Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA086229, Gary H. Hahn, Judge.
Ronald White for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Appellant Harold S. Carey was charged by information, along with codefendants, James Douglas Cox and Michael J. Flores, with the attempted willful, deliberate, premeditated murder of Carlee Jackson (Pen. Code, § 664/187, subd. (a)). The information further alleged that Cox personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) through (d), and that a principal personally and intentionally discharged a firearm which caused great bodily injury within the meaning of section 12022.53, subdivisions (d) and (e)(1); personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1); and personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e). The information also alleged, pursuant to section 186.22, subdivision (b)(1)(C), that the offense was committed “for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.”
Unless otherwise designated, statutory references are to the Penal Code.
B. Evidence at Trial
1. Prosecution’s Case
a. Carlee Jackson
Jackson testified that he was in inactive member of the Tree Top Piru (Tree Top) gang. On May 27, 2006, he was living in Compton in a household that included his mother and his sister, Erica Conner. Jackson left the house at approximately 9:00 a.m. to walk to a nearby liquor store. When he went inside the store, he saw appellant, whom he knew as “Booty.” Jackson had seen appellant around the neighborhood many times and was aware that appellant was a member of the Fruit Town Piru (Fruit Town) gang, a rival of the Tree Tops. Appellant was wearing a distinctive black head covering known as a “wave cap.”
Appellant said to Jackson: “What’s the Fruits like.” Jackson interpreted this as appellant’s way of letting Jackson know that he (appellant) was a member of Fruit Town and as an implicit threat or challenge. Jackson replied: “Well, so what.” Appellant left the store. Jackson made his purchases and began walking home.
As Jackson approached his house, he saw a burgundy four-door car. Inside the vehicle were appellant, codefendant Cox, whom Jackson knew as “Cheeks,” and codefendant Flores, who was driving the vehicle. Jackson knew Cox and Flores well, having seen them hundreds of times around the neighborhood. Jackson had also seen Flores driving the burgundy car on more than one occasion in the past, with Cox or appellant as passengers. Jackson believed that both Cox and Flores were members of Fruit Town. Cox had, on a prior occasion, told Jackson to tell Jimmy Conner (Jackson’s brother, known as “J-Roc”) that Cox was going to “smoke his ass.” Jackson also recalled multiple occasions when Cox yelled “fuck Tank Tops” while passing Jackson on the street.
“Tank Tops” is a derogatory term for Tree Top gang members.
Cox got out of the car, pulled the hood of his sweatshirt over his head and reached into his waistband. Jackson turned and ran. He heard multiple gunshots and heard Cox say: “Fuck Tank Tops.” Jackson ran into a nearby barbershop and hid. He asked a woman to call 911. He realized he had been shot -- in the hip and buttocks -- when law enforcement personnel arrived.
Jackson was hospitalized for four days after the attack. At the time of trial, there were screws in his hip and he had difficulty walking.
Jackson’s sister, Erica Conner, came into the barbershop. Jackson told her he had been shot by the “Fruit Loops.” However, when deputies questioned him, Jackson said he had been shot by “some Mexicans” belonging to the “T-Flats” gang. Jackson gave the deputies misinformation because he was afraid of being labeled a snitch, which would have put him and his family in jeopardy.
“Fruit Loops” is a derogatory term for Fruit Town gang members.
“T-Flats” is short for “Tortilla Flats,” a Hispanic gang in the area.
Approximately one month after the incident, Jackson was arrested for possession of an assault rifle. Interviewed by detectives at that time, Jackson told them that Cox shot him and also told them of appellant’s and Flores’s involvement. The detectives had not offered Jackson any type of deal or made any promises of leniency prior to his conversations with them. The detectives did not suggest that Jackson identify any particular person as having been involved in the shooting.
b. Erica Conner
Erica Conner was called to testify. In response to the prosecutor’s questioning, she initially denied seeing a burgundy four-door vehicle, recognizing Cox or appellant inside, hearing gunshots, or seeing Cox shooting a gun. She admitted, however, that she had told a detective in an interview that took place approximately one month after the shooting that she had seen the car with Cox and appellant inside and observed Cox shoot at Jackson. In addition, she admitted that during the interview she had identified Cox and appellant in photographic lineups and had tentatively identified Flores as the driver. Conner testified that when she ran to her brother after he was injured, he had said “Fruit Town got me.”
