fair trial and to due process of law. We first examine Valdez's showing of prejudice as to each murder. We then review the People's justification for the delay. Finally, in balancing Valdez's showing of prejudice from the delay in charging him for the murders against the justification for the delay, we affirm the trial court's determination that Valdez failed to establish a violation of his right to due process. 1. Prejudice a. Joseph's Murder
In his opening brief, Valdez conceded that he shot Joseph; thus, the critical issue for the jury was whether he had shot Joseph in self-defense. Valdez claimed that Renteria, the second alleged shooter, could have provided testimony on his self-defense claim. Renteria, however, died in 2007 and was not available to testify at trial. Accordingly, Valdez asserts that the delay in prosecuting the case caused him to lose a potential defense witness to that incident.
The trial court found, and we agree, that the loss of Renteria as a potential defense witness prejudiced Valdez. As Renteria is deceased, it is simply unknown whether he "would have supplied exonerating, rather than incriminating, evidence, or any evidence at all." (People v. Cordova (2015) 62 Cal.4th 104, 120.) Valdez, however, failed to show actual prejudice resulting from the loss of Renteria's testimony as three other eyewitnesses to the incident did testify—Mascareno, Lozano and Pojas. For purposes of analysis, we disregard Mascareno's testimony that he did not see Joseph fighting with Valdez. Rather, we will assume that Renteria's testimony would have corroborated Lozano's and Pojas's contention that Joseph rushed Valdez and started punching him when Renteria's gun either jammed or ran out of ammunition.
Among other things, CALCRIM No. 505 informed the jurors that, to acquit Valdez based on self-defense, they had to find he "reasonably believed that he was in imminent danger of being killed or suffering great bodily injury" and "reasonably believed that the immediate use of deadly force was necessary to defend against that danger" and "used no more force than was reasonably necessary to defend against that danger." The jury impliedly rejected Valdez's claim of self-defense by convicting him of second degree murder.
The jury could have rejected Valdez's self-defense claim based on other evidence in the record. Valdez was significantly larger than Joseph. Valdez stood six feet one inch tall and weighed 295 pounds at the time of the incident, whereas Joseph stood five feet ten and one-half inches tall and weighed 188 pounds with clothes. Thus, Valdez outweighed Joseph by over 100 pounds. Lozano and Pojas both testified that Joseph was unarmed. Valdez presented no evidence suggesting that Joseph was armed. Valdez similarly presented no evidence that he suffered any injuries during the incident, that he was at risk of losing consciousness or otherwise suffering great bodily injury.
Finally, Valdez's use of a loaded gun in this fistfight was not reasonably necessary because it escalated a nondeadly conflict to a deadly conflict. Additional corroborating testimony from Renteria regarding the fistfight is unlikely to have changed this result. (See People v. Whitfield (1968) 259 Cal.App.2d 605, 609 ["Any force which is excessive, i.e., unreasonable under the circumstances, is not justified and the extent to which one may make resistance against an aggressor is a fact to be determined by a jury."]; People v. Moody (1943) 62 Cal.App.2d 18, 23 ["When attacked one has a right to stand his ground and defend himself and he may pursue his adversary if such pursuit is necessary to a successful defense; but the extent to which one may make resistance against an aggressor is a fact which must be determined by the jury by keeping in mind the amount or extent of force which a reasonable person would employ under similar circumstances."].) b. Daniel's Murder
Valdez asserts that the delay in charging him with Daniel's murder prejudiced him because six of the recordings of conversations he had with Mascareno had been stolen from Deputy Sheriff Carlos Farias's car and were unavailable for his defense. He claims that given Mascareno's pattern of lying, the recordings might have shown inconsistencies in Mascareno's testimony. Any prejudice from the loss of this evidence was minimal.
Farias worked on Daniel's murder investigation. In February 2013, Farias's car was burglarized. Items taken included reports on the entire investigation as to all three murders and a satchel containing CD's of recorded conversations that Mascareno had with Valdez and others from October 2009 through November 2012. Farias testified that the stolen CD's recorded reintroduction meetings between Mascareno and various suspects, to get Mascareno back into gang culture before he asked about the murders. Mascareno had not seen Valdez in several years and it would have been awkward for Mascareno to immediately bring up the murders without first getting reacquainted with Valdez.
Farias was able to prepare a 16-page written report detailing the meetings recorded on the stolen CD's from other reports he had. Farias stated that nothing on the stolen CD's would exonerate Valdez. Additionally, the reports stolen from Farias's car contained logistical information regarding the contacts Mascareno made, such as date, time, objective and whether sheriff's funds had been used. Valdez's speculation that the stolen materials might have contained something with which to impeach Mascareno is insufficient to show actual prejudice. Even assuming some impeachment material was lost, the resulting prejudice was minimal as Lansing, who was also in the car, corroborated Mascareno's testimony regarding the incident.
