Filed 7/7/15 P. v. Wright CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065334

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD244829)

KENNETH SCOTT WRIGHT,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Peter L.

Gallagher, Judge. Affirmed.

         Denise M. Rudasill, 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, Eric A. Swenson and Lynne G.

McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
       Kenneth Scott Wright appeals a judgment convicting him of battery causing

serious bodily injury (Pen. Code, § 243, subd. (d)),1 two counts of simple assault (§ 240),

attempted extortion (§ 524), and assault by means likely to produce great bodily injury.

(§ 245, subd. (a)(4)). On appeal, Wright contends the trial court abused its discretion by

allowing the charges against him that arose on two different occasions to be consolidated

for trial, and permitting a coparticipant's guilty plea to be admitted as evidence of his

guilt on the attempted extortion charge. Wright asserts the consolidation resulted in a

grossly unfair trial and a denial of due process, the admission of a coparticipant's guilty

plea into evidence violated his Sixth Amendment right of confrontation, and he received

ineffective assistance of counsel because his attorney did not object to admission of the

coparticipant's guilty plea based on Wright's right of confrontation.

       We conclude Wright was not prejudiced by the consolidation, the joinder of

separate offenses did not result in a grossly unfair trial or a denial of due process, the

admission of the coparticipant's guilty plea to extortion did not affect the jury's guilty

verdict on the attempted extortion charge, Wright's Sixth Amendment right of

confrontation argument was forfeited on appeal, and Wright's ineffective assistance of

counsel argument has no merit because he was not prejudiced by the claimed error.

                               FACTUAL BACKGROUND

       In the absence of a challenge to the sufficiency of the evidence to support the

convictions, we summarize the facts established by the record, in the light most favorable

to the judgment. (See People v. Davis (1995) 10 Cal.4th 463, 509.)

1      All statutory references are to the Penal Code unless otherwise specified.
                                              2
       A. The December 4, 2012, Incident (Counts 1 & 2)

       Wright was charged with assaulting and battering Sergio Vega in the San Diego

County jail on December 6, 2012. Wright and Vega got into an argument because Vega

told another inmate he didn't have to order commissary items for Wright. Wright

admitted to punching Vega. As a result, Vega suffered a 4-to-5 centimeter laceration on

the back of his scalp and a brain hemorrhage. Wright testified that during the argument

Vega insulted him, made motions challenging him to fight, and threatened to stab him.

Vega testified that when he turned in an attempt to avoid Wright's blow, his sandal

slipped, which made him fall to the ground even faster after Wright hit him.

       A surveillance video, without audio, recorded the incident. It showed Vega and

Wright having a discussion, Wright walking to his cell and motioning for Vega to enter

the cell. It also showed Wright walk back toward Vega in an aggressive posture, with his

shirt off, and punch Vega in the face. Vega's hands were down when Wright punched

him.

       B. The February 25, 2013, Incident (Counts 3, 4, 5 & 6)

       Wright was charged with the attempted extortion and assault of Robert Brown and

the attempted robbery and assault of Daniel Hunter in the San Diego County jail on

February 25, 2013. The incident also involved Jose Villalobos and David Lopez.

       According to Wright, there was tension in the jail because Brown "walks around

the module like he's somebody because he gets morphine pills and a lot of people are

mad about it." Wright testified that he, Villalobos and Lopez congregated as a group to

talk to Brown about his behavior. Hunter's cell was next to Brown's, and Wright stood

                                            3
next to a pillar outside of Hunter's cell in case Hunter came to Brown's rescue. He

watched Hunter while Villalobos spoke to Brown, and he saw Hunter grab a pencil.

When Villalobos hit Brown, Hunter rushed out of his cell to help Brown, and Wright hit

Hunter.

       A surveillance video, without audio, recorded the incident. It showed Villalobos,

Lopez, and Wright walking down the stairs together from the top level of the day room to

the floor level and converging around Brown's cell. It also showed Wright walk behind

the pillar in front of Hunter's cell, and Villalobos and Lopez hit Brown.

