Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. GA059421, Michael Johnson, Judge.
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Ignacio Cervantes Chavez appeals from the judgment entered following his conviction on two counts of murder in the first degree, with multiple special-circumstance findings. On appeal from the judgment, Chavez contends that the trial court made several evidentiary errors, and improperly denied his motions to sever the charged offenses and for a new trial; and that the evidence is insufficient to sustain one murder conviction. We reverse the challenged murder conviction and remand for further proceedings, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Charges
In three separate incidents, an armed courier and a grocery store owner were shot and killed during a robbery, and a woman was the victim of a home-invasion robbery. A second amended information charged Chavez and his brother Ramon Cervantes Chavez with 15 felony counts arising from the three incidents.
Because they share the same last name, we refer to Ramon Chavez by his first name to avoid confusion with his brother, and not out of disrespect.
January 14, 2009 incident: In count 1, the information charged Chavez and Ramon with first degree murder of Eleazar Jaramillo (Pen. Code, §§ 187, 189), with special circumstance allegations of having a prior conviction for first degree murder (§ 190.2, subd. (a)(2)), multiple murders in the present proceeding (§ 190.2, subd. (a)(3)), lying in wait (§ 190.2, subd. (a)(15)) and murder in the commission of a robbery (§ 190.2, subd. (a)(17)(A); count 2, second degree burglary of Jetro Cash and Carry (Jetro) (§ 459); and count 3, second degree robbery of Jaramillo (§ 211). As to each count, the information alleged firearm-use enhancements within the meaning of section 12022.53, subdivisions (b), (c) and (d).
Statutory references are to the Penal Code, unless otherwise indicated.
May 15, 2000 incident: In count 4, the information charged Chavez and Ramon with first degree murder of Olivia De La Torre, with special circumstances allegations of having a prior conviction for first degree murder, multiple murders in the present proceeding, lying in wait, and murder in the commission of a robbery; count 5, attempted willful, deliberate and premeditated murder of Tomas De La Torre (§§ 187, 664); count 6, second degree robbery of Olivia De La Torre; count 7, the second degree robbery of Jacinto De La Torre; count 8, assault with a firearm on Jacinto De La Torre (§ 245, subd. (a)(2)); and count 9, assault with a firearm on Tomas De La Torre. The information also alleged firearm-use enhancements within the meaning of section 12022.53, subdivisions (b), (c) and (d) (counts 4 through 7) and section 12022.5 (counts 8 and 9).
May 19, 2000 incident: In count 10, the information charged Chavez and Ramon with the residential burglary of Virginia Tudela; count 11, (home-invasion) robbery of Tudela; count 12, assault with a firearm on Tudela; count 13, assault with a firearm on minor child Tudela; count 14, making a criminal threat to Tudela (§ 422); and count 15, making a criminal threat to minor child Tudela. As to each count, firearm-use enhancements were alleged within the meaning of section 12022.53, subdivision (b) (counts 10, 11, 14 and 15) or section 12022.5 (counts 12 and 13).
Chavez pleaded not guilty to all charges and denied all of the special allegations.
II. Motions to Sever
The prosecution’s theory was Chavez aided and abetted Ramon to commit the three separate robberies and related crimes, during which Ramon shot and killed two of the victims (the armed courier and the grocery store owner). This theory was supported by the identification testimony of preliminary hearing witnesses. Based on its review of this evidence and the pleadings, the trial court denied Chavez’s motion to sever the charges for separate trials.
Before the jury trial commenced, the prosecution learned Ramon could not have been involved in the robbery-murder of the grocery store owner and the home-invasion robbery because he was in custody at the time. The trial court granted Ramon’s motion to sever his trial from Chavez’s.
At a separate trial, Ramon was convicted on one count of first degree murder with special circumstances for the killing of the armed courier in which Chavez participated. (See People v. Ramon Chavez (B221345) Feb. 14, 2011 [nonpub. opn.].)
III. Summary of Prosecution Evidence
A. Count 1:The murder of the armed courier on January 14, 1999
On January 14, 1999, Ramon entered Jetro, a large warehouse grocery store in Vernon. He stood with a shopping cart in the area of the cash registers, waiting for the armed courier to make the morning pick up of the store’s cash. Eleazar Jaramillo, an armed courier for the Brinks Armored Truck Company came into Jetro later that morning, using the store exit door. Jaramillo walked into a small room near the registers, where he collected a bag containing over $100,000 in cash from a store employee.
As Jaramillo was leaving the store with the cash, he was approached from behind by Ramon, who shot him once in the head, using a.38 special or a.357 Magnum revolver. Jaramillo fell to the floor and died at the scene from the gunshot wound.
Jaramillo’s partner remained inside the armored truck and did not witness the shooting. Three Jetro employees identified Ramon as the shooter. In describing Ramon’s attire, these witnesses said he was wearing a baseball cap and a blue denim jacket with a white sheepskin collar.
Before Jaramillo collapsed, Ramon took the cash, fled to the store entrance, and from there, to a waiting car. The car was an older brown Toyota Corolla that was backed into a parking space near the store entrance. The prosecution maintained Chavez was the driver and sole occupant of the Corolla, although no witness was able to identify or describe him. Ramon got into the passenger side, and the driver sped away.
Witnesses reported to police the Corolla’s license plate was “888YMS.” That license plate was traced to a 1976 Fiat that had been destroyed in 1986. On February 16, 1999, police found a brown Toyota Corolla, with license plate 888XMS, parked on a San Fernando Valley street, a little more than 10 miles from Jetro and about 15 miles from Chavez’s Van Nuys apartment. The Corolla was dusty and appeared to have been sitting on the street for some time. Its windows were open and the battery, radio and tape deck were missing. The Corolla was last registered to Ricardo Perez. Police learned the Corolla had later been sold twice at auctions, but the name of the registered owner had never been changed.
The police impounded and searched the Corolla, finding paper tissues on the floorboard. Forensic testing showed Chavez’s DNA was on a tissue retrieved from the driver’s side, and his four-year old son Hugo’s DNA was on another tissue retrieved from the passenger’s side.
Rafael Rufino testified he worked for Brinks Armored Truck Company as an armed courier in 1999. He was not at work on January 14, 1999, although he normally partnered with Jaramillo. The two of them drove a regular route to pick up money at the same stores, including Jetro, at the same time every day. Rufino testified he always entered Jetro through the exit door and went into a small room, where he was handed the bag of cash. He would then leave the store through the exit, holding his gun and carrying the cash to the armored truck.
