Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. VCR184133, VCR184036
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
These consolidated appeals concern two robberies that occurred in the city of Vallejo, on the night of April 29, 2006. Carlos Trinidad was accosted by a woman, who was soon joined by several other people. Trinidad was knocked unconscious, and had his wallet and cell phone taken. A short while later, a few blocks away, Peter Bedolla was accosted by a woman, who was then joined by several others. Bedolla was hit in the head and robbed. Neither victim was able to identify his attackers, but a few hours after the attack on Trinidad, Darryl Lavon Mitchell (Mitchell) tried to sell Trinidad’s cell phone to the victim’s stepdaughter. The next day an accomplice gave a statement to the police, and ultimately testified against Mitchell and his codefendant Arthur Lee Walton (Walton) at their joint trial.
Mitchell was charged and convicted of the robbery of Trinidad and Bedolla, but the jury found not true an enhancement allegation pursuant to Penal Code section 12022.7, subdivision (b) with respect to the Bedolla robbery. The jury also found Walton guilty of the Bedolla robbery, and found true the allegation that he personally inflicted great bodily injury.
Statutory references are to the Penal Code unless otherwise stated.
Walton was not charged with the Trinidad robbery.
On appeal, Mitchell contends that his convictions must be reversed because they are based upon uncorroborated accomplice testimony that also was so contradictory and unreliable that it was insufficient to support the jury findings of guilt. He further contends that he was prejudiced by the trial court’s failure, sua sponte, to sever the two counts of robbery, and that his trial counsel rendered ineffective assistance by failing to move for severance.
Walton contends the court abused its discretion by denying his motion to sever his trial from Mitchell’s, and committed prejudicial error by failing to give a limiting instruction with respect to the evidence that Mitchell possessed the cell phone taken in the Trinidad robbery, and failing to modify another standard instruction on the inferences that may be drawn from possession of stolen property to specify that it applied only to Mitchell.
We shall affirm the judgment as to both defendants.
Consistent with the standard of review, we summarize the facts in the light most favorable to the judgment.
Trinidad Robbery
Carlos Trinidad testified that on April 29, 2006, at approximately 8:30 or 9:00 p.m., he was walking home from work in Vallejo. He was carrying his cell phone, $120 in cash, and a check for $950. In the vicinity of Alameda and Florida Streets, a skinny African American woman approached him, but Trinidad kept walking. Trinidad began to run when the woman kept following and yelling. She reached out and grabbed him by his shirt. Then several African American men converged upon him, threw him down and hit him in the head. They ripped his pants near his pocket, and took his wallet, his paycheck and his cell phone. He lost consciousness as a result of the attack, but somehow managed to walk home, and was taken to the hospital. Trinidad told the police he could not identify the people who robbed and beat him.
Trinidad was not sure how many people attacked him, but estimated it was four men.
Trinidad’s stepdaughter, Berenice Gaaolegos, testified that she went to the hospital to see her stepfather at about 10:00 p.m. She called Trinidad’s cell phone and a man with a Puerto Rican accent answered. She asked him how he got the cell phone, and he said he found it in the street. She pretended that the phone belonged to her, and agreed to pay him a $20 reward if he returned the phone. She then contacted the police, and met with Detective Pucci. While she was at the police station a different person, named Darryl, called her several times, said he wanted $10 for the phone, and wanted to meet in five minutes. Gaaolegos agreed to meet Darryl, and the police followed her to the agreed meeting place. When she arrived at the meeting place in front of a tire store, at approximately 1:30 a.m., Mitchell came over to her with the cell phone. He was arrested by the police after Gaaolegos confirmed that the cell phone belonged to her stepfather.
Although Trinidad accompanied Gaaolegos and the police to the meeting with Mitchell, he was still not feeling well and stayed in the car. He testified that he did not know Mitchell and never gave him permission to have his cell phone.
Bedolla Robbery
At about 11:13 that same evening, three Vallejo police officers were dispatched in response to a call about a “man down.” They found Peter Bedolla lying on the street in the 1300 block of Sutter Street, near an alley. Bedolla had suffered head injuries, was unable to speak, and was transported to the hospital. On Kentucky Street, east of the intersection of Sutter and Kentucky, the police found Bedolla’s wallet and some of its contents. His cell phone was never recovered.
The police canvassed the area, but were unable to find any witnesses. Bedolla’s ex-wife, Cheryl Bedolla, with whom he still resided, testified that she last saw Bedolla at about 9:45 or 10:00 o’clock that evening. The police came to her house at about 3:30 a.m. and told her that Bedolla had been taken to the hospital. They gave her his keys, and she identified the wallet as belonging to Bedolla. As of the time of trial, Bedolla was still hospitalized. He suffered brain damage and was unable to communicate.
The parties stipulated that Bedolla suffered great bodily injury within the meaning of section 12022.7, subdivision (b).
Accomplice Testimony of Tiffany Gipson
The day after the robberies, the Vallejo police arrested Tiffany Gipson on unrelated drug charges. Gipson gave a statement to Detective Pucci while she was under the influence of drugs. Gipson testified that she made the statement because the police told her they could make the “dope” disappear, and she wanted to go home. She gave the police the least amount of information she thought was necessary to get released.
The two and one-half hour interview of Gipson was videotaped and played for the jury.
Based upon her statement, Gipson was charged with both robberies as a codefendant of Walton and Mitchell. Pursuant to a negotiated plea, she pleaded guilty to the Trinidad robbery. The prosecutor dismissed the second robbery count, and she was promised probation in exchange for her truthful testimony.