During the latter part of her trial testimony, Conner changed her story slightly, stating that she had seen the burgundy car and someone shooting a weapon, but that she could not identify the shooter.
The prosecutor read Conner’s testimony from the preliminary hearing in which she described seeing a burgundy, four-door car. Conner had also described seeing a light-skinned Black man jump out and shoot at Jackson. According to her preliminary hearing testimony, the shooter looked like Cox, but was not Cox. The prosecutor also read preliminary hearing testimony in which Conner said that appellant was in the car, but did not shoot a weapon and that everything she told the detective in the June 2007 interview was the truth.
Cox was light-skinned.
The June 2006 recorded interview was played to the jury. In it, Conner stated that members of Fruit Town shot her brother. She specifically identified “Cheeks” (Cox) as the shooter and “Booty” (appellant) as one of two other men in the car. She could not definitely identify Flores. However, she had seen appellant and a Hispanic “dude with a ponytail” in the burgundy car on a later occasion, on the day that another gang member had been killed. Conner tentatively identified Flores as the man she had seen with appellant on that later occasion. Conner also informed Detective Rodriguez that three years earlier, she heard Cox threaten to “kick his [] ass,” referring to Conner’s brother, Jimmy Conner.
Flores was Hispanic and wore a ponytail. Deputy Rodriguez explained that the murder Conner alluded to was that of Tree Top gang member Ozzie Davis, known as “Chaos,” shot on June 10, 2006. A member of Fruit Town was subsequently convicted of the crime.
Appellant, who was holding a gun, had said to Conner on that occasion: “Blood, what’s happening?”
c. Detective Q Rodriguez
Detective Q Rodriguez interviewed Erica Conner in June 2006, while she was in a juvenile facility. In addition, he transported Conner to court for the preliminary hearing. Two Tree Top gang members were present at the hearing, including Conner’s uncle, Dwayne Cowens. Rodriguez described Cowans as “a shot shooter” and “a killer... on parole.” There were also several Fruit Town gang members present at the preliminary hearing, including Cox’s sister, Mimi Cox. Immediately after seeing the gang members, Conner told Rodriguez she could not testify. After the hearing, she was interviewed again. In the second interview, also recorded and played to the jury during trial, Conner apologized for lying. She explained that she had become “scared” and “everything just went blank.” In addition, she expressed concern that her mother could be killed. During this interview, Conner stated that after seeing the defendants in court, she recognized appellant and Cox as having participated in the shooting, but not Flores.
The prosecutor had previously asked Conner whether any Fruit Town gang members had been in court during the preliminary hearing. Conner had responded in the negative.
Detective Rodriguez also testified that after the preliminary hearing, he heard Cox say he was going to “beat this one, too.”
Detective Rodriguez was also the prosecution’s gang expert. He described Fruit Town as a criminal gang of over 200 members involved in crimes such as burglaries, armed robberies and the sale of PCP. He described predicate crimes committed by Fruit Town gang members, including Steven Cheatham, Cox’s cousin, known as “G-Wayne.” He explained that Fruit Town was engaged in rivalries with numerous gangs, including Tree Top and Tortilla Flats. The territory claimed by Tree Top bordered the territory claimed by Fruit Town.
Detective Rodriguez identified Cox and appellant as members of Fruit Town. Flores had come to Rodriguez’s attention as the victim of a shooting on May 14, 2006. All three defendants had tattoos, which Detective Rodriguez identified as being gang-related. Detective Rodriguez described a set of apartments on Rosecrans, known as the Alley or Hell Hole, as a stronghold for Fruit Town, where numerous shootings, murders, attempted murders, and arrests occurred, including Flores’s shooting. He stated that, according to gang records in his custody, all three defendants had been located and confronted by authorities in those apartments. Detective Rodriguez further testified that he had been to appellant’s house a few times and interviewed him in connection with other investigations. He described one occasion on which he and fellow officers had chased appellant in order to apprehend him for questioning.
Detective Rodriguez testified that Flores had been identified on a field identification card as a Fruit Town gang member. Other deputies who testified at trial also identified Flores, Cox and appellant as Fruit Town gang members.