B. Evidence oftheuncharged crime – the attempted robbery at Costco in 2000
Over defense objection, the trial court admitted evidence of an attempted robbery of an armed courier at a Costco store in Van Nuys to prove Chavez’s identity, or common design or plan in aiding and abetting the murder of Jaramillo at Jetro. That evidence showed Daniel Salazar and his partner were working as armed couriers for Sectran Armored Trucking Company. On the afternoon of August 13, 2000, his partner parked in front of Costco, and Salazar went inside to make the pickup of cash. As he was leaving the store, Salazar saw a man wearing a hat, later identified as Ramon, reach into a shopping cart for an assault weapon, a modified AK 47 or “MAK 90” automatic rifle. Ramon told Salazar not to move; Salazar began running to the armored truck while firing his handgun at Ramon, striking him in the leg. Ramon started to hobble away, and Salazar noticed another man, later identified as Chavez, holding a large weapon. Salazar took cover behind a store pillar and heard gunfire. He saw Ramon aiming a gun from inside an open white van, before it backed into the armored truck and headed out of the parking lot.
The white van came to a stop on a residential street near Costco. Witnesses living in the area saw the driver, later identified as Chavez, and whom they described to police as Hispanic, 35 to 40 years old, with “whitish hair” under his baseball cap. Ramon had an injured leg, and Chavez began helping him walk down the street. Police responded, found Ramon alone with his assault weapon and took him into custody.
The same afternoon, officers searched the white van and found two Motorola walkie-talkies, magazines for an AK 47 or MAK 90 automatic rifle, and hollow-point ammunition for a.357 Magnum revolver. They also discovered a fake moustache made of human hair. Police learned the van had been owned by Mario Olazabal, who had sold it in 1998. The man who bought the van gave a nonexistent address. Mario Olazabal led officers to an apartment building in Van Nuys, where he had seen the van parked since the sale.
Ignacio Chavez Jr., Chavez’s son, who was interviewed by police, testified for the prosecution that the Costco store was close to his father’s Van Nuys apartment. Ignacio Jr. identified the white van seized by officers as one of two vans Chavez had been driving. The second van was white with blue stripes. Ignacio Jr. testified that the day of the Costco shooting, Chavez had wanted to stay with him for a few days, because he was “in some serious shit.” At one point, Chavez told his son he had committed the attempted robbery with Ramon, who had “‘fucked up and started shooting and was shot in the leg.’”
Ignacio Jr. also gave police consent to search his apartment. Officers seized a 9 millimeter semiautomatic handgun and a.45 caliber semiautomatic handgun that Chavez had given to his son to hide inside a television set. They also recovered ammunition for both firearms and some ammunition for a.22 caliber handgun.
On August 17, 2000, police arrested Chavez in Van Nuys after finding him driving a white Dodge van with blue stripes that was registered to him. Inside the Dodge van, officers found a shoulder holster, a false moustache, and a baseball cap. At the time of his arrest, Chavez did not have a beard.
The same day, police executed a search warrant on Chavez’s apartment. In an outside storage locker, officers found a MAK 90 automatic rifle, and boxes of ammunition, which could be fired from either a.38 special or a.357 Magnum revolver.
C. Count 4: The murder of the grocery store owner on May 15, 2000
Jacinto and Olivia De La Torre, husband and wife, owned and operated La Guadalupana, a small grocery store and restaurant in Pasadena. On the morning of May 15, 2000, the couple arrived for work. As they pulled into the parking lot, De La Torre saw a man with a beard, whom he later identified as Chavez, walking towards them. De La Torre joked with his wife, saying: “Look at the bearded one.” A gray car with its hood raised was backed into a parking space next to the grocery store. De La Torre parked beside the gray car. His wife got out of the car, holding a bag containing cash.
When De La Torre opened the driver’s side door, he saw that the man had approached the car. De La Torre got out of the car, and the man immediately ordered him at gunpoint to lie on the ground. The gunman was a light-skinned Mexican, who appeared to be in his fifties. He was a little over five feet six inches tall, and his physical build was “hefty” but not fat. The gunman was wearing a baseball cap, a denim jacket with a white wool collar, denim pants and boots. As another man was speaking to his wife, De La Torre looked over his shoulder towards the gunman and saw the weapon was still pointed at him. He also saw the gunman’s face. De La Torre described the gunman as having a full moustache and a full “well shaped” beard. The moustache and beard were white or gray, as was the hair on the gunman’s temples. The gunman threatened to kill De La Torre if he looked back again so he turned away. The gunman then removed everything De La Torre had in his pants pockets, including his wallet.
In speaking to police or testifying in court, De La Torre varyingly described the gunman’s moustache, beard and hair as white or gray.
At some point, De La Torre heard three gunshots, the hood of a car close, and a car speed away. He stood up and saw his wife lying on the ground, bleeding from her head. The bag of cash was gone. His wife died that day at the hospital from the three gunshot wounds. Bullets recovered from her body had been fired from a.38 special or a.357 Magnum revolver, although not the same weapon used in the shooting of Jaramillo.
Danielle Oliver was in her car when she heard gunshots. She saw Olivia De La Torre fall to the ground and two men get into a gray car and drive away. Oliver followed the gray car until it stopped on a residential street, about four blocks from the grocery store. The two men fled from the car, and Oliver recorded the license plate and gave it to police. She also took officers to where the gray car, a Datsun, had been abandoned.
Using the Datsun’s license plate, police determined Juan Arana was its registered owner, but that he had previously sold the car. Police traced the Datsun as having been sold two more times, the last time to an unknown buyer, who acquired the car days before the murder of Olivia De La Torre.
The manager of Chavez’s Van Nuys apartment had seen a similar gray Datsun parked in a nearby alley; and he had once noticed Ignacio Jr. put something into the car.
D. Identification of Chavez as the gunman in murder of the grocery store owner
On the night his wife was killed, De La Torre met with Detective Alejandro Peinado and examined over 500 mug shots, but he did not identify the gunman. Seven months later, De La Torre identified Chavez as the gunman from a six-pack photographic lineup prepared by police in which Chavez’s booking photograph had been altered to depict him with a beard.
The booking photograph was taken following Chavez’s earlier arrest for the attempted robbery at Costco.