Gipson testified that she had known Walton, whose nickname was “Moosie,” and Mitchell for a few years. Gipson used crack cocaine with Walton, Mitchell, Belinda Gaitlin, also known as “Joy,” and Marcy Thompson, whom Gipson called “Diamond.” The five of them were using crack cocaine together on the evening of April 29, 2006. At around 9:00 or 10:00 p.m., Gipson was driving with Diamond in a gray BMW when they saw an Hispanic man walking down Lozier Alley off of Alameda Street. Diamond got out of the car, approached the man, and hit him in the face. Mitchell and Walton came out of a nearby apartment, and assisted Diamond while Gipson remained in the car as a lookout. Joy was also in the alley. Mitchell and Walton patted the man’s pockets, but did not hit him. Mitchell and Walton ran back into the apartment building, and Diamond came back to the car. Gipson believed that Diamond got all the cash, but she gave Gipson drugs. Gipson testified that all they took was cash. She did not see a cell phone taken in this robbery.
Gipson and Diamond continued to drive around and use drugs, and a short while later they picked up Mitchell, and then Walton. Joy was also in the car, sitting between Mitchell and Walton. While they smoked crack they developed a plan to have Joy entice a man to an apartment off Sutter Street so they could rob him. Sometime between 10:00 p.m. and midnight, while Diamond, Gipson, Mitchell and Walton were driving around, they saw Joy with an Hispanic man at Carolina and Sutter Streets. Joy did not succeed in getting the man to the apartment, so they drove past her, and Diamond, Walton and Mitchell got out of the car. Gipson remained in the car as a lookout. Diamond took the first swing at the man. After the man fell to the ground, Walton stomped on the man’s head numerous times. Mitchell took the man’s cell phone, but Gipson did not see him touch the victim. The attack lasted less than 10 minutes. The man was not moving when Diamond, Joy, Mitchell, and Walton returned to the car. Joy took the money out of the man’s wallet, and Walton threw the wallet out of the car near a baseball park off of Sutter Street. Joy kept $40, and Diamond, Walton, and Mitchell split the rest. Gipson was given more drugs for being the lookout.
Bedolla was found at Sutter and Kentucky Streets. In her videotaped interview and in the testimony at trial, Gipson maintained that the second robbery was at Sutter and Carolina Streets, which was about three blocks away from the intersection where the police found Bedolla.
Gipson testified that in her police interview she did not initially mention Walton as one of the robbery participants because he was her friend. Instead, she referred to a “young dude” who did not exist. She did not mention Walton until Detective Pucci brought him up. She also acknowledged that being under the influence of drugs made it difficult for her to remember things clearly.
Tamika Darnes
Tamika Darnes had been dating Walton for several months before April 29, 2006. On April 17, 2006, she was stabbed by a person she described only as a “Mexican.” She and Walton had a rocky relationship, and around the time the robberies occurred, Darnes was facing a misdemeanor battery charge involving Walton.
Darnes first met Detective Pucci while he was investigating the stabbing incident. Then, on May 2, when Detective Pucci asked if she knew anything about why the police were looking for Walton, she told him she had only heard on the street that he was hiding from the police. On May 9, Darnes told Detective Pucci that, in a telephone call, Walton had told her he had been in a car on Sutter Street, and had jumped out of the car when he saw Joy in an altercation with a Mexican. Walton said he hit the man and the man passed out. When Darnes brought the incident up again later, Walton denied it. Darnes believed Diamond was also involved, and she suspected Diamond had a relationship with Walton beyond the brother-sister type of relationship he claimed to have with Diamond.
At Detective Pucci’s request, Darnes made a recorded call to Walton. During the call, Darnes asked if Walton remembered telling her about how he “hit that Mexican on the street,” and whether he knew the man was in the hospital. Walton denied that he told her he hit anybody. He said he knew about it, but that he was not there, and other people did it. The rest of the call concerned an argument over Darnes’s accusation that Walton was spending time with Diamond, and Walton’s denial. Eventually, he hung up on her.
Darnes testified that the conversation she had with Walton that she described in her videotaped statement, in which he said he hit the Mexican, had occurred before she was stabbed. She told Detective Pucci about it because she believed she had been stabbed in retaliation for Walton’s attack on another Mexican. She did not want to testify against Walton at trial, but was under subpoena.
Darnes and Walton were engaged, but their plans to be married before the sentencing in this case were administratively delayed.
Other Police Investigation
Peter Bedolla’s cell phone was never recovered. Detective Pucci acknowledged that he used harsh interrogation techniques with Gipson in the videotaped interview because Bedolla’s condition was grave, and, at the time of the interview, they had no information about who was responsible. A search of Walton’s last known address revealed nothing of evidentiary value.
Detective Pucci also went to the known crack house at 1308 Sutter and attempted to interview Joy, but she would not talk. Detective Pucci also spoke to an unidentified man of Spanish descent who was present.
Analysis
I.
Mitchell’s Appeal
Mitchell contends that his convictions should be reversed because: (1) Gipson was an accomplice and there was insufficient evidence to corroborate her testimony that Mitchell committed the Trinidad or the Bedolla robbery; and (2) the trial of the two robbery counts against him should have been severed. With respect to the latter contention, Mitchell asserts that the argument is not waived by trial counsel’s failure to move for severance of the two counts, and if it is waived, counsel rendered ineffective assistance by failing to make such a motion.
We shall hold that there was sufficient corroborating evidence of Gipson’s testimony and that Mitchell’s convictions in both the Trinidad and Bedolla robbery are supported by substantial evidence. We shall also hold that the failure to move to sever the two robbery counts against Mitchell waived the contention on appeal that the two counts should have been severed, and it was not ineffective assistance to fail to make the motion.
1. Corroboration of Accomplice Testimony and Sufficiency of the Evidence
At the conclusion of the prosecution’s case, Mitchell’s defense counsel moved for a judgment of acquittal. (See People v. Belton (1979) 23 Cal.3d 516, 521-523.) He argued that there was insufficient independent corroboration of Gipson’s accomplice testimony as to either the Trinidad or the Bedolla robbery. The court denied the motion. It acknowledged that defense counsel could make a strong argument that Gipson was not a credible witness. Nevertheless, the court found Mitchell’s possession of the cell phone, and the circumstances of the Trinidad robbery and its occurrence close in time and place to the Bedolla robbery, was sufficient corroboration to submit the issue to the jury.
