Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS185128, Esteban Hernandez, Judge.
IRION, J.
A jury convicted Joey Manuel Estrada of residential burglary (Pen. Code, §§ 459, 460), three counts of assault with a firearm (§ 245, subds. (b)) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). After admitting two prior strike convictions, Estrada was sentenced to 50 years to life (plus 17 years) in state prison.
All statutory references are to the Penal Code unless otherwise indicated.
FACTS
Estrada's convictions arose from two separate incidents. Counts 3 through 7 (the assault with a firearm and possession of a firearm convictions) arose from an incident on November 4, 2002. Count 1 (residential burglary) arose from an incident on May 29, 2004. Each incident is recounted separately below.
On the night of November 4, 2002, Juan Silva, Carols Anzar and Estrada were with Chrispina Sanchez in her home. Estrada began to argue with Sanchez about a stolen van that belonged to Sanchez's cousin. Estrada appeared to be getting "a little out of control," and Silva told Estrada to calm down. Estrada responded that Silva should "shut the fuck up." Estrada then pulled out a semiautomatic handgun and pointed it at Sanchez, Silva and Anzar. Estrada approached Silva, and hit him in the head repeatedly with the butt of the gun. Silva suffered a gash on his head that required medical attention.
In the early morning hours of May 29, 2004, Maria Oceguera heard a noise coming from the garage of her home. She opened the garage door and found Estrada standing inside. Maria called to her husband, Javier Oceguera, Sr. for assistance. Maria testified that Estrada grabbed her arm to prevent her from doing so. Javier appeared and, after a short conversation, asked Estrada to leave; Estrada complied. After Estrada left, Javier realized that a videocassette recorder was missing from the garage and a car in the garage had been damaged. In addition, the lock to the garage door had been pried open and damaged.
For convenience herein, Maria and Javier will be referred to by their first names; we intend no disrespect.
DISCUSSION
Estrada raises a number of challenges to his convictions. We address each of these separately below.
I
The Trial Court's Finding that There Was No Prima Facie Case of Racial Discrimination During Jury Selection Is Supported by Substantial Evidence
Estrada contends that the trial court erred in overruling his objection to the prosecutor's reliance on peremptory challenges to exclude certain Hispanic-surnamed jurors during jury selection. We evaluate this contention after setting forth the applicable legal principles and relevant procedural history.
A. Applicable Legal Principles
Under California law, both the prosecution and defense are entitled to 20 peremptory challenges of prospective jurors in the trial of an offense that is punishable by death or life imprisonment, and 10 peremptory challenges in all other felony trials. (Code Civ. Proc., § 231.) While peremptory challenges are intended to allow parties to reject a certain number of jurors for any reason at all, both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race or ethnicity. (See People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 97 (Batson); People v. Bonilla (2007) 41 Cal.4th 313, 341-342 (Bonilla).)
Either the prosecution or the defense may raise a so-called Wheeler (or, under federal law, Batson) challenge to the other side's use of a peremptory challenge. In such circumstances, "[t]here is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination." (Bonilla, supra, 41 Cal.4th at p. 341.)
A Wheeler/Batson motion initiates a three-step process. First, the party raising the motion must "make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' " (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) Second, once a prima facie case has been found, "the 'burden shifts to the [striking party] to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes." (Ibid.) Third, " '[i]f a race-neutral justification is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination.' " (Ibid.)
An appellate court ordinarily reviews a trial court's rulings on a Wheeler/Batson motion "deferentially, considering only whether substantial evidence supports its conclusions." (Bonilla, supra, 41 Cal.4th at p. 341.)
B. Procedural History
During jury selection, Estrada's counsel raised a Wheeler/Batson challenge to the prosecutor's use of peremptory strikes. At the time of the challenge, the prosecutor had exercised five peremptory strikes, seeking the removal from the jury panel of Prospective Jurors Ayran, Barela, Oliverbarriga, Gonzalez, and Sanmiguel. Estrada's counsel argued that based on the strikes, it "looks like [the prosecutor] is excluding almost all racial category of Hispanics." The prosecutor disputed defense counsel's characterization of the races of the excluded jurors.
A wide-ranging discussion of the various ethnicities of the excluded jurors ensued. Judge Hernandez stated that Prospective Jurors Barela and Gonzalez appeared to be Hispanic; Prospective Juror Ayran had identified herself as Filipino; Prospective Juror Oliverbarriga was "possibly Hispanic"; and Prospective Juror Sanmiguel appeared to be "possibly Asian." (Sanmiguel later informed the court that she was not Hispanic, but from Guam.) The judge also noted that two of the jurors who had not been stricken (and were later empanelled) appeared to be Hispanic, that the defense had excluded a Hispanic juror, and that other Hispanic jurors were still in the jury pool and could potentially be seated on the jury.
In light of then-recent changes in the law regarding Wheeler/Batson challenges, the trial court also summarized the state of the law; specifically, the court noted the federal Supreme Court's 2005 decision in Johnson, supra, 545 U.S. 162, which the trial court (accurately) summarized as holding that "a defendant satisfies Batson's first step requirement by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Given the Johnson standard, the trial court stated it could "not make a prima facie finding that . . . there is an inference of discrimination." Nevertheless, the court "invite[d]" the prosecutor to state the reasons for the challenges in order to "protect the record for appeal purposes."