Detective Rodriguez explained that members of communities where gangs are located often are fearful of speaking to law enforcement officers. He testified that Fruit Town gang members had been known to shoot or beat up those who report their criminal activities to authorities. He testified that the words appellant spoke to Jackson in the liquor store could be construed as a challenge or threat.
Asked to assume the facts established by the evidence in the case, Detective Rodriguez expressed the opinion that the crime was committed for the benefit of Fruit Town. He explained that it benefitted Fruit Town by causing fear and intimidation among rival gang members and potential witnesses, and enhanced the gang’s reputation by showing that its members had the courage and daring to enter a hostile gang’s territory and shoot a member of the rival gang.
d. Codefendants’ Telephone Calls
The court instructed the jury that any relevant evidence derived from the telephone calls was to be used only against the participating defendant. In addition, during the instruction phase, the court informed the jury: “I instructed you during the trial that certain evidence was admitted only against a certain defendant. You must not consider that evidence against any other defendant.”
(1) Flores’s Telephone Call
The prosecution played a recording of a telephone call between Flores and his girlfriend which took place while Flores was incarcerated, awaiting trial. During the conversation, Flores repeatedly denied having done anything wrong. However, at one point he said: “I didn’t do this shit intentionally.” At another point, he appeared to suggest that his girlfriend said she was with him “that night, that day.”
(2) Cox’s Telephone Calls
The prosecution played recordings of telephone calls Cox made from jail on August 30, November 8 and November 10, 2006. In the first, Cox asked his sister Mimi Cox whether a person he called “Old Girl” and “his sister,” apparently referring to Erica Conner, was still in juvenile custody. In the second, Cox spoke to “G-Wayne” about the “snitch” who was apparently being hidden by authorities. Cox and G-Wayne also discussed the possibility that Jackson was still in jail. G-Wayne said he was “trying to see who I can send to the house,” possibly referring to Jackson’s and Conner’s mother’s house. Cox asked Mimi to “[t]ell grandma I’m a need her... to tell the truth on that day, when we was all over there that morning for her birthday.” Later during that same conversation, Cox said to G-Wayne: “Mimi be acting, like she is so stupid and retarded... she don’t catch on to shit.” G-Wayne replied: “Yeah, she gotta catch on, your motherfucker can’t be saying that shit over the phone.” The final recorded telephone call was also with “G-Wayne” and Mimi Cox. Cox asked Mimi if “[e]verything going straight” with “grandma.” Mimi replied “she hadn’t told me yet.”
Detective Rodriguez testified that the “G-Wayne” who spoke with Cox while he was incarcerated, was not his cousin, Steven Cheatham, but Jackson and Conner’s uncle, Dwayne Cowens, also known as “G-Wayne.”
2. Defense Case
a. Cox Defense
Cox called Marquerra Dawson, his cousin. She testified that on their grandmother’s birthday, Cox was at the grandmother’s house, cooking chicken. Mary Ophelia Bellows, Cox’s grandmother, testified that her birthday falls on May 27 and that Cox spent the night of May 26, 2006, at her house. After he awoke, he and his uncle went to buy food. When they returned, Cox cooked chicken for the family. Trena Lawson, a defense investigator, testified concerning the difficulty she had seeing the crime scene from the location where Conner was reportedly standing when the shooting took place.
b. Flores Defense
Flores called Marquis Green, who claimed to be the owner of the burgundy car identified by Jackson as the one used by the defendants when he was shot. Green testified that the car had not been operational since 2005. He had never let Flores, appellant or anyone else use the car.
C. Verdict and Sentencing
The jury found appellant guilty of attempted murder. It found not true that the attempted murder was committed willfully, deliberately and with premeditation. It found true that: a principal personally and intentionally discharged a firearm which caused great bodily injury within the meaning of section 12022.53, subdivisions (d) and (e)(1); a principal personally and intentionally discharged a handgun within the meaning of section 12022.53, subdivisions (c) and (e)(1); a principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e); and the offense “was committed for the benefit of, at the direction of, and/or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members” pursuant to section 186.22, subdivision (b)(1).
Appellant was sentenced to 7 years to life for attempted murder and 25 years to life for the section 12022.53, subdivision (e)(1) enhancement.