Defendant contends the court erred in denying his motion for acquittal and that the judgment should be reversed because his conviction rests on the testimony of an accomplice whose testimony was not corroborated by sufficient and competent evidence, in contravention of section 1111, and because Gipson’s testimony was so riddled with discrepancies and irreconcilable conflicts that it did not constitute substantial evidence.
The trial court applies the same standard when ruling on a motion for acquittal that this court follows when we review the sufficiency of the evidence to support a judgment. (Veitch v. Superior Court (1979) 89 Cal.App.3d 722, 727.) When reviewing the sufficiency of the evidence to support the judgment this court must determine whether “ ‘ “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ [Citation.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.)
“ ‘To corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation omitted.] “The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.” [Citations omitted.] . . . “[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citations omitted.]’ ” (People v. Bunyard (1988) 45 Cal.3d 1189, 1206 (Bunyard.) “The trier of fact’s determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.” (People v. McDermott (2002) 28 Cal.4th 946, 986.)
Mitchell incorrectly argues that the trial court applied the wrong standard in denying his motion for acquittal because it stated that it must assess the sufficiency of the evidence assuming the jury finds Gipson’s testimony credible. That is the correct standard, and is the same that this court applies on appeal. With respect to the evidence of corroboration, the trial court must also allow the jury to resolve conflict and credibility issues as long as the proffered evidence is admissible and reasonably tends to connect the defendant with the commission of the crime. (People v. McDermott, supra, 28 Cal.4th at p. 986.)
a. Trinidad Robbery
The primary evidence corroborating Gipson’s account of the Trinidad robbery, and specifically Mitchell’s involvement in it, consisted of the evidence that Mitchell was in possession of Trinidad’s cell phone just a few hours after the robbery and was anxious to sell it to Gaaologos on the street at 1:30 a.m. for $10.
“It is established that ‘[t]he possession of recently stolen property is sufficient to support corroboration for an accomplice’s testimony.’ ” (People v. Narvaez (2002) 104 Cal.App.4th 1295, 1304 (Narvaez).) Mitchell nonetheless contends that, in this case, the evidence of his possession of Trinidad’s cell phone did not constitute legally sufficient corroboration of Gipson’s accomplice testimony, for two reasons:
First, Mitchell contends that evidence he possessed Trinidad’s cell phone did not corroborate Gipson’s testimony because she testified that no cell phone was taken from Trinidad. He reasons that rather than corroborate Gipson, the evidence that he possessed Trinidad’s cell phone actually contradicted it. The conflict, however, was not irreconcilable, and in any event was for the jury to resolve. Trinidad testified that his assailants did remove his cell phone from his pocket. Although Gipson maintained that no cell phone was taken from Trinidad, she testified that, after Diamond hit Trinidad, Mitchell and Walton came out of a nearby apartment, “patt[ed] [Trinidad’s] pockets,” and then ran back into the apartment. The jury could have resolved the conflict between Trinidad’s account and Gipson’s assertion that no cell phone was taken by drawing the reasonable inference that Gipson simply did not see what Mitchell took from Trinidad’s pockets, because she remained in the car, whereas Mitchell returned to the apartment. Assuming, as we must when reviewing the sufficiency of the evidence to support of the judgment, that the jury did draw such an inference, then Trinidad’s testimony that his cell phone was taken, together with Mitchell’s possession of Trinidad’s cell phone and the circumstances of his attempt to sell it, was sufficient to corroborate Gipson’s testimony that Mitchell participated in the Trinidad robbery. (See People v. Espinoza (1979) 99 Cal.App.3d 44, 49 [victim’s testimony corroborated accomplice testimony that defendant used a gun despite discrepancy between victim and accomplice regarding the caliber of the gun].)
Second, Mitchell argues that evidence of his possession of the cell phone was insufficient to corroborate Gipson’s accomplice testimony because possession of recently stolen property itself requires some corroboration, however slight, to support an inference that the person in possession is guilty of a theft-related offense. In Narvaez, supra, 104 Cal.App.4th 1295, the court rejected the identical contention. It explained that “the reason for the rule requiring corroboration before evidence of possession of stolen property can raise an inference that the possessor is guilty of theft, is markedly different from the reason corroboration is required for accomplice testimony. In the former instance, corroboration is required because evidence of possession of stolen property raises a strong inference of guilt” (id. at p. 1304), and the jury is cautioned that because this is circumstantial evidence, it should have some additional basis for drawing an inference of guilt. “Accomplice testimony, on the other hand, must be corroborated because it is inherently suspect,” as coming from a “tainted source” in light of the accomplice’s interest in shifting blame to others or gaining immunity. (Ibid.) The court concluded that, for the purpose of corroborating accomplice testimony, evidence of possession of recently stolen property is sufficient because it “is direct physical evidence that does not rely on witness credibility. Thus, there is no taint of improper motive.” (Ibid.)
Mitchell attempts to distinguish Narvaez, supra, 104 Cal.App.4th 1295, by repeating his argument that here evidence of possession of Trinidad’s cell phone did not tend to establish Gipson’s credibility because she testified no cell phone was taken in that robbery. Yet, as we have explained, the jury could have concluded she was mistaken on that one point based upon Trinidad’s testimony that his cell phone was in fact taken, without discrediting the remainder of her account of the Trinidad robbery.
