Filed 8/14/15 P. v. Olivares CA2/1
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B252620

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA355041)
         v.

DIEGO OLIVARES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald
S. Coen, Judge. Reversed.
         Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Shawn McGahey Webb and Esther P. Kim, Deputy Attorneys General, for
Plaintiff and Respondent.
                                   _______________________________
       Diego Olivares appeals from a judgment entered after a jury found him guilty of
two counts of willful, deliberate and premeditated attempted murder and also found
personal discharge of a firearm and gang enhancement allegations to be true. The jury
did not reach a verdict on two special circumstance murder counts also charged in this
case, and the trial court declared a mistrial as to those counts. Upon retrial of the murder
counts, the jury acquitted Olivares. The court sentenced Olivares to life with a minimum
parole eligibility term of seven years for one of the attempted murders, plus 25 years to
life for the firearm enhancement on that count (and imposed a concurrent term for the
other attempted murder).
       Olivares contends the trial court abused its discretion in denying his motion to
sever the murder counts from the attempted murder counts, and the joinder of the murder
counts deprived him of his constitutional rights to due process and a fair trial on the
attempted murder counts. Each alleged murder occurred on a different date and the two
attempted murders occurred on a third date. Each murder involved circumstances very
different from the other and very different from the attempted murders. The common
thread was the allegation that each offense was gang-motivated. The only evidence that
was cross-admissible on the murder and attempted murder counts was the gang evidence.
The contested evidence presented at trial regarding Olivares’s identity as the perpetrator
was not overwhelming as to any of the counts. For these and other reasons explained
below, we agree with Olivares that the trial court erred in denying his motion to sever the
murder counts from the attempted murder counts and the error was prejudicial.
Accordingly, we reverse the judgment.
                                     BACKGROUND
Charges
       In an information, filed September 16, 2010, the Los Angeles County District
Attorney charged Olivares and codefendant Michael Wayne Thompson with the April 3,
2004 murder of Erica Carpinteyro (count 1) and the May 27, 2004 murder of Michael
Johnson (count 2). The district attorney alleged a special circumstance under Penal Code



                                              2
                                    1
section 190.2, subdivision (a)(3), because defendants were charged with more than one
murder. The district attorney further alleged firearm (§ 12022.53, subds. (b)-(e)(1)) and
gang (§ 186.22, subd. (b)) enhancements as to the murder counts. Evidence presented at
the preliminary hearing and at trial demonstrated Olivares and Thompson were members
of the Four Trey Gangster Crips criminal street gang, which Olivares does not dispute.
       The September 16, 2010 information also charged Olivares (but not codefendant
Thompson) with the May 23, 2004 willful, deliberate and premeditated attempted
murders of Cecillio Moreno (count 3) and Faustino Olivar (count 4). As to these
attempted murder counts, the district attorney alleged firearm (§ 12022.53, subds. (b)-
(e)(1)) and gang (§ 186.22, subd. (b)) enhancements. At the time of the charged murders
and attempted murders, Olivares was 16 years old and codefendant Thompson was 23.
Motion to Sever Counts
       On September 23, 2011, Olivares, who was then 23 years old and representing
himself in propria persona, filed a pretrial motion to sever the murder counts from the
attempted murder counts. In the 44-page, handwritten motion, Olivares summarized the
evidence presented at the preliminary hearing and explained why the counts should be
           2
severed. Olivares had represented himself at the preliminary hearing and had cross-
examined the witnesses.
       As set forth in the motion, count 1 charged Olivares and codefendant Thompson
with the April 3, 2004 murder of Erica Carpinteyro, a four-year-old child who was sitting
in a parked car with her brother and father at approximately 8:00 p.m., waiting for her
mother to come out of a store, when a bullet fired from outside the car entered the car and
struck the child in the head. Travis Hardy, a former Four Trey gang member who


       1
           Further statutory references are to the Penal Code.
       2
         We summarize the relevant preliminary hearing evidence, as Olivares did in his
motion to sever counts, because, in deciding whether the trial court abused its discretion
in denying the motion, “we examine the record before the trial court at the time of its
ruling.” (People v. McKinnon (2011) 52 Cal.4th 610, 630.)