De La Torre was unable to identify anyone as the gunman in a live lineup four years later, but he thereafter identified Chavez as the gunman at the preliminary hearing and at trial.
E. Count 11:The home-invasion robbery onMay 19, 2000
Virginia Tudela lived in Granada Hills and owned three beauty salons. Six months prior to the home-invasion robbery, Chavez’s girlfriend, Magaly Coca, had worked for Virginia Tudela and had been a guest in her home.
On the morning of May 19, 2000, Chavez and another man got out of a white van parked in front of Tudela’s house. She was at home with her four-year-old daughter. The men rang the doorbell and pretended to be delivering flowers. When Tudela opened the door the men forced themselves inside and put on ski masks. Chavez ordered Tudela at gunpoint to kneel on the floor and to remove her jewelry. Tudela’s four-year-old daughter was standing beside her and remained with her until the men left. Chavez demanded to see the family safe, and Virginia Tudela took the men to the safe inside her bedroom closet, but she was too nervous to open it. When she looked at Chavez’s face, he threatened to kill her if she looked at him again, so she told him to just take the safe. The men tied Tudela’s hands behind her back, put tape over her mouth and left her in the closet. They were going to tie up her daughter, but Tudela asked them to let her remain free. Her daughter (falsely) suggested to the men that someone else was in the home, prompting the men to leave. Before they left, the men threatened to kill Tudela if she contacted police. The men took the safe with them, which contained money and jewelry. They also took a bag containing $3,000 in cash.
IV. Summary of Defense Evidence
Chavez did not testify in his defense of mistaken identity. Magaly Coca testified she opened Magden Cuts, a beauty salon, in February 1999 with the assistance of her boyfriend, Chavez. He knew English, and unlike her, was a legal resident. Chavez never worked there; he struggled to find work as a mechanic; and he never had any money.
V. Dismissal of Time-Barred Counts
At the conclusion of the prosecution’s case-in-chief, the trial court dismissed the non-murder counts for crimes purportedly committed in January 1999 and May 2000 as barred by the applicable three-year statute of limitations. (§§ 801, 804.) What was left for the jury to decide were the two first degree special circumstances murders of the armed courier (count 1) and the grocery store owner (count 4).
The trial court separately granted a motion for acquittal (§ 1118.1) on count 5, the attempted murder of Tomas De La Torre, De La Torre’s brother, after the prosecution presented no evidence to support the charge.
The trial court specially instructed the jury the counts relating to the home-invasion robbery had been removed from consideration. During argument, neither the prosecutor nor defense counsel mentioned the dismissed counts.
VI. Verdict and Sentencing
The jury found Chavez guilty of both counts of first degree murder and found true the accompanying special circumstance allegations of multiple murders in the present proceeding, lying in wait and murder in the commission of a robbery. The jury also found a principal was armed with a firearm during the murder of the armed courier (§ 12022, subd. (a)(1)); and Chavez personally used a firearm during the murder of the grocery store owner. In a bifurcated proceeding, the jury found true the special circumstance allegation Chavez had suffered a prior conviction for first degree murder.
The trial court sentenced Chavez to two consecutive terms of life without possibility of parole for the first degree special circumstance murders and to consecutive terms of one year for the section 12022, subdivision (a)(1) enhancement and 10 years for the section 12022.53, subdivision (b) enhancement.
DISCUSSION
I. Admissibility of uncharged crime of the attempted robbery at Costco
A. Relevant proceedings
Before trial, pursuant to Evidence Code section 1101, subdivision (b), the prosecution moved to admit uncharged crimes evidence against Chavez relating to the attempted robbery at Costco to prove common design or plan, identity and intent to kill in the January 14, 1999 murder of the armed courier. Chavez opposed the motion.
Following a hearing, the trial court permitted the prosecution to introduce evidence of the attempted robbery at Costco to prove common design or plan and identity, but not intent. The court precluded the prosecution from presenting evidence that customers had been killed or injured during the attempted robbery.
At trial, evidence of the attempted robbery at Costco was admitted, subject to a limiting instruction that it could be considered, if proved, only to decide whether it revealed a distinctive plan or method relevant to the identity of Chavez as the person who participated in the murder of the armed courier. Prior to deliberations, the court instructed the jury that evidence of the attempted robbery at Costco was to be considered for the limited purpose for which it was admitted (CALJIC No. 2.09). The court also instructed the jury not to infer from the evidence that Chavez had a bad character or was predisposed to commit crime (CALJIC No. 2.50), and that the prosecution had to prove Chavez committed the attempted robbery at Costco before the jury could consider the evidence for its limited purpose (CALJIC No. 2.50.1).
B. Governing law
Evidence Code section 1101, subdivision (a), “prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) The provision “does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (Ewoldt, supra, 7 Cal.4th at p. 393, see People v. Falsetta (1999) 21 Cal.4th 903, 914 [historically “the rule against admitting evidence of the defendant’s other bad acts to prove his present conduct was subject to far-ranging exceptions”].) “‘[E]vidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes... if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.’” (People v. Carter (2005) 36 Cal.4th 1114, 1147.)
Evidence Code section 1101, subdivision (a), states, “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
“‘To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. [Citation.] Evidence of an uncharged crime is relevant to prove identity only if the charged and uncharged offenses display a “‘pattern and characteristics... so unusual and distinctive as to be like a signature.’” [Citation.] “The strength of the inference in any case depends upon two factors: (1) the degree ofdistinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.” [Citation.]’ [Citation.]” (Carter, supra, 36 Cal.4th at p. 1148.)
“A lesser degree of similarity is required to establish relevance on the issue of common design or plan. [Citation.] For this purpose, ‘the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual’ [Citation.]” (People v Kipp (1998)18 Cal.4th 349, 371.) “[I]t need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Ewoldt, supra, 7 Cal.4th at p. 403.) Moreover, the evidence need not demonstrate a “single, continuing conception or plot” of which the charged crimes are a part. (Id. at p. 401 (italics omitted).) Rather, “such evidence is admissible to establish a common design or plan if the uncharged misconduct ‘shares sufficient common features with the charged offenses to support the inference that both the uncharged misconduct and the charged offenses are manifestations of a common design or plan.’” (People v. Balcom (1994) 7 Cal.4th 414, 418.)
