Filed 6/7/16 P. v. Arroyo CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067976

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD253950)

RENE ARROYO, JR.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed.

         Steven J. Carroll, 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, Barry Carlton and Christopher P.

Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
                                       INTRODUCTION

       A jury convicted Rene Arroyo, Jr., of assault with a firearm (Pen. Code, § 245,

subd. (a)(2))1 and found true an allegation he personally used a firearm during the

commission of the offense (§ 1192.7, subd. (c)(8)). The jury also convicted Arroyo of

being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and found true an

allegation he personally used a firearm during the commission of the offense (§ 1192.7,

subd. (c)(23)). Arroyo further admitted having three prior prison commitment

convictions (§ 667.5, subd. (b)). The court sentenced him to six years in prison.

       Arroyo appeals, contending the court erred in denying his motion to sever the trial

of the charges against him from the trial of the charges against his father. Arroyo

additionally contends the court erred in failing to declare a mistrial after the admission of

evidence of Arroyo's gang affiliation. Lastly, he contends the accumulation of these

errors deprived him of a fair trial.

                                       BACKGROUND

       Arroyo's father lived in the garage of a home owned by the estate of Arroyo's

deceased grandfather. Arroyo's aunt and her family lived in the home. One night,

Arroyo's father and aunt argued over the disposition of the home. Arroyo, who was

visiting his father, stood next to his father and watched the argument. Arroyo's father

grabbed Arroyo's aunt by her hair and hit her right shoulder. As she picked up a phone

and called 911, Arroyo's father asked Arroyo for a gun. Arroyo pulled out a gun from



1      Further statutory references are to the Penal Code unless otherwise stated.
                                              2
inside his clothes and handed it to his father. Arroyo's father pointed the gun at Arroyo's

aunt. He told her he was going to kill her and lay her next to their deceased mother.

       Around that time, Arroyo's uncle arrived to investigate the confrontation. Arroyo's

father handed Arroyo the gun and told Arroyo to "smoke him" or "shoot him." Arroyo

pointed the gun at his uncle. Arroyo's aunt moved to stand in front of Arroyo's uncle and

Arroyo pointed the gun at her. Arroyo's uncle quickly diffused the situation and Arroyo

and his father left the home.

       While Arroyo's father lived at the home, prison inmates sent mail to him. One

item of mail contained a check for $400. After the above incident, Arroyo's aunt began

rejecting the mail, which made Arroyo's father angry. He called her home and threatened

to kill her. A week or two after the incident, Arroyo went to his aunt's home to pick up

his father's mail. His aunt told him she did not have his father's mail. She also told him

the police were looking for him. He laughed and thanked her for letting him know.

       About two months after the incident, Arroyo's father unexpectedly barged into the

home, ran over to Arroyo's aunt, and started hitting her left side and the back of her head

with his fist. Arroyo's cousin came into the room, ran to Arroyo's father, and stabbed his

lower left ribs twice with a knife. Arroyo's father stopped, noticed himself bleeding,

started going toward Arroyo's aunt again, stopped again, and then left through the front of

the home.

       The parties stipulated Arroyo and his father had each been convicted of a felony in

California within the seven years preceding the trial.



                                             3
                                       DISCUSSION

                                              I

       The prosecutor jointly charged Arroyo and his father with crimes related to the

first incident. The prosecutor also charged Arroyo's father with crimes related to the

second incident. Before trial, Arroyo moved to sever the trial of the charges against him

from the trial of the charges against his father. Arroyo sought the severance because he

believed the jury would be inflamed by limited gang evidence being admitted against his

father as well as the circumstances of the second incident, which involved physical

violence and injury. The court denied the motion, but indicated it would instruct the jury

Arroyo had no charges related to the second incident.

       In the midst of the prosecution's case-in-chief, one of the jurors sent the court a

note requesting a reminder of the charges against Arroyo and his father. With the parties'

agreement, the court reread the information. While doing so, the court emphasized none

of the charges against Arroyo related to the second incident.

       In addition, after the close of evidence, the court instructed the jury with a tailored

version of CALCRIM No. 203 as follows: "Because more than one defendant is on trial

here, I am going to remind you which individuals are charged with which crimes. [¶]

[Arroyo's father] is charged with the charges and allegations as set forth in Counts One,

Two, Three, Four, Five and Seven of the information. [¶] [Arroyo] is charged with

Assault with a Firearm, with specified allegations as alleged in Count Two and

Possession of a Firearm by a Felon, with specified allegations, as alleged in Count Four.

