Filed 7/11/16 P. v. Tovar CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067549
Plaintiff and Respondent,
v. (Super. Ct. No. SCD245132)
GERARDO ANDRE TOVAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F.
Fraser, Judge. Affirmed.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Brendon W.
Marshall and Samantha Begovich, Deputy Attorneys General, for Plaintiff and
Respondent. Defendant Gerardo Andre Tovar and codefendant Frederick Jocobo1 were charged
by amended information with one count of murder (Pen. Code,2 § 187, subd. (a)). The
amended information further alleged defendant Tovar personally used a firearm to inflict
great bodily injury (§§ 12022.5, subd. (a), 12022.53, subds. (d) & (e)(1)), committed the
murder for the benefit of, at the direction of, or in association with a criminal street gang
(§ 184.22, subd. (b)(4)) and had served two prior prison terms (§§ 667.5, subd. (b), 668).
A jury convicted defendant of first degree premeditated murder and found the
above enhancements true. After finding the prior prison allegations true, the court
sentenced defendant to prison for an indeterminate term of 50 years to life plus a two-
year determinate term.
Defendant contends the court erred when it ruled to admit the victim's sister's in-
court preliminary hearing identification of defendant as the shooter. He also contends the
court erred when it denied his motions to sever, dismiss and for a mistrial, and when it
instructed the jury on voluntary intoxication. Affirmed.
FACTUAL OVERVIEW
Andrew Clayton testified that in May 2007, he and Raymond Gaxiola were both
aspiring members of the criminal street gang National City Block Boys (NCBB).
Clayton, then 16 years old, went by the moniker "Soldier" and Gaxiola by the moniker
"Little Smurf." Gaxiola's other brother was Jocobo, who was also a member of NCBB.
1 Jocobo was acquitted by the jury.
2 All further statutory references are to the Penal Code unless otherwise noted. 2 In the evening on May 9, 2007, Clayton and Gaxiola drove a tan Blazer owned by
Clayton's uncle to a park in National City in order to "hang[] out." While at the park,
they encountered defendant, who was then a documented member of the National City
Loco (NCL) criminal street gang and who went by the moniker "Flaco." Clayton
testified that NCBB and NCL were aligned, as they both are from the "East Side" of
National City. Before that day, Clayton had never met defendant. Gaxiola knew
defendant through his older brother Jocobo. Defendant was about five or six years older
than Clayton and Gaxiola. Later, all three went in the Blazer to pick up Jocobo.
Clayton testified that, after they picked up Jocobo, defendant wanted to be driven
to an apartment on 24th Street in order to pick up a shotgun. Defendant went inside and
returned a few minutes later with a "big blue bag." Through the car's rearview mirror,
Clayton saw defendant unzip the blue bag and take out a shotgun. Clayton said they all
discussed going into a rival gang's territory to look for rival gang members. They
decided as a group to go to Shelltown, where there was a criminal street gang that was a
rival of both NCBB and NCL.
While on their way to Shelltown, they came upon a construction site. Because
they could not tell whether the "safety" was on, defendant fired the shotgun out of the
passenger car's window. According to Clayton, people started running when they heard
the blast.
Witness Hakim Khalfani testified he was working security at a construction site in
National City on the evening of May 9, 2007. As he and others were standing near a
3 construction fence, Khalfani saw a car come around the corner, stop and saw a person in
the passenger seat stick a shotgun out the window. Khalfani next heard a single shotgun
blast. In response, Khalfani and others ran. As the vehicle drove slowly by, Khalfani
noted the description of the vehicle and its license plate number. Khalfani contacted
National City Police.
Clayton testified that once they arrived in Shelltown, they drove down a street and
passed two young Hispanic males who were standing near a white car. Because they
looked like potential gang members, Clayton made a U-turn and pulled up on the two
males so that the passenger door where defendant was seated was facing them.
Defendant stated, " 'Where are you Pacos from?' " One of the two males raised his hand
as if he was "throwing something," and said " 'Shelltown.' " Clayton testified that
defendant in response said, " 'Is that right?' " Defendant next got out of the Blazer and
shot one of the two males at close range. They all fled in the Blazer.
Witness Mariano Rivera testified he was with 15-year-old victim Ricardo Perez on
the night Perez was murdered. Rivera testified he and Perez were "just chilling" outside
of Perez's house that evening along with some other school friends. At some point in the
evening, Perez crossed the street from his house to return some tools to a neighbor.