Even if the evidence is admissible under Evidence Code section 1101, subdivision (b), the trial court must exercise its discretion under Evidence Code section 352 to exclude the evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352; Carter, supra, 36 Cal.4th at p. 1149.) “‘Undue prejudice’ refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis: ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. “[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is ‘prejudicial.’”’” (People v. Walker (2006)139 Cal.App.4th 782, 806.) We review the trial court’s determination for an abuse of discretion. (Kipp, supra, at p. 369 [“[o]n appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion”]; Carter, at p. 1149.)
C. The trial court did not abuse its discretion in admitting evidence of the attempted robbery at Costco
Emphasizing what he insists are significant differences between the murder of the armed courier and the attempted robbery at Costco, Chavez contends that the trial court erred in determining the evidence was relevant to the issues of common design or plan and identity, and that its probative value was not outweighed by the probability its admission would create a serious danger of undue prejudice. Yet, as the trial court found, and the prosecutor argued, this evidence was relevant to prove there was a carefully coordinated plan by Chavez and his brother to engage in the high risk, high stakes crime of robbing armed couriers of their cash pickups.
Because we do not conclude the trial court abused its discretion by admitting the uncharged crime evidence, we do not reach Chavez’s due process claim. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175] [misapplication of state law constitutes deprivation of liberty interest in violation of due process clause].)
Here, viewing the record in the light most favorable to the trial court’s detailed ruling (Carter, supra, 36 Cal.4th at p. 1148), the murder of the armed courier shared common features with the attempted robbery at Costco that were sufficiently distinctive to support a reasonable inference Chavez aided and abetted the commission of both crimes. Both crimes involved the theft of the proceeds from a warehouse grocery store, where there were high volume sales generating significant amounts of cash; occurred inside the grocery stores during daylight hours, when customers were present; and targeted the armed courier right after he had picked up the money from store personnel. In both crimes, the shooter waited inside the store with a shopping cart for the armed courier to arrive; was wearing a hat and was armed with a gun; ambushed and shot the armed courier at close range, as the courier was leaving the store alone; and was working with an accomplice, who dropped off the shooter at the grocery store, and waited in the parking lot to facilitate the shooter’s escape. In both crimes, the getaway vehicle was abandoned on the street after the crimes had occurred, and was old and untraceable. Finally, in both crimes, the shooter was Ramon, Chavez’s brother.
To be sure, there were differences between the two crimes. Of greatest significance, the Costco crime, unlike the murder of the armed courier, involved a botched robbery and Ramon’s thwarted escape. While the attempted robbery at Costco may not have been successful, the crime was interrupted solely because Salazar, unlike Jaramillo, was able to realize he was an intended robbery victim and to fire his weapon first to avoid being shot and killed. The other differences urged by Chavez -- the crimes occurred at different locations, at different hours of the day and on different days of the week as well as months apart, and involved different weapons and different getaway vehicles – do not render the attempted robbery at Costco irrelevant on the issues of identity and common design or plan in light of the many distinctive similarities. (See e.g. Carter, supra, 36 Cal.4th at p. 1148 [“Although defendant notes certain differences in the circumstances surrounding the victims’ deaths, the combination of fatal strangulation and placement of a young woman’s body in a closed bedroom closet is both highly distinctive and suggestive that the same person perpetrated the crimes....”].) Indeed, “[t]o be highly distinctive, the charged and uncharged crimes need not be mirror images of each other.” (Ibid.) Thus, the fact the attempted robbery at Costco differed from the earlier execution-style killing and clean getaway of the murder went to its weight and not to its admissibility. (Ibid.) This is not a situation where the two crimes were coordinated between the perpetrators on each occasion in markedly different ways, thereby negating an inference of a criminal signature. Accordingly, the trial court did not abuse its discretion in concluding the Evidence Code section 1100 did not require exclusion of the evidence.
Ramon was incarcerated at length during the period between the two crimes.
We similarly conclude the trial court did not abuse its discretion under Evidence Code section 352 in finding the evidence of the attempted robbery at Costco, accompanied by an appropriate limiting instruction, would not be unduly prejudicial. The probative value of the evidence of the attempted robbery at Costco with respect to Chavez’s identity and his common design or plan to commit the murder of the armed courier was substantial. On the other side of the scale, the evidence of the uncharged crime was neither stronger nor more inflammatory than the evidence of the charged offense; to the contrary, although the evidence included testimony that Ramon Chavez fired shots at armed courier Salazar at Costco, the jury also learned nothing of the death of one customer, in marked contrast to the murder of the armed courier. The prosecution only introduced the amount of evidence necessary to illustrate the similarities between the two shootings. (See Ewoldt, supra, 7 Cal.4th at p. 405 [describing circumstances that decrease potential for prejudice].) On this record, we cannot say the court abused its discretion in determining that the substantial probative value of the evidence was not outweighed by the risk of undue prejudice. (Carter, supra, 36 Cal.4th at p. 1149.)
II. Sufficiency of the evidence to support Chavez’s conviction as an aider and abettor in the murder of the armed courier and the special-circumstance findings of robbery-murder and lying-in-wait.
A. Governing law
To assess a claim of insufficient evidence for a conviction as well as for a special circumstance finding, we “‘review the entire... record in the light most favorable to the judgment to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt” [citation], ‘presum[ing] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence’ [citation].” (People v. Letner & Tobin (2010) 50 Cal.4th 99, 110, 161.) “In our limited role on appeal, ‘[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.] Further, ‘if the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation].” (Id. at pp. 161-162; accord, People v. Dickey (2005) 35 Cal.4th 884, 903 [special circumstance finding].)
The trial court instructed the jury that to support a conviction for special circumstances murder, based on murder committed in the course of designated felonies, including robbery, against a defendant who is not the actual killer, the evidence must show the defendant encouraged, aided or abetted the commission of the murder with the intent to commit, facilitate or encourage the commission of the crime. (See § 31; CALJIC No. 8.80.1; People v. Mendoza (1998) 18 Cal.4th 1114, 1123.)