The prosecutor provided his reasons for striking the five jurors. He stated that he had stricken Prospective Juror Barela because he was young and familiar with gangs; Prospective Juror Ayran because she worked at a state prison and had indicated reservations about voting to convict someone who could potentially become an inmate at the prison; Prospective Juror Oliverbarriga because she had strong ties to Mexico and could potentially be intimidated by Estrada's claimed connection to the "Mexican Mafia"; Prospective Juror Gonzalez because she lived in Logan Heights which was the area of the crime and related gang activity; and Prospective Juror Sanmiguel because her demeanor during voir dire indicated that she did not have the self confidence to be a "strong" juror. Despite further argument from Estrada's counsel, the trial court did not alter its ruling that there had been no prima facie showing of discrimination and rejected the Wheeler/Batson challenge.
The voir dire reflects that during questioning Sanmiguel indicated that she didn't "know anything" about guns, but later, after prompting, stated that she knew the difference between a revolver and a semiautomatic handgun.
C. Discussion
On appeal Estrada contends that reversal is required because the "trial court erred" in rejecting his Wheeler/Batson challenge. We disagree.
An appellate court considering a challenge to a trial court's ruling on a Wheeler/Batson motion has a limited role, particularly when the motion is denied, as here, at the initial step of the process. We do not attempt to reconstruct the voir dire proceedings and determine whether we would have made the same ruling as the trial court, but instead "review the record on appeal to determine whether there is substantial evidence to support the [trial court's] ruling." (People v. Griffin (2004) 33 Cal.4th 536, 555 "When a trial court denies a Wheeler motion with a finding that the defendant failed to establish a prima facie case of purposeful discrimination, we review the record on appeal to determine whether there is substantial evidence to support the ruling"; People v. Jenkins (2000) 22 Cal.4th 900, 993 "The trial court's determination that no prima facie showing of group bias has been made is subject to review to determine whether it is supported by substantial evidence"; People v. Alvarez (1996) 14 Cal.4th 155, 197 explaining that the determination of "whether the defendant bore his burden of a prima facie showing of the presence of purposeful discrimination and, if he succeeded, whether the prosecutor bore his consequent burden of a showing of its absence, are themselves examined for substantial evidence" because "they are each reducible to an answer to a purely factual question"].) If the trial court's ruling "that no prima facie case was made" is supported by substantial evidence, our inquiry ends, and "we need not review the adequacy of the prosecution's justifications, if any, for the peremptory challenges." (People v. Farnam (2002) 28 Cal.4th 107, 135 (Farnam).) In performing our review, we "accord particular deference to the trial court as fact finder, because of its opportunity to observe the participants at first hand." (Jenkins, supra, 22 Cal.4th at pp. 993-994.)
The Attorney General identifies the substantial evidence standard of review as the applicable standard. Estrada does not address the applicable standard of review. We note that after the United States Supreme Court in Johnson, supra, 545 U.S. 162, ruled that California courts were applying an incorrect legal standard (a "strong likelihood" or "more likely than not" that the strikes were motivated by impermissible discrimination) at the first step of the Wheeler/Batson inquiry, the appellate courts applied independent review in those cases where the trial court had applied or arguably applied the incorrect legal standard. (See Bonilla, supra, 41 Cal.4th at pp. 341, 342 [recognizing that appellate courts "[o]rdinarily. . . review the trial court's denial of a Wheeler/Batson motion deferentially, considering only whether substantial evidence supports its conclusions," but applying de novo review in special circumstance where the trial court applied the incorrect legal standard]; People v. Howard (2008) 42 Cal.4th 1000, 1017 (Howard) ["Where, as here, it is not clear whether the trial court used the reasonable inference standard, rather than the recently disapproved ' "strong likelihood" standard,' we review the record independently"].) Here, the trial court placed on the record the fact that it was applying the correct legal standard (the appearance of facts giving rise to an inference of discriminatory purpose), and consequently "[o]rdinar[y]" substantial evidence review is appropriate. (Bonilla, at p. 341.)
Estrada's contention that once the prosecutor gave reasons for the challenges, the trial court was required sua sponte to "probe" those reasons, is incorrect. Our Supreme Court has repeatedly emphasized that a trial court's explicit finding that there is no prima facie case is controlling even where the prosecution also states race-neutral reasons for the peremptory challenges on the record. (See Farnam, supra, 28 Cal.4th at p. 136 [rejecting argument that "the trial court's 'invitation' to the prosecution to provide justifications for its peremptory challenges 'could be deemed' an implicit finding of a prima facie case of racial bias" where trial court's refusal to find a prima facie case was clear from record]; Howard, supra, 42 Cal.4th at p. 1018.) The case law cited by Estrada for the contrary proposition is inapposite. (See People v. Silva (2001) 25 Cal.4th 345, 384 [holding that trial court failed to adequately probe prosecutor's race-neutral explanations on step two of Wheeler/Batson inquiry where the court had found prima facie case of discrimination]; McClain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1220 [same].)
Applying the above standard of review, we conclude that substantial evidence supports the trial court's finding that no prima facie case of discrimination was established, and consequently we reject Estrada's challenge.
The record contains a number of factors that support the trial court's finding. First, the defense showing at the time of its Wheeler/Batson motion was, at most, that the prosecutor had utilized four out of five strikes on Hispanic-surnamed jurors. Our Supreme Court has stated — albeit in a pre-Johnson case — that such a showing is not itself sufficient to establish a prima facie case. (See Farnam, supra, 28 Cal.4th at p. 136 ["Notably, defendant's only stated bases for establishing a prima facie case were that (1) four of the first five peremptory challenges exercised by the prosecution were for Black prospective jurors, and (2) a very small minority of jurors on the panel were Black. . . . [E]ven assuming both assertions were factually accurate, they fall short of a prima facie showing" (fn. omitted)].)