Mitchell also argues that the conclusion in Narvaez, supra, 104 Cal.App.4th 1295,that evidence the defendant possessed stolen property is sufficient corroboration, has been “refuted by a higher authority,” citing People v. Najera (2008) 43 Cal.4th 1132 (Najera). Yet, the court in Najera did not even address the question whether evidence the defendant possessed stolen property was sufficient to corroborate accomplice testimony that the defendant committed the theft-related offense. Instead, the court addressed the very different question whether a trial court has a sua sponte duty to instruct the jury that possession of recently stolen property is insufficient by itself to convict the defendant of a charged theft-related offense. The Supreme Court rejected the defendant’s attempt to draw an analogy to cases imposing a sua sponte duty to instruct on the need for corroboration of accomplice testimony. The court explained, “[A]ccomplice testimony requires corroboration not because such evidence is factually insufficient to permit a reasonable trier of fact to find the accused guilty . . . but because ‘[t]he Legislature has determined that because of the reliability questions posed by certain categories of evidence, evidence in those categories by itself is insufficient as a matter of law to support a conviction.’ ” (Id. at pp. 1136-1137.) The court has a sua sponte duty to give instruction on corroboration of accomplice testimony because it informs the jury of an exception, created by the Legislature for extrinsic policy reasons, to the more general rule that testimony of a single witness, whose testimony is believed, is sufficient to prove any fact. Without such instruction, a jury might convict “without finding the corroboration that Penal Code section 1111 requires.” (Id. at p. 1137.)
The Najera court reasoned that by contrast, “[a]lthough possession of recently stolen property, if uncorroborated, is likewise insufficient to establish the accused’s guilt of a theft-related offense, the insufficiency does not derive from an extrinsic legal rule, but, rather, is apparent from the general rule governing the jury’s consideration of circumstantial evidence.” (Najera, supra, 43 Cal.4th at p.1138.) In other words, although the fact of possession of recently stolen property is circumstantial evidence that the defendant committed the theft, it alone does not foreclose other innocent explanations for the circumstance of possession, such as the possibility that the perpetrator of the theft “ ‘ “artfully placed the article in the possession or on the premises of an innocent person, the better to conceal his own guilt; or it may have been thrown away by the felon in his flight and found by the possessor, or have been taken from him in order to restore it to the true owner.” ’ ” (Ibid.) The court concluded the trial court did not have a sua sponte duty to give an instruction that circumstance of possession of stolen property alone does not establish guilt because the instruction was merely a specific version of more general instructions on weighing circumstantial evidence. (Id. at pp. 1138-1141.) Nothing in this analysis undermines the conclusion in Narvaez, supra, 104 Cal.App.4th 1295, that evidence of possession of recently stolen property is sufficient corroboration of accomplice testimony that the defendant committed a theft-related offense because it is direct physical evidence, independent of the tainted accomplice source tending to link the defendant to the offense.
No doubt possession of stolen property, in this case Trinidad’s cell phone, is only circumstantial evidence that Mitchell committed the Trinidad robbery, but corroboration of accomplice testimony may be “ ‘established entirely by circumstantial evidence.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.) The question whether the circumstance that defendant possessed Trinidad’s phone supported the inference that he committed the robbery was for the jury to decide. For the purpose of permitting an inference of guilt of a theft-related offense from the possession of stolen property, corroborating circumstances may include the attributes of possession, including time, place, or manner and his or her sale of the stolen property at a discount price shortly after the theft-related offense occurred. (See People v. Hernandez (1995) 34 Cal.App.4th 73, 80-81; People v. Russo (1959) 168 Cal.App.2d 747, 750 [stolen property sold in the middle of the night for a price that suggested “ ‘hot’ merchandise”].) The jury clearly rejected the defense argument that Mitchell might have innocently acquired the phone from the Puerto Rican man who first answered when Gaaolegos called her stepfather’s phone. The jury was free instead to draw the inference that he participated in the robbery itself based upon other factors, including the fact that he possessed the phone so soon after the robbery and was anxious to sell it on the street in the very early hours of the morning for a very low price. Therefore, the evidence that Mitchell possessed Trinidad’s cell phone within a few hours of the robbery, and then tried to sell it at a low price, was sufficient corroboration of Gipson’s testimony to allow the jury, if it determined her testimony to be credible, to rely upon it in finding Mitchell guilty of the Trinidad robbery.
Mitchell’s defense counsel argued that the jury should conclude he innocently acquired the phone because it would have been stupid for Mitchell to try to sell the phone so soon after it was stolen, and to a member of the victim’s family. Yet, the jury could reasonably conclude instead that Mitchell used poor judgment either because drug use interfered with rational thought, or the need for money for more drugs overrode the otherwise rational thought that selling the phone under such circumstances risked getting caught for the robbery.
In a related vein, Mitchell argues that the many discrepancies between Gipson’s testimony and Trinidad’s account of the robbery, internal inconsistencies, and the numerous factors undermining her credibility, including the fact that she was high on crack cocaine when she gave the initial statement to Detective Pucci, was subjected to harsh interrogation, and had a strong self-interest in obtaining the benefits of her plea, renders it impossible to assign credibility to any portion of her testimony. Without belaboring the details of each point, we agree that there were many compelling reasons to discredit Gipson, but none of them rendered her testimony inherently incredible. Mitchell had a full and fair opportunity to present all of these reasons in arguments to the jury, and the question of her credibility was ultimately one for the jury, which it resolved against Mitchell. As the reviewing court, having found there was sufficient evidence to support the jury’s finding of corroboration of Gipson’s accomplice testimony, we must defer to the jury’s determination that her testimony was also credible. (See, e.g., People v. Medina (1961) 198 Cal.App.2d 224, 229-230 [when jury was fully apprised of reasons to discredit witness, including inducements in form of leniency, but found witness credible, Court of Appeal will not redetermine credibility].)