A first degree murder may be punished by death or life in prison without the possibility of parole if the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15)) or during a robbery (§ 190.2, subd. (a)(17)(A)). As the jury was instructed, for a defendant who was not the actual killer, but instead participated in the murder as an aider and abettor, boththe robbery-murder and lying-in-wait special circumstance require proof that the defendant harbored the intent to kill (§ 190.2, subd. (c); CALJIC No. 8.80.1; People v. Moon (2005) 37 Cal.4th 1, 24, fn. 1 [lying-in-wait special circumstance requires proof of intent to kill while waiting for the victim.].) A robbery-murder special circumstance can alternatively be established where the defendant is shown to have been a “major participant” in the robbery and acted “with reckless indifference to human life.” (§ 190.2, subds. (d); Tison v. Arizona (1987) 481 U.S. 137, 157-158 [107 S.Ct. 1676, 95 L.Ed.2d 127] (Tison); People v. Letner and Tobin, supra, 50 Cal.4th at p. 163, fn. 20; § 190.2, subd. (c).) The phrase, “reckless indifference to human life, ” in section 190.2, subdivision (d) means the defendant “was subjectively aware that his or her participation in the felony involved a grave risk of death.” (People v. Estrada (1995) 11 Cal.4th 568, 577, CALJIC No. 8.80.1.) To be a major participant, the defendant need not assume a direct violent role in the underlying felony as long as his or her role is undertaken with a reasonable probability of violence by an accomplice. (See, e.g., People v. Smith (2005) 135 Cal.App.4th 914.)
The special circumstance of lying in wait also requires the intentional murder be “‘committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage ….’ [Citations.]” (People v. Moon, supra, 37 Cal.4th 1, 22.) However, Chavez does not claim these elements were not supported by substantial evidence.
B. Sufficient evidence supports the contested conviction and special-circumstances findings
Chavez disputes the sufficiency of the evidence that he aided and abetted the murder of the armed courier by driving the getaway car. It is true there was no direct evidence of Chavez’s identity as the driver of the older model Toyota Corolla, in which Ramon Chavez fled after shooting the armed courier. Indeed, no witnesses identified Chavez as being at Jetro on the day of the crime. Nonetheless, as discussed, from the substantial similarities in the evidence of the attempted robbery at Costco and the murder of the armed courier, a rational jury could have reasonably inferred that Chavez was the getaway driver in both crimes. Chavez’s conviction for the murder of the armed courier as an aider and abettor is supported by the record.
Chavez does not raise an alternative claim that the trial evidence fails to support the other elements of aider and abettor liability.
Chavez also contends there was no evidence to support the lying-in-wait and robbery-murder special circumstances findings that he shared his brother’s lethal intent. Nor, according to Chavez, could the jury have reasonably found with respect to the robbery-murder special circumstance allegation that he was a major participant in the shooting or robbery who acted with reckless indifference to human life.
Chavez does not directly contest the remaining two special-circumstances findings, namely suffering multiple murder convictions in the present proceeding and a prior conviction for first degree murder.
“A critical fact of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime. Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and therefore, the more severely it ought to be punished.” (Tison, supra, 481 U.S. at p. 156.) In Enmund v. Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140, 102 S.Ct.3368] (Enmund), and Tison, supra, 481 U.S. 137, [107 S.Ct. 1676, 95 L.Ed.2d 127], the United States Supreme Court considered the mental state required for a felony-murder defendant, particularly an aider and abettor, to be eligible for the death penalty under the Eighth Amendment. The Court concluded there were at least three distinct mental states, two of which reflected the intent to kill, or the personal culpability necessary to permit the imposition of the death penalty. In both Enmund and Tison, the Court focused on the nature and extent of the defendant’s involvement in the felony-murder as probative of mental state. Chavez specifically relies on these decisions.
Enmund, supra, 458 U.S. 782, concerned a defendant whose participation in the underlying felony was minor. He drove his accomplices to the farmhouse of an elderly couple and parked on the side of the road, while his accomplices knocked on the front door of the farmhouse. When the husband opened the door, one accomplice grabbed him, held a gun to him and told the other accomplice to take his wallet. Alerted by the husband’s cries for help, the wife appeared with a gun and shot one accomplice. One or both of the accomplices returned the fire, killing the couple. The accomplices then took the couple’s money and fled to the car, where the defendant was waiting to drive them away. The defendant was convicted of first degree murder and sentenced to death.
The Enmund Court reversed the sentence, observing the defendant was not on the scene of the killings, and his conduct was limited to driving the getaway car. The Court noted the killings were apparently spontaneous, precipitated by the wife’s armed resistance to the robbery. The Court concluded because the defendant neither killed nor intended to kill, his mental state could not be equated with that of his accomplices, who actually killed, attempted to kill or intended to kill. (Enmund, at p. 798.) The Eighth Amendment does not permit the death penalty for a defendant “who aids and abets a felony in the course of which a murder is committed by others, but who does not himself [or herself] kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” (Enmund, supra, 458 U.S. at p. 797.)
Tison addressed a third mental state that falls between the polar opposites of the felony-murder defendants in Enmund, one which the Supreme Court characterized as “an intermediate” level of personal culpability. The defendants in Tison were two brothers convicted of first degree murder, whose involvement in the underlying felony was substantial, but who were found to have harbored no homicidal intent. As in Enmund, the Court examined the nature and extent of each brother’s participation in the crimes as proof of his mental state at the time of the killing. The brothers helped their father and his former cellmate break out of prison, by smuggling in guns. (Tison, supra, at pp. 139-140.) The group brandished their weapons, locked up prison guards and visitors and fled. The tire on their getaway car went flat and one brother flagged down a passing car, while the others in the group hid on the side of the road. (Ibid.) Although the original plan was to steal the car, the father and the cellmate shot and killed the family of four who pulled over to help. (Id. at pp. 140-141.)
The Tison Court determined the brothers’ actions before, during and after the murders revealed that their “participation in the crime was anything but minor;” and also “support[ed] a finding that they both subjectively appreciated that their acts were likely to result in the taking of innocent life.” The Court went on to hold the Eighth Amendment does not prohibit the imposition of the death penalty in the case of the felony-murder defendant “whose participation [in the underlying felony] is major” and whose personal culpability is “one of reckless indifference to the value of human life.” (Id. at p. 152.)
Chavez posits his case is analogous to Enmund because there is no substantial evidence of his intent to kill. He maintains the record merely shows he was involved in the robbery in the limited role of getaway driver and was in the parking lot when the armed courier was killed. Accordingly, Chavez claims, as in Enmund, there was no showing of his personal culpability for the murder. We are not persuaded. While the evidence in the present case is not overwhelming, it is sufficient to support a reasonable inference that both before and during the robbery, Chavez shared his brother’s intent to kill the armed courier. (See People v. Lashley (1991) 1 Cal.App.4th 938, 945-946 [direct evidence of intent to kill is rare.].)