       According to Hunter, he heard Villalobos talking to Brown about his pills and was

coming out of his cell when Wright sucker-punched him. He stumbled back into his cell

and was continually hit on the back of his head, face and stomach. He remained standing

and crouched over until he fell to the ground. Hunter testified that while he was on the

ground someone tried to take one of his rings, but he did not see the person tugging on it.

The investigating deputy testified that there were scratches on Hunter's hand, consistent

with someone using their fingernails to try to "rob that person of [his] ring." However,

the deputy also conceded that the scratches and abrasions on Hunter's hands could have

been caused by falling, scraping a wall, offensive or defensive punching, or by covering

his head while being beaten.

       After the incident, Wright wrote two letters in an attempt to get Hunter to recant

his testimony against him: one to DeLeal (known as "Soldier"), that he signed with the

name, "Thugg," and another directly to Hunter, addressing him as "Scrappy," and

referring to Villalobos as "Chico," Lopez as "Cyco,", and Brown as "Pudding."

                                             4
       The first letter to Soldier stated, "Soldier, first and foremost, I send my love and

respects. [¶] . . . [¶] . . . I'm not going to sit here and talk your ear off with this. So look,

my boy. Scrappy is pressing charges on me. I already got arraigned last week, assault

and battery and robbery. Scrappy's saying I jacked his ring and beat him up. What the

fuck is that shit, dog? I know he's a little fag, and I don't expect no less from him. Boy,

dog, can you please just ask him to change his story? It's already said and done, but he

can help me by saying he rushed me first and lied about the ring. Dog, please? This is

fucking up my life. Get back at me, G. And what's up with my taxes? Thugg."

       The second letter to Scrappy stated, "Look Scrappy, will you please just talk to me

for a few seconds? I can understand why you don't want to talk to me, but this shit is

very serious and my life is in your hands at this point. Me and you have always been on

good terms and I've never had any problems with you. We actually got along pretty

good. I don't care about Chico or Cyco and what they had going on with Pudding. My

case concerns just me and you, and I'm supposed to start trial next month for this shit.

Please, Scrappy, will you please just talk to me for a few seconds on the door so we can

work this out? I'll hook you up whenever I can. Just please don't fuck me over on this."

                              PROCEDURAL BACKGROUND

       The prosecution filed a motion to consolidate for trial charges relating to the

December 2012 and the February 2013 incidents, and defense counsel filed a motion

opposing consolidation. The trial court granted the prosecution's motion.

       The prosecution then filed a consolidated information. With respect to the

December 2012 incident, Wright was charged with battery causing serious bodily injury

                                                5
(§ 243, subd. (d); count 1), assault likely to produce great bodily injury (§ 245, subd.

(a)(4); count 2), and personally inflicting great bodily injury on Vega in the commission

of count 2. (§ 1192.7, subd. (c)(8).) In connection with the February 2013 incident,

Wright was charged with the attempted extortion of Brown (§ 524; count 3), attempted

robbery of Hunter (§ 664/211; count 4), and two counts of assault likely to produce great

bodily injury on Brown and Hunter (§ 245, subd. (a)(4); counts 5 & 6).

       The prosecution filed a motion to admit into evidence Villalobos's guilty plea as to

the attempted extortion charge. The trial court granted the motion.

       Wright was convicted of battery causing serious bodily injury (count 1), two

counts of simple assault (a lesser crime of counts 2 & 5), attempted extortion (count 3),

and assault by means likely to produce great bodily injury (count 6). The jury acquitted

him of counts 2, 4, and 5. The court sentenced Wright to a term of 12 years 4 months in

state prison. Wright appeals.

                                       DISCUSSION

       A. Consolidation of the Two Actions

       Under section 954 a court may consolidate charges made in two or more

accusatory pleadings where the pleadings "charge two or more different offenses . . . of

the same class of crimes or offenses, under separate counts . . . ." However, a trial court

"in the interests of justice and for good cause shown, may in its discretion [also] order

that the different offenses or counts set forth in the accusatory pleading be tried

separately or divided into two or more groups and each of said groups tried separately."

(§ 954.)

