Opinion
B293794
01-29-2020
THE PEOPLE, Plaintiff and Respondent, v. ABRAHAM JOSHUA RIVERA, Defendant and Appellant.
Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA452378) APPEAL from a judgment of the Superior Court of Los Angeles County. David Herriford, Judge. Affirmed. Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Abraham Joshua Rivera (defendant) appeals from his conviction of unlawful possession of a short-barreled rifle. Defendant contends that the firearm charge was misjoined with the murder charge of which he was acquitted, and that the trial court erred in denying his motion to sever the two charges. Defendant also contends that the trial court erred in failing to consider defendant's ability to pay minimum statutory fines and fees prior to imposing them at sentencing. We conclude that any misjoinder was harmless and that defendant was not entitled to a preimposition determination of his ability to pay the fines and fees. We thus affirm the judgment.
BACKGROUND
In a two-count information, defendant was charged in count 1 with the murder of Enrique Rios (Rios), in violation of Penal Code section 187, subdivision (a), and in count 2 with possession of a short-barreled rifle in violation of section 33215. As to count 1, the information alleged that defendant personally used and intentionally discharged a firearm, causing great bodily injury and death, within the meaning of section 12022.53, subdivision (b). The information further alleged pursuant to section 186.22, subdivision (b)(1)(C), that the murder was committed for the benefit of, at the direction of, and in association with a criminal street gang.
All further statutory references are to the Penal Code, unless otherwise indicated.
A jury found defendant guilty of possession of a short-barreled rifle as charged in count 2, and acquitted him of murder. On October 12, 2018, the trial court sentenced defendant to two years in county jail with combined custody credits of 1,452 days, and ordered him to pay a restitution fine of $300 pursuant to section 1202.4, subdivision (b), as well as a $40 court operations assessment pursuant to section 1465.8, subdivision (a)(1), and a $30 criminal conviction assessment pursuant to Government Code section 70373. Defendant filed a timely notice of appeal from the judgment.
Prosecution evidence
On November 8, 2016, at 6:02 p.m., Enrique Rios (Rios), a member of the East L.A. Trece gang, was shot and killed just outside the entrance to Arrow Liquors in the City of Commerce. Video surveillance showed defendant in the store making purchases about 5:45 p.m., interacting with Rios, and leaving the parking lot a few minutes later in a red car resembling a Kia. At 6:00 p.m., a red car resembling a Kia was filmed as it passed by slowly. Investigators found two .40-caliber Smith & Wesson bullet casings outside the store and one fired .40-caliber Smith & Wesson bullet near the entry door. The murder weapon was never recovered. Criminalist Amanda Davis examined the two casings and the spent bullet and testified that the casings were .40-calibur Smith & Wesson cartridges, and that the spent bullet, which was consistent with having been fired from a .40-calibur Smith & Wesson cartridge, could have been fired from a firearm made by any of several manufacturers.
Defendant later claimed in a police interview that he and Rios had an altercation, that Rios was drunk, and would not let him get in his car, so defendant flashed a fake gun and then drove away. Defendant repeatedly denied that he returned to the store and shot Rios.
About two weeks after the shooting, Los Angeles County Sheriff's Deputies were dispatched to a home in Commerce which they searched with the resident's consent. While the deputies were searching the home, defendant arrived and a search of his person yielded a wallet, keys, and a cell phone. A rifle in a pillowcase was found on the passenger seat of defendant's red Kia automobile which was parked in front of the house. Deputies also recovered a Seattle Mariners baseball cap bearing an "S" logo. The rifle, which dated from the 1950's, was 27 inches long with a 13 and one-half-inch barrel. It appeared to be functional but was not loaded. Defendant told Detective Christopher Gomez that the rifle did not belong to him. Defendant's cell phone was examined and found to contain a photograph of a Ruger P944, a firearm that can use .40-caliber Smith & Wesson cartridges. Criminalist Davis testified that it was possible for the bullets fired at the murder scene to have been fired from a Ruger P944.
Also found on the phone were text messages. One, sent on November 7, 2016, from "Crimes" stated, '"I got the strap. It's hot. Can you pick it up.'" On November 8, 2016, defendant sent a text message to "Crimes" stating, '"Packing two straps.'" Detective Gomez testified that "strap" was gang jargon for a firearm.
