Opinion
H043671
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO TORRES, Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS142955A)
In two separate incidents in 2012 and 2015, defendant Mario Torres, an inmate serving a life sentence at Salinas Valley State Prison, assaulted fellow inmates using inmate-manufactured weapons. Defendant was convicted following a jury trial of two counts of assault with a deadly weapon by a state prisoner (Pen. Code, § 4501), two counts of custodial possession of a weapon (§ 4502, subd. (a)), and a count of assault with a deadly weapon and by force likely to produce great bodily injury by a life prisoner (§ 4500). The trial court sentenced him to a total term of 105 years to life in prison. Defendant has appealed, arguing: (1) the trial court erred when it gave the jury the instruction on general criminal intent (CALCRIM No. 250), because a violation of section 4500 requires malice aforethought, (2) he cannot be convicted of both sections 4500 and 4501 as a matter of law, (3) the trial court did not satisfy its duty under section 669 to separately identify and designate the term on which consecutive sentences were imposed, (4) section 654 prohibits multiple punishment for two of his convictions, and (5) the trial court abused its discretion when it consolidated his two prison assaults into one trial.
Unspecified statutory references are to the Penal Code.
As we explain below, we agree that defendant cannot be convicted of violating both sections 4500 and 4501 and that the court erred in imposing multiple punishment under section 654 for two of defendant's convictions. We reject defendant's other claims of error, modify the judgment, and affirm the judgment as modified.
BACKGROUND
1. Consolidation of Defendant's Two Prisons Cases and the Consolidated Information
On September 25, 2015, the Monterey County District Attorney's Office filed a motion to consolidate defendant's two criminal cases. In both cases, defendant, who was incarcerated, allegedly attacked fellow inmates with an inmate-manufactured weapon. On November 18, 2015, the trial court held a hearing on the consolidation motion. The prosecutor argued the cases should be consolidated, because "all the factors of [Evidence Code section] 1101[, subdivision] (b) would apply." More specifically, the prosecutor claimed both assaults were motivated by defendant's heroin addiction. The trial court granted the motion to consolidate.
On May 2, 2016, the district attorney filed a consolidated information charging defendant with assault with a deadly weapon and by force likely to produce great bodily injury by a state prisoner on June 15, 2012 (§ 4501; count 1), custodial possession of a weapon on June 15, 2012 (§ 4502, subd. (a); count 2), assault with a deadly weapon and by force likely to produce great bodily injury by a state prisoner on May 15, 2015 (§ 4501; count 3), assault with a deadly weapon and by force likely to produce great bodily injury by a life prisoner on May 15, 2015 (§ 4500; count 4), and custodial possession of a weapon on May 15, 2015 (§ 4502, subd. (a); count 5). As to count 1, the information alleged that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) and alleged as to all counts that defendant had two prior strike convictions (§§ 667, subds. (b)-(i); 1170.12, subd. (c)(2)).
2. The June 15, 2012 Assault (Counts 1 and 2)
Sometime in 2011, defendant and Rolando Puig were cellmates at Salinas Valley State Prison. Defendant and Puig were cellmates for only a few weeks. They stopped being cellmates after having disagreements related to defendant's morphine use and the debts he had accumulated due to his drug habit.
On June 15, 2012, Puig was "baited" to go out to the prison yard. As he walked in the yard, someone came from behind him and hit him three times, paralyzing him. Puig remembered his attacker, who he identified as defendant, said: "[Y]ou're going to remember me for . . . the rest of your life." Defendant also kicked Puig's left knee. Puig could not remember seeing a weapon in defendant's hands when he was first attacked. At some point, defendant, who had been on top of Puig during the assault, got off of him. That is when Puig saw a weapon drop to the ground.