Rivera testified that at that moment, a brown SUV Blazer pulled up, stopped next to
Perez and a man Rivera described as tall, bald and Hispanic exited the passenger door
behind the driver, walked up to Perez and shot him with a shotgun. Rivera testified that
he was about 15 feet away from Perez when Perez was shot and that the man who shot
4 Perez was wearing a white shirt and brown pants. According to Rivera, before the man
shot Perez he asked them, " 'Where you from?' "
Witness Emily Castaneda testified Perez was her older brother. About 8:00 p.m.
on the day of the murder, Castaneda testified she was returning from school with her then
stepmother. Castaneda was 14 years old at the time. As they approached their home, her
stepmother stopped the car, told Castaneda to "duck down" and exclaimed, " 'Oh Shit.' "
Castaneda testified she saw a small SUV she described as an "Explorer" or "Trail Blazer"
stopped in front of a neighbor's house, near her house. Although her stepmother told her
to duck, Castaneda "peeked through the corner of her eye" and saw "people, a car, [her]
brother" and "movements."
As discussed post, Castaneda identified defendant as the shooter both at trial and
at the preliminary hearing. Castaneda testified she saw a man she later identified as
defendant exit from the passenger door on the driver's side. Next, she saw her brother
make "hand movements" and exchange some words with the man, then she heard the
gunshot but did not see the shooting.
After the shooting, the group went back to National City in the Blazer. On the
way, they stopped at a liquor store. Defendant and Jocobo went into the store while
Clayton stood watch. Defendant took a bottle of alcohol, punched the store clerk in the
face and they all left in the Blazer.
After abandoning the Blazer later that evening, Jocobo asked Clayton if he wanted
to fire the shotgun Clayton was carrying in the blue bag. Clayton agreed and fired the
5 shotgun into a "little tunnel area." As they continued walking, Clayton testified they
heard a siren and saw flashing lights from a police car. As a result, they all ran in
different directions. Clayton at the time was still carrying the shotgun. Clayton testified
he jumped a fence and then ditched the shotgun in some bushes. Clayton called his uncle
who picked him up and took him home.
The next day, police arrested Clayton after determining his uncle owned the
Blazer. Clayton's mother and uncle were present at the stationhouse interview. The
interview was videotaped and played for the jury. During the interview, Clayton
admitted he was driving the Blazer the night before but refused to identify the others who
were in the car. Clayton denied knowing anything about the murder. The record shows
after the detectives left the room, Clayton steadfastly refused to identify who was in the
Blazer with him the night before, despite myriad attempts to convince him otherwise by
his mother and uncle. At the conclusion of the interview, the detectives released Clayton
to his mother.
In July 2012, Clayton again was arrested and this time was charged with the
murder of Perez. Between 2007 and 2012, however, Clayton had a child with his
girlfriend, whom he married. At some point during this period of time, Clayton backed
away from NCBB, as he wanted to go to school and he was working.
A few months after his arrest, Clayton decided to at least consider cooperating
with police, inasmuch as he was the only one charged with the murder and he was no
longer interested in being a member of NCBB. Clayton agreed to a " 'free talk,' " in
6 which he could tell his side of the story and learn his options, if any, with the
understanding that what he said could not be used against him. The record shows the
lengthy video of the "free talk" was played for the jury.
During the "free talk," Clayton, accompanied by his lawyers, told detectives that
he drove defendant, Gaxiola and Jocobo to Shelltown in his uncle's Blazer, after they
stopped at an apartment so defendant could pick up his shotgun. Clayton told detectives
they went to Shelltown looking for rival gang members in order to put in work for the
gang.
After turning down a street in Shelltown, they make a U-turn and pulled up on two
individuals. Defendant next asked, "where you from?" When one of the individuals
responded "Shelltown," Clayton told detectives that defendant jumped out of the
passenger door on the driver's side of the car, shot one of the individuals and they left.
On questioning, Clayton confirmed he was 100 percent certain that defendant murdered
Perez.
Although Clayton knew he would be deemed a "snitch" and was worried about
"getting [his] head blown off" as a result, he testified he decided to cooperate with the
District Attorney's Office. Clayton decided to cooperate because he wanted to do the
"right thing" and get "this weight off [his] shoulders." In return for his truthful testimony,
the cooperation agreement provided Clayton would plead guilty to voluntary
manslaughter (§ 192, subd. (a)) and the gang enhancement (§ 186.22, subd. (b)(1)), with
7 the remaining charges stricken. When he testified at defendant's trial, Clayton had not
been sentenced, but was facing a three to 11-year prison sentence.
Clayton's aunt, Adriana Buelna, testified that shortly after Clayton was arrested in
2012, three individuals pulled up to her mother's house in two separate cars and asked
about Clayton. One of the individuals identified himself as "Flaco." Specifically, they
told Buelna they were friends of Clayton and they wanted to know how he was doing in
custody. After giving Buelna a referral to a bail bondsman, they asked if there was
anything they could do to help out Clayton's family.