                                              6
       The consolidation of charged offenses is preferred by the law because it promotes

efficiency (People v. Ochoa (1998) 19 Cal.4th 353, 409 (Ochoa); People v. Soper (2009)

45 Cal.4th 759, 772 (Soper)) and conserves public funds and judicial resources. (People

v. Bean (1988) 46 Cal.3d 919, 939 (Bean).) A joint trial " 'avoids needless harassment of

the defendant' " (Ochoa, at p. 409) and the presentation of the same factual issues in two

separate trials. (Soper, at p. 772; Ochoa, at p. 409.) It "requires a single courtroom,

judge, and court attaches. Only one group of jurors need serve, and the expenditure of

time for 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." (Bean, at pp. 939-940.)

If the statutory criteria for consolidation are satisfied, a defendant who opposes

consolidation must show prejudice sufficient to outweigh the benefits of consolidation.

(Ochoa, at p. 409.)

       Consolidation requires the trial court take two steps. First, the court must

determine whether each set of charged offenses are of the same class. (People v. Grant

(2003) 113 Cal.App.4th 579, 586 [" ' "Offenses are of the same class when they possess

common attributes . . . ." ' "].) If so, the next step involves weighing the benefits derived

from consolidation against prejudice a defendant may incur because of the consolidation.

(Soper, supra, 45 Cal.4th at p. 773.) Even if a trial court properly consolidates charged

offenses under section 954, " 'a reviewing court must reverse the [lower court] judgment

if the "defendant shows that joinder actually resulted in 'gross unfairness' amounting to a

denial of due process." ' " (People v. Macklem (2007) 149 Cal.App.4th 674, 698.)

                                              7
        The propriety of a court's ruling on a motion to consolidate two separate actions is

judged by the information available to the court at the time the motion is heard. (Ochoa,

supra, 19 Cal.4th at p. 409.) We review the ruling for an abuse of discretion and

determine whether the ruling fell " 'outside the bounds of reason.' " (Id. at p. 408.)

        Wright does not dispute that the offenses charged in each action were of the same

class for purposes of consolidation. (See, e.g., People v. Walker (1988) 47 Cal.3d 605,

622 ["Robbery, murder and assault with intent to commit murder are all offenses of the

same class."].) We focus on whether the consolidation prejudiced the defendant (Ochoa,

supra, 19 Cal.4th at p. 409) or resulted in a denial of due process. (People v. Stitely

(2005) 35 Cal.4th 514, 531 ["A pretrial ruling that was correct when made can be

reversed on appeal only if [consolidation] was so grossly unfair as to deny due process."]

(Stitely).)

        1. Did the Consolidation of the Two Actions Prejudice the Defendant?

        Wright has not made a clear showing of prejudice because of the trial court's

refusal to separate the cases for trial. Even if the offenses from two actions are eligible

for consolidation, a trial court may order separate trials " 'in the interests of justice and for

good cause shown . . . .' " (§ 954; People v. Earle (2009) 172 Cal.App.4th 372, 386

(Earle); Macklem, supra, 149 Cal.App.4th at p. 698.) However, "[t]he 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." (Bean, supra, 46 Cal.3d at p. 938.) "A

ruling on a motion to sever is based on a weighing of the probative value of any cross-

admissible evidence against the prejudicial effect of evidence the jury would not

                                               8
otherwise hear, but in the weighing process the beneficial results of joinder are added to

the probative value side. Therefore a defendant seeking severance must make an even

stronger showing of prejudicial effect than would be required in determining whether to

admit other-crimes evidence in a severed trial." (Id. at p. 936.) Moreover, a trial court's

discretion to deny severance of properly joined offenses is even broader than its

discretion to admit evidence of uncharged offenses in a separate trial. (Soper, supra, 45

Cal.4th at p. 775, fn. 7.)

       In deciding whether consolidation of offenses for trial will prejudice a defendant,

the "key inquiry before the trial court . . . is whether joint trials pose an unacceptable risk

of prejudice, i.e., of unfairly affecting the adjudication of one or more of the charges."