Valdez also claims that the authorities knew "early on" that the phone number on the paper in Daniel's pocket belonged to him, arguing that the prosecution should have traced the number to determine to whom Daniel spoke on the phone around the time of his murder. Valdez submits that a more thorough investigation would have caused the authorities to have known that the name on the paper (Tadow) was Valdez, especially since there were strong indications that Valdez was in some manner connected to Daniel's murder.
Sheriff's deputy Kevin Olin discovered a piece of paper in Daniel's pocket with some writing and a couple of phone numbers. Olin called one of the numbers, but the person could not provide any information to identify the victim. Sheriff's deputy William Altenhof ran the number ran through a database, located an address and through this investigation learned the victim was Daniel. Olin called the second number on the piece of paper, identified himself as a sheriff's deputy and spoke to a man who called himself "Jessie." Jessie claimed that he could not identify the victim. Although there was lettering above that phone number, Olin could not decipher the name. Altenhof also investigated this phone number, but there was nothing in the database regarding this phone number.
In October 2009, after talking to Mascareno, Altenhof learned Valdez had spoken to Reyna and Daniel on the night of Daniel's murder. Altenhof testified that he did not realize that the name on the paper found in Daniel's pocket said "Tadow" until after he had spoken to Mascareno about "Tadow." Mascareno also informed investigators that Valdez would use the name "Jessie" so as not to reveal his true identity.
Valdez is correct that had the prosecution traced the phone number earlier it would have learned that Valdez had spoken to Daniel on the night of Daniel's murder. Valdez, however, does not explain how this information would have assisted his defense. Rather, the phone records would have been more damaging than helpful as they corroborated Mascareno's testimony that Valdez had spoken to Daniel on the night of his murder. At best, this information was cumulative of Mascareno's testimony and unnecessary. Valdez has not shown that the lack of further investigation regarding the information found in Daniel's pocket was prejudicial such that it would justify dismissing the charges against him. 2. Justification for Delay
Chula Vista Police Sergeant Yvette Roullier was the case agent for Joseph's murder. Roullier testified that Pojas was uncooperative the night of the murder, lying to police officers about even being at the scene of the murder because he was under "house arrest" at the time and afraid of getting into trouble. Although Pojas believed that Valdez had shot Joseph, he could not make a photographic identification. Lozano also could not positively identify Valdez, with Roullier describing him as uncooperative.
About four weeks later, Roullier interviewed Pojas. Pojas told Roullier that he thought he recognized his friend Mark Cabezuela in the car in which Valdez had arrived. Roullier tried to interview Cabezuela the night of the incident, but he was uncooperative. Pojas also informed Roullier that the "big guy" had said "Tadow NVS."
The following month, the police located Valdez and Roullier brought him to the police station, took some photographs of him and told him that he was "going down" for the killing, But the police later released Valdez. Roullier spoke to Pojas the next day and he agreed to tell her the truth. Roullier showed Pojas a lineup with a recent photograph of Valdez. Pojas "immediately" identified Valdez as the shooter. Pojas also informed Roullier that Renteria was the person who had shot at him. Roullier could not recall if she showed Pojas a photograph of Renteria.
In July 2003, Roullier went back to patrol and entrusted the case to Detective Gama. Roullier revisited the case when she returned to the violent crimes unit in 2005. At that time, the police had no new hard evidence, but she learned that Valdez was under investigation for Daniel's murder. Roullier stated that she is uncomfortable relying on inconsistent statements of witnesses and that she prepares presentations for the district attorney's (DA) office to obtain guidance on whether the matter is ready to be prosecuted.
After her October 2006 presentation to the DA's office regarding Joseph's murder, Roullier spoke to Deputy DA Annette Irving or Susan Rodriguez. Rodriguez worked as an investigator at the DA's office from 2001 to 2014. Rodriguez recalled an October 2006 round-table discussion of Joseph's murder in which Roullier did a Powerpoint presentation, but she could not remember what was said at the meeting. Deputy DA Annette Irving learned about Valdez at the end of 2006 while investigating another case. Irving remembered that Roullier prepared a presentation as an investigative tool to help the DA determine if there was enough evidence to file charges against Valdez. In 2006, Irving did not believe that she had enough evidence to prosecute Valdez for Joseph's murder because the single witness had given inconsistent statements.
Deputy DA David Grapilon started working in the gang unit in mid-2009. He started looking into the Joseph and Francisco "cold cases." At that time, Grapilon did not believe he had enough information to charge Valdez for either murder. Grapilon explained that as to Joseph's murder, Pojas was the only person to identify Valdez as a suspect. Although there were conflicting reports regarding Renteria's involvement, Grapilon did not want to go forward with the case based on Pojas's prior conflicting statements and initial false statements to police.
