Opinion
D080439
08-14-2023
THE PEOPLE, Plaintiff and Respondent, v. CRISTIAN FERNANDO GRACIANO, Defendant and Appellant.
Shay Dinata-Hanson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Marvin E. Mizell, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE404389 Patricia K. Cookson, Judge. Affirmed.
Shay Dinata-Hanson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Marvin E. Mizell, Deputy Attorneys General for Plaintiff and Respondent.
McCONNELL, P. J.
I
INTRODUCTION
A jury found Cristian Fernando Graciano guilty of one count of attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1) and one count of assault with a deadly weapon (§ 245, subd. (a)(1); count 2) after he attacked the manager of a fast food restaurant with a torque wrench. It also found him guilty of one count of robbery (§ 211; count 3) after he threatened to kill a convenience store manager and stole lottery tickets from her.
Further undesignated statutory references are to the Penal Code.
Graciano appeals the judgment of conviction and contends the trial court erred by denying his pretrial motion to sever the robbery count from the attempted murder and assault with a deadly weapon counts. We conclude joinder of the counts was proper and the court did not abuse its discretion in denying the severance motion. Thus, we affirm the judgment.
II
BACKGROUND
A. The Robbery
On January 20, 2021, at approximately 3:45 a.m., Graciano entered a convenience store in El Cajon. He demanded scratcher lottery tickets from the store cashier, M.C., but refused to pay for them. M.C. rebuffed Graciano's demand, so he threatened to "call the group" and make it "really bad" for her. He then threatened to kill her and said he had a weapon. M.C. gave the scratcher lottery tickets to Graciano, who demanded she hand over her earrings as well. M.C. refused to give up her earrings. Thereafter, Graciano exited the convenience store without paying for the scratcher lottery tickets.
M.C. reported the robbery to the El Cajon Police Department. Officer Gavin McCarthy was dispatched to the convenience store a few hours later, at 6:30 or 7:00 a.m.
At trial, M.C. identified Graciano as the robber. Video surveillance footage capturing the robbery was played for the jury as well.
B. The Attempted Murder
About six hours after the convenience store robbery, at approximately 10:00 a.m., J.E. was walking on a street near a major commercial thoroughfare in El Cajon. She noticed Graciano walking closely behind her and following her. She grew uncomfortable and decided to enter a fast food restaurant to distance herself from him.
J.E. briefly stopped outside the restaurant to put on a facemask due to COVID-19 health protocols. But, as she did so, Graciano approached her and demanded to use her phone. She said no, which angered him. J.E. entered the restaurant, told the cashier someone was following her, and said she would order food, call a ride, and wait for her ride inside the restaurant.
Soon after, Graciano entered the restaurant, shouted out a food order, and walked out without paying for his food. He reentered the restaurant, angrily complained that he had not received his food yet, and removed a two-to two-and-a-half foot long torque wrench from a case. J.E. pointed at Graciano and told Y.I., the restaurant manager, it was "going to get bad." At some point, Graciano left the restaurant through the front door.
Y.I. walked J.E. to the side door intending to wait with her until her ride came. However, as they were exiting the side door, Graciano appeared behind them, called Y.I. a derogatory name, and struck Y.I. multiple times on her back and the back of her head with the torque wrench. J.E. ran around the outside of the restaurant, reentered it from the other side, and yelled for someone to call 911. Y.I. also ran around the restaurant as Graciano continued striking her with the wrench. Bystanders then intervened and defended Y.I., which allowed her to retreat back into the restaurant. As a result of the assault, Y.I. suffered a broken arm, a large scalp laceration, a thumb laceration, and a concussion.
At about 10:30 a.m., the El Cajon Police Department received a call about the assault. Officer McCarthy-who had responded to the robbery dispatch earlier that day-responded to the assault dispatch with his partner. Outside the restaurant, they encountered Graciano, who dropped his torque wrench and fled on foot. The officers pursued him, apprehended him, and recovered four stolen scratcher lottery tickets and a bindle of methamphetamine from his person.
At trial, J.E., Y.I., and a bystander identified Graciano as the assailant. Video surveillance footage of the assault was also played for the jury.
C. Procedural History
Graciano was charged by amended information with one count of attempted murder and one count of assault with a deadly weapon in connection with the fast food restaurant incident, as well as one count of robbery for the convenience store incident. The information alleged Graciano personally used a deadly or dangerous weapon in the commission of the attempted murder (§ 12022, subd. (b)(1)). It also alleged he inflicted great bodily injury in the commission of the attempted murder and assault with a deadly weapon (§ 12022.7, subd. (a)).
Prior to trial, Graciano moved to sever the robbery count from the attempted murder and assault with a deadly weapon counts. He argued the robbery count was improperly joined because it stemmed from a different incident and alleged a different class of crime than the other two counts. Alternatively, he argued severance was warranted, even if the counts were properly joined, because failure to sever them would prejudice him. He argued: (1) the robbery evidence was not cross-admissible in a trial on the other two counts, and vice versa; (2) the attempted murder and assault with a deadly weapon evidence would inflame the passions of the jury against him when it decided the robbery count; and (3) the information joined a weak case with a strong one (though he did not specify which counts were weak and which were strong).