Chavez overlooks facts in this case that distinguish it from Enmund and undermine his claim that his own participation in the crime was attenuated and failed to demonstrate his personal culpability. The targeted victim and his partner were known to be armed. The evidence reveals the brothers carefully planned the robbery. They had prior knowledge of the scheduled pickup times and the route their quarry routinely walked through Jetro, including the point at which he was alone after making the cash pickup. Ramon also knew how to activate the recessed sensor to open the otherwise barred entry door, so he could escape to Chavez’s waiting car. From these facts, the jury could have reasonably inferred Chavez and Ramon plotted the robbery in detail, aware of its inherent danger. To that end, the brothers coordinated their actions so the cash could be taken with the least resistance and the cleanest getaway. (See People v. Smith (2005) 37 Cal.4th 733, 741 [“evidence of motive is often probative of an intent to kill.”].) Central to this plan would reasonably have been eliminating the risk of any gunplay by killing the armed courier. Telling here are the circumstances of the murder itself. While the victims in Enmund were killed spontaneously, when they unexpectedly and violently resisted the robbery, Eleazar Jaramillo was killed before he had the opportunity to resist. The manner in which Jaramillo was killed is the most persuasive evidence of the brothers’ intent to kill him: Jaramillo was summarily dispatched, shot at close range, execution-style.
Although Chavez’s role as the getaway driver meant he was not inside Jetro during the actual robbery, this does not lessen his personal culpability. Chavez’s mental state cannot be compared to that of the defendant in Enmund, whose presence outside robbery scene was consistent with his lack of intent to participate in or to facilitate the murder of the elderly couple. Here, although Chavez’s role during the robbery was limited to driving the getaway car, the fact the robbery was carefully planned, as well as the manner in which it was carried out, reasonably demonstrated that Chavez’s participation actually encompassed every aspect of the crime, including the intended killing of the armed courier. Sufficient evidence supports the lying-in-wait and robbery-murder special-circumstance findings.
IV. Admissibility of photographic lineup identifications in murder of grocery store owner
Chavez contends the trial court erred in admitting evidence of the pretrial identifications in the murder of Olivia De La Torre because the photographic lineup procedure was unduly suggestive and unreliable, and, as such, it impermissibly tainted the subsequent in-court identification.
A. Relevant proceedings
Before trial, Chavez filed a motion to exclude De La Torre’s out-of-court photographic identification and potential in-court identification of Chavez as the gunman. Chavez contended the photographic lineup procedure was so unduly suggestive and conducive to irreparable mistaken identification that admission of the photographic identification would violate his right to due process. Chavez also claimed that any prospective in-court identification would be tainted by the suggestive photographic lineup procedure and thus rendered inadmissible at trial. In support of his motion, Chavez argued his altered booking photograph impermissibly stood out from the others in the six-pack, prompting De La Torre to misidentify him as the gunman.
At the hearing on the motion, the parties agreed to submit on the statement of facts and attachments in the prosecution’s written opposition, and on the relevant preliminary hearing testimony of Detective Peinado. The parties also stipulated the trial court would address only whether the pretrial identification was unduly suggestive, and, if necessary, conduct a later hearing on whether the pretrial identification was reliable.
The statement of facts was taken from Detective Peinado’s police report.
According to the statement of facts in the prosecution’s opposition: On the morning of May 15, 2000, a gunman knocked De La Torre to the ground and demanded his property while holding a gun to his head. De La Torre “got a close view of the face” of the gunman. He later described the gunman as an older Mexican man, in his 50s, short (about De La Torre’s height), with gray hair on the sides, a full gray beard and a thick build. The gunman was wearing a baseball cap, blue jeans and a faded jean jacket with a white furry collar. A second gunman accosted his wife, but De La Torre did not see that gunman’s face.
That night, De La Torre worked with a police sketch artist to make a composite drawing of the bearded gunman. After obtaining family photographs of Chavez wearing a beard, Peinado had another sketch artist airbrush a similarly-styled beard onto Chavez’s booking photograph. Peinado then assembled a six-pack photographic lineup that included Chavez’s altered booking photograph.
On December 26, 2000, Peinado read De La Torre a pre-printed admonition and then showed him the six-pack photographic lineup. In identifying Chavez as the gunman, De La Torre said: “I’ll never forget that face as long as I live, that’s him. He’s the one that took me down at gunpoint.”
At a live lineup on September 22, 2004, in which Chavez was not wearing a beard, De La Torre did not identify any one as the gunman. At the preliminary hearing on May 2, 2006, De La Torre confirmed his earlier description of the gunman and identification of Chavez in the photographic lineup. He also testified the beard and face (around the eyes) of the person whose photograph he had selected were identical to those of the suspect.
Attached to the prosecution’s opposition to the motion were photocopies of the composite drawing, family photographs of Chavez wearing a beard, and the altered booking photograph both alone, and in the number 2 position of the six-pack shown to De La Torre.
Relevant portions of the preliminary hearing transcript revealed that on the night of his wife’s murder, De La Torre described the gunman as wearing a baseball cap, but with gray hair visible on both sides of his head. The gunman also had a mustache and a “full” gray beard, “[n]ot a scraggly one, but a nice, complete one.”
Sandra Enslow, a sheriff’s department sketch artist, altered Chavez’s booking photograph at Peinado’s request. He e-mailed her Chavez’s booking photograph and family photographs of Chavez wearing a beard and asked her to airbrush a similarly styled beard onto the booking photograph. Peinado did not direct Enslow to copy a particular family photograph. Nor did he give her De La Torre’s descriptions of the gunman, or show her the composite sketch that De La Torre helped create seven months earlier. He told Enslow nothing about the case, and was not present when she airbrushed the beard onto the booking photograph. Enslow e-mailed the altered photograph to Peinado and he placed it in the number 2 position of the photographic lineup.