Second, the trial court found that the prosecutor had not attempted to remove other Hispanic jurors from the jury, and those jurors were later empanelled. Our Supreme Court has explained that this factor, while "not conclusive," is "an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection." (People v. Turner (1994) 8 Cal.4th 137, 168; People v. Adanandus (2007) 157 Cal.App.4th 496, 510-511 [fact that juror of the race that was purportedly targeted by prosecutor was not stricken "counter[ed] the idea that the prosecutor's strikes were racially motivated"].)
Third, the trial court's finding is further supported by the fact that there were obvious permissible strategic factors that could have motivated the prosecutor to utilize peremptory strikes on the first three jurors. Prospective Juror Ayran worked at Donovan state prison and expressed concern that she "would not be comfortable if" the defendant were convicted and then housed "where I work." Prospective Juror Barela acknowledged that he had a criminal conviction. Prospective Juror Oliverbarriga stated that she had three children, all of whom worked in Mexico, that her husband was attempting to obtain a green card in America and that she had been the victim of a home invasion at gunpoint in Mexico. (The prosecutor stated that these factors led him to fear that the juror might be intimidated by Estrada's claim to be an enforcer for the Mexican Mafia.) These readily-apparent non-race/ethnicity-based strategic reasons arising from the voir dire of the first three jurors stricken by the prosecutor, support the trial court's finding that the circumstances of those strikes did not support an inference of discriminatory intent. Further, Prospective Jurors Ayran and Sanmiguel were not Hispanic. Thus, the strikes of these two jurors offered little support for an inference that the prosecution was discriminating based on Hispanic ethnicity. (Cf. People v. Barber (1988) 200 Cal.App.3d 378, 394 [where prosecutor stated that she did not believe that a stricken juror was Hispanic, that explanation, if accepted by the trial court, "effectively resolves the issue in favor of the prosecution"].)
The prosecutor's explanation appears to be based on an assumption that the Mexican Mafia has (or would be perceived by the jurors to have) a greater ability to conduct criminal activities against persons inside of Mexico than in the United States. This assumption was not challenged in the trial court, and there is no record evidence regarding its accuracy in the trial or appellate record.
We are puzzled, however, by the strike of Prospective Juror Gonzalez as there is no facially apparent reason for the strike in the record of the voir dire. In response to the trial court's invitation to state his reasons, the prosecutor stated he struck Gonzalez because she lived in Logan Heights, an area that would play a significant part in the evidence presented at trial and in which there was high gang activity. In fact, however, as both parties concede, there is no record evidence associating Gonzalez with Logan Heights. Consequently, the prosecutor was either mistaken about Gonzalez or had information regarding her residence that is not included in the appellate record.
This rationale is supported by the fact that neither defense counsel nor the trial court challenged the prosecutor's statement that Gonzalez was from Logan Heights. In fact, defense counsel appeared to be operating under the same assumption, asking the prosecutor whether, under his reasoning, "anybody from Logan [Heights]" (such as Prospective Juror Gonzalez) would be excluded from jury service.
As we are confronted solely with a paper record of the voir dire proceedings, we are ill suited to determine whether the prosecutor's reason for striking Gonzalez was genuine (if mistaken), but must generally " 'rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.' " (People v. Williams (1997) 16 Cal.4th 153, 189 [recognizing that "a genuine 'mistake' is a race-neutral reason" and emphasizing that the appellate courts must " 'rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination' "]; People v. Avila (2006) 38 Cal.4th 491, 541 ["It is presumed that the prosecutor uses peremptory challenges in a constitutional manner, and we give deference to the court's ability to distinguish 'bona fide reasons from sham excuses' "].) Further, the evaluation of the prosecutor's reasons for strikes is not the applicable inquiry where, as here, the trial court found no prima facie case of discrimination. (Farnam, supra, 28 Cal.4th at p. 138 ["In light of our conclusion that the trial court properly found no prima facie case of racial bias, we need not review the prosecutor's justifications for her peremptory challenges or the trial court's weighing of those justifications"].) Rather, we are concerned solely with whether substantial evidence supports the trial court's finding as to no prima facie case. (Ibid.) With respect to this question, the prosecutor's apparently erroneous statement as to Gonzalez's residence does not alter the fact that the totality of the circumstances amply supports the trial court's ruling. Given "the totality of the relevant facts," the trial court's finding of no prima facie case is supported by substantial evidence and must be affirmed. (Howard, supra, 42 Cal.4th at p. 1018 [trial court's ruling of no prima facie case must be affirmed if "the totality of the relevant facts does not give rise to an inference of discriminatory purpose"].)
To the extent Estrada is contending in his appellate brief that we should engage in some type of comparative analysis of the juror qualifications, "[w]e decline [this] invitation . . . ." (Howard, supra, 42 Cal.4th at p. 1019.) As our Supreme Court recently held, " '[w]hatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor's proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution's actual proffered rationales, and we thus decline to engage in a comparative analysis here.' " (Id. at p. 1020; People v. Johnson (2003) 30 Cal.4th 1302, 1318 ["We have observed that engaging in comparative juror analysis for the first time on appeal is unreliable and inconsistent with the deference reviewing courts necessarily give to trial courts, but we have never prohibited trial courts from doing so or the party objecting to the challenges from relying on such analysis in seeking to make a prima facie case"].)
II
The Trial Court's Findings Regarding Estrada's Speedy Trial Claim Are Supported by Substantial Evidence
Estrada contends that the "unreasonable and unjustified delay in bringing [him] to trial on the 2002 charges" for the firearm assaults "violated his speedy trial and due process rights." We evaluate this contention after setting forth the relevant procedural history.