b. Bedolla Robbery
The slightly more difficult question is whether there was sufficient corroboration of Gipson’s testimony that Mitchell also participated in the robbery of Bedolla. As we have explained, the evidence of possession of Trinidad’s cell phone was physical evidence independent of the tainted source of uncorroborated accomplice testimony that tended to link Mitchell to the Trinidad robbery. There is also no question that, with respect to the Bedolla robbery, Tamika Darnes’s statement that Walton told her “they” were driving down the street when he saw Joy on the sidewalk fighting with a Mexican, that he jumped out of the car, hit the Mexican and knocked him out, coupled with the evidence that Bedolla’s wallet was found discarded nearby, constituted sufficient independent corroboration of Gipson’s testimony concerning the Bedolla robbery, at least with respect to Walton. (See, e.g., People v. Ray (1962) 210 Cal.App.2d 697, 700 [defendant’s own admissions are sufficient corroboration].) There was not, however, any additional physical evidence, or an admission that directly linked Mitchell to the Bedolla robbery. Mitchell correctly points out that the Attorney General’s reliance upon evidence that Bedolla suffered severe head injuries, which was consistent with Gipson’s statement that Walton stomped on Bedolla’s head, is misplaced, because although that evidence corroborates Gipson’s testimony regarding a circumstance of the Bedolla robbery, it does not tend to link Mitchell with its commission. (See People v. Martinez (1982) 132 Cal.App.3d 119, 132-133 [testimony regarding circumstances of commission of offense is insufficient corroboration].) The question, then, is whether there is any other evidence, direct or circumstantial, independent of Gipson’s testimony regarding the Bedolla robbery, that tended to link Mitchell with commission of the second robbery.
Darnes does not specify who “they” were.
At trial, Darnes insisted that the conversation in which Walton made this admission to her occurred before April 17 when she was stabbed, in which case Walton’s admission could not have related to the Bedolla robbery, which occurred on April 29. The jury could have discredited this portion of her testimony because she also testified that she had a rocky romantic relationship with Walton, and there was evidence that she was angry at him at the time she made the statement to Pucci, yet at trial she acknowledged she was a reluctant witness under subpoena, and had apparently reconciled with Walton. It was therefore a reasonable inference that her trial testimony regarding the date Walton made the admission was made in an effort to protect him.
Where accomplice testimony relates to multiple crimes, evidence of similarity of method, or evidence that the crimes were committed pursuant to a common plan or scheme, is circumstantial evidence that may constitute corroborative evidence linking defendant to the offenses. (See, e.g., People v. Robinson (1960) 184 Cal.App.2d 69, 77-78 [“The similarity of the commission of crimes is another circumstance of a corroborative nature”]; People v. Blackwell (1967) 257 Cal.App.2d 313, 320-321 [“similarity in the commission of crimes in a given locality is itself a circumstance tending to corroborate the testimony of an accomplice”].) Even without the aid of Gipson’s testimony, there was evidence that the two robberies were both committed in the same area within a few hours of each other. In each case a lone Hispanic man was targeted in or near an alley, hit in the head, knocked unconscious, and had his wallet and cell phone stolen. At a minimum the similarities between the two robberies and their proximity in time and locale were sufficient to suggest that these were not unrelated spontaneous acts, but rather were committed pursuant to a common plan or scheme. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) Mitchell also was found in possession of Trinidad’s cell phone, which strongly linked him to the first robbery. It was inferable, from the circumstance that the second robbery was committed pursuant to the same common plan or scheme, that Mitchell also participated in the second. No doubt this circumstantial evidence might not, standing alone, support his conviction of the Bedolla robbery, but it tended to link him to the Bedolla robbery without aid or interpretation of Gipson’s testimony, and therefore was sufficient to corroborate her testimony that he planned and participated in the Bedolla robbery, as well as the Trinidad robbery.
The foregoing evidence by itself would be sufficient to permit the jury to find Gipson’s testimony regarding Mitchell’s participation in the Bedolla robbery was corroborated. It is also worth noting, however, that although normally “[a]n accomplice cannot . . . corroborate his [or her] own testimony,” the reason for that rule is that the purported corroboration still comes form a tainted source, i.e., an uncorroborated accomplice. (See People v. Bowley (1963) 59 Cal.2d 855, 859.) Here, however, Gipson’s testimony as to Mitchell’s participation in the Trinidad robbery was corroborated by the evidence of his possession of the cell phone. In these circumstances, it would not do violence to the rule requiring corroboration of accomplice testimony to rely on her corroborated testimony concerning the Trinidad robbery as a source of additional circumstantial evidence that linked Mitchell to the commission of the Bedolla robbery. Her testimony that shortly after the Trinidad robbery the same group formed a plan to commit a second robbery also linked Mitchell to the Bedolla robbery because it tended to show defendant acted in accordance with that plan. (See Bunyard, supra, 45 Cal.3d at pp. 1206-1207 [in murder trial, evidence of prior act attempting to solicit murder of victim corroborated accomplice testimony that defendant hired him to kill the victim, because it was probative of intent, and plan or scheme to kill the victim].)
2. Joint Trial of Both Counts of Robbery
Mitchell does not dispute that it was proper to join both counts of robbery against him. He nonetheless contends that the joinder in a single trial of both counts of robbery resulted in “gross unfairness” amounting to a denial of state and federal due process. (See People v. Mendoza (2000) 24 Cal.4th 130, 162.) He argues that the joint trial of these two counts resulted in prejudice to him because the evidence of the Trinidad robbery would not have been cross-admissible in a separate trial of the Bedolla robbery, and the joinder of two weak cases, coupled with the more egregious injuries in the Bedolla robbery, resulted in convictions based upon a “spillover effect,” and inflamed emotions, rather than deliberate consideration of the separate evidence in support of each count.
Mitchell, however, never moved to sever the two counts. It is well established that a “defendant’s failure to request a severance waives the matter on appeal,” and the trial court has no sua sponte duty to sever. (People v. Hawkins (1995) 10 Cal.4th 920, 940 (Hawkins), disapproved on other grounds by People v. Lasko (2000) 23 Cal.4th 101, 110; see also People v. Maury, supra,30 Cal.4th at pp. 392-393; People v. Ramirez (2006) 39 Cal.4th 398, 438-439.)