Billy Chavez, a correctional officer at Salinas Valley State Prison, was working the day Puig was attacked. He saw defendant run toward Puig in the yard and strike him in the back of the neck with an "over-the-shoulder stabbing motion." At the time, Puig was not facing defendant. Puig fell to the ground onto his stomach after he was struck. After Puig fell, defendant continued to strike him with stabbing motions. Chavez yelled at defendant to stop. Defendant, however, continued to assault Puig. He turned Puig over onto his back and continued to hit him. Chavez saw blood on Puig's upper torso and neck area. Puig was trying to push defendant off. Eventually, Chavez used pepper spray on defendant, because he refused Chavez's verbal command to stop. Chavez saw defendant holding an inmate-manufactured weapon.
Puig received medical treatment after the assault, and he was assessed as having multiple stab wounds. His fibula and tibia were broken, and his left side was paralyzed. He now requires the use of a wheelchair. Defendant suffered no wounds.
3. May 15, 2015 Assault (Counts 3, 4, and 5)
During trial, the parties stipulated that defendant is serving a life sentence in prison.
On May 15, 2015, defendant's cellmate was Anthony Roybal. Defendant and Roybal had been cellmates for approximately three or four months at that time. At around 5:00 p.m. Roybal and defendant were released from their cell for dinner. Roybal was chatting with another inmate and was about to go down a staircase when he felt four sharp hits to the back of his head and neck. Roybal sprained his ankle as he fell forward down the stairs. At the time, he knew defendant was behind him. He did not see who attacked him, but when he looked behind him, he saw defendant standing at the top of the stairs. When Roybal looked at defendant, defendant said, "Fuck you."
Roybal was not sure what would have motivated defendant to attack him, but he thought defendant did not like the yard they were in. Roybal believed defendant may have wanted to be transferred to a different penitentiary. Roybal described his wounds as "surface wounds," though he occasionally had some neck pain. A nurse who examined Roybal found he had three puncture wounds to the top of his head.
Scott Michael Hampton, a correctional officer at Salinas Valley State Prison, was supervising the inmates' release for dinner on May 15, 2015. That evening, he saw Roybal tumble down the stairs, holding the back of his head. Hampton saw defendant come down the stairs after Roybal holding a makeshift weapon in his hand. Hampton heard defendant say to Roybal, "You know what you did, Mother Fucker." Hampton and other correctional officers ordered defendant to get on the ground. Francisco Duran, another correctional officer at Salinas Valley State Prison, saw defendant put the weapon down.
4. The Verdict and Sentencing
On May 5, 2016, the jury found defendant guilty of all counts and further found as to count 1 that defendant had inflicted great bodily injury. Defendant had previously admitted his two prior strike convictions, one of which was a conviction for murder (§ 187).
On June 8, 2016, the trial court sentenced defendant to 25 years to life plus three years for the great bodily injury enhancement for count 1; 25 years to life for count 2; 25 years to life for count 3; 27 years to life for count 4; and 25 years to life for count 5. The sentence for count 3 was stayed under section 654, and the trial court ordered defendant's sentence be served consecutive to any other sentence he was already serving. The trial court expressly stated it was sentencing defendant to a total term of 105 years to life in prison.
DISCUSSION
1. Instructional Error
Defendant argues the trial court committed reversible error when it instructed the jury on general criminal intent (CALCRIM No. 250) as to count 4, assault by a life prisoner (§ 4500). A violation of section 4500 requires malice aforethought, not just general criminal intent. As we explain, we agree that the court erred in instructing the jury with CALCRIM No. 250, but the error was harmless and does not require reversal of his conviction.
Preliminarily, we agree with defendant that his argument is not forfeited due to his failure to object below. (People v. Ngo (2014) 225 Cal.App.4th 126, 162 (Ngo).) In general, a trial court has a sua sponte duty to instruct on all elements of a charged offense, including the intent and/or mental state required and the union of the intent and/or mental state and the defendant's crime. (People v. Alvarado (2005) 125 Cal.App.4th 1179, 1185.) We review de novo the trial court's instructions on intent or the required mental state. (People v. Alvarez (1996) 14 Cal.4th 155, 219-220.)