Buelna testified that all three individuals also "were very concerned about"
Clayton's "discovery" in connection with the case and inquired whether the family had
received it. When the individuals mentioned "discovery," Buelna assumed they were
asking about the evidence in her nephew's case. Buelna testified she would not have
given the individuals the discovery even if the family had received it. Before the
individuals left, defendant and Buelna exchanged telephone numbers. Police
subsequently obtained the subscriber information using the phone number defendant had
given Buelna and determined the phone was registered to defendant's sister.
Buelna testified defendant came by her mother's house a second time in August
2012. Defendant again inquired if the family had received Clayton's discovery.
The record shows in early December 2012, Clayton saw defendant in his jail
module after defendant was arrested on a charge unrelated to the murder. Although
Clayton already had signed the cooperation agreement, he had yet to be moved into
8 protective custody. As a result, Clayton "acted the usual, normal" and gave defendant
some coffee, soup and a burrito. Clayton testified they spoke briefly, including about his
case.
The record includes a jailhouse call made by defendant. In that call, defendant
identified himself as "Flaco" to an unknown female. During the call, defendant stated
that he "felt bad" for the person who gave him some soup, which was later determined to
be Clayton. Defendant also stated, "I was like damn fool, I would hate me if I was him,
you know what I'm saying. [¶] . . . I wouldn't even talk to me if I was him, you know
what I'm saying, you know what I'm talking about? [¶] . . . I wouldn't like. I would be
mad at the world if I was him, you know what I'm saying."
DISCUSSION
I.
Admission of Castaneda's In-Court Preliminary Hearing Identification of Defendant
A. Additional Background
Pretrial, defendant moved to exclude Castaneda's identification of defendant as her
brother's shooter. The record shows Castaneda was interviewed at the time of the
shooting incident. Although she gave police a description of the getaway vehicle, she
gave no description of any shooter or suspects. In June 2012, Castaneda was contacted
by a detective, who sought a picture of Perez for a "Crime Stopper's" poster. Castaneda
told the detective that she was at the scene of the crime and "saw the person who
murdered her brother." Because the detective believed any identification information
9 would already be in the police reports, he did not follow up with Castaneda until after he
realized there had been no follow-up interview of her.
On November 20, 2012, this same detective reinterviewed Castaneda, who
reiterated she would recognize the suspect if she saw him again. Nonetheless, no
identification procedures were done despite the fact defendant, Jocobo, Clayton and
Gaxiola had been charged for the murder.
Castaneda attended part of the first day of the preliminary hearing. During the
morning recess, she alerted the prosecutor that she recognized defendant as the man who
murdered her brother. Defendant at the time was in "jail blues, sitting at the defendant's
table and was sitting at a right angle to the court due to the nature of the table
configuration."
That same day, Castaneda was interviewed by a District Attorney investigator.
She told the investigator that as she was being dropped off at home, she saw defendant
and another person get out of a car and get in an argument with her brother; that the
argument turned physical when defendant and her brother began to struggle; and that she
then heard a gunshot. A few days later, Castaneda testified at defendant's preliminary
hearing.
Briefly, in her preliminary hearing testimony, Castaneda stated that she was about
30 feet away from her brother when the shooting occurred; that she saw someone get out
of a vehicle she described looked like a "Trail Blazer" and exchange words with her
brother; that she got a "good look" at the shooter; and that the shooter was "average size,"
10 "Hispanic" and had "short hair and a mustache." Castaneda next identified defendant as
the shooter, noting she was "a hundred percent sure." The record shows she was
extensively cross-examined at the preliminary hearing.
In moving pretrial to exclude Castaneda's in-court preliminary hearing
identification of defendant, the defense argued her observations at the scene of the
murder "were quite different from other witnesses," inasmuch as she was the only witness
who saw two people get out of the Blazer and she was the only one who claimed there
had been a struggle between her brother and defendant. Because of the circumstances of
Castaneda's preliminary hearing identification -- including that Castaneda had not told
police when first interviewed she could identify the shooter and that defendant was in
shackles and was in court because of the murder, the defense argued her identification of
defendant as the shooter was impermissibly suggestive and should be excluded.
The record shows at the hearing on this issue, the prosecution argued Castaneda
indicated to a detective in November 2012 -- before defendant was arrested for the
murder -- that she could identify the shooter. The prosecution further noted that
Castaneda had voluntarily come to the preliminary hearing without the request of the
People; that she heard the testimony of a medical examiner and perhaps of an officer who
was involved in the investigation of the alcohol stolen from the liquor store; that she did
not hear Clayton's testimony or any evidence regarding the identity of the shooter; that at
around 10:50 a.m., she approached the prosecution and stated she recognized defendant
as the shooter; that when she was first interviewed immediately after the shooting, she
11 was traumatized after seeing her brother murdered; and that her identification of
defendant as the shooter was "happenstance."