                                               3
testified at the preliminary hearing (and later at trial), contacted the Los Angeles Police
Department in 2009, several years after the crime, to report Olivares and Thompson were
the shooters. According to Hardy, Olivares and Thompson left a “Hood Day” celebration
(party for the gang) at Gilbert Lindsay Park, stating they were “going to put in some
work” or shoot to kill rival gang members. Less than an hour later, Olivares and
Thompson returned to the park with guns in their hands stating they had shot somebody
but “fucked up and shot a kid.”
       As Olivares also explained in the motion, count 2 charged Olivares and Thompson
with the May 27, 2004 murder of Michael Johnson, a Four Deuce/Four Trey Gangster
                     3
Crips gang member who was shot in the head and chest purportedly because he was a
“snitch.” Erica Murray, a fellow Four Deuce gang member, testified at the preliminary
hearing (and later at trial) that victim Johnson left her grandfather’s house in the evening
with Olivares and Thompson. Shortly thereafter, Murray received a telephone call
informing her Johnson had been killed. Murray went to the crime scene and saw
Johnson’s body in the street. Three weeks later, Murray was at a gang “hangout” and had
an argument with Thompson regarding Johnson’s death. Murray was upset because she
had heard Thompson killed Johnson. When she asked Thompson about it, he responded,
“when a nigger snitches, he gets dealt with.”
       Finally, Olivares summarized in his motion to sever the evidence presented at the
preliminary hearing supporting count 3 (the attempted murder of Cecillio Moreno) and
count 4 (the attempted murder of Faustino Olivar), the only two counts on which Olivares
was later convicted. The victims were shot in the late afternoon on May 23, 2004 at
Gilbert Lindsay Park, after a scuffle between two groups of people. Inelvia Solano, who
testified at the preliminary hearing (and later at trial), stated she was picnicking at the
park with family and friends when she saw a group of “three people” she described as



       3
       Evidence presented at the preliminary hearing and at trial established that Four
Deuce and Four Trey were essentially the same gang.

                                               4
                                                                              4
“Blacks and Latins” chasing her husband’s nephew, Jose, through the park. She alerted
her husband, Genaro Huerta, stating she believed the three people were going to hit Jose.
Huerta confronted the group and told them not to hit Jose. The group, which now
included five individuals, turned on Huerta, hitting him and snatching his gold chain from
his neck. Huerta’s family and friends, including Moreno and Olivar, came forward to
defend him. A few more African-American people joined the group that was scuffling
with Huerta and his family and friends. Solano saw a man with a gun, whom she
identified at the preliminary hearing as Olivares. According to Solano, Olivares tried to
shoot the gun, but it did not fire. The second time he tried, the gun fired and the bullet hit
Moreno in the stomach. Solano heard two more shots, and bullets struck Olivar’s hand.
       As set forth in Olivares’s motion, Eric Ranson also testified at the preliminary
hearing. (He further testified later at trial.) Ranson stated at the preliminary hearing that
he saw Olivares holding a gun down at his side around the time of the May 23, 2004
shooting at Gilbert Lindsay Park, but he did not see Olivares point the gun at anyone or
shoot it. Ranson, who was 12 years old at the time of the shooting and 18 at the time of
the preliminary hearing, was skating at the park when he heard gunshots. He did not
witness the shooting. Nonetheless, he told officers the shooter was “Diego” from Four
Trey Gangster Crips, and identified Diego (Olivares) in a six-pack photographic lineup.
According to Ranson, Olivares was the only Hispanic person he knew who belonged to
the Four Trey Gangster Crips.
       Rudy Huerta, son of Inelvia Solano and Genaro Huerta, also testified at the
preliminary hearing (and later at trial). He stated at the preliminary hearing that he was at
Gilbert Lindsay Park on May 23, 2004, and saw a group of people, including African-
American and Hispanic individuals, chase his cousin, Jose, and beat up his father,
Genaro. Rudy ran toward Genaro as more African-American people joined the group


       4
         The prosecution presented evidence at trial, but not at the preliminary hearing,
that Olivares asked Jose about his gang affiliation (“‘where are you from’”) before
Olivares and three other individuals began chasing Jose.