We also agree with defendant that the court erred by instructing the jury with CALCRIM No. 250 as to count 4. The version of CALCRIM No. 250 used by the court in this case instructed the jury that to "find a person guilty of the crimes in this case . . . that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he intentionally does a prohibited act; however, it is not required that he intend to break the law. The act required is explained in the instruction for that crime or allegation." The Judicial Council bench notes for CALCRIM No. 250 specifically states: "[CALCRIM No. 250] must not be used if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent offense. In such cases, the court must give CALCRIM No. 251, Union of Act and Intent: Specific Intent or Mental State."
In this case, section 4500 is a specific intent crime and requires malice aforethought. The statute provides: "Every person while undergoing a life sentence, who is sentenced to state prison within this state, and who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death or life imprisonment without the possibility of parole." (§ 4500, italics added.) Thus, the court erred when it instructed the jury with CALCRIM No. 250.
Reversal, however, is required only if the error was prejudicial. In Ngo, supra, 225 Cal.App.4th 126, we suggested—but did not decide—that it was appropriate to use the standard of harmless error set forth under People v. Watson (1956) 46 Cal.2d 818 when the trial court erroneously instructed the jury with the general criminal intent instruction (CALCRIM No. 250) for the specific intent crime of sexual penetration of a child under 10. (Ngo, supra, at p. 162.) The trial court in Ngo had also instructed the jury that it must find the required specific intent with another instruction. (Ibid.) We held the instructional error in Ngo was harmless under both the Watson standard and the standard set forth in Chapman v. California (1967) 386 U.S. 18. (Ngo, supra, at p. 163.) Under Watson, reversal is required only if it is reasonably probable defendant would have achieved a more favorable result absent the error. Under Chapman, reversal is required unless the error was harmless beyond a reasonable doubt.
We determined in Ngo that the defendant would have received a more favorable outcome only if a properly instructed juror would have found reasonable doubt that the defendant penetrated the victim for the specific purpose of "sexual arousal, gratification, or abuse." (Ngo, supra, 225 Cal.App.4th at p. 163.) We noted the record did not support any other plausible explanation for why the defendant would have sexually penetrated the victim unless he did so for the specific purpose as set forth under the law. (Ibid.) Thus, the Ngo defendant failed to demonstrate prejudice. (Ibid.)
Like in Ngo, we find we need not decide which standard of harmless error to apply. Under either standard, the error was harmless. We agree with defendant that unlike in Ngo, the crime here, a violation of section 4500, could have been committed without malice, and the evidence presented could have either supported a finding that defendant acted only with general criminal intent or that he acted with malice. However, the record reflects any prejudice resulting from the instructional error was cured by other jury instructions.
In addition to CALCRIM No. 250, the trial court also instructed the jury with CALCRIM No. 2720. CALCRIM No. 2720 sets forth the elements of section 4500, including the requirement that the defendant must have "acted with malice aforethought." CALCRIM No. 2720 further defines malice, explaining to the jury the difference between express malice and implied malice. In other words, CALCRIM No. 2720 specifically instructed the jury it could not find defendant guilty of violating section 4500 unless it also found he acted with malice. " ' "[T]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole." ' " (People v. Delgado (2017) 2 Cal.5th 544, 574.) In this instance, considering all of the jury instructions, any error was subsequently cured.
Defendant insists we should follow the Ninth Circuit's decision in Ho v. Carey (9th Cir. 2003) 332 F.3d 587, 592 (Ho) and find reversible error. In Ho, a panel of the Ninth Circuit granted the petitioner's habeas corpus petition after it found the trial court had erroneously instructed the jury with the general criminal intent instruction for the crime of second degree murder based on implied malice. (Id. at pp. 593, 595.) The petitioner's appeal had initially been affirmed by the California Court of Appeal after it had determined that notwithstanding the erroneous instruction of general criminal intent, the " 'standard instructions . . . on first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, reasonable self-defense and unreasonable self-defense' " had been given, " '[t]he necessary mental states were fully defined,' " and the instruction on general criminal intent had been subsequently limited to the petitioner's separate charge of involuntary manslaughter. (Id. at p. 594.)