The record shows the court took the matter under submission, noting it wanted to
read the preliminary hearing transcript before ruling on the issue. The court subsequently
denied the defense's motion to exclude Castaneda's in-court preliminary hearing
identification of defendant as the shooter. In so doing, the court noted that it was up to
the jury to decide whether her identification of defendant was unreliable; that it was not
uncommon for witnesses to come to court and make an in-court identification without
previously identifying a defendant; that there was no misconduct by the police or the
District Attorney's office in connection with her in-court identification; and that she
indicated to police about a year before the preliminary hearing that she could identify the
shooter, but police did not follow up with her.
B. Guiding Principles and Analysis
" ' "In order to determine whether the admission of identification evidence violates
a defendant's right to due process of law, we consider (1) whether the identification
procedure was unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of the circumstances,
taking into account such factors as the opportunity of the witness to view the suspect at
the time of the offense, the witness's degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty demonstrated
at the time of the identification, and the lapse of time between the offense and the
12 identification." [Citation.] "We review deferentially the trial court's findings of historical
fact, especially those that turn on credibility determinations, but we independently review
the trial court's ruling regarding whether, under those facts, a pretrial identification
procedure was unduly suggestive." [Citation.] "Only if the challenged identification
procedure is unnecessarily suggestive is it necessary to determine the reliability of the
resulting identification." [Citation.]' (People v. Alexander (2010) 49 Cal.4th 846, 901–
902; see People v. Cunningham (2001) 25 Cal.4th 926, 989–990; Simmons v. United
States (1968) 390 U.S. 377, 384 [even if a witness has been subjected to a suggestive
pretrial identification procedure, 'eyewitness identification at trial . . . will be set aside on
that ground only if the [pretrial] identification procedure was so impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable misidentification'].) In
addition, the United States Supreme Court recently clarified that the federal
Constitution's due process clause is not implicated when the circumstances asserted as
creating an improperly suggestive identification procedure were not arranged by law
enforcement officers. (Perry v. New Hampshire (2012) 565 U.S.[ ___, ___ [181 L.Ed.2d
694, 132 S.Ct. 716, 721] (Perry) [the application of the due process clause 'turn[s] on the
presence of state action and aim[s] to deter police from rigging identification
procedures'].)" (People v. Thomas (2012) 54 Cal.4th 908, 930-931.)
Here, we independently conclude Castaneda's initial in-court identification of
defendant at the preliminary hearing was not the result of any "state action" or efforts by
law enforcement to "rig[]" an identification procedure. (See Perry, supra, 565 U.S. at p.
13 ___ [132 S.Ct. at p. 721].) Rather, the record shows that Castaneda voluntarily attended
the preliminary hearing with her mother; that the prosecution did not ask her to attend
that hearing; and that when Castaneda approached the prosecutor during a mid-morning
break and informed him that she recognized defendant as the shooter, the prosecutor did
not even know who she was because of the time that had passed since her brother's
murder. Because there was no state action involved in arranging Castaneda's in-court
preliminary hearing identification of defendant as the shooter, we reject his due process
challenge to that identification. (See Ibid.)
We also reject defendant's due process challenge because under the totality of the
circumstances there was not a " ' "very substantial likelihood of irreparable
misidentification," ' " and, thus, the issue of the reliability of her identification was for the
jury to decide. (See People v. Arias (1996) 13 Cal.4th 92, 168 [noting even "[w]hen an
eyewitness has been subjected to undue suggestion, the factfinder must nonetheless be
allowed to hear and evaluate his [or her] identification testimony unless the ' " 'totality of
the circumstances' " ' suggests ' "a very substantial likelihood of irreparable
misidentification" ' "], quoting Manson v. Brathwaite (1977) 432 U.S. 98, 106 (Manson).)
Here, the record shows that Castaneda was about 30 feet away from her brother at
the time he was murdered; that she saw a vehicle similar to a "Trail Blazer" stop by her
brother; that she got a "good look" at the man who was having words her brother; that she
was 100 percent certain that man was defendant; and that before defendant was arrested
for the murder, she told law enforcement that she could identify the man who shot her
14 brother. That Castaneda gave details about the shooting that varied in some measure
from other witnesses' testimony went to the issue of the reliability of her identification of
defendant as the shooter, a matter for the trier of fact.
Indeed, we note from the record that during closing argument, defense counsel of
defendant spent considerable time attacking Castaneda's credibility. Defense counsel
noted that when Castaneda was first interviewed by police, she did not say she could
identify the shooter; that she only identified defendant as the shooter after she attended
the preliminary hearing and saw him in "chains in custody"; that when she attended the
preliminary hearing, she knew her brother's shooter was "on trial and his court case [was]
up"; and that her testimony was based on observations "through the side of her eye,"
while she was ducked down in her stepmother's car, and thus were unreliable.