                                              5
scuffling with Genaro. Rudy saw two males holding handguns, an African-American
male who was in front of Rudy, and a Hispanic male who was behind Rudy. According
to Rudy’s preliminary hearing testimony, the Hispanic male “was having difficulty
shooting. He was having trouble with the gun.” It appeared to Rudy that the gun was
“stuck” because he saw the Hispanic male pulling hard on the trigger but the gun was not
shooting. Then Rudy heard gunshots and threw himself to the ground. When he looked
up, he noticed that Olivar and Moreno were bleeding. Later in his testimony, Rudy stated
he had seen the Hispanic male pointing the gun at Olivar and he saw the Hispanic male
shoot the gun. Within two weeks of the shooting, officers showed Rudy a six-pack
photographic lineup containing a photograph of Olivares. Rudy was unable to identify a
suspect. The day before the preliminary hearing commenced—six years after the
shooting—Rudy appeared in court so the judge could place him on call as a witness. He
observed Olivares in the courtroom and told the prosecutor Olivares looked like the
shooter. He confirmed this observation at the preliminary hearing.
       Finally, in his motion to sever, Olivares summarized victim Faustino Olivar’s
preliminary hearing testimony. (Olivar also testified later at trial.) Olivar stated he was
playing volleyball at Gilbert Lindsay Park on May 23, 2004, when he saw a group of
around five African-American people beating up his uncle, Genaro Huerta. Olivar went
to Huerta’s aid. According to Olivar’s preliminary hearing testimony, “Then, more Black
people came and just started like shooting at us.” Olivar saw an African-American man
with a gun. The man aimed the gun at someone and tried to fire but “the gun got stuck.”
Olivar went to grab the man and was struck by gunfire. Olivar believed it was another
man who shot him but he did not see another gunman other than the African-American
man.
       Olivares argued in his motion that all four factors courts consider in deciding
                                                           5
whether to sever counts supported severance in this case. First, he argued “the three


       5
        “‘The relevant factors are whether (1) the evidence would be cross-admissible in
separate trials, (2) some charges are unusually likely to inflame the jury against the

                                             6
shootings did not share sufficient common and distinctive marks to be admissible in the
respective separate trial. Each episode occurred in a very different factual setting, [and]
there is no similarity between the three incidents except for the inference that they all
may have been . . . gang-related.” Second, he argued the alleged circumstances of the
murders—a four-year-old child gunned down in a gang shooting while strapped in her car
seat, and a gang member shot in the head and chest because he was a snitch—were likely
to inflame the jury against Olivares. Third, he argued the prosecutor joined three weak
cases into one in order to obtain a conviction. Olivares noted the Los Angeles County
District Attorney decided on July 16, 2004, after interviewing witnesses, that it would not
file a case against Olivares for the May 23, 2004 shooting of Moreno and Olivar because
the witnesses had been unable to identify Olivares as the suspect (as reflected in the
police report included in the record on appeal). This case was filed more than six years
later. Fourth, Olivares argued the murders were capital offenses given the special
circumstance (multiple murder) allegation. Although Olivares was a minor at the time of
the offenses, and not subject to the death penalty, codefendant Thompson was an adult.
At the time Olivares made his motion, the prosecution had not decided whether to seek
the death penalty against Thompson.
       The prosecution did not file a written opposition to Olivares’s motion to sever
counts. On October 6, 2011, the trial court heard oral argument on the motion from
Olivares (representing himself) and the prosecutor. The prosecutor argued the two
murders should remain joined with the attempted murders because (1) there were
allegations that all crimes were gang-motivated and the gang evidence would be cross-
admissible; (2) Gilbert Lindsay Park was the scene of the attempted murders and there
was evidence showing Olivares and Thompson were at Gilbert Lindsay Park just prior to
the murder of four-year-old Erica Carpinteyro, so evidence of location would be cross-


defendant, (3) a weak case has been joined with a strong case, or with another weak case,
so that the total evidence may unfairly alter the outcome on some or all charges, and (4)
one of the charges is a capital offense, or joinder of the charges converts the matter into a
capital case.’” (People v. Scott (2011) 52 Cal.4th 452, 469-470.)