A. Procedural History
Estrada was arrested on the 2002 charges on November 16, 2002. The prosecution dismissed the charges on February 10, 2003. After the charges were dismissed, Estrada, who was on parole at the time for a prior offense, had his parole revoked, and was returned to custody for 12 months.
The 2002 charges were refiled on July 26, 2004, approximately two months after Estrada was arrested for the Oceguera burglary. Trial was held on both sets of charges (2002 and 2004) on April 6, 2005; after a hung jury, a second trial, which resulted in the instant convictions, commenced on August 24, 2005.
After the trial concluded, Estrada brought a motion to dismiss the case based on alleged violations of his speedy trial rights. The defense called one witness, Estrada, to testify at the hearing. Estrada testified that the day before he was arrested, on November 15, 2002, Silva confronted him, and pulled a gun on him and pistol-whipped him. Estrada stated he was with his cousin Mark Perez at the time; Perez died on May 21, 2003, prior to trial. Estrada also testified that a woman named Erica Pacheko told him that four men came to her house looking for Estrada and showed her a gun. Pacheko did not know their identities, but Chrispina Sanchez later told Estrada who they were.
Presumably Estrada was informed that one of the persons was Silva, although Estrada failed to make this clear in his testimony, and his statement that "the only one that ever knew about the house was Juan Silva" was stricken as speculation.
The prosecution cross-examined Estrada, establishing that Estrada had testified regarding the Silva incident at his first trial, and had testified regarding Erica Pacheko's statements, but identified her in his testimony as "Michelle." Estrada explained that in first trial, he "made a mistake in the name." The prosecutor also called two attorneys who had represented Estrada. (The trial court ruled that Estrada had waived attorney-client privilege by "essentially" alleging ineffective assistance of his counsel; that ruling is not challenged on appeal.) One of the attorneys testified that she did not recall Estrada telling her anything about the Silva and Pacheko incidents. She stated, however, that she "sent the investigator out . . . looking for a lot of people at the request of Mr. Estrada." A second attorney stated that his investigator located the woman — presumably Erica Pacheko — but did not recall having her available as a witness.
After the presentation of evidence, Estrada's counsel argued that Estrada had been prejudiced by the delay in prosecution, which was a tactical decision made in bad faith. Counsel contended that the prejudice was "primarily" a result of the fact that Estrada's parole was revoked as a result of the incident. The parole revocation, according to counsel, "definitely is prejudice." Counsel also argued that the delay in bringing the case to trial caused Pacheko's memory to "fade[]" and "she's not able to remember what she told Mr. Estrada on that particular occasion." Counsel added that the 911 tape — which had been destroyed due to the passage of time — might have been useful at trial, even though there was not anything favorable to the defense that was "readily apparent" from the Computer Aided Dispatch (CAD) transcript of the call. The trial court denied the motion.
B. Discussion
Estrada contends that his convictions must be reversed based on the delay in bringing him to trial on the 2002 charges, which he alleges prejudiced his ability to defend himself, violating his rights to a speedy trial and due process. We disagree.
Because the delay about which Estrada complains occurred after the prosecution had dismissed the 2002 case, and prior to his being formally charged or arrested for purposes of the subsequent trial, Estrada's challenge "must be scrutinized under the Due Process Clause, not the Speedy Trial Clause." (United States v. MacDonald (1982) 456 U.S. 1, 7 ["the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause"]; People v. Butler (1995) 36 Cal.App.4th 455, 466 [recognizing that "California also recognizes the distinction between pre- and post-accusation delay" and noting that the state constitutional provision, which "attaches when the criminal complaint is filed," is "based on principles of due process and the right to a fair trial"].) Speedy trial issues arise when a defendant is formally charged, but not brought to trial in a timely manner. In a circumstance where a delay accrues prior to the filing of a complaint "the speedy trial doctrine does not apply. The right to due process is involved during that period." (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 910 (Dunn-Gonzalez.) Nevertheless, "the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against the justification for that delay." (Ibid.; see also People v. Catlin (2001) 26 Cal.4th 81, 107 [same].)
Both justification for a delay and resulting prejudice are factual questions and, consequently, the trial court's findings on those questions will be upheld on appeal so long as they are supported by substantial evidence. (People v. Mitchell (1972) 8 Cal.3d 164, 167 [question of whether delay required dismissal of charges was "a factual one and there being substantial evidence to support the finding of the trier of fact, the ruling of the trial court must be upheld"]; People v. Hill (1984) 37 Cal.3d 491, 499 (Hill) [same].) Consequently, as our Supreme Court has observed, whether a delay in bringing charges to trial warrants dismissal, particularly where, as here, the question is tightly wound up in factual disputes, must generally be "won or lost at the trial level." (Hill, at p. 499.)
In the instant case, the trial court rejected the very arguments Estrada now advances on appeal, finding that the prosecution acted in good faith in dismissing the initial charges, and that Estrada was not significantly prejudiced by the delay. The court stated, "the People dismissed the initial case in good faith" based on the "evidence that the [witnesses] involved here were Mr. Estrada's friends" and "were reluctant to appear." The trial court also found that Estrada "has not shown prejudice" because he "admitted a parole violation irrespective of the underlying charges in this case" and so had "not shown that he served additional time for a parole violation based simply upon this case"; the evidence Estrada claimed had been lost during the delay in bringing his case to trial, the court found, was "not relevant to the defendant's guilt"; and its absence at trial "does not appear to have harmed defendant's case in any way." The trial judge, who had presided over two trials of the case, and the evidentiary hearing addressing this very issue was well positioned to make these determinations.