Finally, we reject defendant's due process challenge because we conclude even if
it was error to admit Castaneda's in-court preliminary hearing identification of defendant
as the shooter, that error was harmless beyond a reasonable doubt. (See Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman).) Indeed, there is overwhelming other
evidence of guilt in the record, as demonstrated by Clayton's testimony summarized in
detail ante in which he stated he was 100 percent certain that defendant shot Perez. In
addition, the recorded jailhouse call between defendant and an unidentified female, and
the inferences to be drawn from defendant's statements, also supports this finding. Thus,
there is no reasonable likelihood that Castaneda's identification of defendant as the
15 shooter prejudiced him or resulted in a substantial likelihood of irreparable
misidentification. (See Manson, supra, 432 U.S. at p. 107.)
Apart from any constitutional violation, defendant contends the court abused its
discretion and thus erred when it ruled to admit under Evidence Code section 352
Castaneda's identification testimony. We disagree, and conclude the court did not act in
an arbitrary or capricious manner in so ruling. (See People v. Rodrigues (1994) 8 Cal.4th
1060, 1125.) In any event, given our conclusion ante that any error in admitting this
identification testimony was harmless beyond a reasonable doubt, we reject this
contention. (See Chapman, supra, 386 U.S. at p. 24.)
II.
Severance
The record shows defense counsel of both defendant and Jocobo moved pretrial to
sever their joint trial. Both argued that, because several of the witnesses placed only
three people in the car, in contrast to Clayton's statements that there were four in the car,
defendant and Jocobo would then be in the position of pointing the "finger" at each other,
creating "conflicting defenses" as a result of there being essentially "two prosecutors" in
the case.
The court denied the severance motion. In so doing, the court noted:
"The thing is everybody says -- first of all, we don't know if there's going to be
conflicting defenses. Let's say one of them get up there and testifies I wasn't there. [¶]
16 Well, if he wasn't there, then he can't say the other guy is there. He doesn't know. He
could say I was there, and he was there, but the bottom line here is we're -- one, we're
speculating again. If there is conflicting defenses, it doesn't require that we have different
trials unless it's so prejudicial that the defendants couldn't get a fair trial. And by that we
mean is there evidence -- sufficient independent evidence of guilt as to each. If there is,
then you don't need a severance."
During a subsequent pretrial hearing, defense counsel of defendant stated her co-
counsel had provided an eight-page statement from Gaxiola, who already had pleaded
guilty in connection with the shooting. As a result of this statement, defense counsel of
defendant argued that if Gaxiola was to testify, he would say defendant and not his
brother Jocobo was the third person in the Blazer on the night of the shooting.3 As such,
defense counsel of defendant argued this was clearly an "antagonistic defense"
warranting severance.
The record shows the court took defendant's "renewed" motion to sever under
submission. Before doing so, however, the court noted that just because there were
potentially different defenses between codefendants or that one defendant would try and
point the finger at another defendant was "not, in and of itself, enough to sever." The
court also noted that in the final analysis, the issue came down to credibility. The court
subsequently denied the motion.
3 The record shows that defense counsel of defendant recognized that it was unlikely the prosecution would call Gaxiola as a witness because the prosecution clearly believed he was lying, inasmuch as Jocobo was still being prosecuted for the murder. The record further shows Gaxiola did not testify at the trial. 17 B. Guiding Principles and Analysis
In California, there is a statutory preference for joint trials against codefendants
charged with common crimes involving common events and victims, such as in the
instant case. (See § 1098; People v. Carasi (2008) 44 Cal.4th 1263, 1296; People v.
Hardy (1992) 2 Cal.4th 86, 167 (Hardy).) However, a " ' "court may, in its discretion,
order separate trials if, among other reasons, there is an incriminating confession by one
defendant that implicates a codefendant, or if the defendants will present conflicting
defenses. [Citations.] Additionally, severance may be called for when 'there is a serious
risk that a joint trial would compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or innocence.' [Citations.]
[¶] We review a trial court's denial of a severance motion for abuse of discretion based
on the facts as they appeared when the court ruled on the motion. [Citation.] If we
conclude the trial court abused its discretion, reversal is required only if it is reasonably
probable that the defendant would have obtained a more favorable result at a separate
trial. [Citations.] If the court's joinder ruling was proper when it was made, however, we
may reverse a judgment only on a showing that joinder ' "resulted in 'gross unfairness'
amounting to a denial of due process." ' " ' (People v. Homick (2012) 55 Cal.4th 816,
848.)" (People v. Masters (2016) 62 Cal.4th 1019, 1048-1049.)
It is axiomatic that severance is rarely compelled merely because codefendants
present antagonistic defenses. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 150
(Letner and Tobin); People v. Coffman and Marlow (2004) 34 Cal.4th. 1, 41 (Coffman
18 and Marlow).) That defendants might attempt to fix blame on each other does not by
itself require severance. (Letner and Tobin, at p. 150.)