DISCUSSION
A. Sufficiency of the Evidence
Appellant raises three issues concerning the sufficiency of the evidence. First, he contends there was insufficient evidence of his culpability because Jackson and Conner were not credible witnesses. Second, he contends there was insufficient evidence that appellant and his codefendants intended to promote, further or assist in criminal conduct because there was no evidence the shooting was committed to facilitate other criminal conduct. Third, he contends there was insufficient evidence that he personally had the specific intent to promote, further or assist in criminal conduct by gang members. For the reasons discussed below, we disagree.
1. Evidence Establishing Appellant’s Culpability
Appellant contends Jackson lacked credibility because he had originally identified his attackers as Hispanic members of the Tortilla Flats gang and changed his story only after his arrest, when he had a motive to inculpate defendants in exchange for leniency. He contends Conner was equally untrustworthy as a witness because she refused, when under oath, to repeat the information she provided in interviews with Detective Rodriguez.
In determining the sufficiency of the evidence to support a conviction, “‘an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Tafoya (2007) 42 Cal.4th 147, 170, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The reviewing court must determine whether “‘“any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.]’” (People v. Farnam (2002) 28 Cal.4th 107, 143, quoting People v. Earp (1999) 20 Cal.4th 826, 887.)
“[A] reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) The testimony of a single witness is sufficient to support a conviction. (Ibid.; People v. Robertson (1989) 48 Cal.3d 18, 44; In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; see Evid. Code, § 411.) “Any contradictions... or other weakness in the witness’s testimony are matters to be explored on cross-examination and argued to the trier of fact.” (People v. Robertson, supra, at p. 44.) “[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. [Citation.]” (In re Gustavo M., supra, at p. 1497.)
Jackson identified appellant as the person who confronted him with a gang challenge in the liquor store and accompanied Cox and Flores when he was attacked. Jackson was well-acquainted with all three defendants, having seen them many times in the neighborhood. The fact that Jackson told inconsistent stories to investigators and had a possible motive to prevaricate was known to the jury and argued by appellant as a basis for disbelieving him. The jury, having observed his demeanor on the stand and heard the arguments of both sides, chose to credit his testimony. Its determination is binding on us.
While Jackson’s testimony alone was sufficient to support the conviction, we note that it was confirmed in all important respects by Conner. Appellant contends her statements should not be believed because she refused to identify him or his codefendants when placed under oath. The prosecution presented ample evidence to explain the reason for Conner’s refusal to repeat the information given to detectives -- the reproach of her gang-affiliated relatives and her fear of reprisal from the defendants’ family and associates. Accordingly, the jury’s verdict was supported by two eyewitnesses, both of whom were acquainted with appellant. Ample evidence supported the jury’s verdict.
We note that although Conner was reluctant to reiterate her pre-trial identification of the defendants, she unhesitatingly confirmed Jackson’s testimony in one key respect -- that Jackson had blamed the shooting on Fruit Town immediately after being shot, before telling investigators that the assailants were from a different gang.
2. Evidence Establishing Gang Enhancement
Appellant contends there was insufficient evidence to support the allegation that the offense was committed for the benefit of, at the direction of and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(C). Appellant relies in part on the decision in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, where the Ninth Circuit held that a gang enhancement was unsupported because there was no evidence that the defendant committed the crime -- robbery -- “with the specific purpose of furthering other gang criminal activity” and there was “nothing inherent in the robbery that would indicate that it furthers some other crime.” (395 F.3d at p. 1103.) In People v. Romero (2006) 140 Cal.App.4th 15, this court disagreed with the holding in Garcia and declined to follow it. We held instead that the defendant’s specific intent to promote, further and assist in criminal conduct is established if the defendant intended to promote, further and assist the charged offense. (140 Cal.App.4th at pp. 19-20; accord, People v. Hill (2006) 142 Cal.App.4th 770, 773.) We continue to adhere to that position.
The Ninth Circuit has since affirmed its adherence to Garcia. (See Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069.) That decision, like Garcia, is not binding on this court. (People v. Bradley (1969) 1 Cal.3d 80, 86; People v. Burnett (2003) 110 Cal.App.4th 868, 882.)
Appellant contends that there was no evidence to establish that the shooting benefitted the gang. Conceding that the gang expert, Detective Rodriguez, expressed the opinion that the shooting enhanced Fruit Town’s reputation for courage and created fear in the community, appellant contends that the testimony was faulty because it was based solely on the detective’s “belief[] and conclusion.” Appellant suggests that the prosecution must prove tangible, measurable benefit to the gang. Appellant cites no authority for this proposition and we are aware of none. To the contrary, an expert opinion that particular criminal conduct benefited a gang by enhancing its reputation is sufficient to support a section 186.22 finding. (See, e.g., People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931.)