(Earle, supra, 172 Cal.App.4th at p. 387.) The trial court must evaluate the particular

circumstances of each case. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) The

relevant factors are whether: " '(1) evidence on the crimes to be jointly tried would not be

cross-admissible in separate trials; (2) certain of the charges are unusually likely to

inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong"

case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on

several charges might well alter the outcome of some or all of the charges; and (4) any

one of the charges carries the death penalty or joinder of them turns the matter into a

capital case.' " (Id. at p. 1315.)

       These criteria, however, are not "equally significant." (People v. Bradford, supra,

15 Cal.4th at p. 1315.) The first step in determining whether consolidating two actions

for trial will prejudice a defendant is to determine if evidence of one set of charges would

                                               9
be cross-admissible in a hypothetical separate trial of the other under Evidence Code

section 1101. (Bradford, at pp. 1315-1316; Earle, supra, 172 Cal.App.4th at p. 388.) If

there is cross-admissibility, "any inference of prejudice is dispelled." (Bradford, at

p. 1316.)

       Under Evidence Code section 1101, evidence of other crimes is not admissible to

prove a defendant's conduct on another occasion (id., subd. (a)), but is admissible to show

"motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake

or accident." (Id., subd. (b).) Moreover, "there exists a hierarchy, or continuum, with

respect to the degree of similarity that is needed for cross-admissibility, depending upon

the purpose [citation] for which introduction of the evidence is sought." (Alcala v.

Superior Court (2008) 43 Cal.4th 1205, 1222, fn. omitted (Alcala).) The least degree of

similarity between two acts is required for evidence to be cross-admissible on the issue of

intent. (Id. at pp. 1222-1223.) In fact, "[t]he two acts need only be sufficiently similar to

suggest that the defendant probably had the same intent each time." (Stitely, supra, 35

Cal.4th at p. 532.)

       Here, the trial court found there was cross-admissible evidence on the issue of

intent. In each case, the charged misconduct occurred in a jail and "involve[d]

allegations of the defendant engaging in assaultive conduct, punching a victim," and the

issue was "whether he was engaging in . . . intentional conduct to knock out or to harm




                                             10
the victim as opposed to defending himself." The court concluded there was cross-

admissibility.2

       We agree with the trial court that there was cross-admissible evidence on the issue

of Wright's intent to commit assault. (See, e.g., Ochoa, supra, 19 Cal.4th at p. 410

[reasoning that "evidence of each assault could be used under Evidence Code section

1101, subdivision (b), to show defendant's mental state for each other assault, namely his

intent"].) The fact that Wright resorted to punching his adversary during a confrontation,

on two different occasions, suggested he harbored the same intent in each instance, and

was thus admissible to negate Wright's self-defense theory. As the California Supreme

Court explained in Alcala, " ' "[t]he recurrence of a similar result . . . tends (increasingly

with each instance) to negat[e] accident or inadvertence or self-defense or good faith or

other innocent mental state, and tends to establish (provisionally, at least, though not

certainly) the presence of the normal, i.e., criminal, intent accompanying such an act




2      The court was not persuaded that the attempted robbery or attempted extortion
charges in the second case "transform[ed] the case or it create[d] really a different type of
charge." With regard to this finding, we find it sufficient to note that "even the absence
of cross-admissibility would not establish that a trial court erred when, as here, the
offenses have been properly joined by statute and none of the other [remaining] factors"
indicate possible prejudice or that the trial court abused its discretion. (Alcala, supra, 43
Cal.4th at p. 1227; Macklem, supra, 149 Cal.App.4th at p. 698.) As explained below in
part B., we further conclude Wright has not met his burden of making a clear showing of
prejudice as to the two remaining factors relevant to this analysis—that any of the
charges were likely to inflame the jury against him or that a weak case was joined with a
strong one.