Our high court in Hardy stated: "Although there was some evidence before the
trial court that defendants would present different and possibly conflicting defenses, a
joint trial under such conditions is not necessarily unfair. [Citation.] 'Although several
California decisions have stated that the existence of conflicting defenses may compel
severance of codefendants' trials, none has found an abuse of discretion or reversed a
conviction on this basis.' [Citation.] If the fact of conflicting or antagonistic defenses
alone required separate trials, it would negate the legislative preference for joint trials and
separate trials 'would appear to be mandatory in almost every case.' " (Hardy, supra, 2
Cal.4th at p. 168.)
The Hardy court further observed that, "although it appears no California case has
discussed at length what constitutes an 'antagonistic defense,' the federal courts have
almost uniformly construed that doctrine very narrowly. Thus, '[a]ntagonistic defenses
do not per se require severance, even if the defendants are hostile or attempt to cast the
blame on each other.' [Citation.] 'Rather, to obtain severance on the ground of
conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the]
defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone
demonstrates that both are guilty." (Hardy, supra, 2 Cal.4th at p. 168.)
" 'That different defendants alleged to have been involved in the same transaction
have conflicting versions of what took place, or the extent to which they participated in it,
19 vel non. is a reason for rather than against a joint trial. If one is lying, it is easier for the
truth to be determined if all are required to be tried together.' " (Hardy, supra, 2 Cal.4th
at p. 169, fn. 19.) Moreover, when "there exists sufficient independent evidence against
the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and
antagonistic defenses do not compel severance. [Citation.]" (Coffman and Marlow,
supra, 34 Cal.4th. at p. 41.)
Here, the record shows there was more than sufficient independent evidence of
guilt against defendant. (See Coffman and Marlow, supra, 34 Cal.4th at p. 41.) Indeed,
Clayton specifically testified that at defendant's request, they drove to an apartment
complex so that defendant could pick up his shotgun; that defendant came back from the
apartment with a "big blue bag"; that defendant fired the shotgun out the back window of
the Blazer after Clayton stopped the car near a construction site, while they were on their
way to Shelltown to look for rival gang members; that other witnesses at the construction
site saw a person in the passenger seat stick a shotgun out the open window and heard a
single blast; that after they crossed into rival gang territory, they came upon the victim,
who was standing near another individual; that after Clayton stopped the Blazer,
defendant asked the individuals, "Where are you Pacos from?"; and that when one of
them said, "Shelltown," defendant got out of the Blazer and fired the shotgun, killing the
victim.
But there's more. Castaneda's testimony corroborated that of Clayton when she
too identified defendant as the shooter. In addition, witness Rivera, who was standing
20 about 15 feet away from Perez at the time of the murder, testified a tall, bald Hispanic
male wearing a white shirt and brown pants exited a brown SUV Blazer, after asking
them "Where you from?" walked up to Perez and shot him with a shotgun. Rivera's
testimony thus also corroborated Clayton's testimony in many respects.
Other independent evidence -- including the inferences to be drawn from such
evidence -- supporting defendant's guilt included his visits to Buelna's mother's house,
after Clayton's arrest for murder, when he asked about Clayton's "discovery" and the
jailhouse call between defendant and the unknown female. In that call, defendant stated
among other things that he "felt bad" for the person who gave him some "soup" and that
"I would hate me if I was him." The record shows this call took place after Clayton and
defendant met up in jail, when defendant was arrested on charges unrelated to the murder,
and after Clayton gave defendant some coffee, a burrito and soup.
On this record, we thus conclude the court did not abuse its discretion when it
denied defendant's motion(s) to sever.
21 III.
Precharging Delay
Before trial (and after seeking about a three-month trial continuance), defendant
filed a motion to dismiss, contending he had been severely prejudiced as a result of the
five-year delay between the murder and the filing of criminal charges against him.
Defendant further contended there was no justification for the delay and there was no
new evidence.
"An unreasonable delay between the time an offense is committed and an
accusatory pleading is filed may violate a defendant's right to a fair trial and due process
of law under article I, section 15, of the California Constitution and the Fifth and
Fourteenth Amendments to the United States Constitution. [Citation.] In evaluating a
claim of precomplaint delay, 'any prejudice to the defendant resulting from the delay
must be weighed against justification for the delay.' [Citation.] 'In the balancing process,
the defendant has the initial burden of showing some prejudice before the prosecution is
required to offer any reason for the delay [citations]. The showing of prejudice requires
some evidence and cannot be presumed. [Citations.]' [Citations.] Prejudice may be
shown by loss of material witnesses due to lapse of time [citation] or loss of evidence
because of fading memory attributable to the delay. [Citation.]" (People v. Morris
(1988) 46 Cal.3d 1, 37, disapproved on another ground as stated in In re Sassounian
(1995) 9 Cal.4th 535, 543, fn. 5.)
