Filed 9/14/20 P. v. Quiroz CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072344
v. (Super.Ct.No. 16CR072259)
ARTHUR JOSEPH QUIROZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ronald M.
Christianson, Judge. Affirmed.
Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Teresa
Torreblanca, and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and
Respondent.
1 In a single trial on charges arising from two separate incidents, a jury found 1 defendant and appellant Arthur Joseph Quiroz guilty of first degree murder (Pen. Code,
§ 187, count 1), attempted murder (§§ 186, subd. (a), 664, count 2), two counts of
unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1), counts 3 & 6), and
second degree robbery (§ 211, count 4), and found true firearm enhancements alleged
with respect to counts 1, 2, and 4. The jury acquitted Quiroz on an attempted carjacking
charge (§§ 215, subd. (a), 664, count 5) and a gun enhancement associated with that
charge. The trial court found true alleged recidivism-based enhancements, and sentenced
Quiroz to a determinate sentence of 45 years, plus an indeterminate sentence of 75 years
to life in prison, with a minimum parole eligibility date of 14 years.
Quiroz argues here that the trial court erred by consolidating the charges from the
two incidents, initially filed separately, into a single case. We reject this argument,
finding no abuse of discretion in the trial court’s consolidation of the two cases, and no
violation of Quiroz’s right to due process. Quiroz further contends that he received
ineffective assistance of counsel because his trial counsel did not move to suppress
pretrial and in court identifications of him by one of the victims. We decline to consider
the merits of this argument, finding it more appropriately considered on a record
developed in a habeas corpus proceeding. We therefore affirm the judgment.
1 Further undesignated statutory references are to the Penal Code.
2 I. BACKGROUND
On the evening of April 19, 2016, a woman, K.L., and her fiancé, Dewayne
Phillips, drove to a park near the church where they planned to get married, intending to
have a drink, smoke some marijuana, and discuss their wedding plans. They had been
there, still seated in the car, for about five minutes when a man tapped on a rear window
with a gun. The man then approached the driver’s side window, where K.L.’s fiancé was
sitting, and said “What’s up . . . ?” adding a racial epithet. K.L.’s fiancé responded:
“What’s up?” The man then opened fire into the car, striking K.L.’s fiancé, then running
around to the passenger’s side and shooting at K.L. K.L.’s fiancé was shot four times and
died from his injuries. K.L. was shot once, but survived.
K.L. spoke to police about what had happened, describing the shooter as a
Hispanic male, and stating that she believed she could identify him. Police matched a
palm print recovered from the car’s driver’s side rear door to Quiroz. In June 2016, about
two months after the shooting, a detective showed K.L. a photo lineup that included
Quiroz’s picture. K.L. commented that two of the pictures (in positions 2 and 5)
resembled the shooter, and she expressed that she wished the photograph of a third, in
position 4, showed his head from a different angle. Quiroz’s photograph was the one in
position 4. K.L. did not identify any of the men as the shooter.
The next morning, K.L. sent the detective a text message that she had a dream
about the shooting and wanted to take another look at the photograph in position 4,
Quiroz’s photo. The detective was busy with an unrelated investigation, however, and
3 did not meet with K.L. again until December 2016. At the December 2016 meeting, the
detective showed K.L. another photo lineup. The new lineup had a different picture of
Quiroz, from closer in time to the shooting, coincidentally again in position 4. This time,
K.L. identified Quiroz as the shooter. K.L. asked to see the photographs from the first
lineup again. The detective gave her the photos from the first lineup in a stack with
numbers removed, and out of their original order. K.L. again identified Quiroz’s
photograph as that of the shooter.
At trial, in October 2018, K.L. again identified Quiroz as the shooter, pointing him
out from the witness stand.
Meanwhile, on June 13, 2016, a man (R.R.) was in his car making a phone call
and preparing to drive away from where he had just won some money gambling. A red
Honda drove up behind him, preventing him from leaving. Two men approached, one of
whom had a gun. The two men robbed R.R. at gunpoint, taking $200, as well as a phone,
an empty wallet, and a necklace. As they were robbing R.R., they also punched him in
the face multiple times, breaking his nose and causing abrasions, redness, and swelling.