The court denied the severance motion. It noted the robbery and assault incidents occurred on the "same date" in the "same area," and the "same officer" responded to both incidents. It opined that the prosecution did not appear to be trying to "strap on [a] weaker" charge to a stronger charge. Further, it found Graciano would not be unduly prejudiced by a joint trial.
The case proceeded to a joint trial and the jury returned a guilty verdict on all three counts. The jury also found true the enhancement allegations attached to the attempted murder and assault with a deadly weapon counts. Graciano was sentenced to an aggregate term of 14 years in state prison, consisting of: (1) the upper term of nine years for the attempted murder charge, plus three years for the related great bodily injury enhancement and one year for the personal use of a dangerous and deadly weapon enhancement; (2) the upper term of four years for the assault with a deadly weapon charge, plus three years for the related great bodily injury enhancement, both stayed under section 654; and (3) one year (one-third the midterm) for the robbery charge.
III
DISCUSSION
A. Legal Standards
"The law prefers trying charged offenses together because doing so ordinarily promotes efficiency." (People v. Anderson (2018) 5 Cal.5th 372, 388 (Anderson); see People v. Westerfield (2019) 6 Cal.5th 632, 689 (Westerfield) ["Because it ordinarily promotes efficiency, joinder 'is the course of action preferred by the law.' "].) "[S]ection 954 embodies this preference." (Anderson, at p. 388.) In part, section 954 states, "An accusatory pleading may charge two or more different offenses connected together in their commission, ... or two or more different offenses of the same class of crimes or offenses, under separate counts ...." Offenses are connected together in their commission" '" 'when they are ... linked by a" 'common element of substantial importance,'" '" '" like motive or intent. (Westerfield, at p. 686.)" 'Offenses of the same class are offenses which possess common characteristics or attributes.'" (People v. Landry (2016) 2 Cal.5th 52, 76.)
Even if "joinder is proper, the court may order the counts tried separately." (Anderson, supra, 5 Cal.5th at p. 388; see § 954 ["[T]he court ..., in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."].) Where the joinder requirements are met," 'a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant's severance motion.' [Citation.] 'In determining whether a trial court's refusal to sever charges amounts to an abuse of discretion, we consider four factors: (1) whether evidence of the crimes to be jointly tried is cross-admissible; (2) whether some charges are unusually likely to inflame the jury against the defendant; (3) whether a weak case has been joined with a stronger case so that the spillover effect of aggregate evidence might alter the outcome of some or all of the charges; and (4) whether any charge carries the death penalty or the joinder of charges converts the matter into a capital case.'" (Anderson, at pp. 388-389.)
"We review the trial court's decision to deny a severance motion for abuse of discretion." (People v. Armstrong (2016) 1 Cal.5th 432, 455-456.) "To successfully claim that the trial court abused its discretion in denying a motion to sever, a '" 'defendant must make a clear showing of prejudice'"' by demonstrating that the denial 'exceeded the bounds of reason.' [Citation.] 'An appellate court evaluates such claims in light of the showings made and the facts known by the trial court at the time of the court's ruling.'" (Westerfield, supra, 6 Cal.5th at p. 689.)
B. The Trial Court Properly Denied the Severance Motion
Graciano contends the trial court erred when denying his severance motion because the statutory requirements for joinder were not satisfied. We disagree. The joinder requirements were satisfied here because robbery, attempted murder, and assault with a deadly weapon are assaultive crimes against the person and, therefore, they all fall within the "same class" of crimes. (§ 954; People v. Capistrano (2014) 59 Cal.4th 830, 848 (Capistrano) [attempted murder and robbery are in the same class of assaultive crimes against the person], overruled on another point by People v. Hardy (2018) 5 Cal.5th 56, 104; People v. Elliott (2012) 53 Cal.4th 535, 551 [same, for attempted murder, assault with a firearm, and robbery]; People v. Thomas (1990) 219 Cal.App.3d 134, 140 [same, for attempted murder and robbery]; see also People v. Walker (1988) 47 Cal.3d 605, 622 ["Robbery, murder and assault with intent to commit murder are all offenses of the same class."].)
Although conceding that courts routinely categorize robbery as an assaultive crime, Graciano claims the robbery here was not assaultive because he did not physically attack or harm M.C., the convenience store cashier-a fact that prompted the trial court, curiously, to opine that Graciano had not engaged in "assaultive behavior" during the robbery. Graciano is mistaken. Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Italics added.) The crime necessarily "involves an assaultive invasion of personal integrity," regardless of whether the perpetrator injures the victim or commits the separately chargeable offense of assault. (People v. Melton (1988) 44 Cal.3d 713, 767; cf. People v. Anderson (2011) 51 Cal.4th 989, 996, fn. 2 ["That an offense has assaultive aspects does not mean it is an assault."].) Here, Graciano engaged in an assaultive invasion of M.C.'s personal integrity when he threated to "call the group" on her, make it "really bad" for her, and kill her-all to steal scratcher lottery tickets from her.