                                              11
. . . ." ' " (Alcala, supra, 43 Cal.4th at pp. 1223-1224.) We conclude the trial court

correctly determined there was cross-admissibility on the issue of intent.3

       Because there was cross-admissibility of evidence on the issue of intent with

respect to properly joined offenses, any inference of prejudice was dispelled and we need

not address the remaining factors. (See, e.g., Frank v. Superior Court (1989) 48 Cal.3d

632, 639 [explaining the determination that charged crimes would be cross-admissible at

separate trials can be dispositive of whether the court abused its discretion in denying

severance].) Therefore, we find that the trial court's decision to consolidate the two

actions was not outside the bounds of reason or an abuse of discretion.




3       The court also determined there would be cross-admissibility on the issue of
knowledge. At the hearing on the motion to consolidate, the prosecution argued the Vega
case could be used under Evidence Code section 1101, subdivision (b), in the Hunter case
because "it shows knowledge. He knows and is on notice that his one punch can knock
someone out, that it's likely to cause great bodily injury. It shows knowledge that this is
being recorded." In the first case, "it's in the middle of the day room." In the second
case, "it's behind a pillar with the same floor plan as the module" in the first case. "And
his assault occurs now inside a cell behind a pillar. So he has knowledge of where to
commit his assaults and crimes."
        Having decided the trial court correctly determined there was cross-admissibility
on the issue of intent, we need not address whether there was also cross-admissibility as
to knowledge because "[i]f a judgment rests on admissible evidence it will not be
reversed because the trial court admitted that evidence upon a different theory, a mistaken
theory, or one not raised below." (People v. Brown (2004) 33 Cal.4th 892, 901
[explaining that " ' "a ruling or decision, itself correct in law, will not be disturbed on
appeal merely because given for the wrong reason. If right upon any theory of the law
applicable to the case, it must be sustained regardless of the considerations which may
have moved the trial court to its conclusion." ' "].)


                                             12
       2. Did the Consolidation of the Two Actions Result in a Denial of Due Process?

       The consolidation of the separate offenses for trial did not result in a grossly unfair

trial. "Where, as here, the trial court's ruling on a motion to sever is correct at the time it

was made, we must nevertheless reverse the judgment if the ' "defendant shows that

joinder actually resulted in 'gross unfairness' amounting to a denial of due process."

[Citation.]' " (People v. Grant, supra, 113 Cal.App.4th at p. 587.) Even were there

sufficient evidence to support the convictions, if the consolidation of separate actions

substantially affected the jury's verdicts, the resulting convictions must be reversed. (Id.

at pp. 587-588.)

       In Soper, supra, 45 Cal.4th at page 784, the California Supreme Court held the

defendant did not show he had been denied due process of law because "the evidence

underlying the Rigby and Olson charges was relatively straightforward and distinct, and

. . . the evidence related to each charge was independently ample to support defendant's

conviction of both crimes. Nor was there any great disparity in the nature of the two

charges—the facts pertaining to each crime, compared to the other, were not likely to

unduly inflame the jury. Nor, contrary to defendant's assertion, [was] it clear that the

evidence underlying one charge (the Olson murder) was significantly weaker than that

underlying the other (the Rigby murder). Finally, the jury was instructed on the elements

of murder, on the burden of proof for conviction, and . . . that each count charged a

distinct offense that must be separately decided." (Id. at p. 784, fn. omitted.) The court

further reasoned that the jury "was able to follow the instructions and to

compartmentalize the evidence presented in the two cases [because] the jury found

                                              13
defendant guilty of only second degree murder as to Olson, while finding him guilty of

the first degree murder of Rigby . . . ." (Ibid.) Thus, the court held defendant's trial was

not grossly unfair. (Ibid.)

       In the instant case, the facts of neither of the consolidated actions were likely to

inflame the jury against Wright. Both actions occurred in a jail and both altercations

arose out of sufficiently similar circumstances—the first, because Vega told another

inmate he didn't have to get Wright commissary items, and the second, because Hunter

was going to interfere with the attempted extortion of Brown. Wright hit both victims,

and pictures of the victims' injuries were entered into evidence. Neither action involved

more violent conduct or required more gruesome evidence than the other. (See, e.g.,

Alcala, supra, 43 Cal.4th at p. 1227 [explaining that evidence underlying one set of

charges is unlikely to inflame the jury in assessing a second group of charges, when the

evidence underlying both sets of offenses is " 'similar in nature and equally

gruesome.' "].)