As the trial court's findings — that the prosecution's actions in delaying the prosecution were justified, and that Estrada was not significantly prejudiced by the delay — are supported by substantial evidence, and are dispositive, we are required to affirm the trial court's ruling that dismissal was not warranted. (See Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 911-912 ["Whether prearrest delay is unreasonable and prejudicial to the defendant is a question of fact. . . . [Citation.] The trial court's ruling must be upheld on appeal if it is supported by substantial evidence"]; Hill, supra, 37 Cal.3d at p. 499 [holding that in speedy trial context, "[p]rejudice is a factual question to be determined by the trial court" and thus, "the factual conflict was to be won or lost at the trial level"]; Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1542 ["Because the issue of prejudice is a factual determination [citations], we review the trial court's conclusion for substantial evidence"].) Estrada's contrary contentions on appeal, which constitute an effort to simply relitigate the factual disputes that have been resolved adversely to him in the trial court, without reference to the applicable standard of review, are unpersuasive. (Hill, at p. 499 ["Substantial evidence supports the court's findings, and under standard appellate practice we will not reweigh it"].)
III
The Trial Court Did Not Err in Permitting Joinder of Estrada's Offenses in a Single Trial
Estrada contends that reversal is required because the trial court erred in denying his motions seeking severance of the 2002 from the 2004 charges.
The statute that controls a trial court determination as to whether charges are properly joined provides in relevant part: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . . ." (§ 954.) The statute also states that even if offenses may properly be joined, the trial court may still, "in the interests of justice and for good cause shown," order that "the different offenses or counts set forth in the accusatory pleading be tried separately." (Ibid.) "Offenses are of the 'same class' if they possess 'common characteristics or attributes.' " (People v. Poon (1981) 125 Cal.App.3d 55, 68 (Poon).)
The propriety of a ruling on a motion to sever counts is " 'judged by the information available to the court at the time the motion is heard.' " (People v. Ochoa (1998) 19 Cal.4th 353, 409.) "Whether offenses properly are joined pursuant to section 954 is a question of law and is subject to independent review on appeal; the decision whether separate proceedings are required in the interests of justice is reviewed for an abuse of discretion." (People v. Cunningham (2001) 25 Cal.4th 926, 984.) In exercising this review we are conscious that consolidation of charges "ordinarily promotes efficiency" and consequently, "the law prefers it." (Ochoa, at p. 409.)
Estrada argues that the trial court erred as a matter of law in the instant case because the 2002 and 2004 charges were not of the same "class." We disagree.
As the trial court stated in ruling on Estrada's motion for severance, the 2002 and 2004 charges included offenses of the same class — "assaultive crimes against a person." The 2002 charges included a charge that Estrada committed the offense of felony false imprisonment when he grabbed Maria's arm, allegedly attempting to prevent her from leaving or summoning assistance. The 2004 charges, likewise, included allegations of numerous assaults. Thus, as both sets of offenses included crimes that can be fairly categorized as "assaults against the person," section 954 permitted joinder because the offenses were of the same "class." (§ 954; see People v. Meneley (1972) 29 Cal.App.3d 41, 51 [permitting joinder of murder and kidnapping as offenses of the same class because "[m]urder is a form of assault and an offense against the person, as is kidnapping"]; People v. Geier (2007) 41 Cal.4th 555, 573 [" ' "Murder and rape are assaultive crimes against the person and, as such, are 'offenses of the same class of crimes' within the meaning of section 954 and were properly joinable" ' "]; People v. Leney (1989) 213 Cal.App.3d 265, 269 ["Crimes are of the same class when they all involve assaultive crimes against the person"]; People v. Poggi (1988) 45 Cal.3d 306, 320 [same].)
Estrada contends that false imprisonment is not an "assaultive crime against the person" because the offense theoretically can be accomplished without the use of physical force. Placing aside that the prosecution's charges in the instant case did, in fact, include an allegation of the use of physical force, we are still not convinced by this argument. The California courts, including our Supreme Court, have long accepted that crimes such as robbery and kidnapping share "sufficient common characteristics as an assaultive crime against the person to be jointly chargeable therewith." (People v. Rhoden (1972) 6 Cal.3d 519, 525 (Rhoden).) If such crimes as robbery and kidnapping may be joined with the crime of assault for trial, we see no reason why a charge of false imprisonment — which is closely akin to the crime of kidnapping — would not be similarly joinable. (See Poon, supra, 125 Cal.App.3d at p. 69 [holding that "[a]ll charges" at issue, including a charge of false imprisonment and assault, "involve[d] 'assaultive crimes against the person,' and consequently are considered 'of the same class' under section 954"].)
Estrada does not appear to be arguing that even if the offenses were of the same "class," the trial court abused its discretion by failing to conclude severance was required "in the interests of justice." (§ 954.) To the extent, however, that Estrada is making such a contention, we reject it. The prejudice, if any, that resulted from the joinder of the two cases is not such as would support a claim on appeal that the trial court abused its discretion. (Rhoden, supra, 6 Cal.3d at p. 525, fn. 2 [" 'The statutory policy favoring joint trials has been so consistently applied that cases holding it an abuse of discretion to deny a severance are virtually nonexistent,' and when the test of joinder is met 'the difficulty of showing prejudice from denial of severance is so great that the courts almost invariably reject the claim of abuse of discretion,' " quoting Witkin's Cal. Criminal Procedure].)
