Opinion
D071581
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ALEXIS LUCATERO, Defendant and Appellant.
Michael Bacall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD263891) APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. Michael Bacall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Appellant.
A jury convicted Alexis Lucatero of attempted murder of A.V. (Pen. Code, §§ 664/187, subd. (a); count 1), assault of A.V. with a deadly weapon (§ 245, subd. (a)(1); count 2), and vandalism (§ 594, subds. (a), (b)(1); count 3). As to counts 1 and 2, the jury found true that Lucatero committed the felonies for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)); and he personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). The court sentenced him to 21 years in state prison.
Undesignated statutory references are to the Penal Code.
Lucatero contends that the court abused its discretion by denying his motion to sever counts 1 and 2 from count 3, thus violating his constitutional rights to a fair trial and due process. He also contends we must reverse his attempted murder and assault convictions because they are based solely on the uncorroborated testimony of an accomplice who was granted immunity. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Counts 1 and 2 (attempted murder and assault)
W.M. testified that on August 25, 2015, at approximately 4:35 p.m., he heard loud sounds coming from outside his apartment. He saw a victim on the ground covering his face and head, while two young men struck the victim's head and chest area about 15 to 20 times with baseball bats, one of which was blue. The incident ended when the victim stumbled away and the attackers ran to a vehicle, got in and left. W.M. took a photograph of their vehicle. W.M.'s girlfriend also saw some of the incident and she spoke to a 911 operator. While she spoke to the operator, W.M. told his girlfriend what he was observing. A few days later, W.M. identified Lucatero in a photographic lineup. W.M. testified that when he identified Lucatero at the lineup, he told police that Lucatero was "possibly one of the suspects." The prosecutor asked W.M. at trial if he was "a hundred percent" sure of the identity of the person he recognized in the lineup. W.M. replied that in discussing the issue with police at the lineup, "I said a strong maybe."
Another witness, F.E., testified that during the incident he saw a female and two young males, one of whom had a bat, leave a van. Afterwards, he saw one of the males swing the bat twice. After the young men left the scene in the van, F.E. saw a young man hiding behind a garage, bleeding. F.E. called 911 and reported the incident.
Jeniffer A., who drove the van, testified as an accomplice under a grant of immunity but inconsistently with her first statements to police. In a first interview, she gave police false information about herself and her passengers. She also denied knowledge of the attack on A.V. Jeniffer A. later gave a district attorney's investigator the following account, which at trial she claimed was the truth: she was driving Lucatero and two other individuals to a store when they saw A.V. on his bicycle. Lucatero shouted at her to stop the vehicle, and she did. The three passengers left the vehicle for less than two minutes, and Jeniffer A. saw "a lot of movement between people." When the passengers returned to the vehicle, one of them carried a knife and another carried a bat.
That night, police went to a known gang area to look for the attackers. They saw a blue metal baseball bat with silver lettering on it in plain view in a vehicle. DNA found on the bat matched both the victim's and Lucatero's DNA.
The victim suffered a fractured jaw, concussion, and injuries to his face, upper back, and head that were consistent with him being hit with a bat. He required plastic surgery. Count 3 (vandalism)
H.R. testified that on August 25, 2015, at approximately 7:25 p.m., he was at home in his apartment when his neighbors warned him not to go outside. He looked outside and saw Lucatero, who he knew, striking his apartment door with a baseball bat that appeared to be white, chrome or silver color and made of aluminum. Lucatero broke two of the apartment's windows and broke all the windows of H.R.'s vehicle with the bat.
DISCUSSION
Lucatero contends the court abused its discretion by denying his motion to sever counts 1 and 2 from count 3, as no common modus operandi linked the attempted murder and assault incident, which caused personal injury, to the vandalism incident, which only caused property damage; the evidence was not cross-admissible as testimony differed about the color of the bats in the two incidents, and no evidence showed the same bat was used in both. Lucatero contends he was prejudiced by the joinder of the weak attempted murder and assault charges to the strong vandalism charge because he was readily identified in the latter incident but not in the former. He claims his trial was fundamentally unfair and violated his due process rights because Jeniffer A.'s uncorroborated accomplice testimony did not support his conviction for attempted murder and assault. A. Background
As relevant here, Lucatero moved to sever the attempted murder and assault counts from the vandalism count, arguing they were not related and joinder would impermissibly bootstrap two weak counts to a strong one for vandalism.
