Filed 10/27/15 P. v Alvarez CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B257504

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA363875)
         v.

VICTOR ALVAREZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Craig
Richman, Judge. Affirmed as modified with directions.
         Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.
and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
                                  I. INTRODUCTION


       A jury convicted defendant, Victor Alvarez, of two counts of first degree murder.
(Pen. Code1, § 187, subd. (a).) The jury found true the multiple murder special
circumstance allegations as to both counts. (§ 190.2, subds. (a)(3), (a)(17).) Defendant
was sentenced to two consecutive life terms without the possibility of parole. We modify
defendant’s presentence custody credit. We affirm the judgment as modified.


                                  II. THE EVIDENCE


       In August 1982, two women, Cordelia Ferguson and Hazel Hughes, were found
murdered. The two women lived on separate floors of the same apartment building.
Both were in their sixties. Both were petite, weighing less than 90 pounds. They died
around the same time. Both had suffered multiple stab wounds and blunt force trauma to
the head and upper torso. A bloody pillow was found near each victim. The victims’
apartments had been ransacked. There was no sign of forced entry. Ms. Hughes was
naked from the waist down. Defendant also lived in the building. He had met each of the
two women at least once.
       Robin Grinnalds lived nearby. In the early morning hours of August 16, 1982—
the day the victims’ bodies were discovered—Ms. Grinnalds heard cries and moans
coming from somewhere outside. She stepped onto her apartment’s balcony. She had a
clear view into what turned out to be Ms. Ferguson’s living room. Ms. Grinnalds saw a
struggle. She testified, “I saw a person . . . with his arm extended holding something that
appeared to be a pillow and pushing downwards.” Ms. Grinnalds telephoned an
emergency operator. She reported, “I think I’m seeing someone get murdered.”
       Sergeant Edman Ross arrived within minutes. Sergeant Ross approached the
building. Sergeant Ross then saw defendant walking slowly down the sidewalk.

1      Unless otherwise noted, all future statutory references are to the Penal Code.

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Defendant ran away. Sergeant Ross found defendant hiding behind a dumpster. When
questioned, defendant claimed he was homeless and was trying to sleep behind the
dumpster. When later interviewed in 2009, defendant denied he was hiding; he said he
was trying to get into his apartment.
       Sergeant Ross conducted a field show-up. He asked Ms. Grinnalds if defendant
was the person she saw from her balcony. Ms. Grinnalds was unable to positively
identify defendant. According to Ms. Grinnalds, while observing defendant, she told
Sergeant Ross: “. . . I don’t know. It could be [him]. But, I can’t make a positive
identification.” At trial, Ms. Grinnalds was shown a picture of defendant taken several
days after the murders were discovered. She testified the person in the picture looked
similar to the man she saw from her balcony.
       Defendant’s tennis shoe tread pattern was similar to a bloody partial shoe print
found on a book in Ms. Ferguson’s apartment. The design was similar. Criminalist Lisa
Lahendro testified, “[T]he shoe print on the book and the shoe that I compared it to had a
similar design.” A pattern injury on Ms. Ferguson’s face might have been caused by a
tennis shoe. A partial deoxyribonucleic acid profile was created in 2014 from Ms.
Ferguson’s fingernail scrapings. No genetic material from any other individual was
present.
       Defendant’s fingerprints were found on the outside security bars covering Ms.
Hughes’s bathroom window. Defendant was a possible contributor of sperm fragments
found on anal swabs taken from Ms. Hughes’s body. The results were based, however,
on a partial profile, only 7 of the then standard 13 markers were detected. Criminalist
Angela Zdanowski testified the probability of an unrelated individual exhibiting the same
genetic profile was approximately 1 in 663 million. Ms. Zdanowski testified, “[I]t means
that I would on average expect to find, approximately, 10 individuals on earth, unrelated
individuals, that could match this profile as well.”
       Detectives Rodrigo Amador and Corey Farell interviewed defendant 27 years after
the murders, in 2009. Defendant told the detectives he had lived in the same building as
the victims at the time of the murders. Defendant said he had met “the [white] lady on