As to Francisco's murder, there was conflicting testimony regarding the shooter. One witness identified Renteria as the shooter, but was unsure about the identification. Mascareno later identified Valdez as the shooter but, because Mascareno was an accomplice, they needed corroborating evidence. Accordingly, Grapilon could not approach his chief to obtain permission to charge Valdez for Joseph's and Francisco's murders until he obtained substantial corroboration through wiretaps or undercover recordings with Valdez or other persons. Grapilon understood that further investigation could have shown that Mascareno was lying about Valdez's involvement, but all Grapilon wanted was the truth.
By October 2009, Grapilon knew that Mascareno was a percipient witness for all three murders. Valdez, however, returned to prison in August 2009. From August 2009 to May 2012, Valdez was incarcerated and not available. Although investigators discussed conducting a prison operation, they concluded that it would be logistically difficult, if not impossible, to conduct the operation safely in a prison setting. Investigators did not know anyone in prison who they trusted and who could have acted as an informant for them. Although Valdez was released from prison in May 2012, Mascareno was not able to meet with him until August 2012.
The DA's office proceeded with wiretaps in an attempt to get corroborating statements from Valdez or others. The operation continued until the time of Valdez's 2013 arrest. The DA, however, was never able to obtain a recording of Valdez discussing Joseph's or Francisco's murders with Mascareno. Accordingly, the state of the evidence against Valdez regarding Joseph's murder did not change based on the wiretap evidence. Rather, as of 2009, the DA had Pojas's and Lozano's prior statements and Mascareno's corroborating statement regarding Valdez's involvement.
After Grapilon obtained corroborating statements from the wiretaps and recordings for Daniel's murder, he charged Valdez for all three murders in September 2013. Grapilon waited until 2013 to charge Valdez, in part, so that he could charge Valdez with Daniel's murder. Grapilon explained that he did not want to "move" on one case and potentially jeopardize the other cases. For operational purposes, the DA focused on Daniel's murder because it was the most recent. The DA did not want to have Mascareno question Valdez about the other murders to avoid "tip[ping] off" Valdez about Mascareno's involvement in the investigation. Farias explained that investigators had to be cautious because Reyna told Mascareno that other NVS gang members suspected Mascareno was an informant because he had abruptly left the gang and the gang had no knowledge of his whereabouts. Before September 2013, Grapilon believed he did not have enough information to charge Valdez for the three murders. 3. Balancing Prejudice with Justification for Delay
The evidence shows that the prosecution's justification for the delay was strong. In 2006, Deputy DA Irving did not believe she had enough evidence to prosecute Valdez for Joseph's murder because Pojas had given inconsistent statements. In mid-2009, Deputy DA Grapilon similarly believed that he did not have enough information to charge Valdez for Joseph's murder because Pojas had initially lied to police and provided conflicting statements. Grapilon also had conflicting identifications of Francisco's shooter. Although Mascareno's identification of Valdez as Joseph's shooter corroborated Pojas, Grapilon did not know if Mascareno was lying about Valdez's involvement. Additionally, Grapilon had no evidence corroborating Mascareno's identification of Valdez as Daniel's shooter. (Pen. Code, § 1111 [an accomplice's testimony must be corroborated before a jury may consider it].)
Undesignated statutory references are to the Penal Code.
The prosecution "first possesses 'facts necessary to sustain [a] charge' when it secures evidence supporting the objectively reasonable belief that it ' "will be able to promptly establish guilt beyond a reasonable doubt," ' " not when it has "substantial evidence of guilt" or "reasonable suspicion that [the defendant] committed the crime." (People v. Spicer (2015) 235 Cal.App.4th 1359, 1377-1378.) Here, while the prosecution had a strong suspicion that Valdez had committed the three murders in 2009, the prosecution cannot be faulted for proceeding cautiously. Rather, "[a] prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt." (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 914-915.)
Valdez does not appear to dispute that the People could not charge him for Daniel's murder without the corroborating evidence obtained from further investigation. Rather, Valdez faults the People for not charging him with Joseph's murder in 2009, noting that additional investigation and wiretaps did not provide further evidence for this crime. This argument ignores that the prosecution had no way of knowing, in advance, what evidence they would obtain from further investigation. Moreover, other than the passage of time, Valdez made no showing of prejudice for the delay in prosecuting Joseph's murder after Renteria's death in 2007. Balancing Valdez's weak showing of prejudice against the strong justification for the delay, we find no due process violation. Accordingly, the trial court did not abuse its discretion by denying Valdez's motion to dismiss based on precharging delay.