       The evidence underlying each action was also equally strong. With respect to the

December 2012 incident, a surveillance video showed Wright strike Vega, and Wright

admitted to striking Vega over an argument regarding commissary items. There was

clear proof supporting the assault and battery charges as to Vega.

       As to the February 2013 incident, the surveillance video showed Wright,

Villalobos, and Lopez converging around Brown's cell. Wright admitted he knew the

nature of the visit, to confront Brown at the time he received his morphine pills, and that

he heard Villalobos say to Brown, "How come you don't hook me up with morphine."

                                             14
He also admitted to striking Hunter, who was coming to Brown's defense. This evidence

clearly substantiated the charge that Wright aided and abetted the attempted extortion of

Brown, as well as the assault charge as to Hunter. Although the video did not capture

Wright striking Hunter, Wright's admission, plus the two letters he wrote in an attempt to

get Hunter to recant his testimony, sufficiently incriminated him of the assault.4

       Because the evidence in support of each of the cases was independently strong and

ample to support Wright's convictions, we conclude the jury's verdicts on either set of

offenses were not likely affected by hearing evidence on the other set of offenses. (See,

e.g., Bean, supra, 46 Cal.3d at p. 940 [finding no denial of due process where the

evidence "was sufficiently persuasive . . . of his guilt that it [was] not reasonably

probable that the jury was influenced in its verdict of guilt of the Fox crimes by its

knowledge of his involvement in the Schatz offenses."].) We also conclude the evidence

underlying each set of charges was straightforward and distinct, which further mitigated

the risk of prejudicial spillover.

       Moreover, the trial court instructed the jury regarding separate offenses, "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 except for the lesser included

4      "[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.
[Citation.] 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." (Soper, supra, 45 Cal.4th at p. 781.)

                                              15
offenses[,] which [were] just recently addressed." The jury was also instructed as to the

burden of proof required for each conviction (beyond a reasonable doubt), and the mental

states required for each offense. The judge further advised the jury that "[t]he People

must prove not only that Mr. Wright did the act charged, but that he acted with a

particular intent."

       Furthermore, the jury found Wright guilty of some offenses but not others, which

confirms the jury was able to follow the instructions and compartmentalize the evidence

presented in the two cases. As to Vega, the jury found Wright guilty of battery and

simple assault but not guilty of assault with intent to cause great bodily injury or the

enhancement. As to Brown, the jury found Wright guilty of attempted extortion and

simple assault. As to Hunter, it found Wright guilty of assault by means likely to produce

great bodily injury but not attempted robbery. These results show the jury was able to

base its verdicts on the evidence presented and there was no improper spillover effect

from consolidating the two actions in one trial.

       Given the substantial evidence supporting Wright's guilt for each conviction, the

instructions to the jury, and the verdicts in accordance with the strength of the evidence,

we conclude the consolidation of the two actions for trial did not affect the outcome and

Wright was not denied due process of law or a fair trial.

       B. Admission of a Coparticipant's Guilty Plea

       Wright contends the trial court erred by admitting Villalobos's guilty plea to

attempted extortion of Brown into evidence because it was more prejudicial than

probative under Evidence Code section 352. We review the trial court's determination

                                             16
for abuse of discretion. (People v. Leonard (1983) 34 Cal.3d 183, 189 (Leonard).) "A

trial court's decision to admit or exclude evidence is a matter committed to its discretion

' "and will not be disturbed except on a showing the trial court exercised its discretion in

an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage

of justice." ' " (People v. Geier (2007) 41 Cal.4th 555, 585.) However, under the People

v. Watson (1956) 46 Cal.2d 818 standard, even if a trial court errs in admitting evidence

at trial, reversal of a conviction is not required, unless it is evident from the record that

there was a reasonable probability that without the error the outcome of the trial would

have been different. (Leonard, at p. 189, citing Watson, at p. 836; see, e.g., People v.

Heard (2003) 31 Cal.4th 946, 978 ["Even if we were to agree with defendant that the trial

court erred in admitting the photographic evidence in question, we nonetheless would

conclude that any error in admitting such evidence was harmless under the Watson

standard."].)