IV
The Trial Court's Evidentiary Rulings Do Not Warrant Reversal
Estrada contends that the trial court abused its discretion in allowing various evidence regarding events that, according to the prosecution, shed light on Estrada's guilt of the charged offenses. Specifically, Estrada argues the trial court abused its discretion by permitting evidence of: (i) an assault by Estrada on Javier; (ii) the circumstances of Estrada's arrest in May 2004; and (iii) Estrada's housing in administrative segregation with a Mexican Mafia "associate," Miguel Thomson. We evaluate these contentions after setting forth the pertinent legal principles.
A. Legal Principles
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Relevant evidence is evidence that has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) In addition, even where evidence is relevant, the trial court "may exclude [that] evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing issues, or of misleading the jury." (Evid. Code, § 352.)
Under Evidence Code section 1101, "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." (Id., subd. (a).) The same section also emphasizes, however, that evidence that a defendant has committed uncharged crimes is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." (Id., subd. (b); see People v. Gray (2005) 37 Cal.4th 168, 202 (Gray).)
In determining the relevance of evidence, or its admissibility under Evidence Code sections 352 and 1101, the trial court is vested with broad discretion, and its rulings will be reversed on appeal only where an abuse of that discretion is demonstrated. (Gray, supra, 37 Cal.4th at p. 202; People v. Harris (2005) 37 Cal.4th 310, 337; People v. Jordon (1986) 42 Cal.3d 308, 316.)
B. The Assault on Javier
During trial, Javier testified that a few years before the burglary in his garage, he encountered Estrada late at night in the same garage. During the confrontation, Estrada took a jacket from the garage, at which point, Javier asked him to leave. Estrada then attacked Javier, hitting and choking him and, ultimately pulling out a gun and pointing it at him. Estrada told Javier that he felt disrespected, that Estrada was a "street killer" and a hit man for the Mexican Mafia, and cautioned Javier not to call the police.
The defense objected to this testimony on the ground that it was irrelevant, and the trial court overruled the objection.
The trial court's ruling on the relevance objection was not an abuse of discretion. The evidence of the assault was relevant to various issues at trial. (See Evid. Code, § 210 [relevant evidence is evidence that has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action"].) The evidence rebutted the suggestion that Estrada entered the Ocegueras' garage in 2004 with innocent intent, suggested that Estrada possessed a semiautomatic firearm like the one utilized in the 2002 assault, and served to explain Javier's fear of Estrada and apparent reluctance to report the 2002 incident to police. Given the relevance of the evidence on these points it was not rendered inadmissible by Evidence Code section 1101. (Id., subd. (b) [evidence that a defendant has committed uncharged crimes is admissible "when relevant to prove some fact . . . other than his or her disposition to commit such an act"].)
Javier testified that he was "scared" of Estrada "because of what he told me when he went to my house and beat me up and he was going to kill everybody," and stated that this influenced his behavior during the 2002 incident, his decision to call police, and his testimony at the preliminary hearing. While Javier emphasized that he "did not want to call the police because I was scared," defense counsel, on cross-examination, suggested that Javier's reluctance to call the police stemmed from the fact that he was a drug dealer.
We also are unable to conclude that the trial court abused its discretion in determining that the evidence was not so prejudicial that exclusion was mandated under Evidence Code section 352. " 'The prejudice which . . . 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.' " (People v. Zapien (1993) 4 Cal.4th 929, 958.) Undue prejudice comes from evidence " ' "that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues." ' " (People v. Carter (2005) 36 Cal.4th 1114, 1168.) Here, the evidence had significant probative value, and the trial court acted within its discretion in concluding that this probative value was not "substantially outweighed" by the danger of undue prejudice. (Evid. Code, § 352.)
C. Estrada's May 2004 Arrest
As part of its case-in-chief, the prosecutor introduced into evidence portions of a transcript of Estrada's testimony in his own defense at his first trial. In the transcript, Estrada explained that on the night of the Oceguera burglary he had gone to the Oceguera residence to obtain drugs. As he arrived, he saw an associate, Miguel Thomson leaving. Estrada then spoke with Javier in the garage, and Javier told him to wait until he returned. Javier did not return that night, however, and Estrada fell asleep in the garage. In the morning, Estrada said that Maria came into the garage and, upon seeing him, yelled to her husband to call the police. Maria then left, and Estrada and Javier spoke for a while until Estrada left, returning to his aunt's house.
Estrada stated that he had been staying at his aunt's house off and on, including on the day of his arrest (May 30, 2004) while his aunt was on vacation. Estrada acknowledged that he had not been given explicit permission to stay there while his aunt was away, but stated his mother had given him permission and the keys to the house, and asked him to keep an eye on it. Estrada stayed at the house with an acquaintance named Buchanan and had a party while he was there. After the Oceguera burglary, Estrada was arrested at his aunt's home; during the arrest, police noticed that the frame to one of the bedroom doors inside Estrada's aunt's house had been damaged. Officers also observed jewelry on the floor outside the broken door, but left it where it lay.
Estrada's aunt and her nephew testified that after Estrada's stay at her house, nothing was missing from their home, and his aunt stated that she would have told the police, had they asked, that Estrada had permission to be there. Later, a woman who said she was Buchanan's girlfriend came to the house to pick up Buchanan's belongings, and Estrada's aunt gave the woman some costume jewelry they found in the home.
At one point in the proceedings, Estrada's counsel objected broadly on relevance grounds to evidence regarding Estrada's arrest. The trial court overruled the objection.