Finally, appellant contends that there was no evidence that he personally had the specific intent to act for the benefit of the gang. This contention, too, lacks merit. The evidence established that appellant was a member of Fruit Town, that his codefendants were members of Fruit Town, that Jackson was an inactive member of a rival gang (Tree Top), that Jackson’s siblings and uncle were active members of Tree Top and that the shooting was preceded by a gang challenge issued by appellant. This was sufficient to support a reasonable inference appellant intended to aid and abet the attempted murder of a rival for the benefit of his gang. (See People v. Leon (2008) 161 Cal.App.4th 149, 163 [sufficient evidence to support section 186.22 enhancement where prosecution established defendant committed crimes in association with fellow gang member, knowing he was a gang member]; People v. Romero, supra, 140 Cal.App.4th at p. 19 [evidence that defendant “intended to commit a crime,... intended to help [codefendant] commit a crime, and... knew [codefendant] was a member of his gang” created a reasonable inference that appellant possessed specific intent required by section 186.22]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [jury could “reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members”].)
B. Bifurcation
Prior to trial, all defendants moved to bifurcate the substantive charge from the gang allegation. The court denied the motion. Appellant contends this was error. We disagree.
“General authority to bifurcate trial issues may be found, however, in section 1044, which vests the trial court with broad discretion to control the conduct of a criminal trial.” (People v. Calderon (1994) 9 Cal.4th 69, 75.) In People v. Hernandez (2004) 33 Cal.4th 1040, the court held that the same statute “permits bifurcation of the gang enhancement.” (Id. at p. 1049.) Bifurcation should be considered where the gang evidence is “so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (Ibid.). As the Supreme Court also stated, however, “evidence of gang membership is often relevant to, and admissible regarding, the charged offense,” to prove, for example, “identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (Ibid.) Where the evidence supporting the gang enhancement would be admissible at trial to prove guilt, “any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Id. at pp. 1049-1050.) Moreover, even where prejudice from evidence offered solely to prove the gang enhancement is a concern, a court may deny bifurcation where other factors favor joinder. (Id. at p. 1050.) “‘Trial of the counts together ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials.’ [Citation.]” (Ibid., quoting Frank v. Superior Court (1989) 48 Cal.3d 632, 639.) “[T]he ‘burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’” (People v. Hernandez, supra, at p. 1050, quoting People v. Bean (1988) 46 Cal.3d 919, 938-939.) The denial of a motion for bifurcation is reviewed under the abuse of discretion standard. (People v. Hernandez, supra, at p. 1048.)
Here, the gang evidence was central to the prosecution’s case on the substantive offense. The evidence aided the jury’s understanding of the motive for the attack on Jackson and the defendants’ intent. The evidence was necessary to explain the significance of the cryptic remark made by appellant to Jackson in the liquor store: “What’s the Fruits like.” Without the gang evidence, the jury would have been unaware that the seemingly innocuous statement was a ritualized precursor to a violent attack or that it provided support for Jackson’s identification of appellant as one of the men in the car from which the shooter emerged a few minutes later. Moreover, the evidence was necessary to understand the witnesses’ odd behavior. Jackson initially identified other men as his attackers. Conner, after speaking freely to Detective Rodriguez in interviews, refused to implicate the defendants once she was called to the stand. Neither came forward with any information about the perpetrators until they were forced into contact with law enforcement a month after the shooting occurred. Evidence of extensive gang involvement in the witnesses’ neighborhood and in their personal lives was relevant to the jury’s assessment of the reasons for their refusing to cooperate and/or for changing their stories. Such gang evidence would have been admissible in the guilt phase of defendants’ trials even had the gang allegation been bifurcated. Accordingly, the court’s decision to save time and resources by trying all issues in one proceeding was not an abuse of discretion.
C. Severance
Appellant’s counsel did not move prior to trial to sever his trial from the trial of codefendants Cox and Flores. Appellant contends that this established ineffective assistance of counsel. We conclude that counsel’s failure to make such motion had no impact on the outcome at trial.