After reviewing and considering the original photographic lineup in which Chavez was depicted in photograph number 2, the written motion, opposition and attachments, and Peinado’s relevant preliminary hearing testimony, the trial court denied the motion, concluding, “I’ve examined the circumstances based upon the preliminary hearing evidence and the offers of proof made in the papers filed by both sides and have considered factors such as the witness’ opportunity to see the perpetrator at the time of the crime, the witness’ prior description of the suspect, the time between the witness’s observation and the identification, the identification procedures used by the police; and particularly, whether the defendant stood out from others or [the police] drew the witness’ attention to particular photographs. [¶] I find, having considered all of those factors, that the defense has not met its burden. And in fact, the process was not impermissibly suggestive, and that there is no likelihood, no substantial likelihood of misidentification.”
B. Governing law
“In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham).) “‘If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 412.).) Defendant bears the burden of proof to establish the existence of an unduly suggestive and unreliable identification procedure. (People v. Avila (2009) 46 Cal.4th 680, 700.)
“A due process violation occurs only if the identification procedure is ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ [Citation.]” (People v. Cook (2007) 40 Cal.4th 1334, 1355.) “[T]here is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered unconstitutional simply where one suspect’s photograph is much more distinguishable from the others in the lineup. [Citations.]” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) “‘Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ [Citation.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 943.) We independently review a trial court’s ruling that a pretrial identification procedure was not unduly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 609, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)
C. The photographic lineup procedure was not unduly suggestive
Chavez contends the photographic lineup procedure was unduly suggestive in two respects: the beard and moustache airbrushed onto Chavez’s booking photograph did not fairly represent his facial hair in the family photographs, but made him look like the suspect in the composite sketch; and the men in the other five photographs of the six-pack did not have hair or facial features similar to the suspect in the composite sketch.
The challenged photographic lineup was not unduly suggestive. There is no evidence the booking photograph was intentionally altered to resemble the composite sketch so that De La Torre would be induced to select it over the other photographs in the six-pack. According to the hearing evidence, Enslow was given only the family photographs to use, and she never saw the composite sketch prior to airbrushing a beard onto Chavez’s booking photograph.
Furthermore, the altered booking photograph is sufficiently similar to the other photographs in the six-pack such that it does not impermissibly stand out. All of the photographs in the six-pack are of Hispanic males of approximately the same age, size and build and with the same skin complexion. Each of them has a full light or dark gray beard and moustache, and light or dark gray hair on the temples or sides of the head. All of the photographs were taken from the shoulder up against a blank, neutral background. While there are some physical variations among the men depicted, none of these differences distinguished Chavez in a way that would suggest a witness should select him. (See Cunningham, supra, 25 Cal.4th at p. 990; see People v. Ybarra (2008) 166 Cal.App.4th 1069, 1082 [“Where photographs in a lineup are of males of the same ethnicity and generally of the same age, complexion and build, and ‘generally resembling each other, ’ and where the accused’s ‘photograph did not stand out, and the identification procedure was sufficiently neutral, ’ the lineup is not impermissibly suggestive. [Citations.]”)
III. Denial of Motion to Sever Charges
Chavez contends the murder of the armed courier, the murder of the grocery store owner and the home-invasion robbery offenses were improperly joined, and that the trial court’s failure to sever them was an abuse of discretion resulting in reversible error.
A. Governing law
“Two or more offenses ‘of the same class, ’ or ‘connected in their commission, ’ may be charged and tried together, but the trial court may server counts in the interest of justice. (§ 954.) When exercising its discretion, the court must balance the potential prejudice of joinder against the state’s strong interest in the efficiency of a joint trial. [Citation.].)” (People v Arias (1996) 13 Cal.4th 92, 126; see People v. Bean (1988) 46 Cal.3d 919, 939-940 [describing the efficiency and benefits of a joint trial.].)
“Joinder is generally proper when the offenses would be cross-admissible in separate trials, since an inference of prejudice is thus dispelled. [Citations.] However, joinder is often permissible even when cross-admissibility is not present. Because of the factors favoring joinder, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial. [Citation.] In determining potential prejudice from the joint trial of non-cross-admissible charges, the court should evaluate whether (1) certain of the charges are unduly inflammatory, (2) a ‘weak’ case will be unfairly bolstered by its joinder with other charges, and (3) any of the charges carries the death penalty. [Citations.].” (Arias, supra, 13 Cal.4th at pp. 126-127; accord, Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) Additionally, the likelihood of prejudice may be remedied by appropriate jury instructions. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 [“less drastic measure than severance such as limiting instructions, often will suffice to cure any risk of prejudice.”].)
“To demonstrate that a denial of severance was reversible error, [a] defendant must “‘clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried.’” [Citations.] We examine a pretrial severance ruling on the record then before the court. [Citation.] Even if the ruling was correct when made, we must reverse if [the] defendant shows that joinder actually resulted in ‘gross unfairness, ’ amounting to a denial of due process. [Citation].” (Arias, supra, at p. 127, accord, Alcala, supra, at p.1220; United States v. Lane (1986) 474 U.S. 438, 449 [106 S.Ct. 725, 88 L.Ed.2d 814] [erroneous joinder “‘affects substantial rights and requires reversal... [if it] results in actual prejudice because it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’”].) For the reasons that follow, we conclude Chavez has sustained his burden, but only with respect to the murder of the armed courier offense (count 1).
In United States v. Lane, supra, 474 U.S. at pp. 461-462, Justice Brennan acknowledged in his dissenting opinion that the harmless error test for erroneous joinder is not the stricter harmless beyond a reasonable test for harmless constitutional errors under Chapman v. California (1967) 386 U.S. 18, 24. Similarly in California, erroneous joinder is prejudicial where it is reasonably probable the error affected the jury’s verdict. (People v. Bean, supra, 46 Cal.3d at p. 940.) In other words, reversal is required if it is reasonably probable the defendant would have obtained a more favorable verdict had the offenses been severed. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
A. Joinder of the murder and time-barred home-invasion robbery offenses
This case presents the unusual situation in which offenses, barred by the applicable statute of limitations, were charged and tried with offenses for which prosecution was timely. Because the home-invasion robbery and other non-murder offenses were time-barred, they, unlike the charged murders, were not subject to prosecution and were thus improperly joined in the first place. In the absence of subject matter jurisdiction over the home-invasion robbery offense, the trial court was without “power to proceed over” it. (See People v. Williams (1999) 21 Cal.4th 335, 340.) Thus, whether the court properly refused to sever that offense for a separate trial is of no consequence; we need not examine the court’s exercise of discretion that it did not possess. Under these circumstances we must carefully evaluate potential prejudice, in terms of the evidence actually introduced at trial – the independent evidence of Chavez’s guilt as to each murder as well as any possible spillover effect from the home-invasion robbery. These factors are whether one of the charges was unduly inflammatory, whether a “weak” case was unfairly bolstered by being joined with a “strong” case, and whether one of the charges is a capital offense.