                                              7
admissible on counts 1, 3 and 4; (3) the “degree of crime” was similar for all offenses; (4)
a firearm was used in each murder and attempted murder (although there is no evidence
indicating the same firearm was used in more than one shooting); and (5) “the
inflammatory nature of the charges is similar across all the counts.” Olivares conceded
murder and attempted murder are in “the same class of crimes” for purposes of section
         6
954.1.
         The trial court denied Olivares’s motion to sever counts, finding the evidence was
“cross-admissible to show the intent of the shooter” because all of the crimes were
alleged to be gang-motivated. The court further found “none of the factors weighing
against joinder were present.” After reviewing the preliminary hearing transcript, the
court did not believe a “particular murder count is sufficiently strong or overwhelmingly
strong to bring up another murder count or in any other count that is very, very weak.”
Nor did the court believe any count was “more likely to inflame the jury’s passions than
the other.” The court concluded Olivares could not show joinder of counts was
prejudicial.
         Immediately after the trial court denied his motion to sever counts, Olivares gave
up his pro. per. status and accepted representation by stand-by counsel. Olivares was
represented by the same attorney through sentencing.
Trial
         Trial commenced on May 22, 2012. The prosecution first presented evidence on
counts 3 and 4, the May 23, 2004 attempted murders of Moreno and Olivar, which were
charged only against Olivares and not codefendant Thompson.




         6
        Section 954.1 provides: “In cases in which two or more different offenses of the
same class of crimes or offenses have been charged together in the same accusatory
pleading, or where two or more accusatory pleadings charging offenses of the same class
of crimes or offenses have been consolidated, evidence concerning one offense or
offenses need not be admissible as to the other offense or offenses before the jointly
charged offenses may be tried together before the same trier of fact.”

                                              8
       Inelvia Solano testified that on May 23, 2004—eight years before her trial
testimony—she saw Olivares chase Jose, participate in a group beating of her husband,
Genaro Huerta, and fire the bullets which struck Moreno and Olivar. Solano stated
Olivares was the only person she saw with a gun. Solano also testified that, about a week
after the shooting, officers came to her home and showed her an album containing a
                                                                            7
photograph of Olivares but she did not recognize Olivares as the shooter.
       Solano’s son, Rudy Huerta, testified that on May 23, 2004, during the group
beating involving his father, Genaro Huerta, he glanced behind him and saw Olivares
“pulling on” a gun and having “trouble” with the gun. After Rudy faced forward again,
he heard gunshots but could not discern the direction from which the bullets were fired.
At the preliminary hearing, Rudy testified he also observed an African-American man
standing in front of him holding a gun. At trial, however, he stated Olivares was the only
person he saw with a gun. Within a few days of the shooting, officers showed Rudy a
six-pack photographic lineup but he was unable to identify the person he had seen
holding the gun.
       Victim Faustino Olivar testified consistently with what he stated at the preliminary
hearing (summarized above). In short, during the scuffle between the two groups, Olivar
observed an African-American man with a gun. When the gun jammed, Olivar stepped
in to subdue the man and felt bullets strike him. Olivar believed the bullets were fired
from someplace else, but he did not see another gunman.
       Solano’s other son, Genaro Huerta (who has the same first and last names as his
father), testified at trial but not at the preliminary hearing. Genaro (the son) was standing
with Jose at Gilbert Lindsay Park when a man Genaro identified at trial as Olivares
approached and asked Jose about his gang affiliation (“‘where are you from’”). Olivares
was with three other people. According to Genaro’s trial testimony, Olivares attempted


       7
         Olivares became a suspect on the day of the shooting. According to Officer
Jennifer Grasso’s trial testimony, at the crime scene, 12-year-old Eric Ranson told her
“the male Hispanic shooter was Diego, also known as Santana, from Four Trey.”

                                              9
to pull a gun from the pocket of one of his associates, but the other male said, “‘not right
now’” or “‘not yet.’” Then Olivares and the three other individuals began chasing Jose.
During the subsequent scuffle involving several of his family members, Genaro heard
gunshots but did not see who was shooting.
       Eric Ranson, who was in custody for robbery at the time of trial, did not testify
consistently with his preliminary hearing testimony (which is summarized above). He
stated he did not know anything about the shooting, did not see a gun and did not know
Olivares. Moreover, he denied telling officers the shooter was Diego from Four Trey and
denied identifying Olivares in a six-pack photographic lineup, even after his recorded
interview with officers was played for the jury.
       The prosecution next presented its case on count 1, the April 3, 2004 murder of
four-year-old Erica Carpinteyro. Travis Hardy, the former Four Trey gang member who
came forward in 2009, several years after the crime, to identify Olivares and codefendant
Thompson as the perpetrators, testified consistently with his preliminary hearing
testimony (summarized above). Hardy testified he was in fear for his life because he was
testifying against Four Trey gang members and the penalty for doing so could be death.
Because Hardy feared for his safety, the Los Angeles Police Department (LAPD) paid to
relocate Hardy to Las Vegas, Nevada.
       Finally, the prosecution presented its case on count 2, the May 27, 2004 murder of
Michael Johnson, who allegedly was killed because he had snitched on another gang
member. Erica Murray, the fellow gang member who testified against Olivares and
Thompson at the preliminary hearing (as summarized above) was unavailable at trial and
her preliminary hearing testimony was read to the jury. Evidence presented at trial
indicated Murray had received financial assistance from the LAPD for her cooperation.
       Leighton Corothers, a Four Deuce/Four Trey gang member, also testified for the
prosecution regarding Johnson’s murder. At the time of trial, he was in custody for a
bank robbery he had committed on July 1, 2004, eight years before his trial testimony.
During his trial testimony in this case, Corothers identified Olivares and Thompson as his
accomplices during the 2004 bank robbery. On October 9, 2005, Corothers’s cellmate