During the discussion of the admissibility of evidence relating to the shooting of “Chaos” (Ozzie Davis) on June 10, 2006, the day Conner saw appellant and Flores together in a burgundy car, counsel for appellant made a motion to sever, which was denied. Counsel stated that the reason there had been no motion to sever made earlier was that there was no adverse interest between the three defendants.
Section 1098 provides that “[w]hen two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” “In light of this legislative preference for joinder, separate trials are usually ordered only ‘“in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.”’” (People v. Box (2000) 23 Cal.4th 1153, 1195, quoting People v. Turner (1984) 37 Cal.3d 302, 312.) “‘“‘The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.] [¶] ‘The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.’ [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain 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 with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]’”’” (People v. Carter (2005) 36 Cal.4th 1114, 1153, quoting People v. Sandoval (1992) 4 Cal.4th 155, 172-173.) However, “less drastic measures than severance, such as limiting instructions, often will suffice to cure any risk of prejudice.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) Reversal is required for an improperly joined trial “only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial.” (Id. at p. 41.) Even if the decision to try a matter jointly appears correct based on the record at the beginning of trial, the reviewing court may assess based on later proceedings whether “joinder actually resulted in ‘gross unfairness,’ amounting to a denial of due process.” (People v. Arias (1996) 13 Cal.4th 92, 127; accord, People v. Lewis and Oliver (2006) 39 Cal.4th 970, 998.)
This case does not involve incriminating confessions by appellant’s codefendants, likely confusion or prejudice resulting from evidence on multiple counts, conflicting defenses or the possibility that at a separate trial a codefendant would give exonerating testimony, and appellant does not contend otherwise. To support that a severance motion was warranted, appellant asserts that he was prejudiced because certain evidence pertaining solely to the codefendants would not have been admitted had he been tried on his own. Appellant points in particular to the incriminating telephone calls made by codefendants Cox and Flores, the evidence introduced to clarify matters discussed in those telephone calls, and the evidence of the gang activities of Flores, Cox and Cox’s family. With respect to the recorded telephone calls, we note that nothing in them pertained to appellant. Neither the codefendants nor the persons to whom they spoke implicated appellant in the crime or in any attempt to cover it up. More importantly, as discussed above, it was necessary for the jury to hear substantial gang-related evidence in order to establish the prosecution’s case and in order to understand why the testimony and statements of the key witnesses contained discrepancies and, in Conner’s case, attempts to recant. Even had a motion for severance been granted, a separate jury trying appellant would have been exposed to substantial gang evidence necessary to explain appellant’s actions and substantial evidence of attempts by Fruit Town members to intimidate the prosecution’s witnesses. The potential differences in the quantity of gang-related evidence would not have caused a separate jury to reach a more favorable result.
During his testimony, Detective Rodriguez recounted Cox and his family’s long involvement with gangs. He stated he had searched Cox’s residence pursuant to warrant eight to ten times. He testified that Cox’s father was in federal prison for sale of PCP, and that Cox’s siblings were affiliated with gangs. After the jury listened to the recordings of Cox’s telephone calls, Detective Rodriguez identified many of the speakers or the persons to whom they referred as gang members and provided his explanation of what certain phrases meant. For example, Cox referred to people on the street “do[ing] what they supposed to be doing.” Detective Cox explained that the Fruit Town gang has an extensive network for witness intimidation and bribery.
Appellant also contends that allowing his case to be tried jointly with Cox’s represented a situation where a weaker case for the prosecution was bolstered by being tried with a stronger one. We disagree. Jackson initially saw appellant face-to-face in the liquor store and recalled that appellant was wearing distinctive head gear, making him easy to identify later. His opportunity to observe the other defendants was under much more difficult circumstances, prior to fleeing for his life. From that perspective, the jury had greater cause to doubt his identification of Cox than of appellant. Moreover, Conner positively identified appellant and had seen appellant and Flores riding in the burgundy car on another occasion on which appellant was armed. As there was no significant disparity in the strength of the evidence against appellant, the concern that appellant’s conviction resulted from being tried in conjunction with Cox is misplaced.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.
Detective Rodriquez was less knowledgeable concerning Flores. Besides the telephone call, the only evidence that pertained to Flores was the evidence that Flores had been shot in May 2006.