They also told R.R. that they were going to take his car. R.R. was able to get away from
them on foot, however, taking his keys with him.
R.R. recognized both men as people he knew by their nicknames; at trial, he
identified Quiroz as the person who held a gun on him and who first punched him. Once
R.R. was able to reach a safe place and call the police, he reported who had robbed him
and described the car they were driving. Shortly thereafter, a few miles from the robbery,
4 patrol officers pulled over a red Honda with three occupants, including Quiroz, the
second man R.R. identified (J.G.), and a third person. R.R. was driven to where Quiroz
and his companions had been detained, and he identified Quiroz and J.G. as the people
who had robbed him, pointing out that Quiroz was wearing his stolen necklace. Over
$200, in denominations matching those described by R.R. to police, was found in
Quiroz’s pocket. A phone and wallet matching R.R.’s description of items taken from
him were recovered from the car. Police did not find a firearm.
R.R. failed to appear the first time he was subpoenaed to testify. He also admitted
to having a criminal record, including theft and drug offenses.
J.G., a cousin by marriage of Quiroz, testified at trial for the defense. J.G. had
pleaded guilty to robbery for the incident with R.R., but he asserted that neither he nor
Quiroz in fact took anything from R.R., claiming that the allegedly stolen property found
in the car all belonged to himself or R.R. Rather, according to J.G., he approached R.R.’s
car alone, and punched him as part of a dispute over R.R.’s attempt to “be with” J.G.’s
girlfriend. J.G. testified that Quiroz and the third person drove with him to R.R.’s
location, but waited by the car and did not participate in the assault.
Over defense opposition, the charges arising from the two incidents were
consolidated into a single trial. In connection with the April 2016 incident, the jury
found Quiroz guilty of first degree murder (§ 187, subd. (d), count 1), attempted murder
(§§ 186, 664, count 2), and unlawful possession of a firearm by a felon (§ 29800, subd.
(a)(1), count 3). The jury also found true a firearm enhancement of count 1, pursuant to
5 section 12022.53, subdivision (d), and a firearm enhancement of count 2, pursuant to
section 12022.53, subdivision (c). In connection with the June 2016 incident, the jury
found Quiroz guilty of second degree robbery (§ 211, count 4) and a second count of
unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1), count 6). It also found
true a firearm enhancement of count 4, pursuant to section 12022.53, subdivision (b). It
acquitted Quiroz of attempted carjacking (§§ 215, subd. (a), 664, count 5) and a firearm
enhancement alleged as to count 5.
The trial court, with the agreement of the prosecution, dismissed gang
enhancements alleged as to counts 4 and 6. The court found true that Quiroz had a prior
strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious
felony conviction (§ 667, subd. (a)). The trial court imposed a sentence of 50 years to life
for count 1 (25 years to life, doubled by the strike prior), plus 25 years to life for the
firearms enhancement of count 1; a consecutive term of life in prison with a minimum
parole eligibility date of 14 years (seven years, doubled by the strike prior) for count 2,
plus 20 years for the firearms enhancement of count 2; a 10 year term (five years,
doubled by the strike prior) for count 4, plus 10 years for the firearms enhancement of
count 4; five years for the prior serious felony enhancement; and stayed terms for counts
3 and 6, for a total sentence of a determinate term of 45 years plus an indeterminate term
of 75 years to life with a minimum parole eligibility date of 14 years.
6 II. DISCUSSION
A. Consolidation
Quiroz contends that the trial court erred by consolidating the charges arising from
the two separate incidents into a single trial. We find no abuse of the trial court’s
discretion.
In relevant part, section 954 provides “if two or more accusatory pleadings are
filed” charging “two or more different offenses of the same class of crimes or
offenses . . . the court may order them to be consolidated.” (§ 954.) Nevertheless, “‘[t]he
determination that the offenses are “joinable” under section 954 is only the first stage of
analysis because section 954 explicitly gives the trial court discretion to sever offenses or
counts “in the interest of justice and for good cause shown.”’” (People v. Lucky (1988)
45 Cal.3d 259, 276-277 (Lucky).) “Joinder is ordinarily favored because it avoids the
increased expenditure of funds and judicial resources that may result from separate
trials.” (People v. Simon (2016) 1 Cal.5th 98, 122, italics added.)