Mitchell did file a motion to sever his trial from Walton’s and Gipson’s, on Aranda-Bruton grounds (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123), before Gipson negotiated a plea. He did not, however, challenge the joinder of the two robbery counts against him, nor did he move for separate trials of these counts.
Mitchell nevertheless contends that the failure to make a motion for severance deprived him of his Sixth Amendment right to effective assistance of counsel. “To establish ineffective assistance, defendant bears the burden of showing, first, that counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.” (Hawkins, supra, 10 Cal.4th at p. 940, see also Strickland v. Washington (1984) 466 U.S. 668, 687-694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Trial counsel’s performance is not deficient for failing to make a motion that is not meritorious or likely would be denied. (See People v. Jones (1979) 96 Cal.App.3d 820, 826-827.) Moreover, if “the trial court would not have abused its discretion by refusing to grant a motion to sever had such a motion been made,” we cannot conclude “there was a reasonable probability that a motion for severance would have been granted. Ipso facto, we cannot conclude there was a reasonable probability that counsel’s request for severance would have resulted in a verdict more favorable to defendant.” (Hawkins, supra, 10 Cal.4th at p. 941, fn. omitted.)
“A ruling on a motion to sever is based on a weighing of the probative value of any cross-admissible evidence against the prejudicial effect of evidence the jury would not otherwise hear, but in the weighing process the beneficial results of joinder are added to the probative value side.” (People v. Bean (1988) 46 Cal.3d 919, 936.) Although the determination depends on the facts of each case, factors that may support a finding of prejudice include: “(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.” (People v. Sandoval (1992) 4 Cal.4th 155, 172-173.)
Ordinarily, cross-admissibility of evidence dispels any inference of prejudice. (People v. Arias (1996) 13 Cal.4th 92, 126.) The two robberies were both committed in the same area within a few hours of each other. In each case a lone Hispanic man was targeted and accosted by a woman in or near an alley, hit in the head, knocked unconscious, and had his wallet and cell phone stolen. We need not resolve the question whether the two robberies shared sufficient distinctive common marks to be cross-admissible on the issue of identity because, at a minimum, the similarities between the methods and participants in the two robberies and their proximity in time and locale were sufficient to suggest that they were committed pursuant to a common plan or scheme. (Ewoldt, supra, 7 Cal.4th at p. 402; People v. Prince (2007) 40 Cal.4th 1179, 1271.) The evidence of the two robberies was also cross-admissible to prove motive and intent. (Evid. Code, § 1101, subd. (b).) Gipson testified that on the night of the robberies, she, Mitchell, Walton, Joy and Diamond were smoking crack together and that after the Trinidad robbery they planned to rob another person. This testimony supported an inference that Mitchell had a motive to commit both robberies, i.e., to obtain cash or property he could sell for drugs, and was also relevant to show the intent to steal underlying the physical attack on Trinidad and Bedolla. (See Bunyard, supra, 45 Cal.3d at pp. 1206-1207 [in murder trial, evidence of prior act attempting to solicit murder of victim corroborated accomplice testimony that defendant hired him to kill the victim because it was probative of intent, and plan or scheme to kill the victim].)
Moreover, even if the evidence in support of the two robberies was not cross-admissible, the evidence in the two robberies was not so weak or inflammatory that a joint trial would, or actually did, result in conviction based upon a “spillover effect” and inflamed emotions rather than consideration of the separate evidence in support of each count. Although the primary evidence in both cases was the testimony of Gipson, an accomplice, her testimony was corroborated by the evidence we have already summarized. Although Bedolla did suffer more severe injuries, both victims were hit in the head and knocked unconscious, and the level of violence in the Bedolla case is not so extraordinary that it would be unusually likely to inflame the jury. (Cf. Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 138-139 [holding it was an abuse of discretion not to sever highly inflammatory counts of sex offense committed against children from count of murder of an adult].)
For all the forgoing reasons, we conclude that a motion to sever would likely not have been granted, and therefore counsel’s failure to make the motion was not incompetent, nor did the failure to make a motion to sever result in any prejudice to Mitchell.
II.
Walton’s Appeal
Walton raises two issues on appeal. First, he contends that the court abused its discretion by denying his motion to sever his trial from Mitchell’s, and that the denial of his motion to sever resulted in a violation of his due process right to a fair trial. Second, he contends that the court erred by refusing to give a limiting instruction with respect to evidence of Mitchell’s possession of Trinidad’s cell phone. He argues that this refusal coupled with the use of the word “defendant” in portions of CALCRIM No. 376 on possession of stolen property, requires reversal because the jury could have understood these instructions to permit it to find Walton guilty of the Bedolla robbery based upon Mitchell’s possession of Trinidad’s phone.
We shall address the claim of instructional error first because Walton also relies upon this claim of error in support of his contention that denial of the motion to sever resulted in a violation of his due process right to a fair trial.
1. CALCRIM No. 376 and Refusal to Give CALCRIM No. 304
The court gave the following instruction pursuant to CALCRIM No. 376 on possession of stolen property: “If you conclude that the defendant, Darryl Mitchell, knew he possessed property, and you conclude that the property had in fact been recently stolen, you may not convict the defendant of Penal Code Section 211, robbery, based on those facts alone. [¶] However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove that he committed Penal Code Section 211, robbery. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. . . . You may consider how, where and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of Penal Code Section 211, robbery.”
Walton initially requested that the court also give CALCRIM No. 304, which states: “I instructed you during the trial that certain evidence was admitted only against [a] certain defendant[s]. You must not consider that evidence against any other defendant.” When the parties conferred on instructions with the court, the court did not include this instruction. After reviewing the packet and making several changes, the court asked whether either party had anything to add, or objections to state. Walton’s defense counsel did not object to the omission of CALCRIM No. 304. The court ultimately did not give that instruction.
Walton contends it was error to refuse to give CALCRIM No. 304, and that this error, combined with the references in CALCRIM No. 376 to “defendant,” without specifying which defendant, rendered it highly likely that the jury considered Mitchell’s possession of Trinidad’s cell phone as evidence that Walton was guilty of the Bedolla robbery.