       A guilty plea is admissible as a declaration against penal interest under Evidence

Code section 1230. (People v. Cummings (1993) 4 Cal.4th 1233, 1321.) However, the

fact that proffered evidence falls within an exception to the hearsay rule does not end the

inquiry regarding its admissibility. (Leonard, supra, 34 Cal.3d at p. 188; People v. Geier,

supra, 41 Cal.4th at p. 584.) If an objection is made on the ground that the evidence

would be unduly prejudicial, a trial court must evaluate the evidence under Evidence

Code section 352 and exclude it if its probative value is outweighed by the probability of

substantial prejudice. (Leonard, at pp. 187-188.) Moreover, the trial court must conduct

the Evidence Code section 352 analysis on the record. (Leonard, at pp. 187-188.)

                                              17
       Here, the trial court determined Villalobos's guilty plea was probative of two

issues in this case: Villalobos committed the crime of attempted extortion (which had to

be proven before the prosecution could show Wright aided and abetted the crime), and

Wright intended to aid and abet the attempted extortion.5 On the record, the trial court

stated, "I am going to do a[n Evidence Code section] 352 analysis that it's more probative

than prejudicial. I know there's some alleged prejudice by guilt by association, but the

People do have to show that the crime was committed on the aiding and abetting theory.

And for the limited purposes to prove this and the intent, I do believe it's relevant. And

the [codefendant] committed the crime, the attempted extortion. The prejudice is not

outweighed by its probative value, so I will allow that to come in for that limited purpose,

and we will have limiting instructions."

       The trial court gave the jury special instructions as to the guilty plea, "During the

trial, certain evidence was admitted for a limited purpose only. You may consider that

evidence only for that purpose and no other. [¶] Exhibit number 16 is the guilty plea

document of Jose Villalobos. You may consider that document only in deliberating for

count number 3 as it pertains to evidence that Mr. Villalobos committed the crime of

attempted extortion with Robert Brown listed as the victim."

       Wright argues that the admission of the guilty plea was more prejudicial than

probative because it permitted the jury to infer guilt by association, the jury was


5      To prove Wright aided and abetted Villalobos in committing the crime of
attempted extortion, the prosecution had to show Villalobos committed the attempted
extortion, Wright knew Villalobos intended to commit attempted extortion, Wright
intended to aid and abet Villalobos, and did in fact aid and abet Villalobos.
                                            18
improperly instructed to consider Villalobos's guilty plea in the deliberation of his guilt,

and the plea was inherently unreliable as a statement against penal interest under

Evidence Code section 1230 because Villalobos could have pleaded guilty in exchange

for a lower sentence.

       We conclude that even if the trial court erred in admitting Villalobos's guilty plea, the

error did not affect the outcome of the trial given the overwhelming evidence against Wright

on the attempted extortion charge. This case is unlike Leonard, in which the Court of

Appeal determined it was reasonably probable the defendant would have been acquitted of

armed robbery had the alleged coconspirator's guilty plea not been admitted into evidence.

(Leonard, supra, 34 Cal.3d at p. 189.) In Leonard, the issue was the identity of one of two

assailants, one of which was allegedly the defendant. (Id. at p. 188.) There was no evidence

linking the defendant to the scene of the crime, other than the fact that the defendant was

found and arrested with the coconspirator some time after the robbery, and the

coconspirator's guilty plea. (Ibid.) The jury found the defendant guilty of robbery despite

inconsistencies and contradictions in the evidence. (Id. at p. 189.) One of the victim's

description of the physical appearance of the assailant did not match that of the defendant.

(Ibid.) She described the assailant as being left-handed, although the defendant's mother

testified he was right-handed, and, when the defendant was arrested soon after the robbery,

he possessed no gun or proceeds from the robbery. (Ibid.) Additionally, the diagrams the

prosecution used at trial referred to the assailants with the initials of the defendant and

coconspirator (Id. at pp. 188-189), and during deliberations the jury asked for documentation

of the plea, suggesting their decision was influenced by it. (Id. at p. 189.) Under these

                                              19
circumstances, the court concluded that but for the introduction of the guilty plea, it was

reasonably probable the jury would have acquitted the defendant. (Ibid.)