Estrada characterizes the above-described evidence as "evidence of Estrada's 2004 arrest at his aunt's house" and contends that it should not have been admitted because it "surely confused and distracted the jurors." We agree that this evidence had minimal relevance. However, the evidence also had little prejudicial effect and consequently cannot support a claim for reversal on appeal. (See People v. Mullens (2004) 119 Cal.App.4th 648, 658-659 ["error in the admission or exclusion of evidence warrants reversal of a judgment only if an examination of ' "the entire cause, including the evidence," ' discloses the error produced a ' "miscarriage of justice" ' "].) Essentially the evidence suggested that Estrada stayed at his aunt's house at the time of the Oceguera burglary, with his mother's permission, and may have had a party at the home that resulted in some damage to one of the doors. While the jury may have found this evidence relatively insignificant, Estrada fails to make any showing that the evidence, even if erroneously admitted, was sufficiently prejudicial to warrant reversal on appeal. (Ibid.)
D. The "Script" Found Among Miguel Thomson's Papers
In February 2005, Estrada shared a cell in the Vista detention facility with Miguel Thomson. A sheriff's deputy assigned to the facility testified that during that approximate time frame he searched Thomson's cell. Among Thomson's belongings, the deputy found an envelope addressed to Thomson (trial exhibit 10) containing a police report regarding the Oceguera burglary (trial exhibit 11) and a two-page handwritten document, titled "The Script Oceguera" (trial exhibit 12). The documents were admitted into evidence. The deputy also testified that Thomson was classified as an "associate" of the "EME" or Mexican Mafia. At the conclusion of the trial, the prosecutor argued in closing that Estrada exhibited a consciousness of guilt by fabricating a story involving Thomson and attempting to brief him on the story by providing documents regarding the incident.
Prior to admitting the above-described evidence, the trial court held an Evidence Code section 402 hearing. At the hearing, the prosecution, citing Estrada's reference to Thomson's presence at the Ocegueras' house in his testimony at the first trial, argued that the evidence was "extremely probative" because it showed that Estrada had attempted to enlist Thomson in an effort to fabricate exculpatory evidence. Estrada objected primarily on relevance grounds, but also cited Evidence Code section 352. The trial court admitted the evidence over defense objection.
On appeal, Estrada characterizes the above-described evidence as testimony that he was housed in "administrative segregation" with Miguel Thomson, and contends, "the housing of Estrada with a reputed member of the 'Mexican Mafia' in the administrative segregation unit of the Vista jail had no probative value with respect to any disputed issue in the case." Contrary to this contention, however, there was plainly probative value to the evidence regarding Thomson's possession of police reports regarding the Oceguera burglary, and a "script" regarding Estrada's actions on that day. Admission of that evidence further necessitated some discussion of Estrada's relationship to Thomson — being housed together in jail — and their ability to communicate with each other. Combined with Estrada's testimony at his initial trial (which was introduced in the second trial) that he encountered Thomson leaving the Ocegueras' home at the time of the burglary, this evidence, in toto, supported an inference that Estrada attempted to fabricate an exculpatory scenario for his presence at the Ocegueras' home the night of the burglary, exhibiting a consciousness of guilt.
The deputy testified that Thomson was classified as an "associate" of the EME, which "doesn't mean he's a member"; the classification "just means he's been known to associate with members."
Estrada's reliance on the principal that a "party is not permitted to elicit otherwise irrelevant testimony on collateral matters for the purpose of impeaching it" is not applicable. The prosecutor's introduction of Estrada's testimony, and particularly portions of that testimony the prosecutor believed were part of an effort to fabricate a false defense, were relevant to demonstrate consciousness of guilt, and thus did not constitute "irrelevant testimony on collateral matters."
Estrada also contends that the evidence should have been excluded under Evidence Code section 352 because, by suggesting Estrada had a connection with Thomson, it was likely to "lead the jurors to speculate he was housed [with Thomson] because of gang affiliation or dangerousness, inflaming them against him personally." However, even if there was some prejudicial effect from this evidence, the record does not support the conclusion that the trial court abused its discretion in failing to determine that the potential prejudice substantially outweighed the probative value. (Evid. Code, § 352.) Consequently, reversal is not warranted on this ground.
V
The Trial Court Did Not Err by Instructing the Jury on Flight
Estrada contends that the trial court erred by instructing the jury with the standard CALJIC instruction regarding flight. (See CALJIC No. 2.52.) The instruction states:
"The flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."
Estrada contends that it was error to give the instruction because: (i) "the circumstances of Estrada's departures did not logically support an inference of 'consciousness of guilt' "; and (ii) the identity of the assailant was not at issue, and Estrada's "subjective belief, after the incidents, that he may have done something wrong — was not probative on the issue of his mental state at the time of the offenses." We disagree.
The flight instruction was given over defense objection, after the prosecutor explained that he intended to argue to the jury that Estrada's abrupt departure from Sanchez's residence after hitting Silva on the head with a firearm suggested a consciousness of guilt. The trial court ruled that given the prosecutor's intention, the instruction was mandated by section 1127c, which states: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury [with the standard flight instruction]."
While not particularly strong in terms of "flight," the record does contain sufficient evidence to support the giving of the challenged instruction. Sanchez testified that Estrada abruptly departed from her home after assaulting Silva, when she yelled "get the hell out of my house or else I [am] going to call the cops." A police officer who interviewed Sanchez shortly after the assault added that Sanchez told him that after hitting Silva with the gun, Estrada said he did not care if she called police and then left "in a quick manner." Given this evidence, the prosecutor was entitled to argue that Estrada's abrupt departure from the residence, particularly after the suggestion that the authorities would be summoned, indicated a consciousness of guilt.