II. Severance Motion
A. Additional Background
Although defense counsel conceded that all charges were properly joined, he moved to sever the charges, arguing that no cross-admissibility of evidence existed. He also argued that by joining the three cases, a weak case, Joseph's murder, was being tried with two stronger cases, and that Francisco's and Daniel's murders were strongly inflammatory, given the execution-style nature of these counts. The court denied the motion for severance. It concluded that cross-admissibility of evidence existed and that some charges were not more likely to unusually inflame the jury panel. Additionally, the court found that all crimes were equally heinous, whoever committed them, and were relatively similar in their strength. B. Legal Principles
"Joinder of criminal charges for trial benefits the public by reducing delay in the disposition of criminal charges, and it benefits the state by conserving judicial resources and public funds." (People v. Hill (1995) 34 Cal.App.4th 727, 735.) Section 954 contains the statutory rules governing the joinder and severance of criminal charges. This section provides, in part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or . . . two or more different offenses of the same class of crimes or offenses, under separate counts . . . ." (§ 954.) Nonetheless, "a trial court has discretion to order that properly joined charges be tried separately." (People v. Merriman (2014) 60 Cal.4th 1, 37.)
When the statutory requirements for joinder under section 954 are met, a defendant must make a clear showing of prejudice to establish that a trial court's denial of a severance motion constitutes an abuse of discretion. (People v. Marshall (1997) 15 Cal.4th 1, 27.) "Whether a trial court abused its discretion in denying a motion to sever necessarily depends upon the particular circumstances of each case. [Citations.] The pertinent factors are these: (1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; (3) has a weak case 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) is any one of the charges a death penalty offense, or does joinder of the charges convert the matter into a capital case." (Id. at pp. 27-28.)
Cross-admissibility of evidence alone is normally sufficient to dispel any suggestion of prejudice. (People v. Soper (2009) 45 Cal.4th 759, 774-775 (Soper).) " '[E]ven if cross-admissibility did not support consolidation of the cases, the absence of cross-admissibility alone would not be sufficient to establish prejudice where (1) the offenses were properly joinable under section 954, and (2) no other factor relevant to the assessment of prejudice demonstrates an abuse of discretion.' " (People v. McKinnon (2011) 52 Cal.4th 610, 630-631.) A "determination of prejudice is a highly individualized exercise, necessarily dependent upon the particular circumstances of each individual case." (Williams v. Superior Court (1984) 36 Cal.3d 441, 452 (Williams).) In assessing whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling. (McKinnon, at p. 630.) C. Analysis
Williams was superseded by statute on other grounds, as stated in Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229, fn. 19.
As Valdez concedes, the statutory requirements for joinder of the charges were satisfied because all of the charges were of the same class of crimes for purposes of section 954. Since the requirements for joinder were satisfied, Valdez can predicate error only on a clear showing of potential prejudice. (People v. Kraft (2000) 23 Cal.4th 978, 1030 (Kraft).) To determine whether joinder of the murder charges prejudiced Valdez, we first examine whether evidence on each set of charges would have been admissible in a separate trial on the other. (Ibid.) If so, this dispels any inference of prejudice. (Ibid.)
Valdez contends no cross-admissibility of evidence existed because Francisco and Daniel were intentionally shot execution style, with the only question being the identity of the shooter. Because identity was at issue for these murders, Valdez claims that evidence of the other offenses was irrelevant.
Evidence of a defendant's commission of a crime, other than the one for which he or she is then being tried, is admissible " 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.' " (People v. Gray (2005) 37 Cal.4th 168, 202, citing Evid. Code, § 1101, subd. (b).) Here, all charges included an allegation that Valdez committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1); see People v. Jenkins (2000) 22 Cal.4th 900, 948 ["Evidence in each case supported the inference that defendant acted for the same motive and with the same intent as in the other case . . . ."].)
Detective Brian Roberts, a gang expert, presented testimony regarding criminal street gangs relevant to all charges. Roberts addressed hypothetical questions for each murder and established a gang-related motive for all three murders. Additionally, Mascareno was the driver during each of the three incidents, and his immunity agreement covered the three crimes as a whole. Mascareno also provided background information about his association with NVS, Valdez, and other NVS members. Reyna and Lansing, who were present for Daniel's murder, testified regarding statements Valdez made to them about the other two murders.
The cross-admissibility of the gang evidence on the issue of motive dispels any inference of prejudice. (Kraft, supra, 23 Cal.4th at p. 1030.) Nonetheless, even if the murders were not sufficiently similar under Evidence Code section 1101, subdivision (b) to be cross-admissible, the absence of cross-admissibility is not enough to demonstrate prejudice. (Soper, supra, 45 Cal.4th at pp. 774-775.) Assuming no cross-admissibility of evidence, we must consider " '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.' " (Id. at p. 775.)