A motion for joinder is directed to the discretion of the trial court. (People v.
Morgan (1955) 134 Cal.App.2d 97, 98, fn. 6.) Where the statutory requirements for
joinder are met, a defendant must make a clear showing of prejudice to establish an abuse
of discretion. (People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza).) “In
determining whether there was an abuse of discretion, we examine the record before the
trial court at the time of its ruling. [Citation.] The factors to be considered are these: (1)
the cross-admissibility of the evidence in separate trials; (2) whether some of the charges
7 are likely to unusually inflame the jury against the defendant; (3) whether a weak case
has been joined with a strong case or another weak case so that the total evidence may
alter the outcome of some or all of the charges; and (4) whether one of the charges is a
capital offense, or the joinder of the charges converts the matter into a capital case.”
(Mendoza, supra, at p. 161.) Those four factors must also be weighed against the
benefits to the state from joinder. (People v. Soper (2009) 45 Cal.4th 759, 783 (Soper).)
A trial court’s denial of a motion to sever properly joined charged offenses amounts to a
prejudicial abuse of discretion only if that ruling falls outside the bounds of reason, based
on facts known to the court at the time of the motion. (Id. at p. 774; People v. Geier
(2007) 41 Cal.4th 555, 575.)
Here, the statutory requirements for joinder under section 954 were satisfied
because the offenses were “of the same class of crimes.” (§ 954.) It is well established
that robbery and murder are considered part of the same “class,” specifically, “assaultive
crimes against the person.” (Lucky, supra, 45 Cal.3d at p. 276.)
“Since the statutory requirements for joinder were met in the present case,
appellant can establish error only on a clear showing of prejudice.” (Lucky, supra, 45
Cal.3d at p. 277; see Mendoza, supra, 24 Cal.4th at p. 160.) Quiroz argues that evidence
of the two separate incidents would not have been cross-admissible in separate trials, and
the People have not contended otherwise. That factor, therefore, tends to weigh in favor
of Quiroz’s claim of prejudice, though “the absence of cross-admissibility does not by
itself demonstrate prejudice.” (Mendoza, at p. 161.)
8 We turn next to the other three factors, which the Supreme Court has summarized
as “likelihood to unduly inflame; bolstering of a weak case with a strong one [or a second
weak case]; and conversion of charges into a capital offense.” (Soper, supra, 45 Cal.4th
at p. 780.) We find that none of these factors support Quiroz.
First, this is not a capital case, so it is undisputed that the third factor does not
weigh in favor of a finding of prejudice.
Second, as Quiroz correctly points out, murder is a more serious crime than
robbery. It does not follow, however, that the trial court was compelled to find the
charges from the April 2016 incident unduly inflammatory. More commonly, the
concern regarding inflammatory evidence is that strong evidence of a lesser but more
inflammatory crime might be used to bolster a weak prosecution case on another, more
serious crime. (People v. Mason (1991) 52 Cal.3d 909, 934; see also, e.g., People v.
Chism (2014) 58 Cal.4th 1266, 1308 [robbery charge properly joined with attempted
robbery and capital murder charge in part because details of additional robbery were not
inflammatory].) Of course, Quiroz was entitled to a fair trial on all of his charges, and we
do not exclude the possibility that, under some circumstances, concerns about prejudice
from inflammatory evidence of the more serious crime would support severance from
less serious charges. We are not persuaded, however, that this is such a case.