Ho does not persuade us that the instructional error here requires reversal. The Ninth Circuit's decision did not describe the "standard instructions" that were given or otherwise indicate if those standard instructions informed the jury of the correct mental state and that the mental states were a necessary element of the crime of second degree murder based on implied malice. (Ho, supra, 332 F.3d at pp. 594-595.) Ho is also distinguishable, because the Ninth Circuit focused on the fact that the prosecutor had argued to the jury that it must find implied malice to convict the defendant of second degree murder, but the jury had been instructed to disregard any argument of counsel that conflicted with the court's instructions. (Id. at p. 595.) Thus, Ho concluded the prosecutor's comments were not sufficient to correct the court's instructional error, and as a result it was "reasonably likely that the jury convicted Ho of second-degree murder based on implied malice, after finding that he had the general intent to fire his weapon [at the victim] . . . ." (Ibid.)
Here, the elements of section 4500 and the requirement the jury find defendant acted with malice aforethought were all specifically set forth in the jury's instructions. We also note that CALCRIM No. 250 does not instruct the jury that general intent is all that is required to convict defendant of violating section 4500 and no additional level of intent or mental state is required. Read as a whole, the instructions are more accurately interpreted as requiring the jury to find both general intent and malice aforethought. (Ngo, supra, 225 Cal.App.4th at pp. 162-163.) It would not have been reasonable for the jury to interpret the instructions as requiring only that it find defendant acted with general criminal intent to find him guilty of violating section 4500. As a result, the error was harmless under either of the standards set forth in Chapman and Watson.
2. Conviction of Both Sections 4500 and 4501 (Counts 3 and 4)
Defendant was charged and convicted of assault by a life prisoner (§ 4500; count 4) and assault by a prisoner (§ 4501; count 3) following his attack on Roybal on May 15, 2015. Defendant argues he cannot be convicted of violating both sections 4500 and 4501 for the same offense. The People concede, and we find the concession appropriate.
Section 4500 provides in pertinent part: "Every person while undergoing a life sentence, who is sentenced to state prison within this state, and who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death or life imprisonment without possibility of parole."
Section 4501 provides: "(a) Except as provided in Section 4500 , every person confined in the state prison of this state who commits an assault upon the person of another with a deadly weapon or instrument shall be guilty of a felony and shall be imprisoned in the state prison for two, four, or six years to be served consecutively. [¶] (b) Except as provided in Section 4500 , every person confined in the state prison of this state who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be guilty of a felony and shall be imprisoned in the state prison for two, four, or six years to be served consecutively." (Italics added.)
Prior to an amendment in 2004, section 4501 specifically stated that "[e]very person confined in a state prison of this state except one undergoing a life sentence who commits an assault upon the person of another . . . shall be guilty of a felony . . . ." (Former § 4501; People v. Noah (1971) 5 Cal.3d 469, 475.) Section 4501 was amended effective January 1, 2005, to substitute the phrase "[e]xcept as provided in section 4500" in place of "except one undergoing a life sentence." (Stats. 2004, ch. 405, § 17, p. 3626.) As set forth in the statute itself, section 4500 applies to life prisoners.
Thus, based on the express statutory language of sections 4500 and 4501, defendant could not be convicted of both statutes. Defendant's conviction of section 4500 renders section 4501 inapplicable to his conduct, and his conviction of section 4501 in count 3 should be reversed.
3. Designation of Consecutive Sentences Under Section 669
Defendant argues his sentences should have been deemed to run concurrently as a matter of law, because the trial court failed to satisfy its affirmative duty under section 669 to separately identify and designate the terms upon which consecutive sentences were being imposed. We find the issue has been forfeited due to defendant's failure to object below. Even if the issue was not forfeited, defendant's argument fails, because the record reflects the court intended to impose consecutive sentences.
Section 669 provides in pertinent part: "(a) When a person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . . [¶] (b) . . . Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently." (§ 669, subds. (a), (b).)