Detective Gomez testified as the prosecution's gang expert, that in his opinion defendant was a member of the Stoners 13 gang. His opinion was based on defendant's gang-related tattoos, his possession of a Seattle Mariners cap of the kind commonly worn by Stoners 13 gang members, and a photograph of defendant with other Stoners 13 gang members while forming an "S" (representing Stoners) with his hand. The photo was taken at the home of Sonny Luna, an older member of the gang who gave younger members orders and advice. The Stoners 13 gang considered the East L.A. Trece gang to be an enemy. Rios's shooting took place in the territory claimed by the Choppers 12 gang, and not the territory of either the Stoners 13 or East L.A. Trece gangs.
Defense evidence
Defendant presented evidence in defense of the murder charge, including character evidence and the testimony of witnesses who saw the shooter, who did not resemble defendant, running from the scene carrying a gun. The defense also presented the testimony of a gang expert who testified that only 15 percent of gang members commit violent acts, and gang members are unlikely to challenge people in another gang's territory. In addition, the defense submitted evidence of postmortem blood tests showing that Rios had consumed a toxic amount of methamphetamine and had a blood alcohol content of .11 percent at the time of his death. Defendant did not present any evidence relating to the short-barreled rifle found in his car.
DISCUSSION
I. Motion to sever
Defendant contends that the trial court erred in denying his motion to sever counts 1 and 2 for trial.
Section 954 permits the joinder of "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.)
Defendant brought a pretrial motion to sever counts 1 and 2 for trial on the ground of improper joinder under section 954. The defense argued that the two charges were not connected or of the same class of crimes, the evidence was not cross-admissible, and that a joint trial of the charges would be unduly prejudicial.
The prosecutor referred to the summary of facts in her trial brief as an offer of proof, arguing that evidence would be cross-admissible. After reviewing the prosecution's trial brief, the trial court acknowledged that the two offenses were not of the same class, but noted that the commission of the both offenses was "intertwined," because "the People indicate there were photographs on the cell phone of various weapons, one of them being the .22 and one being another weapon that the criminalist says appears to be similar to the weapon used." The court explained that the prosecution would seek to show that defendant not only had a photograph of the Ruger P944 handgun which could have fired bullets consistent with those which caused the victim's death, but that at some point he also possessed that gun. The court concluded: "So if he has that picture on his phone but does not have that weapon, there's an issue of what his connection to that weapon is. So the fact that he has a photograph of another weapon that he does have in his possession, . . . could logically lead one to believe that he has a nexus to that weapon."
The trial brief referred to the weapon found in defendant's car as a ".22 rifle," apparently referring to short-barreled rifle found in defendant's car.
Defendant argues that such a thin connection did not justify the denial of his motion. Charges that are unrelated to the same transaction or event are connected together in their commission for purposes of section 954 if they share "a common element of substantial importance in their commission." (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1218.) Assuming the trial court erred, prejudice is measured under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. McLain (1988) 46 Cal.3d 97, 105-106.) Under that standard, an erroneous denial of severance is harmless when it is not "'"reasonably probable that the jury was influenced [by the joinder] in its verdict of guilt."' [Citation.]" (People v. Gomez (2018) 6 Cal.5th 243, 277, quoting People v. Merriman (2014) 60 Cal.4th 1, 49.) And no prejudice results from an erroneous joinder of counts where the verdict shows that the jury evaluated the evidence separately. (People v. Miranda (1987) 44 Cal.3d 57, 78, overruled on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) The acquittal of defendant on the murder charge indicates that the jury evaluated the evidence separately. (See People v. Miranda, at p. 78; see also People v. Jones (2013) 57 Cal.4th 899, 927 ["Where the jury returns a guilty verdict of a lesser crime, or, as here, fails to convict at all on some charges, we are confident the jury was capable of, and did, differentiate among defendant's crimes"]; People v. Saldana (1965) 233 Cal.App.2d 24, 30-31.)
Defendant submits that the test of prejudice due to the erroneous denial of a motion to sever charges should be the "harmless beyond a reasonable doubt" test of Chapman v. California (1967) 386 U.S. 18, 24, which is applied to federal constitutional error. We disagree. An erroneous denial of severance is an error of procedure only, subject to the California Constitution provision which mandates that "[n]o judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; see People v. Renier (1957) 148 Cal.App.2d 516, 519-520; People v. Fox (1958) 157 Cal.App.2d 426, 430.) A miscarriage of justice is determined for ordinary error (nonstructural and not federal constitutional error) under the Watson test. (See People v. Cahill (1993) 5 Cal.4th 478, 491-494.) Even under federal law, a similar error would not be subject to Chapman review, but would require reversal only if the misjoinder is shown to have had a substantial influence on the jury's verdict. (See United States v. Lane (1986) 474 U.S. 438, 448-449 [the Kotteakos test"].) This test asks "what effect the error had or reasonably may be taken to have had upon the jury's decision." (Kotteakos v. United States (1946) 328 U.S. 750, 764, italics added.)