We find the discussion in People v. Capistrano (2014) 59 Cal.4th 830
(Capistrano) instructive on the issue of “likelihood to unduly inflame,” as the Supreme
Court put it in Soper, supra, 45 Cal.4th at p. 780. In Capistrano, charges arose from
9 three separate home invasion robberies. (Capistrano, supra, at p. 849.) During one of
the home invasions, a victim, J.S., was raped, in addition to being robbed. (Id. at pp. 841-
842.) A second incident involved not only robbery, but also the attempted murder of a
victim with the last name Martinez. (Id. at pp. 844-845.) A third home invasion did not
involve rape or murder, but only the robbery of a family with the last name Weir. (Id. at
pp. 842-843.) The Supreme Court nevertheless disagreed with the defendant’s
characterization of the “Weir robbery” as relatively “‘nonviolent’”, finding that it too
involved “terrifying circumstances.” (Id. at p. 850.) On that basis, the Supreme Court
rejected the defendant’s “claim that evidence of the J.S. and Martinez offenses was so
much more inflammatory it would have rendered the jury incapable of fairly assessing
the evidence pertaining to the Weir robbery.” (Id. at p. 851.)
Here, similarly, the charges against Quiroz arose from separate incidents, in which
Quiroz was accused of ambushing victims, not in their homes, but rather while they were
sitting in their parked cars. One of those incidents resulted in a murder and attempted
murder, the other only a robbery. Nevertheless, as alleged, both involved violent,
terrifying assaults at gunpoint. The trial court was not compelled to find the evidence of
the April 2016 murder so much more inflammatory it would have rendered the jury
incapable of fairly assessing the evidence pertaining to the June 2016 robbery.
Finally, we also reject Quiroz’s characterization of this as a circumstance where
“two weak cases were joined together.” Quiroz was identified by an eyewitness as the
perpetrator, or at least one of them, in both incidents. There was a basis in the evidence
10 for the defense to argue that there was reason to doubt both of those eyewitness
identifications; as discussed, K.L. did not immediately pick Quiroz out of a photographic
lineup, while R.R.’s credibility was arguably impeached by his criminal record, and his
account of events was disputed by J.G. Both of the eyewitness identifications, however,
were corroborated by physical evidence. Quiroz’s handprint was found on K.L.’s car
door, and he was apprehended wearing a necklace that R.R. identified as his own, while
other items that had been stolen from R.R. were also recovered from the red Honda and
its occupants. Again, as Quiroz argues, the physical evidence, too, was not necessarily
impervious to challenge by the defense. Nevertheless, in our view, neither the case
against Quiroz based on the April 2016 incident nor the case based on the June 2016
incident should be characterized as “weak.” Indeed, each could reasonably be
characterized as strong, even if not overwhelming.
Thus, of the four factors relating to prejudice listed in Mendoza, supra, 24 Cal.4th
130 only the first, regarding cross-admissibility of evidence, unambiguously weighs in
favor of Quiroz. It was reasonable for the trial court to conclude that consolidating
Quiroz’s cases would not be unduly prejudicial.
Moreover, we must also “proceed to weigh all four factors [regarding prejudice]
against the benefits to the state of joinder,” which are “very substantial.” (Soper, supra,
45 Cal.4th at pp. 780, 783.) “Foremost among these benefits is the conservation of
judicial resources and public funds. A unitary trial requires a single courtroom, judge,
and court attaches. Only one group of jurors need serve, and the expenditure of time for
11 jury voir dire and trial is greatly reduced over that required were the cases separately
tried. In addition, the public is served by the reduced delay on disposition of criminal
charges both in trial and through the appellate process.” (People v. Bean (1988) 46
Cal.3d 919, 939-940.)
On the record before us, after considering all the relevant factors, we are not
persuaded that the trial court exceeded the bounds of reason in concluding that Quiroz
had not made a clear showing of prejudice from consolidation of his two cases. Quiroz
therefore has not demonstrated that the trial court’s ruling amounted to an abuse of
Quiroz further argues that, even if the trial court’s decision regarding
consolidation was not an abuse of discretion at the time, later developments during trial
show a denial of due process due to “‘gross unfairness.’” (People v. Arias (1996) 13
Cal.4th 92, 127.) Gross unfairness exists when there is a reasonable probability that the
jury’s verdict was influenced by joinder. (See People v. Bean, supra, 46 Cal.3d at p. 940
[finding no gross unfairness because “it is not reasonably probable that the jury was
influenced in its verdict of guilt of [one set of] crimes by its knowledge of his
involvement in [a second set of] offenses”].) Again, we are not persuaded.