Here, the trial court did not expressly state on the record that it was imposing consecutive or concurrent sentences. Defendant, however, failed to object to the court's sentence below. Failure to object to the trial court's failure to "properly make or articulate its discretionary sentencing choices" forfeits the argument on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.) The argument is thus forfeited.
Furthermore, even if the argument is not forfeited, we would find it is without merit. During the sentencing hearing, the trial court specifically stated it was sentencing defendant to a "total of 105 years to life," which is the sum of the sentences it imposed but did not suspend. Although the trial court's oral pronouncement of sentence typically controls (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073), the abstract of judgment in defendant's case reflects the imposition of consecutive sentences and does not conflict with the court's statements at his sentencing hearing.
The trial court sentenced defendant to 25 years to life plus three years for the great bodily injury enhancement for count 1; 25 years to life for count 2; 25 years to life for count 3; 27 years to life for count 4; and 25 years to life for count 5. The sentence for count 3 was stayed under section 654.
We find People v. Edwards (1981) 117 Cal.App.3d 436 applicable. In Edwards, the appellate court affirmed the trial court's judgment even though the court did not expressly state whether the defendant's sentence was to run concurrently or consecutively, because the record clearly indicated the court's intent to order consecutive sentences. (Id. at pp. 451-452.) Here, the record supports only one interpretation: that the court intended defendant's sentences to run consecutively. Therefore, we reject defendant's claim that his sentences must be deemed to run concurrently.
4. Multiple Punishments for the Assault on Puig
Next, defendant argues section 654 prohibits multiple punishment for his convictions in counts 1 and 2. For his attack on Puig, defendant was convicted of assault with a deadly weapon and by force likely to produce great bodily injury by a state prisoner (§ 4501; count 1) and custodial possession of a weapon (§ 4502, subd. (a); count 2). The trial court sentenced him to 28 years to life for count 1 and 25 years to life for count 2. The People concede multiple punishment in this situation was improper, and we find the concession appropriate.
Defendant did not object to the imposition of multiple punishments below. However, a claim of error under section 654 is nonwaivable, because it is "well settled . . . that the court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654." (People v. Scott, supra, 9 Cal.4th at p. 354, fn. 17.) --------
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654 " ' "precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. 'Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.' [Citations.] '[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' [Citation.]" [Citation.]' [Citations.] However, if the defendant harbored 'multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)
Whether section 654 applies is a question of fact to be determined by the trial court. (Jones, supra, 103 Cal.App.4th at p. 1143.) We uphold the trial court's findings if they are supported by substantial evidence. (Ibid.)
Based on the evidence presented at trial, defendant possessed the inmate-manufactured weapon when he assaulted Puig. There was no evidence that he possessed the weapon before the assault. Puig saw the weapon after he was attacked, and Correctional Officer Chavez saw defendant holding the weapon while he attacked Puig. Thus, there is no evidence defendant harbored multiple objectives when he possessed the inmate-manufactured weapon and used it to assault Puig. (People v. Venegas (1970) 10 Cal.App.3d 814, 821 [no evidence defendant had possession of gun used in fight until shooting took place so possession of the gun was incidental to the single objective to shoot the victim]; People v. Bradford (1976) 17 Cal.3d 8, 13, 22 [§ 654 applicable when defendant obtained the prohibited weapon during assault].) Accordingly, section 654 bars multiple punishment for defendant's convictions in counts 1 and 2.
If section 654 applies, the proper procedure is to "stay the sentence on the lesser offense[] while permitting execution of the greater offense consistent with the intent of the sentencing court." (People v. Thompson (1989) 209 Cal.App.3d 1075, 1080.) Instead of remanding the case back to the trial court, both defendant and the People request the judgment be modified to reflect that count 2, which is the lesser offense, is stayed. We agree that modification of the judgment is appropriate. Courts have held that the preferred remedy when section 654 has been violated and the maximum legal sentence has already been imposed by the trial court is to stay execution of the penalty on the lesser offense rather than remand for resentencing. (People v. Burns (1984) 158 Cal.App.3d 1178, 1184.) Previously, defendant had admitted he had two prior strike convictions, one of which was a conviction for murder (§ 187). Accordingly, defendant's consecutive sentences for his convictions, which resulted in the multiple life sentences under the Three Strikes Law as we have previously described, was the maximum legal sentence the court could have imposed. Consequently, we modify the sentence to stay the sentence imposed for count 2.