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the first floor,” who was in a wheelchair. (Ms. Hughes.) He had been in her apartment
once to help her with something. Defendant said he had also once helped another old
white woman. According to defendant: the woman was someone Mr. Clanton knew and
she had dogs; he did not remember what floor she lived on (Ms. Ferguson); there was
also a woman on the sixth floor that he had been “spending time with” in 1982; and he
said these were the only women in the building he had any contact with.
       When the detectives told defendant he faced murder charges, he asked to make a
telephone call. The detectives surreptitiously recorded defendant’s side of his
conversation. Defendant spoke with his mother. In the same conversation, defendant
also spoke with a person identified only as “Rod.” Defendant said: “Ma, it’s me. Yeah,
it’s me, Rico. I’m going to California. I’m up for murder. I told you. . . . [Y]ou ain’t
going to see me no more. It’s over. It’s over, ma. From here, I’m going to California. I
don’t know, ma. It’s two - - it’s a body. It’s two - - there’s two bodies. Yeah, two
bodies. [¶] Oh, I told you I was up - - that I was up for that. Uh-huh. I’m going to miss
you, momma. I ain’t never going to see you again. I ain’t going to see you again Mama.
. . . . [¶] Yeah. I’m going to California and they going to lock me up. Oh god. Oh,
man. I’m telling you, this was going to come to haunt me. Yeah. I lied to you, ma. I
lied to you, (Inaudible). . . . [¶] . . . [¶] Yo, Rod, it’s me. . . . I’m going to California,
man. There’s two bodies. I told you, man. . . . They got evidence. They got a DNA test.
They got a DNA test they took remember? [¶] They found proof. . . . Oh, twenty-eight
years ago. DNA test. Murder. . . . [T]wo bodies. . . . [¶] . . . [¶] . . . I’m never
coming out, ma. They got proof. They got DNA. Two bodies, mom. Two murders. . . .
[¶] Yeah. Oh, God. I knew it was going to come to haunt me. Oh, God Almighty. No.
I’m never going to get out again. . . .”




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                                      III. DISCUSSION


                                         A. Severance


       Defendant contends it was an abuse of discretion to deny his motion to sever the
two murder charges. We find no abuse of discretion. Pursuant to section 954, “An
accusatory pleading may charge . . . two or more different offenses of the same class of
crimes or offenses, under separate counts . . . .” Two counts of murder were joined in
this case, the same crime committed against two different victims. Hence the statutory
requirements for joinder were met. (People v. Merriman (2014) 60 Cal.4th 1, 36
[assaultive crimes against the person]; People v. Maury (2003) 30 Cal.4th 342, 395
[same]; People v. Sandoval (1992) 4 Cal.4th 155, 172 [multiple murders].)
       However, even when, as here, the statutory requirements are met, a trial court has
the discretion to sever charges in the interests of justice and for good cause. (§ 954;
People v. Trujeque (2015) 61 Cal.4th 227, 258-259; People v. Merriman, supra, 60
Cal.4th at p. 37.) In exercising its discretion, as relevant here, a trial court utilizes the
following considerations: “The factors to be considered are these: (1) the cross-
admissibility of the evidence in separate trials; (2) whether some of the charges are likely
to unusually inflame the jury against the defendant; [and] (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; . . . . [Citations.]” (Alcala v. Superior Court
(2008) 43 Cal.4th 1205, 1220-1221; accord, People v. Trujeque, supra, 61 Cal.4th at p.
259; People v. Hartsch (2010) 49 Cal.4th 472, 493.) Cross-admissibility alone normally
suffices to justify denial of a severance motion and to dispel any prejudice. (People v.
Trujeque, supra, 61 Cal.4th at p. 259; People v. Merriman, supra, 60 Cal.4th at p. 38;
People v. Soper (2009) 45 Cal.4th 759, 775.)
       Our review is for an abuse of discretion. (People v. Merriman, supra, 60 Cal.4th
at p. 37; Alcala v. Superior Court, supra, 43 Cal.4th at p. 1220.) Because the statutory
joinder requirement was met, defendant must establish the trial court’s ruling fell outside

                                                5
the bounds of reason. (People v. Trujeque, supra, 61 Cal.4th at p. 259; People v.
Merriman, supra, 60 Cal.4th at pp. 37-38; Alcala v. Superior Court, supra, 43 Cal.4th at
p. 1220.) In assessing the trial court’s exercise of discretion, we consider the record that
was before the trial court when it ruled. (People v. Trujeque, supra, 61 Cal.4th at p. 259;
People v. Hartsch, supra, 49 Cal.4th at p. 493; Alcala v. Superior Court, supra, 43
Cal.4th at p. 1220.)
       Defendant has not established an abuse of discretion. The record before the trial
court at the time of its ruling, including the preliminary hearing testimony, supported
cross-admissibility as to identity and modus operandi: the victims and defendant all lived
in the same building; both victims were petite woman in their 60s; their bodies were
discovered on the same day; both victims had suffered multiple knife-stab wounds and
blunt force trauma to the head and upper torso; a bloody pillow was found near each
victim; both apartments had been ransacked; and there was no sign of a forced entry into
either apartment. Although a window screen covering Ms. Hughes’s bathroom window
had been pushed in, it was manifestly unclear how a person could have entered through
the security bars covering that window. Further, the trial court could reasonably
conclude evidence defendant sexually assaulted Ms. Hughes was not likely to unusually
inflame the jury. Each murder involved a very brutal attack on a vulnerable elderly
victim. The trial court also could reasonably conclude that, although somewhat weak
deoxyribonucleic acid evidence linked defendant to Ms. Hughes’s murder, the evidence
in each case was otherwise equally strong. Therefore, without abusing discretion, the
trial court could rule any prejudice was insufficient to outweigh the benefits of a
consolidated trial. As our Supreme Court observed in People v. Soper, supra, 45 Cal.4th
at page 781: “[A]s between any two charges, it always is possible to point to individual
aspects of one case and argue that one is stronger than the other. A mere imbalance in
the evidence, however, will not indicate a risk of prejudicial ‘spillover effect,’ militating
against the benefits of joinder and warranting severance of properly joined charges.
(People v. Ruiz [(1988)] 44 Cal.3d 589, 607 (Ruiz) [severance not required of two
properly joined murder charges even though evidence underlying one charge was