                                             10
wrote a letter for him to send to the district attorney’s office handling his bank robbery
case. Corothers signed the letter, in which he identified Thompson and Olivares as the
individuals who had murdered Johnson. On January 9, 2006, detectives interviewed
Corothers in prison about Johnson’s murder. More than six years later, at the trial in this
case, Corothers indicated he had fabricated the information in the letter to “get even
with” Olivares and Thompson because he was angry that he was facing a third strike life
sentence for the 2004 bank robbery and they were not. In 2009 or 2010, Corothers
“became a born again Christian” and decided to tell the truth—that he had fabricated the
information about Olivares and Thompson he included in the October 9, 2005 letter, and
his January 9, 2006 interview with detectives.
       Detective Tommy Thompson, one of the investigating detectives on this case,
testified that in September 2007, while in custody, Gabriel Olea indicated Olivares
murdered fellow gang member “Baby Left” (Johnson’s gang moniker) because he was a
snitch. Olea had been in a relationship with Olivares’s sister and had two children with
her. At trial, Olea testified and denied he had implicated Olivares in Johnson’s murder.
       The prosecution presented a gang expert (Officer Ronald Berdin) who testified
about the Four Deuce/Four Trey Gangster Crips, a predominantly African-American
gang. In 2004, Berdin was aware of only one Hispanic member of Four Deuce/Four
Trey, Olivares. Rivals of Four Deuce/Four Trey included several neighboring African-
American and Hispanic gangs. According to Berdin, Gilbert Lindsay Park was “the hub”
of Four Deuce/Four Trey criminal activity. In response to the prosecutor’s hypotheticals
regarding the incidents charged in this case, Berdin testified each of the hypothetical
murders and attempted murders was committed for the benefit of, at the direction of, and
in association with a criminal street gang. Berdin testified about the penalties imposed on
someone who is “labeled a snitch by the gang.” After Michael Johnson was shot in the
head and chest, Berdin learned Johnson had been “assisting a detective in a homicide
investigation.” Johnson’s murder was consistent with the punishment a snitch would
receive from the Four Trey gang, according to Berdin.



                                             11
       Olivares testified in his own defense at trial. He admitted prior juvenile
convictions for possession of drugs for sale in 2002 and assault with force likely to
produce great bodily injury in 2004. He also admitted his juvenile conviction for the July
1, 2004 robbery he participated in with Corothers and codefendant Thompson. He was
on house arrest for the assault at the time he was arrested for the bank robbery. In July
2007, when Olivares was 19 years old, he was found in possession of a firearm, convicted
and sentenced to prison. He was serving that prison sentence when the district attorney
filed the charges in this case. Olivares testified about his involvement with the Four Trey
Gangster Crips and the type of punishment the gang exacts on rivals who come into
Gilbert Lindsay Park: “They can get beat up, stabbed, shot . . . .”
       Olivares denied involvement in any of the charged offenses. He stated he was not
at Gilbert Lindsay Park on April 3, 2004, the date of Carpinteyro’s murder (count 1). He
testified with particularity about his whereabouts that day and night. He further stated he
was not at Gilbert Lindsay Park when Moreno and Olivar were shot (counts 3 and 4), but
he did not provide a detailed account of his whereabouts at the time of the attempted
murders. In denying his involvement in the May 27, 2004 murder of Johnson, Olivares
described Johnson as a “very good friend.”
       On June 12, 2012, the jury found Olivares guilty of the attempted murders of
Moreno and Olivar. The jury deadlocked on the two murder counts and, on June 15,
2012, the trial court declared a mistrial as to those counts. The prosecution retried
Olivares and Thompson for the murders. Both defendants were acquitted.
       On October 29, 2013, Olivares’s counsel filed a motion for new trial, arguing the
trial court erred in denying the motion to sever the murder counts from the attempted
murder counts. In the alternative, counsel also asserted, even if joinder of the counts was
appropriate at the time the court hear the motion to sever, reversal was required
nonetheless because the evidence presented at trial demonstrated joinder was unduly
prejudicial. The court denied the motion for new trial.
       The trial court sentenced Olivares to life with a minimum parole eligibility term of
seven years for the attempted murder charged in count 3, plus 25 years to life for the