The amended felony complaint also included a fourth count for assault by means likely to produce great bodily injury of a different victim in December 2015. Lucatero also moved to sever that count from the other counts. The court granted that motion, reasoning that because count 4 did not involve a gang allegation, Lucatero would be prejudiced if he were tried for that count in the same trial with other counts involving such allegations. That ruling is not before us on this appeal.
The People opposed the motion, arguing the counts were properly joined under section 954, and Lucatero had not shown he would suffer substantial prejudice as to require severance. Specifically, they argued the eyewitnesses from both incidents positively identified Lucatero from photographic lineups. Further, the attacks were equally inflammatory and showed Lucatero violently harmed people or property; each count was independently strong and no "spillover" effect would alter their outcomes; and joinder of the charges would not convert the matter into a capital case.
The court denied Lucatero's motion, ruling the counts were intertwined because of the baseball bat the police later found. B. Legal Principles
" 'The law favors the joinder of counts because such a course of action promotes efficiency.' " (People v. Scott (2015) 61 Cal.4th 363, 395.) Section 954, which governs the joinder of criminal counts, states in pertinent part: "An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, 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." (§ 954.) When the threshold statutory requirements for joinder are met, the " ' "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.] That is, [the] defendant must demonstrate the denial of his motion exceeded the bounds of reason." (People v. Capistrano (2014) 59 Cal.4th 830, 848.)
" 'Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns into a capital case.' " (People v. Scott, supra, 61 Cal.4th at pp. 395-396.) " 'In determining whether a trial court abused its discretion . . . in declining to sever properly joined charges, "we consider the record before the trial court when it made its ruling." ' " (People v. Thomas (2012) 53 Cal.4th 771, 798.) " 'A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process.' " (People v. Geier (2007) 41 Cal.4th 555, 575.) C. Analysis
The court did not err by denying the motion to sever because certain evidence was cross-admissible. The vandalism incident occurred a mere three hours after the attempted murder and assault incident, and in both incidents Lucatero used the same kind of weapon, a baseball bat. Further, no incident was stronger or more prejudicial. Eyewitnesses identified Lucatero in both incidents. The fact that one incident involved great bodily injury to a victim and the other involved damage to property is not sufficient to outweigh the benefits of joinder in this case.
Lucatero contends in part that the evidence was not cross-admissible because of a discrepancy regarding the baseball bat's color, and because his identification was stronger in the vandalism incident than in the attempted murder and assault incident. But those discrepancies were minor. The photograph of the bat admitted into evidence shows that it is indeed silver and blue. Therefore, the jury reasonably reconciled the differences in the testimony about the bat's color.
Lucatero relies on W.M.'s comments at trial that he was not one hundred percent sure of his identification to attempt to undermine W.M.'s identification of Lucatero. But the fact remains that despite his residual reservations, W.M. correctly picked Lucatero. "In any event, as between any two [sets of] charges, it always is possible to point to individual aspects of one case and argue that one is stronger than the other. A mere imbalance in the evidence, however, will not indicate a risk of prejudicial 'spillover effect,' militating against the benefits of joinder and warranting severance of properly joined charges. [Citation.] Furthermore, the benefits of joinder are not outweighed—and severance is not required—merely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried." (People v. Soper (2009) 45 Cal.4th 759, 781.)
Moreover, here, the joinder of the two sets of charges did not convert the matter into a capital case; additionally, none of the charges carried the death penalty. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1244.) This factor cannot support a claim of prejudice. Accordingly, we conclude Lucatero has not established the trial court's decision to deny his severance motion "falls outside the bounds of reason." (People v. Soper, supra, 45 Cal.4th at p. 774, internal quotations omitted.) He has not met his burden to make a clear showing of prejudice that would compel reversal. (Ibid.)