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‘relatively weak’ and was made ‘much stronger’ by the evidence underlying the second
charge].) Furthermore, the benefits of joinder are not outweighed—and severance is not
required—merely because properly joined charges might make it more difficult for a
defendant to avoid conviction compared with his or her chances were the charges to be
separately tried. [Citations.]”
       Even though there was no abuse of discretion in denying severance, we must also
consider the actual impact of the joinder at trial. (People v. Thomas (2012) 53 Cal.4th
771, 800-801; People v. Sandoval, supra, 4 Cal.4th at p. 174; People v. Bean (1988) 46
Cal.3d 919, 940.) Our review is for gross unfairness depriving defendant of a fair trial or
due process of law. (Ibid.; People v. Turner (1984) 37 Cal.3d 302, 313.) We find no
gross unfairness. Defendant argues the deoxyribonucleic acid evidence as to Ms. Hughes
bolstered the weaker case as to Ms. Ferguson. However, the evidence as to each victim
was strong. In addition to the forensic and circumstantial evidence, defendant showed a
consciousness of guilt in 1982 when he was detained and lied about where he resided.
(See People v. Letner (2010) 50 Cal.4th 99, 157 [lie offered to demonstrate consciousness
of guilt]; People v. Tate (2010) 49 Cal.4th 635, 684 [same]; People v. Barnwell (2007) 41
Cal.4th 1038, 1057 [consciousness of guilt instruction proper where defendant made false
statement to deflect suspicion from himself].) Moreover, in the recorded telephone
conversation the detectives recorded, defendant made incriminating statements and
expressed his expectation he would eventually pay for his crimes.
       Defendant asserts the trial court applied the wrong standard in ruling on the
motion. That contention is without merit. Defendant’s claim rests on a brief, ambiguous
statement in the midst of a well-reasoned decision. The trial court said the standards are
different for charged and uncharged offenses. The trial court’s meaning was not entirely
clear. But our Supreme Court has held the prosecution’s burden with respect to a charged
offense is the reverse of that with respect to an uncharged offense: “In cases in which the
evidence to be introduced relates to an uncharged offense the People, as the proponent of
the evidence, bear the burden of persuading the judge that the potential prejudice from
the jury becoming aware of the uncharged offense is outweighed by the probative value

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of the evidence. . . . [¶] The burden is reversed, however, when the offense to which
the evidence is relevant is a charged offense, properly joined with another for trial. The
prosecution is entitled to join offenses under the circumstances specified in section 954.
The burden is on the party seeking severance to clearly establish that there is a substantial
danger of prejudice requiring that the charges be separately tried. [Citations.]” (People
v. Bean, supra, 46 Cal.3d at pp. 938-939; accord, Alcala v. Superior Court, supra, 43
Cal.4th at p. 1222, fn. 11.) Nothing about the trial court’s unobjected comments permits
reversal.


                       B. The Jury’s Question During Deliberations


       The deliberating jury reached a consensus—guilty—as to Ms. Hughes’s murder,
count 1. The jury then inquired, “Can we use the guilty verdict for Hazel H. as evidence
towards Cordelia F[.]? Or do we turn a blind eye to Hazel H. and strictly go on evidence
related?” The trial court recorded the jury’s guilty verdict on count 1. The trial court
then excused a juror due to travel plans. That juror was replaced with an alternate. The
trial court instructed the jury to begin its deliberations anew as to count 2. Following
discussion with counsel, the trial court further instructed the jury, in response to its
question, “[Y]ou may consider all the evidence that was presented throughout the entire
trial as you feel appropriate in deciding count 2.”
       Defendant contends this was prejudicial error and a violation of his federal
constitutional rights. However, defense counsel, Jana Seng, suggested in part and
specifically agreed to instruction in the foregoing manner. Therefore, defendant cannot
challenge the instruction on appeal. (People v. Turner (2004) 34 Cal.4th 406, 437;
People v. Rodrigues (1994) 8 Cal.4th 1060, 1193; People v. Cooper (1991) 53 Cal.3d
771, 847.)
       Even if the issue were properly before us, we would not find any abuse of
discretion. (People v. Waidla (2000) 22 Cal.4th 690, 745-746 [“An appellate court
applies the abuse of discretion standard of review to any decision by a trial court to