Valdez asserts that Joseph's murder was less inflammatory because he fired his weapon fearing for his own safety. He also claims that Francisco's and Daniel's murders evidenced a disposition to kill that had a spill-over effect onto the jury's consideration as to Joseph's murder, and that the evidence on Daniel's murder was stronger because of the wiretaps and the existence of three confidential informants.
It is "always . . . possible to point to individual aspects of one case and argue that one is stronger than the other." (Soper, supra, 45 Cal.4th at p. 781.) "A mere imbalance in the evidence, however, will not indicate a risk of prejudicial 'spillover effect,' militating against the benefits of joinder and warranting severance of properly joined charges." (Ibid.) Moreover, severance is not required "because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried." (Ibid.) To demonstrate the potential for a prejudicial spill-over effect, defendant must show an "extreme disparity" in the strength or inflammatory character of the evidence. (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1284.)
Here, the evidence was equally strong that Valdez shot Joseph and Daniel. Mascareno and Lansing identified Valdez as Daniel's killer, and Mascareno, Lansing and Reyna identified Valdez as Joseph's killer. Valdez's identity as the shooter was in dispute as to Francisco's murder, the count in which the jury could not reach a verdict. The dispute as to Valdez's identity as the shooter for Francisco's murder, however, merely evidences a different aspect of this count not present in the other murder counts. Moreover, significant evidence existed from which the jury could conclude Valdez feigned a claim of self-defense for Joseph's murder and that this shooting was equally cold blooded as the other murder counts. (Part I.C.1.a., ante.) On balance, it is unlikely that evidence of one incident improperly influenced the jury in determining Valdez's guilt as to another incident. On this record, we conclude the trial court did not abuse its discretion in denying the motion to sever because the substantial benefits of joinder outweighed the prospect of prejudice.
Relying on Williams, supra, 36 Cal.3d 441, Valdez claims that the trial court erred in failing to subject the question of severance to heightened scrutiny because the joining of the murder offenses gave rise to the multiple murder special circumstance of section 190.2, subdivision (a)(3). Valdez acknowledges that Williams was a capital case, but submits that the rationale of Williams applies nonetheless because life without possibility of parole is, next to the death penalty itself, the most severe penalty presented by our penal system. Thus, he claims heightened scrutiny should be the measure whenever a special circumstance enhancement is at stake.
Our high court, however, has "since qualified Williams, explaining that 'the subsequent enactment of section 790[, subdivision] (b)—which, as noted, specifically provides for joinder of capital cases such as these—makes it clear that such a heightened analysis is no longer called for.' " (People v. Jones (2013) 57 Cal.4th 899, 927, fn. omitted.) Even assuming, without deciding, that heightened scrutiny should apply here, Valdez has not explained how this standard was not satisfied. In any event, assuming the three murder charges were tried separately and chronologically, a guilty verdict for Joseph's murder would have subjected Valdez to the same multiple-murder special circumstance in subsequent proceedings concerning Francisco and Daniel. (People v. Johnson (2015) 61 Cal.4th 734, 752.)
Finally, Valdez argues that the denial of his severance motion impinged on his constitutional right to testify regarding his need to shoot Joseph in self-defense. Where a defendant wishes to testify on one count, but not, with good reason, on another count, the defendant must show that " ' "he has both important testimony to give concerning one count and [a] strong need to refrain from testifying on the other." ' " (People v. Sandoval (1992) 4 Cal.4th 155, 174.) " 'The showing must be specific enough to permit the court to "weigh the considerations of economy and expedient judicial administration against the defendant's interest in having a free choice with respect to testifying." ' " (People v. Johnson, supra, 61 Cal.4th at p. 752.) Here, Valdez did not make an offer of proof concerning his testimony, or why he wanted to testify in one matter and not the other. Because the trial court lacked sufficient information to enable it to weigh the considerations favoring joinder against Valdez's interest in testifying, it did not abuse its discretion in denying severance on this ground.
Even if the ruling were correct when made, Valdez contends that reversal is compelled if he shows that joinder actually resulted in gross unfairness, amounting to a denial of due process. "[A] judgment will be reversed on this ground only if it is 'reasonably probable that the jury was influenced [by the joinder] in its verdict of guilt.' " (People v. Merriman, supra, 60 Cal.4th at p. 49.)