       In the instant case, there was substantial evidence linking Wright to the attempted

extortion apart from Villalobos's guilty plea, and his identity was not an issue. As

discussed above, the surveillance video showed Wright, Villalobos, and Lopez acting in

concert and surrounding Brown's cell. Wright admitted the purpose of the visit was to

confront Brown regarding his morphine pills, and that he hit Hunter because Hunter was

coming to Brown's rescue. This evidence not only implicated Wright in the attempted

extortion on an aiding and abetting theory but provided compelling evidence of his guilt.

Under these circumstances, it was not reasonably probable that a jury would have

acquitted Wright of the attempted extortion charge but for the admission of Villalobos's

guilty plea. We conclude that if the trial court erred in admitting the guilty plea, it was

harmless error.

       C. Sixth Amendment Right of Confrontation and Ineffective Assistance of
          Counsel

       Wright contends his counsel was ineffective because he did not object to

admission of Villalobos's guilty plea based on Wright's Sixth Amendment right of

confrontation; therefore, the issue has not been waived on appeal. Defense counsel

objected to admission of Villalobos's guilty plea on the ground that it would be more

prejudicial than probative under Evidence Code section 352, but made no mention of




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Wright's right of confrontation.6 Therefore, the issue has been forfeited for purposes of

appeal unless Wright's ineffective assistance of counsel claim has merit. (People v.

Alvarez (1996) 14 Cal.4th 155, 186 [" ' "[Q]uestions relating to the admissibility of

evidence will not be reviewed on appeal in the absence of a specific and timely objection

in the trial court on the ground sought to be urged on appeal." ' "]; People v. Neely (2009)

176 Cal.App.4th 787, 795 [considering merits of waived issue because there was an

ineffective assistance of counsel claim].)

       To succeed on his ineffective assistance of counsel claim, Wright must

demonstrate that he was prejudiced by his counsel's failure to object to the guilty plea

based on his right of confrontation. (People v. Lucas (1995) 12 Cal.4th 415, 436.) If no

showing of prejudice can be made, there is no need to inquire whether counsel's efforts

were in fact ineffective. (People v. Banks (2014) 59 Cal.4th 1113, 1169-1170.)

       To demonstrate prejudice, a " 'defendant must show that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different.' " (People v. Banks, supra, 59 Cal.4th at p. 1170.) " ' "A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." ' " (People v. Lucas, supra, 12 Cal.4th at p. 436.) "In making this

determination, a court hearing an ineffectiveness claim must consider the totality of the

evidence before the judge or jury. . . . [A] verdict or conclusion only weakly supported




6    When called as a witness, Villalobos refused to testify and asserted his Fifth
Amendment right against self-incrimination.
                                          21
by the record is more likely to have been affected by errors than one with overwhelming

record support." (Strickland v. Washington (1984) 466 U.S. 668, 695.)

       Whether a defendant was in fact prejudiced by counsel's failure to object is a

mixed question of law and fact subject to independent review. (In re Scott (2003) 29

Cal.4th 783, 812; People v. Ledesma (1987) 43 Cal.3d 171, 219.) " '[F]indings of fact,

though not binding, are entitled to great weight when supported by substantial

evidence.' " (Scott, at p. 812; Ledesma, at p. 219.)

       As we explained above, the evidence of Wright's guilt of the attempted extortion

charge, apart from Villalobos's guilty plea, was clear and compelling. There is no

reasonable probability the verdict would have been different absent introduction of

Villalobos's guilty plea. Because we conclude Wright was not prejudiced by defense

counsel's failure to make a confrontation clause objection, Wright's ineffective assistance

of counsel claim has no merit and his right of confrontation claim was forfeited for

purposes of appeal.

                                      DISPOSITION

       The judgment is affirmed.


                                                                McDONALD, Acting P. J.
WE CONCUR:


McINTYRE, J.


IRION, J.



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