A trial court has no sua sponte duty to give a limiting instruction such as CALCRIM No. 304, but in a trial involving multiple defendants, when evidence is admissible “as to only one defendant, the trial court’s failure to give a requested limiting instruction constitutes error.” (People v. Miranda (1987) 44 Cal.3d 57, 83, reversed on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) Although the record is equivocal on the question whether the court refused CALCRIM No. 304, or whether the request was withdrawn, we shall assume arguendo that the court refused to give it and that this was error. Any error in refusing this instruction did not, however, result in prejudice to Walton because other instructions given conveyed essentially the same point. CALCRIM No. 304 relates the more general instruction set forth in CALCRIM No. 303 that evidence admitted for a limited purpose may only be considered for that purpose, to a specific circumstance involving multiple defendants when evidence is admissible only as to a particular defendant. The court gave the more general CALCRIM No. 303 and CALCRIM No. 203, which instructs the jury to “separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately.” These two instructions, when read together, convey essentially the same point as CALCRIM No. 304. Since Walton was not charged with the robbery of Trinidad, the jury, under the instructions given, would have considered Mitchell’s possession of property stolen from Trinidad as evidence of only Mitchell’s guilt of the Trinidad robbery.
Nor is there any “reasonable likelihood” that the jury would have understood CALCRIM No. 376 to apply to Walton, or to mean that, contrary to CALCRIM Nos. 203 and 303, it could consider evidence that Mitchell possessed Trinidad’s cell phone as evidence that Walton committed the Bedolla robbery. (See Estelle v. McGuire (1991) 502 U.S. 62, 72; see also People v. Kelly (1992) 1 Cal.4th 495, 525 [“the question is whether there is a ‘reasonable likelihood’ that the jury understood the charge as the defendant asserts”].) In light of the opening sentence of CALCRIM No. 376 explicitly identifying “defendant Darryl Mitchell,” no reasonable juror would conclude, simply because the subsequent references to “defendant” did not repeat this identification, that the instruction also applied to Walton. By its terms, CALCRIM No. 376 applied only if the jury concluded that defendant “Darryl Mitchell knew he possessed property” (italics added) that was recently stolen. The only evidence of possession of recently stolen property involved Mitchell, and the evidence was that Mitchell possessed a cell phone taken from Trinidad. Walton was not charged with the robbery of Trinidad. Therefore, to interpret CALCRIM No. 376 to permit the jury to convict Walton of the Bedolla robbery based upon evidence that Mitchell possessed Trinidad’s property, the jury would have had to disregard CALCRIM Nos. 203 and 303. Moreover, in substance, CALCRIM No. 376 cautions the jury against inferring guilt based solely upon the defendant’s conscious possession of recently stolen goods. It would be unreasonable and illogical for the jury to construe this instruction to also permit it to infer guilt of different defendant, who did not possess the stolen property, and who is not even charged with the robbery in which the property was taken.
For the foregoing reasons, we find no reasonable likelihood that the jury would construe CALCRIM No. 376 in the manner defendant suggests. Any reasonable jury would correlate the reference in the first paragraph of CALCRIM No. 376 to “defendant Darryl Mitchell” with the remaining references to “defendant” in the subsequent paragraphs. (See People v. Speegle (1997) 53 Cal.App.4th 1405, 1413 [court rejected argument that jury would understand instruction based upon reading subsequent paragraphs without reference to preceding paragraphs, and held a “reasonable juror necessarily will correlate” a reference to “act or omission” in the final paragraph of an instruction with a list of elements in the second paragraph].)
2. Denial of Walton’s Motion to Sever
Walton contends that the court abused its discretion in denying his pretrial motion to sever his trial from Mitchell’s. He argues that the court should have granted the motion based upon Walton’s contention that he would be prejudiced by the stronger case against Mitchell with respect to the Trinidad robbery. He further contends that, even if the court did not abuse its discretion in denying the severance motion, the joint trial resulted in a gross unfairness and a violation of his due process rights because the prosecutor’s closing argument relied on the fact that Mitchell possessed property stolen in the Trinidad robbery to obtain Walton’s conviction of the Bedolla robbery. He argues the prejudice flowing from the prosecutor’s argument was compounded by the foregoing claimed instructional errors we have already found unpersuasive.
“[D]enial of a motion for severance is reviewed for abuse of discretion.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41.) The reviewing court assesses the ruling based on the record before the trial court at the time. (People v. Arias (1996) 13 Cal.4th 92, 127; People v. Price (1991) 1 Cal.4th 324, 388.) Of course, even a ruling that was correct when made cannot stand if joinder caused such “ ‘ “gross unfairness” ’ as to violate defendants’ due process rights.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 998.)
The court did not abuse its discretion in denying Walton’s motion to sever. Section 1098 states in pertinent part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials.” In light of this legislative preference for joinder, separate trials are usually ordered only “ ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ ” (People v. Turner (1984) 37 Cal.3d 302, 312, overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1115, quoting People v. Massie (1967) 66 Cal.2d 899, 917, fns. omitted.) The charges against Walton and Mitchell were properly joined because the robberies occurred on the same evening in the same area, had participants in common, and had several witnesses in common, including Tiffany Gipson.
Walton’s pretrial motion to sever was based primarily on his concern that a videotaped statement Mitchell had made to the police regarding how he came to be in possession of Trinidad’s cell phone, which also implicated Walton in both robberies, would be admitted. He argued that Mitchell’s statement could not be redacted, and therefore People v. Aranda, supra,63 Cal.2d 518 and Bruton v. United States, supra, 391 U.S. 123 (hereafter Aranda-Bruton) required that their trials be severed. This Aranda-Bruton ground for severance was eliminated by the prosecution’s agreement that it would only introduce Mitchell’s statement if Mitchell took the stand and testified. The court stated it would then hold an Evidence Code section 402 hearing to determine whether Mitchell’s statement could be redacted. Walton’s counsel agreed that, on these conditions, there would be no Aranda-Bruton issue. Walton does not challenge that concession on appeal.