The parties agree the non-murder charges were subject to the three-year statute of limitations and the non-murder offenses were time-barred.
In light of the fact that the case should not have been tried, we do not reach the issue of cross-admissibility.
1. Joinder of the murder of armed courier and the home-invasion robbery
From the evidence adduced at trial, the murder of the armed courier and the home-invasion robbery were both horrific crimes. The execution-style murder of Eleazar Jaramillo appeared to have been more inflammatory than the home-invasion robbery, even though the jury heard that Chavez pointed a gun and threatened to kill Virginia Tudela, with her four-year-old daughter beside her.
In terms of their relative “strength, ” the murder of the armed courier was the significantly weaker charge, as it was entirely circumstantial, particularly with respect to identity, which was the primary issue at trial. Chavez’s identity as the getaway driver, was supported inferentially largely from the evidence of his role in the attempted robbery at Costco, which was admitted under Evidence Code section 1101, subdivision (b). There were no eye-witness identifications or descriptions of Chavez as driving the getaway car in the murder of Jaramillo. By contrast, the evidence of Chavez’s identity in the home-invasion robbery was simple and strong: Direct evidence at trial in the form of Tudela’s in-court and out-of-court identifications of Chavez as the gunman who threatened to kill her was generally consistent and uncontroverted.
Virginia Tudela looked at a photographic lineup prepared by police, which included Chavez’s photograph. She was unable to identify anyone as either of the men who came to her home. Later, in looking at individual photographs provided by police, Tudela identified Chavez as the gunman. She also identified Chavez as the gunman in a live lineup, at the preliminary hearing and at trial.
Under these circumstances, there was an increased likelihood of prejudicial spillover. The jury may have relied on Tudela’s identification of Chavez as the gunman to resolve the weak identification evidence in the murder of Jaramillo, and to punish Chavez for his criminal propensity, following the removal of the home-invasion robbery charge for the jury’s consideration so close to the end of trial. As the court in People v. Bean, supra, 46 Cal.3d 919, 935 explained, “[a] jury not otherwise convinced beyond a reasonable doubt of the defendant’s guilt of one or more of the charged offenses might permit the knowledge of the defendant’s other criminal activity to tip the balance and convict him.” (Id. at p. 936.) Although the home-invasion robbery was not a death-penalty offense, we cannot conclude that its spillover effect did not influence the verdict in the murder charge which did carry the death penalty.
We note the trial court gave a limiting instruction to the jury that was designed to prevent such a spillover effect, and neither counsel mentioned the home-invasion robbery during closing argument. Nonetheless, under the extraordinary circumstances of this case, we agree with Chavez, that “[i]t is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to limit its consideration of highly prejudicial evidence to its limited relevant purpose can have any realistic effect....” (People v. Gibson (1976) 56 Cal.App.3d 119, 130.) Given the disparity in the strength of the charges and the reasonable probability of impermissible inferences of criminal disposition, we conclude Chavez suffered substantial prejudice or gross unfairness as a result of the impermissible joinder of the two offenses, amounting to a denial of due process.
2. Joinder of the murder of grocery store owner and the home-invasion robbery
Here too, the murder of the grocery store owner would have appeared more inflammatory to the jury than the home-invasion robbery, not only because it involved a killing, but also because the victim’s husband witnessed the shooting and was powerless to help her. Unlike the evidence in the murder of the armed courier, the evidence in the murder of the grocery store owner was extremely strong on the issue of identity. There were consistent, detailed and accurate pretrial descriptions and identifications of Chavez by Jacinto De La Torre. In particular, the composite sketch De La Torre helped prepare bore a striking resemblance to Chavez. We do not find that as a result of the joinder there was an impermissible risk that Virginia Tudela’s testimony improperly bolstered De La Torre’s identification of Chavez as one of the gunman involved in his wife’s murder. The record shows that the identification evidence on the murder of the grocery store owner was so strong that it would not have been improperly influenced by the identification evidence in the home-invasion robbery. In the absence of any reasonable spillover effect, Chavez has failed to demonstrate prejudice resulting in “gross unfairness” or reversible error.
B. Joinder of murders of armed courier and grocery store owner
As for the charged murders, unlike the home-invasion robbery offense, the trial court had the discretion to deny Chavez’s severance motion. However, there were significant disparities between the prosecution’s evidence at the preliminary hearing, upon which the trial court relied in refusing to sever, and the evidence at trial. The preliminary hearing evidence was far more substantial as to cross-admissibility, showing that Chavez and his brother had planned and participated together in both armed robberies. However, the trial evidence showed Ramon to have been in custody during the grocery store murder and no witnesses identified Chavez as the driver of the getaway car in the murder of the armed courier. For this reason, we consider only the prejudicial impact, if any, of trying these non-cross-admissible offenses together, and not the court’s ruling on Chavez’s pretrial severance motion.
In light of our reversal of Chavez’s conviction for the murder of the armed courier, we address only whether the evidence of that crime resulted in any impermissible spillover effect that would lead to a reversal of the conviction for the murder of the grocery store owner. While trial evidence indicates the two murders are equally inflammatory, the murder of Olivia De La Torre, for the reasons set out above, is the stronger of the two offenses. There is nothing to suggest the joint trial of the two murders was inherently unfair even if the jury cumulated the evidence on both charges as well as on the home-invasion robbery. Based on the evidence produced, the joinder did not result in a gross unfairness resulting in a denial of due process.
In light of our decision to reverse Chavez’s conviction on count 1, the murder of the armed courier, we need not reach his remaining contentions (1) the trial court improperly denied his motion for new trial based on Chavez’s claim his defense counsel rendered ineffective assistance in failing to object to the introduction of evidence at trial relating to the time-barred home-invasion robbery offense; and (2) the section 12022, subdivision (a)(1) sentencing enhancement on count 1 must be stricken pursuant to People v. Mancebo (2002) 27 Cal.4th 735, because it was not alleged in the information.
DISPOSITION
The judgment is reversed as to count 1 and the matter remanded to the trial court for further proceedings. In all other respects, the judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.