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instruct, or not to instruct, in its exercise of its supervision over a deliberating jury”];
People v. Eid (2010) 187 Cal.App.4th 859, 882 [“We review for an abuse of discretion
any error under Section 1138”].) Having given complete instructions prior to the
deliberations commencing, the trial court had discretion under section 11382 to determine
what additional explanation would suffice in response to the jury’s inquiry. (People v.
Davis (1995) 10 Cal.4th 463, 522; People v. Beardslee (1991) 53 Cal.3d 68, 97; People v.
Eid, supra, 187 Cal.App.4th at p. 882.) The trial court could properly exercise that
discretion in this case as it did. The jury had previously been instructed that: “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.” Additionally, the jury had been
instructed, “In deciding whether the People have proved their case beyond a reasonable
doubt, you must impartially compare and consider all the evidence that was received
throughout the trial.” The jury is presumed to have followed those instructions. (People
v. Pearson (2013) 56 Cal.4th 393, 477; People v. Aranda (2012) 55 Cal.4th 342, 387-
388.) In response to the jury’s inquiry during deliberations, the trial court told the jury to
consider all the evidence. The trial court took care not to instruct that the jury it could
consider the guilty verdict on count 1 in deciding count 2. The court instructed,
“[B]ecause juror No. 11 did not participate in the, quote, guilty verdict, unquote, you can
not consider the, quote, guilty verdict, unquote.”
       Even if there was error, defendant has not shown it is reasonably probable the
result would have been more favorable had the trial court instructed the jury differently.
(See People v. Jenkins (2000) 22 Cal.4th 900, 1027 [“‘[A] conviction will not be reversed
for a violation of [section] 1138 unless prejudice is shown’”]; People v. Roberts (1992) 2
Cal.4th 271, 326 [Watson standard of prejudice applies]; People v. Hodges (2013) 213

2       Section 1138 provides: “After the jury have retired for deliberation, if there be
any disagreement between them as to the testimony, or if they desire to be informed on
any point of law arising in the case, they must require the officer to conduct them into
court. Upon being brought into court, the information required must be given in the
presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel,
or after they have been called.”

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Cal.App.4th 531, 539 [same]; People v. Eid, supra, 187 Cal.App.4th at p. 882 [same], or
that he was denied a fair trial (see People v. Box (2000) 23 Cal.4th 1153, 1214,
disapproved on another point in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.))
Defendant’s assertions of prejudice relate to the trial court’s decision to join the two
murder charges for trial rather than to the foregoing instruction. As discussed above,
however, the trial court did not prejudicially abuse its discretion in refusing to sever the
charges.
       Defendant further asserts Ms. Segg, his trial counsel, rendered ineffective
assistance in failing to object and request an instruction restating that each count must be
considered separately. Defendant asserts prejudice in that the newly constituted jury
reached a verdict on count 2 in less than two hours. In order to prevail on this claim,
defendant must establish, as a demonstrable reality, there is a reasonable probability of a
different result. (Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Carrasco
(2014) 59 Cal.4th 924, 982; In re Champion (2014) 58 Cal.4th 965, 1007-1008.) It is not
reasonably probable the result would have been more favorable had Ms. Segg objected
and requested an instruction that each count must be considered separately.


                              C. Presentence Custody Credit


       The trial court gave defendant credit for 1,686 days in presentence custody.
However, defendant was arrested on November 19, 2009, and sentenced 1,685 days later,
on June 30, 2014. Therefore, he was entitled to credit for 1,685 days, not 1,686. (People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 48; People v. Morgain (2009) 177
Cal.App.4th 454, 469.) The judgment must be modified and the abstract of judgment
amended to so provide. (People v. Miles (2013) 220 Cal.App.4th 432, 437; People v.
Donan (2004) 117 Cal.App.4th 784, 792-793.)




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                                   IV. DISPOSITION


       The judgment is modified to award defendant 1,685 days of presentence custody
credit. The judgment is affirmed in all other respects. Upon remittitur issuance, the clerk
of the superior court is to prepare an amended abstract of judgment and deliver a copy to
the Department of Corrections and Rehabilitation.
                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                            TURNER, P.J.
We concur:




       KRIEGLER, J.




       KIRSCHNER, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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