As the trial court recognized, once it had determined that the prosecutor could (and was going to) argue that evidence of Estrada's abrupt departure from the Sanchez residence supported an inference of consciousness of guilt, the flight instruction was not only proper, but mandated by statute. (§ 1127c; People v. Thornton (2007) 41 Cal.4th 391, 438 (Thornton) ["whenever the prosecution properly relies on evidence of consciousness of guilt, relevant instructions must be given"]; People v. Turner (1990) 50 Cal.3d 668, 694, fn. 10 ["The prosecution theorized that defendant intended to murder and rob the victim. Defendant claimed an unintentional killing in self-defense. . . . Under these circumstances, the prosecution was entitled to use evidence of guilty flight to help prove defendant's criminal state of mind"].) Estrada's contention that the instructions should not have been given because only his mental state at the time of the assault, not his identity, was at issue, has been repeatedly rejected by our Supreme Court. (See, e.g., Thornton, at p. 438 ["Instructions on consciousness of guilt are proper not only when identity is at issue, but also when 'the accused admits some or all of the charged conduct, merely disputing its criminal implications' "]; People v. Turner, supra, at p. 693.)
Estrada's reliance on People v. Bolin (1998) 18 Cal.4th 297, 327 (Bolin) and People v. Crandell (1988) 46 Cal.3d 833, 871 (Crandell), for the proposition that a consciousness of guilt instruction is not relevant to a defendant's mental state during a charged crime, is based on an erroneous reading of isolated statements in those opinions. In both Bolin and Crandell, our Supreme Court, in rejecting challenges to consciousness of guilt instructions, explained the instructions would be understood by reasonable jurors as merely addressing the defendant's " 'consciousness of some wrongdoing,' " as opposed to a " 'consciousness of having committed the specific offense charged.' " (Crandell, at p. 871.) In reaching this conclusion, the court emphasized that the instructions related to the criminal's consciousness of guilt at the time of his suppressing evidence, making false statements or flight, and did " 'not address the defendant's mental state at the time of the offense.' " (Bolin, at p. 327, quoting Crandell, at p. 871.) This statement cannot be read, as Estrada contends, to suggest that a consciousness of guilt instruction is improper when mental state is at issue; it means only that a reasonable juror could believe the defendant to have possessed a consciousness of guilt, without also concluding that the defendant had the precise mental state required for conviction of a charged crime.
Similarly, Estrada's reliance on People v. Anderson (1968) 70 Cal.2d 15, 32, to support his contention is unavailing. In Anderson, our Supreme Court reduced a first degree murder conviction to second degree murder due to the absence of evidence of the defendant's actions prior to the killing, and thus, the requisite proof of premeditation and deliberation. While in Anderson our Supreme Court stated that evidence of a cover-up after a crime is "irrelevant to ascertaining defendant's state of mind immediately prior to, or during, the killing," it made this statement in a wholly different context. (Ibid. ["Evasive conduct shows fear: it cannot support the double inference that defendant planned to hide his crime at the time he committed it and that therefore defendant committed the crime with premeditation and deliberation"].) Anderson does not address the propriety of the jury instructions at issue here, and later Supreme Court cases considering these very instructions make clear that the instructions are appropriate even where the sole issue at trial is the defendant's mental state at the time of a charged offense. (See People v. Kipp (1998) 18 Cal.4th 349, 375 [rejecting contention that consciousness of guilt instruction "improperly permitted the jury to consider defendant's false statements as a circumstance in deciding his mental state at the time of the charged offenses" on the ground that "we have rejected the same arguments in prior cases," and citing cases]; People v. Jackson (1996) 13 Cal.4th 1164, 1224 (Jackson) [rejecting contention that "the trial court should have modified [consciousness of guilt] instructions . . . to clarify to the jury that a defendant's deceptive or evasive behavior, while it may indicate consciousness of guilt, is not probative of the defendant's state of mind at the time the crime was committed"]; Thornton, supra, 41 Cal.4th at p. 438; People v. Turner, supra, 50 Cal.3d at p. 693.)
Estrada also argues that the instruction itself is flawed because it told the jurors, in Estrada's words, "to give the evidence whatever weight they deemed appropriate." He contends that this "gave the jury carte blanche to use the evidence in any way they wished [and] permitted the jury to short-circuit their decision-making process, by reasoning that if the defendant believed he was guilty, then he surely must be guilty." This argument is not persuasive. The trial court is required to give the standard flight instruction, which instructs the jury that the weight to afford such evidence is for the jury to decide, in "substantially this form" (People v. Turner, supra, 50 Cal.3d at p. 694; § 1127c), and the instruction has repeatedly been recognized to give the jury sufficient guidance in assessing evidence that arguably reflects flight. (Crandell, supra, 46 Cal.3d at p. 871 [rejecting contention that: consciousness of guilt instructions allow the jury to "view 'consciousness of guilt' as equivalent to a confession, establishing all elements of the charged murder offenses, including premeditation and deliberation, though defendant might be conscious only of having committed some form of unlawful homicide"]; Jackson, supra, 13 Cal.4th at p. 1224 [reviewing standard consciousness of guilt instructions and concluding that they do "not improperly endorse the prosecution's theory or lessen its burden of proof"].) In sum, the trial court's reliance on the standard flight instruction was amply supported by the record in the case, as well as controlling Supreme Court case law, and did not constitute error.
DISPOSITION
Affirmed.
WE CONCUR: NARES Acting P. J., O'ROURKE J.