5. Consolidation of Defendant's Two Cases
Lastly, defendant argues the trial court erred when it consolidated his two cases, because the evidence was not cross-admissible and the spillover effect of admitting evidence of the two crimes would inflame the jury. We disagree and find the trial court did not abuse its discretion by ordering the cases consolidated. We find the evidence was cross-admissible and thus there was no prejudice resulting from the consolidation. We further find that even if the evidence of the two crimes was not cross-admissible, the offenses were of the same class and were properly joined, and the potential for prejudice did not outweigh the benefits of joinder.
Under section 954, "[a]n 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 interest 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." Offenses are in " 'of the same class' if they possess common characteristics or attributes." (Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722.) The purpose underlying section 954 is clear: "joint trial 'ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials.' " (People v. Soper (2009) 45 Cal.4th 759, 772 (Soper).)
The trial court's decision to join two cases is reviewed for abuse of discretion. (People v. Sandoval (1992) 4 Cal.4th 155, 172-173 (Sandoval).) When either of the requirements for joinder is satisfied, a defendant can show error only by demonstrating a clear showing of potential prejudice. (Id. at p. 172.) "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 the matter into a capital case." (Id. at pp. 172-173.)
First, we find the two cases were the proper subject of joinder, because they were of the same class. All of the charged crimes possessed common characteristics or attributes, because all of the charges involved assault on a prisoner and possession of an inmate-manufactured weapon. (Aydelott v. Superior Court, supra, 7 Cal.App.3d at p. 722; see People v. Grant (2003) 113 Cal.App.4th 579, 586 (Grant) [counts of burglary, concealing stolen property, and possession of property with a removed serial number were properly joined together].)
Second, we find evidence of the two cases would have been cross-admissible in a hypothetical separate trial under Evidence Code section 1101. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) If there is cross-admissibility, " 'any inference of prejudice is dispelled.' " (Id. at p. 1316.)
Evidence Code section 1101 provides that evidence of other crimes is not admissible to prove the defendant's conduct, but is admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." (Evid. Code, § 1101, subd. (b).) For evidence of other crimes to be admissible to show intent, "[t]he two acts need only be sufficiently similar to suggest that the defendant probably had the same intent each time." (People v. Stitely (2005) 35 Cal.4th 514, 532.) " 'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.' " (People v. Foster (2010) 50 Cal.4th 1301, 1328.) " 'A greater degree of similarity is required in order to prove the existence of a common design or plan. . . . [E]vidence of uncharged misconduct must demonstrate "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are individual manifestations." ' " (Ibid.)
Here, we find evidence in the two cases was cross-admissible on either the issue of defendant's intent or to show a common design or plan. For intent, " ' "[t]he recurrence of a similar result . . . tends (increasingly with each instance) to negat[e] accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act." ' " (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1223-1224.) There is a great deal of similarity between the two crimes. In both instances, defendant assaulted his victim from behind with some type of inmate-manufactured weapon while they were outside of their cells. The two acts were sufficiently similar to constitute a common design or plan. As a result, the evidence of each crime would have been cross-admissible, and defendant cannot thus demonstrate he was prejudiced by the joinder of cases.
Even if we agree with defendant that the evidence was not cross-admissible, we would still find defendant has not met his burden to demonstrate prejudice. Cross-admissibility typically dispels the inference of prejudice. (Sandoval, supra, 4 Cal.4th at p. 173.) However, the lack of cross-admissibility does not by itself demonstrate prejudice. (Ibid.; Soper, supra, 45 Cal.4th at pp. 774-775.) It is but one factor to be considered.