As Quiroz argues in briefing on appeal, there were various inconsistencies
between what K.L. and R.R. told police and their testimony at trial, and also within their
testimony at trial. Also, at trial, evidence of a history of conflict between R.R. and
Quiroz came out; according to R.R., this was not the first time Quiroz attempted to take
12 his car, and there also seems to have been a dispute over a female, though it is not clear
whether this dispute was with Quiroz, J.G., or both. We disagree with Quiroz, however,
that the relative strength of the two cases was changed in any meaningful way by the
additional information that came out at trial. Moreover, it is not apparent why these
additional issues should be viewed as increasing the risk that the jury amalgamated the
evidence of the two separate incidents.
To the contrary, the record shows that both the prosecution and the defense
worked to ensure that the jury would have no difficulty separating the evidence of the
two incidents. All of the prosecution’s evidence of the April 2016 murder and attempted
murder was presented first, and then it presented evidence of the June 2016 robbery. In
its closing argument, the prosecution emphasized that the jury had been presented
evidence of two “separate incidents,” and divided its discussion of the charges
accordingly. The defense, too, emphasized that it would be inappropriate for the jury to
combine the evidence of the two cases. In rebuttal, the prosecution took issue with the
defense’s suggestion that the prosecution was using a weak case to prop up a strong one,
stating: “Now, [defense counsel] made it a point to say that I’m pretending to have a
good case and, therefore, we have these two incidents filed together in the same trial. No.
It happened to be two separate incidents that this defendant committed, happens to be one
case. Don’t put the blame on me. Don’t make it sound like I’m the one that’s pretending
to make a bad case a good case. No. There are two good cases with two good IDs and
with two different types of evidence for each case because they were different
13 investigations.” The circumstance that the jury acquitted Quiroz of carjacking, but found
him guilty on the other alleged counts, also tends to show the jury treated charges
separately, even if, as Quiroz notes, the acquittal would not be necessarily enough, on its
own, to show the jury appropriately compartmentalized the evidence.
Quiroz complains that the trial court did not give CALCRIM No. 3515 or other
limiting instruction “to help mitigate the risk of spillover.”2 The trial had no sua sponte
duty to give such an instruction, however, and Quiroz did not request one. (See People v.
Beagle (1972) 6 Cal.3d 441, 455, abrogated on another ground in People v. Diaz (2015)
60 Cal.4th 1176.)
We find no reasonable probability that the jury’s verdict was affected by joinder.
Quiroz therefore has not demonstrated any violation of his due process rights.
B. Ineffective Assistance of Counsel
Quiroz contends that his trial counsel provided ineffective assistance of counsel by
failing to seek to exclude K.L.’s pretrial and in court identifications of him from
evidence, arguing that the identifications were tainted by undue suggestion. We decline
to reach the merits of this argument here.
2 CALCRIM No. 3515 provides: “Each of the counts charged in this case is a separate crime [. . .] . You must consider each count separately and return a separate verdict for each one.”
14 To establish ineffective assistance of counsel, “the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different.” (People v. Mai
(2013) 57 Cal.4th 986, 1009.) On direct appeal, a conviction will be reversed for
ineffective assistance “only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (Ibid.)
Our tentative opinion in this matter explained that Quiroz’s claim is among those
more appropriately resolved in a habeas corpus proceeding. At oral argument, both
Quiroz and the People asked that we decide the matter on appeal. Predictably, however,
both sides contend that the record compels a ruling in their favor.
After reviewing the record again in light of the parties’ requests, we continue to
believe the matter is best resolved in a habeas corpus proceeding. The record on appeal
is open to competing factual inferences—including, for example, regarding trial counsel’s
reasoning, and the procedures employed by police in conducting the photographic lineups
shown to K.L.—that reasonably could lead to different conclusions on either prong of the
15 Strickland inquiry. Accordingly, we find it would be inappropriate to decide the merits
of Quiroz’s ineffective assistance of counsel claim here.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
MILLER Acting P. J.
SLOUGH J.