Because the robbery, attempted murder, and assault with a deadly weapon counts were all assaultive crimes falling within the same class of crimes, we do not decide whether they were independently joinable because they were "connected together in their commission." (§ 954.).
Graciano also contends the trial court abused its discretion by denying his severance motion because of the severe prejudice he would experience from a joint trial on all three charges. Once more, we disagree.
In assessing whether the court abused its discretion, we must first consider whether evidence of the crimes to be jointly tried would be cross-admissible. (People v. Vargas (2020) 9 Cal.5th 793, 817 (Vargas).) "If the evidence of any of the charged offenses would be' "cross-admissible"' in hypothetical separate trials of any of the other charges, that is enough 'standing alone, to dispel any prejudice and justify a trial court's refusal to sever the charged offenses.'" (Ibid.; see People v. Holmes, McClain &Newborn (2022) 12 Cal.5th 719, 747 ["Although cross-admissibility is not 'a precondition to joinder of charges' [citation], its existence negates prejudice."].) "Relevant to our inquiry here, it is sufficient that evidence supporting [one crime or set of] crimes would be admissible in a separate ... trial [on another crime or set of crimes]. As [the Supreme] [C]ourt has explained,' "two-way" cross-admissibility is not required.'" (People v. Merriman (2014) 60 Cal.4th 1, 38.)
There were at least two instances of cross-admissible evidence in the present case. First, the evidence that Graciano possessed stolen lottery tickets at the time of his arrest for attempted murder and assault with a deadly weapon would be cross-admissible on the issue of identity in a separate robbery trial. Specifically, evidence that Graciano possessed the stolen scratcher lottery tickets about seven hours after the robbery would tend to show that he perpetrated the robbery. The existence of cross-admissible evidence dispelled any notion that Graciano suffered prejudice from the denial of his severance motion. (Vargas, supra, 9 Cal.5th at p. 817.)
Second, the evidence that Graciano threatened to kill M.C. would be admissible not only in a robbery trial, but also in a separate assault and attempted murder trial to prove intent. In particular, Graciano's explicit and violent threat to kill M.C., a service employee, if she did not comply with his demand to hand over goods (scratcher lottery tickets) would be relevant and admissible to show that he in fact intended to kill Y.I., another service employee, when-later that very same morning- he attacked her after she and her coworkers failed to comply with his demand for goods (fast food).
Even if there was no cross-admissible evidence, the other pertinent considerations do not demonstrate an abuse of discretion. Graciano argues the evidence of his "grisly attack" on Y.I. was so incendiary it likely would inflame the passions of the jury against him on the robbery count. However, the robbery was similarly shocking. Graciano made violent threats against M.C. in the course of robbing her-stating he had a weapon and he would "call the group" on her, make it "really bad" for her, and kill her. And these threats had their intended effect. There was evidence at the preliminary hearing that Graciano's threats caused M.C. to "fear[] for her life and safety." Given that the robbery was disturbing in its own right, the attempted murder and assault counts were not unusually likely to inflame the jury in its adjudication of the robbery charge. (Capistrano, supra, 59 Cal.4th at pp. 850-851 [court properly denied motion to sever robbery and attempted murder charges where attempted murder charge was not "much more inflammatory" than robbery charge].) Further, the evidence of the robbery- which consisted of surveillance footage and victim testimony-was very strong. The strength of the evidence "defeats the notion that strong evidence of one inflammatory crime was improperly used to bolster any weak evidence supporting the other crime." (Westerfield, supra, 6 Cal.5th at p. 691.)
There also was no concern here that joinder improperly enhanced a weak case. As noted, surveillance footage from the convenience store and the fast food restaurant captured Graciano perpetrating all of the charged crimes. In fact, the evidence was so strong the defense conceded liability on the assault with a deadly weapon charge and several elements of the other charges. Given the strength of the evidence for all three counts, "this was not a situation where 'a weak case [was] joined with a stronger case' creating a 'spillover effect of aggregate evidence [that] might alter the outcome of some or all of the charges.'" (Westerfield, supra, 6 Cal.5th at p. 691.)
During closing arguments, defense counsel stated, "What did [Graciano] undisputedly do? He undisputedly beat [Y.I.] with a three-and-a-half-pound torque wrench, causing injury to her. Undisputed that that was an assault, that he used a weapon in such a way that made it deadly. Completely undisputed. Find him guilty of Count 2, assault with a deadly weapon." Further, when discussing the robbery count, defense counsel stated, "I will just tell you we are not disputing that property was taken, that it was [M.C.'s] property ... And we aren't arguing that property wasn't taken from her immediate person."
Finally, none of the counts involved capital charges, so joining the three counts did not convert the matter into a capital case.
In conclusion, the statutory requirements for joinder were satisfied because the robbery, assault with a deadly weapon, and attempted murder counts fell within the same class of crimes. Further, the trial court did not abuse its discretion in denying the severance motion, as the evidence was cross-admissible in separate trials, the assault with a deadly weapon and attempted murder evidence was not unusually likely to inflame the jury, the information did not join a particularly weak case with an especially strong one, and joinder did not convert the matter into a capital case. For all these reasons, the trial court properly denied the severance motion.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: DO, J., BUCHANAN, J.