Although we find the trial court's denial of Lucatero's severance motion proper at the time it was made, "[b]ecause the issue is raised on appeal following trial [and Lucatero asserts he was denied a fair trial by the denial of his severance motion], we must also consider whether 'despite the correctness of the trial court's ruling, a gross unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or due process of law.' " (People v. Sandoval (1992) 4 Cal.4th 155, 174.) On the issue of prejudice, Lucatero argues: "The evidence of his guilt of attempted murder was weak and the spillover effect of the vandalism charge tilted the evidence in the People's favor. During closing argument, the People urged the jury to consider the bat. The prosecutor argued police knew that the person who attacked [the victim] used a bat and the person who smashed [the window in the vandalism incident] three hours later used a bat." " 'One asserting prejudice has the burden of proving it; a bald assertion of prejudice is not sufficient.' [Citation.] We conclude [that Lucatero] has failed to show that denial of severance deprived him of a fair trial." (Sandoval, at p. 174.) In any event, we conclude "the consolidated offenses were factually separable. Thus, there was a minimal risk of confusing the jury or of having the jury consider the commission of one of the joined crimes as evidence of defendant's commission of another of the joined crimes." (People v. Mendoza (2000) 24 Cal.4th 130, 163; People v. Soper, supra, 45 Cal.4th at p. 784.) No gross unfairness resulted from joinder of his charges to deprive Lucatero of a fair trial or due process of law.
II.
Lucatero contends his attempted murder and assault convictions must be reversed because they were "based solely upon unreliable, uncorroborated, immunized, accomplice testimony." He argues that under section 1111, Jeniffer A.'s testimony was required to be corroborated, and not merely cast suspicion on him. Lucatero contends Jeniffer A. used her firsthand knowledge of the attack on A.V. to falsely place him at the scene. He adds that her participation in the crime shows she has bad moral character and a penchant for dishonesty. Further, he argues that her trial testimony was suspect because she changed her story after police arrested her and threatened to prosecute her.
Under section 1111, a jury must find an accomplice witness's testimony corroborated by other independent evidence that tends to connect the defendant with the commission of the offense. The corroborating evidence may be slight and entirely circumstantial, and it does not have to establish every element of the charged crimes. (People v. Hayes (1999) 21 Cal.4th 1211, 1271.) The purpose of the corroboration is to ensure that what the accomplice witness states about the defendant's involvement in the crime is, to a certain extent, independently verifiable. (People v. Fauber (1992) 2 Cal.4th 792, 834-835; People v. Szeto (1981) 29 Cal.3d 20, 27.) Nevertheless, the supportive evidence does not need to corroborate every facet of the accomplice's testimony. (Ibid.; see People v. Alcala (1984) 36 Cal.3d 604, 624, fn. 10 [no need for independent support for each fact of accomplice's testimony].)
The court instructed the jury regarding accomplice testimony with CALCRIM No. 335. It also instructed the jury regarding the credibility of witnesses in general with CALCRIM No. 226. Although Lucatero contends Jeniffer A. was not a believable witness, we point out that at trial the jury learned that Jeniffer A. testified under a grant of immunity. With that knowledge, it could evaluate the inconsistencies between her prior statements to police and her trial testimony. We are confident the jury could understand and correlate these instructions and properly apply them. (See People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We therefore conclude there was no error.
The court instructed with CALCRIM No. 335, which provided:
"If the crimes of attempted murder and assault were committed, then Jeniffer A. was an accomplice to those crimes.
"You may not convict the defendant of attempted murder and assault with a deadly weapon based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if:
"1. The accomplice's statement or testimony is supported by other evidence that you believe;
"2. That supporting evidence is independent of the accomplice's statement or testimony; AND
"3. That supporting evidence tends to connect the defendant to the commission of the crime.
"Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact mentioned by the accomplice in the statement or about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.
"Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence." (Some capitalization omitted.)
CALCRIM No. 226 provided:
"You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have.
"You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe.
"In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
"How well could the witness see, hear, or otherwise perceive the things about which the witness testified?
"How well was the witness able to remember and describe what happened?
"What was the witness's behavior while testifying?
"Did the witness understand the questions and answer them directly?
"Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
"What was the witness's attitude about the case or about testifying?
"Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?
"How reasonable is the testimony when you consider all the other evidence in the case?
"Did other evidence prove or disprove any fact about which the witness testified?
"Did the witness admit to being untruthful?
"Has the witness been convicted of a felony?
"Has the witness engaged in conduct that reflects on his or her believability?
"Was the witness promised immunity or leniency in exchange for his or her testimony?
"Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or they make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.
"If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject."
Finally, even if Jeniffer A.'s testimony were removed from the jury's consideration, there was still sufficient evidence to convict Lucatero. Specifically, W.M. and his girlfriend were eyewitnesses to Lucatero attacking the victim with a bat. They reported the incident to police as it was unfolding. They had a close enough view of the incident that W.M. identified Lucatero in a photographic lineup. Finally, the bat used in the assault had DNA matching Lucatero's DNA.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. AARON, J.