Mitchell’s videotaped statement was not introduced at trial and is not part of the record on appeal. In the motion to sever, defense counsel represented that in this statement Mitchell initially asserted he obtained the cell phone from a Mexican named Hector, but later stated that the cell phone must have come from “Moosie,” which the police later learned was a nickname for Walton.
Aranda-Bruton and their progeny provide that “if the prosecutor in a joint trial seeks to admit a nontestifying codefendant’s extrajudicial statement, either the statement must be redacted to avoid implicating the defendant or the court must sever the trials.” (People v. Hoyos (2007) 41 Cal.4th 872, 895.) When the codefendant testifies and is available for cross-examination, however, his or her “extrajudicial statement implicating another defendant need not be excluded.” (Id. at p. 896.)
The only other ground for severance Walton asserted was that the evidence against Mitchell was stronger because Mitchell was found in possession of Trinidad’s cell phone, whereas there was no physical evidence linking Walton to the Bedolla robbery. Walton argued that in a joint trial he would be convicted based upon his association with Mitchell, instead of the evidence against him, and the relatively weak case against Walton would be bolstered by the evidence of Mitchell’s possession of Trinidad’s cell phone. The disparity in the strength of the case against Mitchell, however, related to the Trinidad robbery, and only Mitchell was charged with that offense. With respect to the Bedolla robbery, the strength of the evidence against Mitchell and Walton was essentially the same: There was no physical evidence linking either Walton or Mitchell to the crime, and no eyewitness identification. The primary evidence against both men was Gipson’s testimony. The court therefore could have reasonably concluded that a joint trial did not pose a significant risk that Walton would be convicted based upon the spillover effect of stronger evidence against Mitchell. Also, when severance would result in “presentation of much the same evidence and witnesses” in each trial, judicial economy is a factor weighing in favor of a joint trial. (People v. Keenan (1988) 46 Cal.3d 478, 501.) It was within the court’s discretion to balance the substantial benefits of joinder in this case against the minimal risk of prejudice to Walton, and conclude that the benefits of joinder outweighed the risk of potential prejudice to defendant. (Id. at p. 502.)
Nor are we persuaded that the joint trial resulted in “ ‘a gross unfairness’ ” that deprived Walton of “ ‘a fair trial or due process of law.’ ” (People v. Cleveland (2004) 32 Cal.4th 704, 726.) The portions of the prosecutor’s closing argument that defendant cites, when read in context, do not support his assertion that the prosecutor’s closing argument relied on the fact that Mitchell possessed property stolen in the Trinidad robbery to prove Walton’s guilt in the Bedolla robbery. Defendant cites the prosecutor’s argument that the “only explanation” for Mitchell’s possession of Trinidad’s cell phone was that it was taken in the Trinidad robbery “when Mr. Mitchell and Mr. Walton were going through Mr. Trinidad’s pockets.” Despite the passing reference to Walton, it is quite clear in context that this argument was not advanced in support of finding Walton guilty of the Bedolla robbery. The prosecutor was anticipating Mitchell’s possible defense argument, based upon Gaaolegos’s testimony that when she first called her stepfather’s phone a Puerto Rican man answered, and that Mitchell therefore could have innocently obtained the phone from the Puerto Rican man. The excerpted portion defendant cites was directly preceded by argument in which the prosecutor asked the jury, in “regards to Darryl Mitchell and the first robbery . . . to keep this thought in your mind and try to answer the question: How did Mr. Mitchell get Carlos Trinidad’s phone?” (Italics added.) It was followed by the argument that “the only reasonable explanation of how Darryl Mitchell got that cell phone was that he was involved with the first robbery (italics added).” It was obvious in context that the entire argument related only to Mitchell and the evidence of his guilt in the robbery of Trinidad.
As another example of prosecutorial argument blurring the lines between the two robberies and the two defendants, Walton cites another portion of argument in which he asserts the prosecutor asked the jury to convict the “defendants” based upon Gipson’s testimony, Tamika Darnes’s statement, and Mitchell’s possession of Trinidad’s phone. The prosecutor argued: “You can find the defendants guilty, given Ms. Gibson’s statement;. . . . you have the testimony of Ms. Gipson; you have Tamika Darnes’s videotaped statement; you have Mr. Mitchell, the night of this robbery, having the robbery victim’s property on him.” Again, read in context, it is clear the prosecutor referred to the “defendants” collectively because he was summing up for the jury the evidence that would support convictions of each defendant of the charges against them. Gipson’s testimony was the main piece of evidence against each of them. The reference to Darnes and to Mitchell’s possession of the cell phone simply related back to the prosecutor’s argument regarding the need for corroboration of accomplice testimony, and was a shorthand reference to more detailed argument he had made that Darnes’s statement corroborated Gibson’s testimony as to Walton’s involvement in the Bedolla robbery, and that Mitchell’s possession of Trinidad’s cell phone corroborated her testimony regarding Mitchell’s involvement in the robberies.
Finally, our analysis of Walton’s claim of instructional error, ante, disposes of Walton’s argument that the prejudice flowing from the prosecutor’s argument was compounded by the use of the term “defendant” in CALCRIM No. 376 without specifying that evidence of possession of recently stolen property pertained only to Mitchell, and the failure to instruct the jury that the evidence of Mitchell’s possession of stolen property should be considered only in deciding Mitchell’s guilt.
For the foregoing reasons, we conclude that the trial court did not abuse its discretion in denying Walton’s pretrial motion to sever his trial from Mitchell’s, and the record does not support Walton’s assertion that the joint trial deprived him of his right to a fair trial.
Conclusion
The judgments are affirmed.
We concur: MARCHIANO, P. J., SWAGER, J.