Here, the evidence underlying the three murder charges was straightforward and distinct, and was "independently ample" to support each of Valdez's convictions. (See Soper, supra, 45 Cal.4th at p. 784.) Two or more witnesses identified Valdez as the person who shot Joseph and Daniel, the two murders for which Valdez was convicted. (See People v. Elliott (2012) 53 Cal.4th 535, 553 [trial not grossly unfair where the testimony of one or more eyewitnesses identified the defendant as the gunman involved in each incident].) Moreover, the jury convicted Valdez of second degree murder for Joseph's killing, rejecting the first degree murder charge. Thus, the jury was able to follow the instructions to consider each offense separately. (CALCRIM No. 3515.) Valdez has not demonstrated any gross unfairness that denied him due process or a fair trial.
III. Alleged Instructional Error and Ineffective Assistance of Counsel
A. Additional Background
While discussing jury instructions, defense counsel informed the court that he was not requesting instructions on voluntary manslaughter. The court agreed, finding no legitimate avenue for voluntary manslaughter based upon its understanding of the facts.
During closing argument, the People argued that Valdez killed Joseph with premeditation and deliberation. The People also asserted that self-defense did not apply because Valdez was the initial aggressor. Defense counsel argued that Valdez acted in reasonable self-defense by firing a single shot at Joseph after Joseph attacked him. The trial court later instructed the jury as to reasonable self-defense (CALCRIM No. 505), the right to self-defense during mutual combat (CALCRIM No. 3471), and that the right to self-defense may not be contrived (CALCRIM No. 3472). B. Legal Principles
In People v. Simon (2016) 1 Cal.5th 98 (Simon) our high court recently addressed the legal standards governing imperfect self-defense. "[I]mperfect self-defense occurs when a defendant acts in the actual but unreasonable belief that he or she is in imminent danger of great bodily injury or death. [Citation.] Imperfect self-defense differs from complete self-defense, which requires not only an honest but also a reasonable belief of the need to defend oneself. [Citation.] It is well established that imperfect self-defense is not an affirmative defense. [Citation.] It is instead a shorthand way of describing one form of voluntary manslaughter. [Citation.] Because imperfect self-defense reduces an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice, this form of voluntary manslaughter is considered a lesser and necessarily included offense of murder." (Id. at p. 132.)
A trial court's duty to instruct sua sponte on imperfect self-defense as a lesser included uncharged offense arises if there is substantial evidence that would absolve the defendant from guilt of the greater, but not the lesser, offense. (Simon, supra, Cal.5th at p. 132; People v. Breverman (1998) 19 Cal.4th 142, 159 (Breverman).) "Substantial evidence is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense was committed. [Citations.] Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense." (Simon, at p. 132.)
A defendant acts in imperfect self-defense when the defendant actually believes (1) that he or she is in imminent peril of being killed or suffering great bodily injury, and (2) that the immediate use of deadly force is necessary to defend against the danger, but (3) at least one of those beliefs is unreasonable. (People v. Her (2009) 181 Cal.App.4th 349, 352 (Her).) "[A] quarrel provoked by a defendant, or a danger which he has voluntarily brought upon himself by his own misconduct, is not sufficient to support a reasonable apprehension of imminent danger." (People v. Hill (2005) 131 Cal.App.4th 1089, 1102.) We review a trial court's decision not to give an imperfect self-defense instruction under the de novo standard of review. (Simon, supra, 1 Cal.5th at p. 133.) C. Analysis
Valdez contends that, as to Joseph's murder charge, the trial court prejudicially erred in failing to instruct the jury on voluntary manslaughter based on imperfect self-defense because substantial evidence supported the instruction. He also asserts that he received ineffective assistance of counsel by his trial counsel's failure to argue and request an instruction on imperfect self-defense. The People contend substantial evidence did not support the instruction and any error was harmless. The People have the better argument.
To support his argument, Valdez notes that Pojas, a participant in the altercation, testified that Joseph said "let's fuck these guys up" as they walked toward Valdez and Renteria. Joseph then rushed Valdez and started punching him, getting in five or six punches. At some point, Valdez started to fall backwards, with Joseph falling on top of him, and it was then that Valdez pulled out a gun and fired one shot into Joseph's chest. Valdez also notes that the prosecution's own expert witness, Detective Brian Roberts, testified on cross-examination that a gang member being punched has the right to defend himself.
Accepting the evidence in Valdez's favor and reviewing it independently, we conclude that the trial court correctly declined to instruct the jury on imperfect self-defense. First, the evidence relied on by Valdez fails to show that he shot and killed Joseph unreasonably believing that he was in imminent peril of being killed or suffering great bodily injury, or that he immediately needed to use deadly force to defend himself from Joseph. (Her, supra, 181 Cal.App.4th at p. 352.) Rather, the record contained abundant direct evidence that Valdez and his cohorts provoked the confrontation, planning to kill rival gang members that night. Namely, Mascareno testified that Valdez wanted to drive around that evening and look for "haters" meaning rival gang members. Mascareno understood that the plan that evening was to find rival gang members to fight, including shooting at them. Both Valdez and Renteria carried guns. When Valdez and Renteria got out of the car, Mascareno believed that someone was going to get shot. Although Mascareno could not hear what words were exchanged, he observed the incident and never saw Joseph punching Valdez. Rather, after Renteria fired his weapon, Valdez fired his gun at another person from about five feet away.