                                             12
firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). The court
stayed the remaining firearm and gang enhancements. The court imposed the same
sentence for the attempted murder charged in count 4 and ordered it to run concurrently
with the sentence on count 3.
                                      DISCUSSION
       Olivares contends the trial court erred in denying his motion to sever the murder
counts from the attempted murder counts, and the error requires reversal. We agree
       Under section 954, unrelated offenses occurring at different times may be charged
together in the same information if the offenses belong to the same class of crimes.
Olivares does not dispute murder and attempted murder are in the same class of crimes.
Where, as here, joinder is permissible under section 954, a defendant moving to sever
counts “has the burden to clearly establish a potential of prejudice sufficient to warrant
separate trials.” (People v. McKinnon, supra, 52 Cal.4th at p. 630.)
       A trial court has broad discretion to deny a motion for severance because joinder
of counts “ordinarily promotes [judicial] efficiency” and therefore “is the preferred
course of action.” (People v. Scott, supra, 52 Cal.4th at p. 469; People v. McKinnon,
supra, 52 Cal.4th at p. 630.) In deciding whether the court abused its discretion in
denying the motion, “we examine the record before the trial court at the time of its
ruling.” (People v. McKinnon, supra, 52 Cal.4th at p. 630.) “‘The relevant factors are
whether (1) the evidence would be cross-admissible in separate trials, (2) some 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 total evidence may
unfairly alter the outcome on some or all charges, and (4) one of the charges is a capital
offense, or joinder of the charges converts the matter into a capital case.’” (People v.
Scott, supra, 52 Cal.4th at pp. 469-470.)
       Evidence of the murders would not have been cross-admissible in a separate trial
on the attempted murders. The murders, which occurred on different dates from each
other and from the attempted murders, involved circumstances very different from each
other and from the attempted murders. The prosecution alleged four-year-old Erica

                                             13
Carpinteyro was killed on April 3, 2004, when a bullet intended for a rival gang member
struck her in the head as she sat in a vehicle. The prosecution presented evidence
demonstrating Moreno and Olivar were shot on May 23, 2004, during a melee between
two groups of people at the park. The prosecution alleged Four Deuce/Four Trey gang
member Michael Johnson was shot in the head and chest by fellow gang members on
May 27, 2004, because he was assisting police in an investigation unrelated to this case.
Nothing tied the murders with the attempted murders other than the allegations the
offenses were committed for the benefit of, at the direction of, and in association with the
Four Trey Gangster Crips and a principal used a firearm. There is no evidence indicating
the same firearm was used in multiple shootings.
       The Attorney General argues the evidence was cross-admissible to prove intent.
We disagree. “To be admissible to prove intent, the charges must be sufficiently similar
to support the inference that the defendant probably harbored the same intent in each
instance.” (People v. Scott, supra, 52 Cal.4th at p. 471.) Evidence of the facts and
circumstances surrounding the Carpinteyro and Johnson murders does not tend to prove
Olivares intended to kill Moreno and Olivar during the scuffle in the park. Moreover, we
reject the Attorney General’s assertion joinder was proper because the gang expert would
be called to testify in each separate trial to prove the gang enhancement allegation.
       We recognize cross-admissibility of evidence is not a hard and fast requirement
for joinder of counts. As set forth in section 954.1, “In cases in which two or more
different offenses of the same class of crimes or offenses have been charged together in
the same accusatory pleading . . . evidence concerning one offense or offenses need not
be admissible as to the other offense or offenses before the jointly charged offenses may
be tried together before the same trier of fact.” (§ 954.1.) Cross-admissibility of
evidence is, however, a factor we consider in determining whether the trial court abused
its discretion in denying a motion to sever counts. (People v. Scott, supra, 52 Cal.4th at
p. 469.) Here, the lack of cross-admissibility of the facts and circumstances of the
murders weighs in favor of severance of counts.