In an effort to demonstrate prejudice under the Watson test, defendant notes that the trial court imposed the middle term of two years for the conviction of the unlawful possession of a short-barreled rifle. He then surmises that different judges would have presided over the separate trials and that the judge presiding over the rifle case would have had no knowledge of the murder charge. Defendant also notes that section 33215 is a "wobbler" offense which can be declared a misdemeanor in the judge's discretion. Defendant then surmises that there is a reasonable probability that the judge would have reduced the rifle possession charge to a misdemeanor due to his minor criminal record and the fact that the rifle was not loaded, or might have imposed the low term or granted probation. Defendant also speculates that he even might have been offered a plea bargain in the rifle case.
We agree with respondent that prejudice inquiry focuses on the effect of the joinder upon the jury not the sentencing judge. As none of defendant's arguments suggest a reasonable probability that the jury's verdict was influenced by the joinder, defendant has failed to demonstrate prejudice under the appropriate test. (See, e.g., People v. Gomez, supra, 6 Cal.5th at p. 277.) We also agree with respondent that as defendant's arguments are speculative, we must presume that the trial court was aware of and followed the applicable law, and had a proper basis for its order. (See In re Julian R. (2009) 47 Cal.4th 487, 499.) Moreover, defense counsel did not ask that the firearm charge be reduced to a misdemeanor, instead she requested immediate sentencing to the low prison term with no probation. The court sentenced defendant to the middle term, with more than enough custody credits to cover the entire term. Defendant thus received essentially what was requested, time served. We conclude that under any standard, the court's denial of defendant's severance motion was harmless.
II. Dueñas
At sentencing the trial court imposed a minimum $300 restitution fine and $70 in assessments. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant contends that the trial court was required to determine his ability to pay prior to the imposition of fines and fees at the time of sentencing.
In Dueñas, Division Seven of this court held that principles of due process and equal protection required reading into Government Code section 70373 and Penal Code section 1465.8 a procedure for obtaining a waiver of the assessments on the ground of inability to pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1164-1169, 1172 & fn. 10.) The court also held that due process required a consideration of the defendant's inability to pay even when only the minimum fine is imposed. (Ibid.) The Dueñas court relied on United States Supreme Court and California Supreme Court decisions which have held that constitutional equal protection and due process guarantees prohibit states from denying indigent criminal defendants access to the courts or punishing them solely on the basis of their poverty. (Dueñas, at pp. 1166-1168; citing Bearden v. Georgia (1983) 461 U.S. 660, 667-668; Tate v. Short (1971) 401 U.S. 395, 396-397; Griffin v. Illinois (1956) 351 U.S. 12, 17; In re Antazo (1970) 3 Cal.3d 100, 116-117.) From these two concepts, punishing indigent defendants on the basis of their poverty and denying them access, the Dueñas court explained in a subsequent opinion that its holding in Dueñas created the "newly announced constitutional principle" that "it was unconstitutional to impose fines, fees or assessments without a [prior] determination of the defendant's ability to pay." (People v. Castellano (2019) 33 Cal.App.5th 485, 489.)
A growing number of courts of appeal have questioned the correctness of the newly announced constitutional principle enunciated in Dueñas, including this division, and the question is now before the California Supreme Court. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks), review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1069, review denied Dec. 11, 2019, S258563; People v. Kopp (2019) 38 Cal.App.5th 47, 81-83, review granted Nov. 13, 2019, S257844.) We found in Hicks, that Dueñas expanded "due process in a manner that grants criminal defendants a protection not conferred by either its foundational pillars," as the mere imposition of fines and fees, without more, does not deny indigent defendants access to the courts, and does not result in incarceration for nonpayment. (Hicks, supra, at pp. 326-327; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1168.) There we fully explained our reasoning that Dueñas was incorrectly decided and we stand by that analysis. We decline defendant's request for remand. (See Hicks, at pp. 326-329.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, Acting P. J.
ASHMANN-GERST