22 The record shows at the hearing on defendant's motion to dismiss, the prosecution
contended that it was only after Clayton's "free talk" in late November 2012 that the
District Attorney had sufficient evidence to charge defendant with murder. The
prosecution further noted that between May 2007 (i.e., when Perez was murdered) and
July 2012 (i.e., when Clayton was arrested and charged with the murder), police were
investigating the crime, including analyzing DNA and fingerprints from the Blazer.
However, there was very little information pointing to defendant's (and Jocobo's)
involvement in the murder. According to the prosecution, all they had against defendant
was the liquor store surveillance video, where the robbery took place.
The prosecution noted a fingerprint analysis report from December 2007 indicated
that Clayton's prints were found in or on the Blazer, but that the remaining prints lifted
from the car could not be analyzed due to insufficient ridge detail. Later, after defendant
was arrested, a second fingerprint analysis was conducted. The examiner who conducted
the second analysis determined that "technical errors had been committed" by the
previous print examiner in 2007. According to the prosecution, when prints lifted from
the Blazer were reexamined they matched defendant's prints taken during his December
2012 booking.
The record shows the court found that, for constitutional purposes, defendant was
not prejudiced by the delay and that in any event, the People's justification for the delay
was valid because they did not have enough evidence to prosecute defendant before
Clayton's "free talk" in November 2012.
23 We conclude the court acted well within its discretion in denying defendant's
motion to dismiss. (See People v. Jones (2013) 57 Cal.4th 899, 922 [noting " '[w]e
review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial
prearrest delay [citation], and defer to any underlying factual findings if substantial
evidence supports them [citation]' "].) We note the lack of evidence in the record of
"actual prejudice," as opposed to defendant's broad contentions he was prejudiced
because of the "loss of witness memory, the inability to generate information on where
they were five years earlier, the death of potential witnesses" among other reasons.
(Italics added.) (See Crockett v. Superior Court (1975) 14 Cal.3d 433, 422 [noting a
"showing of actual prejudice" is required to compel dismissal of charges and further
noting this showing "must be supported by particular facts and not, as in this case, by
bare conclusory statements"].)
In addition, even if such "evidence" of alleged "actual prejudice" was credited, we
conclude the court properly found the People were justified in delaying criminal charges
against defendant until after Clayton provided details about the murder during his "free
talk" in late November 2012. Until then, the record supports the court's finding that the
People did not have enough evidence to charge defendant (or Jocobo) with murder, in
contrast to the evidence they possessed in connection with the liquor store robbery.
24 IV.
Denial of Defendant's Motion for Mistrial
Defendant next contends the court erred in denying his motion for mistrial because
his opportunity to receive a fair trial was irreparably damaged.
The record shows that while Jocobo's defense counsel was cross-examining
Detective Daniel Harward, the following colloquy occurred:
"[Defense Counsel:] We also talked about jail phone calls, correct?
"[Witness:] Yes.
"[Defense Counsel:] There are calls attributed to [defendant] that you have
discussed in this case?
"[Defense Counsel:] One of them says, 'I play them. I shoot them. I'm good at
it'?
"[Defense Counsel of Defendant:] Objection, Your Honor, move to strike.
"[The Court:] Overruled.
"[Witness:] I recall a call like that.
"[Defense Counsel:] There was an instance when [defendant] --
"[Defense Counsel of Defendant:] Your Honor, I will object and request a side-
bar.
"[The Court:] All right. See everybody in chambers."
25 Out of the presence of the jury, the record shows the jailhouse call referred to by
Jocobo's defense counsel was not yet in evidence. The court ruled it would sustain the
objection by defense counsel of defendant, strike the evidence and would revisit the issue
later, if necessary. The record further shows the court instructed the jury it was
sustaining the objection to this particular jailhouse call and the answer was stricken.
Later that same day, again outside the presence of the jury, defendant's counsel
moved for a mistrial, based on the statements " 'I play them. I shoot them.' " According
to defendant's counsel, that statement was taken out of context. Defendant's counsel
noted the full statement was as follows: " 'If you think this fool is grimy, he looked up to
me. I'm like 50 times more grimier than him, maybe 100. So you ain't got nothing to
worry about. All the chicks, all the games and all that shit, I have been through it. I
played them. I shoot them. I'm good at it." Defendant's counsel noted the statement by
Detective Harward about defendant "playing" and "shooting" was merely "gangster
rhetoric" and was "completely inappropriate and inadmissible on many different levels."