                                             14
       Turning to the second factor, we conclude the murder charges were “unusually
likely to inflame the jury against” Olivares. (People v. Scott, supra, 52 Cal.4th at pp.
469-470.) The murder of a four-year-old child who was shot in the head while she sat
inside a car with her brother and father, and the execution-style murder of a fellow gang
member who was a snitch, are highly inflammatory when compared with the shooting of
Moreno and Olivar in the midst of a scuffle between two groups of people.
       Our review of the third factor—whether “a weak case has been joined with a
strong case, or with another weak case, so that the total evidence may unfairly alter the
outcome on some or all charges” (People v. Scott, supra, 52 Cal.4th at p. 470)—also
weighs in favor of severance of counts. Shortly after the May 23, 2004 shooting of
Moreno and Olivar, officers showed eyewitnesses six-pack photographic lineups
containing Olivares’s photo, but eyewitnesses were unable to identify Olivares as the
shooter. As Olivares pointed out to the court in connection with his motion to sever
counts, the police report regarding the May 23, 2004 shooting, states the district attorney
decided not to file charges against Olivares in July 2004 because the eyewitnesses did not
identify him as the shooter. Six years later, the attempted murder charges were filed
against Olivares although there were no new witnesses supporting the charges. But the
attempted murder charges were not filed alone. They were combined with two murder
charges supported by weak evidence (accusations by gang members Travis Hardy and
Erica Murray which two juries found insufficient to convict Olivares or Thompson of
murder).
       Finally, we consider whether one of the charges is a capital offense. Olivares and
Thompson were charged with two counts of special circumstance murder. Olivares was a
minor at the time of the shootings and therefore not subject to the death penalty.
Codefendant Thompson, on the other hand, was an adult and subject to the death penalty.
When the trial court ruled on the motion to sever counts, the prosecution had not yet
decided whether to seek the death penalty against Thompson. Accordingly, the trial court
stated it was treating the case as a capital case at that time.



                                               15
       Based on our review of the relevant factors in light of the record before the trial
court at the time it denied Olivares’s motion to sever counts, we find the court abused its
discretion because Olivares had “clearly establish[ed] a potential of prejudice sufficient
to warrant separate trials.” (People v. McKinnon, supra, 52 Cal.4th at p. 630.) But even
assuming the trial court’s denial of the motion was correct when made, we “‘still must
determine whether, in the end, the joinder of counts . . . resulted in gross unfairness
depriving the defendant of due process of law.’” (People v. Soper (2009) 45 Cal.4th 759,
783.) Considering the evidence presented at trial, we conclude joinder of counts deprived
Olivares of a fair trial on the attempted murder counts for the reasons explained below.
       In a separate trial on the attempted murders, fellow gang members Travis Hardy,
Erica Murray and Leighton Corothers would not have testified and provided the jury a
bird’s eye view into the atrocities of gang life. The jury would not have heard about the
bank robbery Olivares committed with Corothers and Thompson. It is doubtful Olivares
would have testified and disclosed his criminal convictions given the vast majority of his
testimony related to the murders and not the attempted murders—describing his
whereabouts at the time Carpinteyro was murdered, discussing his relationship with
murder victim Johnson and the prosecution witnesses who testified against him regarding
the murders (Hardy, Murray, Corothers, and Olea), explaining the relationship between
Four Trey and the Avalon gang (the purported target of the April 3, 2004 shooting in
which Carpinteyro was killed), etc. After reviewing the trial transcript, we conclude
there was a substantial risk the jury convicted Olivares of the attempted murders based on
all of the inflammatory evidence it heard in connection with the murder charges—charges
which should have been severed before trial. The joinder of counts resulted in gross
                                                                                  8
unfairness depriving Olivares of due process of law. Accordingly, we reverse.




       8
         Because we reverse Olivares’s convictions on this ground, we need not address
the other purported grounds for reversal he raises in his opening appellate brief.

                                             16
                                    DISPOSITION
      The judgment is reversed.
      NOT TO BE PUBLISHED.




                                                       CHANEY, J.


We concur:



             ROTHSCHILD, P. J.



             BENDIX, 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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