The record does not support Valdez's claim that Joseph commented to Pojas " 'let's fuck these guys up' " as the men walked toward the car. Rather, Pojas testified that Joseph smiled at him as Pojas, Lozano and Joseph approached the car. Pojas interpreted this smile as saying "Let's get them. Let's fuck these guys up." In any event, even assuming Joseph made this statement, it is of little consequence (other than showing Joseph was game to fight) as there is no evidence in the record suggesting Valdez or his cohorts heard the statement. --------
Pojas's version of the incident, although different from Mascareno's in one important aspect, similarly does not support an imperfect self-defense instruction. Valdez and his cohorts entered an area known to be High Life territory. Valdez asked, "Where are you from?" In gang culture, this question is intended as a challenge and is generally a prelude to violence. After Pojas stated that he was from High Life, Renteria said "Fuck High Life" and starting shooting at him. In his peripheral vision, Pojas saw Joseph in a fistfight with Valdez. Joseph had bruising on his knuckles and the backs of his hands, consistent with having punched someone a number of times, but no gunshot residue. Pojas observed Joseph and Valdez stumble, then saw a flash and heard a bang as Valdez fired a gun at Joseph.
Valdez was taller than Joseph, who was unarmed, and outweighed Joseph by over 100 pounds. Nothing in the record suggests Valdez suffered any injuries from Joseph's punches, that he was at risk of losing consciousness or otherwise suffering potentially life-threatening distress. Joseph's nonlethal response of punching Valdez when Renteria fired his gun at Pojas did not give Valdez the right to respond with deadly force. (People v. Jackson (1980) 28 Cal.3d 264, 306 ["predictable conduct by a resisting victim would [not] constitute the kind of provocation sufficient to reduce a murder charge to voluntary manslaughter"]); cf. People v. Randle (2005) 35 Cal.4th 987, 992-993, 1002-1003 [car burglary defendant entitled to use deadly force in imperfect defense of another against burglary victim administering deadly street justice].) Additionally, the jury's finding that Valdez shot Joseph for the benefit of the NVS gang, with the specific intent to promote criminal conduct by gang members, negates any argument that fear alone motivated Valdez to shoot Joseph.
Valdez's theory of imperfect self-defense is based on speculation, not substantial evidence. Thus, the trial court correctly refused to instruct the jury on imperfect self-defense. (People v. Manriquez (2005) 37 Cal.4th 547, 582.)
Valdez also contends that the trial court's decision to give an instruction on complete self-defense required the court to also instruct on imperfect self-defense. As discussed above, Valdez did not present a strong self-defense case for Joseph's murder. (Part I.C.1.a., ante.) In any event, our high court rejected this same argument in Simon stating "[b]ecause we conclude there was not substantial evidence supporting [defendant's] actual belief that he was in imminent danger of great bodily injury or death, the trial court would not have erred had it likewise refused to instruct on complete self-defense." (Simon, supra, 1 Cal.5th at p. 134.) Finally, we reject Valdez's argument that his counsel provided ineffective assistance when he failed to request an imperfect self-defense instruction. Our conclusion that the record lacks substantial evidence to support the giving of such an instruction defeats that argument. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836 [rejecting claim that trial counsel provided ineffective assistance by failing to request imperfect self-defense instruction where evidence did not support instruction].)
Even assuming the trial court erred by not instructing on imperfect self-defense, any assumed error in failing to give the instruction in this case was harmless. "[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility" under the People v. Watson (1956) 46 Cal.2d 818, 837 harmless error test. (Breverman, supra, 19 Cal.4th at p. 165.) "[S]uch misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Ibid.) We may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result. (Id. at p. 177.) Here, the evidence supporting the jury's verdict of second degree murder of Joseph was so strong, and the evidence supporting a manslaughter conviction based on imperfect self-defense was so comparatively weak, that there is no reasonable probability the claimed instructional error affected the result.
IV. Dismissal of Juror
A. Additional Background
The jury started deliberations on a Thursday and retired for the weekend on Friday. The following Monday, the court discussed with counsel a phone call that the court had received over the weekend from Juror Number 11 (the juror) indicating that he had gone to an urgent care facility and had received a note from the doctor relieving him of all work obligations for at least two days, i.e., Monday and Tuesday. When contacted by the court clerk, the juror informed the clerk that he was seeing his primary care doctor that afternoon, that he was dealing with chest discomfort and a racing heartbeat, he had been prescribed medication and referred to his primary care doctor and a psychiatrist. The court noted that the juror had previously indicated during closing argument a potential inability to continue due to illness.