In denying the mistrial motion, the court noted that defendant's counsel stopped
this line of questioning "early"; that the objection was sustained; and that the jury was
admonished. The court further noted the jury appeared to be paying attention and
following the rules, noting it was a "really good group," and that jurors are instructed "all
the time" not to consider statements that have been stricken.
26 B. Guiding Principles and Analysis
A trial court should grant a motion for mistrial "only when ' "a party's chances of
receiving a fair trial have been irreparably damaged" ' " (People v. Ayala (2000) 23
Cal.4th 225, 282 (Ayala)), that is, if it is "apprised of prejudice that it judges incurable by
admonition or instruction" (People v. Haskett (1982) 30 Cal.3d 841, 854). "Whether a
particular incident is incurably prejudicial is by its nature a speculative matter, and the
trial court is vested with considerable discretion in ruling on mistrial motions." (Ibid.)
Accordingly, we apply an abuse of discretion standard when reviewing a trial court's
ruling on a motion for mistrial. (See People v. Valdez (2004) 32 Cal.4th 73, 128.)
Applying these standards, we have little difficulty concluding the court properly
exercised its broad discretion in denying the mistrial motion. As it noted, defendant's
counsel objected "early" on in connection with this line of questioning. As a result, the
court ended up sustaining the objection and admonishing the jury not to consider what we
conclude, in any event, was an otherwise ambiguous statement about "playing" and
"shooting" and being "good" at it. (See Ayala, supra, 23 Cal.4th at p. 282.)
The record also shows the court instructed the jury with CALCRIM No. 222,
which in part provides: " During the trial, the attorneys may have objected to questions
or moved to strike answers given by the witnesses. I ruled on the objections according to
the law. If I sustained an objection, you must ignore the question. If the witness was not
permitted to answer, do not guess what the answer might have been or why I ruled as I
27 did. If I ordered testimony stricken from the record you must disregard it and must not
consider that testimony for any purpose." (Italics added.)
Because we " 'credit jurors with intelligence and common sense' [citation] and
presume they generally understand and follow instructions" (see People v. McKinnon
(2011) 52 Cal.4th 610, 670), we conclude on this record defendant's chances of receiving
a fair, as opposed to a perfect, trial were not " ' "irreparably damaged." ' " (see Ayala,
supra, 23 Cal.4th at p. 282; see also People v. Cunningham (2001) 25 Cal.4th 926, 1009).
V.
Instructional Error
The record shows the court, over the prosecution's objection, agreed to give
CALCRIM No. 6254 concerning voluntary intoxication as requested by defendant.
However, ostensibly by mistake the court gave CALCRIM NO. 3426.5 Neither party
objected to the use of CALCRIM No. 3426 in lieu of CALCRIM No. 625.
4 CALCRIM No. 625 provides: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill[,] [or] [the defendant acted with deliberation and premeditation[,]] [[or] the defendant was unconscious when (he/she) acted[,]] [or the defendant .] [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose."
5 The jury was instructed under CALCRIM No. 3426 as follows: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with a state of mind called malice aforethought, and the specific intent to promote, further, or assist in 28 In any event, although it appears the court gave the wrong instruction on voluntary
intoxication, we conclude that error was harmless as it was not reasonably probable
defendant would have obtained a more favorable verdict absent the alleged error. (See
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) First, in our review of the
record, particularly in connection with the closing argument of defendant's defense
counsel, we note that defendant's theory of the case was that the murder of Perez was
done by all three members of NCBB and not by defendant. Thus, it does not appear from
the record that defense counsel of defendant relied on voluntarily intoxication as a theory
to argue defendant was not guilty of first degree murder or a lesser included offense.
Second, we note the jury was in fact instructed that it could consider voluntary
intoxication in connection with malice aforethought and the specific intent requirement
for the gang enhancement. We further note, however, that the jury convicted defendant
of both first degree murder and of the gang enhancement, both of which required a
finding of specific intent. For this separate reason, we conclude any error in instructing
criminal conduct by gang members. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] In connection with the charge of murder, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the state of mind called malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder. [¶] In connection with the gang allegation, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent to promote, further, or assist in criminal conduct by gang members. If the People have not met this burden, you might find this allegation not true. [¶] You may not consider evidence of voluntary intoxication for any other purpose." 29 the jury with CALCRIM 3426 in lieu of CALCRIM No. 625 was harmless. (See Watson,
supra, 46 Cal.2d at p. 836.)6
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
McDONALD, J.
IRION, J.
6 In light of our resolution of the issues in this case, we reject defendant's final contention that he was deprived of due process as a result of the cumulative effect of alleged errors. (See People v. Williams (2009) 170 Cal.App.4th 587, 646 [noting under the "cumulative error" doctrine, a judgment is reversed only if there is a "reasonable possibility" that the jury would have reached a result more favorable to defendant absent a combination of errors].) 30