The other factors described in Sandoval do not weigh in favor of finding prejudice. First, the charges were not "unusually likely to inflame the jury against the defendant." (Sandoval, supra, 4 Cal.4th at p. 172.) Although the 2012 case resulted in more serious injuries to the victim—Puig was paralyzed due to the assault—all the joined charges involved similar conduct. In both cases, defendant used a weapon and assaulted his victims. In the 2015 case, the victim, Roybal, even fell down a flight of stairs. We do not believe any one of the two cases were likely to inflame a jury more against defendant. Furthermore, the last factor, that one of the charges carries the death penalty or joinder turns the matter into a capital case, is inapplicable to the situation presented here.
We also do not believe this case is one in which a "weak" case has been joined with a "strong" case. Defendant argues evidence of the assault against Roybal in 2015 was weaker than evidence of the assault against Puig in 2012, because Roybal did not see his attacker and none of the guards saw defendant attack Roybal. Although Roybal's assault did lack an eyewitness, we disagree with defendant's assessment that the evidence against him in that case was weak. True, Roybal did not see his attacker. Roybal, however, turned around after he was hit and saw defendant standing behind him. Roybal recalled defendant even said "fuck you" to him after he turned around, strongly suggesting defendant was the one who committed the assault. Although Correctional Officer Hampton did not see the actual attack take place, his testimony also provided strong evidence of defendant's guilt. Hampton saw defendant come down the stairs after Roybal with a weapon in his hand. He also heard defendant say to Roybal, "You know what you did, Mother Fucker." Even without an eyewitness, the evidence against defendant in that case was strong.
Additionally, we do not believe joinder of the cases resulted in " 'gross unfairness depriving the defendant of due process of law.' " (Soper, supra, 45 Cal.4th at p. 783.) As we have just discussed, the evidence for both cases was comparably strong. Neither case was particularly weak. The factual circumstances of the cases were similar, rendering it unlikely admission of evidence between the two cases would have inflamed the jury. We also reject defendant's assertion that the mere fact he was incarcerated during both offenses would have led the jury to conclude he was naturally guilty of both offenses. In sum, we find defendant's due process rights were not violated.
Finally, defendant insists the prejudice resulting from the joinder of the two cases was exacerbated, because the jury was not given limiting instructions to only consider the evidence pertaining to one crime for that crime only and was not instructed to consider each crime separately. To support his argument, he cites to Grant, supra, 113 Cal.App.4th 579. Grant, however, is inapposite. In Grant, the prosecutor urged the jury to consider the evidence from other counts when determining the defendant's guilt. (Id. at p. 591.) Like in Grant, the trial court here did not offer any limiting instructions. Defendant, however, only points to one allegedly improper suggestion by the prosecutor, which is when the prosecutor suggested that defendant acted with malice aforethought during the 2015 assault because he already knew that he had paralyzed someone before during a previous assault. The prosecutor did not insinuate that the jury should consider evidence that defendant committed the 2012 crime as evidence that he committed the 2015 crime. Rather, the prosecutor's comment urged the jury to use evidence of the 2012 crime as evidence of defendant's intent. The suggestion by the prosecutor would be improper only if we agreed with defendant that evidence of the two crimes would not be cross-admissible under Evidence Code section 1101, subdivision (b) to show motive or intent. As we indicated, we believe the evidence was cross-admissible.
Furthermore, the trial court has no sua sponte duty to instruct the jury on the use of other crimes evidence, and defendant did not request a limiting instruction. (Grant, supra, 113 Cal.App.4th at p. 591.) Thus, we reject defendant's claim that any prejudice was amplified by the court's failure to provide a limiting instruction on its own accord.
DISPOSITION
Defendant's conviction of Penal Code section 4501 (count 3) is stricken, and the sentence imposed for his conviction of Penal Code section 4502 (count 2) is stayed under Penal Code section 654. As modified, the judgment is affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Grover, J.