The court stated that it had heard the taped message and that the juror did not "sound like he was going crazy or anything. He seemed—his statements were appropriate with the level of anxiety that appears to have been developing." The court advised counsel that it had three potential alternatives: (1) to wait the two days; (2) to excuse the juror and pick an alternate; and (3) to have both sides stipulate to 11 jurors. After hearing argument and holding an off-the-record discussion, the trial court dismissed the juror, selected an alternate and instructed the jury to begin new deliberations. B. Legal Principles
If "a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box . . . ." (§ 1089.) A trial court with notice that good cause to discharge a juror may exist has a duty "to make whatever inquiry is reasonably necessary" to determine whether the juror should be discharged. (People v. Burgener (1986) 41 Cal.3d 505, 520, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 756.) Good cause may arise when a juror becomes physically or emotionally unable to continue to serve due to illness or other circumstances. (People v. Cleveland (2001) 25 Cal.4th 466, 474.) In cases of illness, the court can rely on phone calls and is not obligated to call a juror into court to substantiate his or her excuse prior to dismissing the juror. (People v. Duff (2014) 58 Cal.4th 527, 560, fn. 15.) Whether the court can best accommodate a juror's illness by a continuance or replacement with an alternate is a matter committed to the trial court's discretion. (Id. at p. 561.) "[I]n the right circumstances, an absence of a day or less may warrant excusal." (Id. at pp. 560-561.)
We review the trial court's decision to discharge a juror under section 1089 for an abuse of discretion under the heightened "demonstrable reality" test, which entails a more comprehensive and less deferential review than the substantial evidence test. (People v. Armstrong (2016) 1 Cal.5th 432, 450 (Armstrong).) This test " 'requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [good cause for removing the juror is] established.' " (Id. at pp. 450-451.) We do not reweigh the evidence in determining whether the juror's inability to perform his or her duty appears in the record as a demonstrable reality. (Id. at p. 451.) Rather, under the demonstrable reality standard, we " 'must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, [we] will consider not just the evidence itself, but also the record of reasons the court provides.' " (Id. at pp. 450-451.) C. Analysis
Valdez contends that the record does not reflect a "demonstrable reality" that the juror would not have been able to continue functioning as a juror and, by prematurely dismissing the juror, the court denied his right to a jury trial as well as his right to due process of law.
Here, the evidence shows that the juror went to an urgent care facility on a Sunday seeking treatment for chest discomfort and a racing heartbeat. A doctor prescribed anxiety medication and provided a note relieving the juror from all work obligations for at least two days. The juror was scheduled to see his primary care physician that afternoon and had also been referred to a psychiatrist. The court listened to the taped message left by the juror and also noted that the juror had indicated during closing argument a potential inability to continue due to illness. This record supports the juror's disqualification for illness as a demonstrable reality. We are not free to second-guess the trial court's determination that the juror's statements were credible.
Valdez contends that the trial court dismissed the juror prematurely and should have waited until after the juror saw his physician in the afternoon. The trial court could have taken a different course of action, such as waiting until the following day, after the juror had seen his primary care physician. This course of action, however, would not have changed the evidence already in the record excusing the juror for at least two days due to chest discomfort and a racing heartbeat. Moreover, the fact alternative courses of action existed does not mean the trial court abused its discretion by choosing the course it did. (People v. Smith (2005) 35 Cal.4th 334, 349.) Rather, in situations in which, "as here, a juror has good cause to be absent from trial for an indefinite period, the trial court does not abuse its discretion in replacing that juror with an alternate juror." (Ibid.)
We are also required to examine the reasons provided by the trial court when discharging the juror. (Armstrong, supra, 1 Cal.5th at pp. 450-451.) Here, however, after considering the argument of counsel, the court went off the record to discuss the matter with counsel. When it went back on the record, the court did not provide any indication of what was discussed; rather, it immediately gave its ruling without providing any reasons for its ruling. After the trial court ruled, neither counsel asked the court to provide reasons for its ruling. Where, as here, the record is silent, we presume that the trial court properly exercised its duties. (Evid. Code, § 664; Biscaro v. Stern (2010) 181 Cal.App.4th 702, 708.) On this record, we cannot conclude that the trial court abused its discretion in discharging the juror.
V. Cumulative Error
Valdez contends that the cumulative effect of the errors he has alleged requires reversal. We have found no errors; thus, there are none to accumulate.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.