[¶] You must separately consider the evidence as it applies to each defendant. You must

                                              4
decide each charge for each defendant separately. If you cannot reach a verdict on both

of the defendants, or on any of the charges against any defendant, you must report your

disagreement to the court and you must return your verdict on any defendant or charge on

which you have unanimously agreed. [¶] Unless I tell you otherwise, all instructions

apply to each defendant."

       The court also instructed the jury with CALCRIM Nos. 304, 305, and 3515. The

CALCRIM No. 304 instruction stated, "I instructed you during the trial that certain

evidence was admitted only against a certain defendant. You must not consider that

evidence against any other defendant."

       The CALCRIM No. 305 instruction stated, "You have heard evidence that each

defendant made a statement before trial. You may consider that evidence only against

him, not against any other defendant."

       The CALCRIM No. 3515 instruction stated, "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."

                                            II

       Arroyo contends the court prejudicially erred in denying his severance motion

because of the risk the evidence related to the second incident would inflame the jury

against him.2 " 'We review a trial court's denial of a severance motion for abuse of



2      Arroyo arguably waived this contention by his subsequent conduct. (See Gould v.
Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179 [waiver, or the intentional
relinquishment of a known right, may be implied from conduct manifesting an intent to
                                            5
discretion based upon the facts as they appeared when the court ruled on the motion.'

[Citations.] 'If we conclude the trial court abused its discretion, reversal is required only

if it is reasonably probable the defendant would have obtained a more favorable result at

a separate trial.' [Citations.] 'If the court's joinder ruling was proper when it was made,

however, we may reverse a judgment only on a showing that joinder " 'resulted in "gross

unfairness" amounting to a denial of due process.' " ' " (People v. Souza (2012) 54

Cal.4th 90, 109 (Souza).)

       The parties do not dispute there was nothing inherently improper about jointly

trying Arroyo's father for the charges related to both incidents. A court may jointly try a

defendant for different offenses involving different transactions or events if the offenses

are of the same class. (§ 954.)3 The parties also do not dispute there was nothing

inherently improper about jointly trying Arroyo and his father, notwithstanding the

additional charges against his father. Indeed, a court generally must jointly try two or

more defendants who are jointly charged with the same offense. (§ 1098; People v.



waive]. Specifically, after the jury was sworn, but before the prosecutor began presenting
evidence, Arroyo's father's counsel fell ill, necessitating the trial be recessed as to
Arroyo's father. Arroyo had the opportunity to either proceed to trial on his own,
stipulate to a mistrial, or waive time until he and his father could be tried together.
Rather than proceed to trial on his own, which would have given him the severance he
sought, he chose to waive time or stipulate to a mistrial so he could be tried with his
father.

3      Section 954 provides in part: "An accusatory pleading may charge two or more
different offenses connected together in their commission, or different statements of the
same offense or two or more different offenses of the same class of crimes or offenses,
under separate counts."

                                              6
Chapman (1959) 52 Cal.2d 95, 97.)4 Joint trials are legislatively preferred because they

promote judicial economy and efficiency. They also serve the interests of justice by

avoiding inconsistent verdicts. (People v. Mackey (2015) 233 Cal.App.4th 32, 99

(Mackey).) Since Arroyo and his father were charged with common crimes involving

common events and victims, this case presented a classic case for a joint trial. (Souza,

supra, 54 Cal.4th at p. 110; Mackey, supra, at p. 99.)

       Nonetheless, " '[t]he court may, in its discretion, order separate trials [of

defendants] if, among other reasons, there is an incriminating confession by one

defendant that implicates a codefendant, or if the defendants will present conflicting

defenses.' [Citations.] 'Additionally, severance may be called for when "there is a

serious risk that a joint trial would compromise a specific trial right of one of the

defendants, or prevent the jury from making a reliable judgment about guilt or

innocence." ' " (Souza, supra, 54 Cal.4th at p. 109.) "[S]everance may [also] be granted

based on ' "prejudicial association with codefendants." ' " (Mackey, supra, 233

Cal.App.4th at p. 99.)

       However, "there is no rule that separate trials must be granted whenever evidence

of the bad acts of a codefendant is admissible. [Citations.] To allow severance whenever

a codefendant's unsavory background might reflect poorly on another defendant would

result in severance in so many cases that it would defeat the professed legislative

preference for joint trials." (Mackey, supra, 233 Cal.App.4th at p. 102.) Rather, "[t]o


4     Section 1098 provides: "When two or more defendants are jointly charged with
any public offense … they must be tried jointly, unless the court order separate trials."
                                              7
justify severance the characteristics or culpability of one or more defendants must be

such that the jury will find the remaining defendants guilty simply because of their

association with a reprehensible person, rather than assessing each defendant's individual

guilt of the crimes at issue." (People v. Bryant (2014) 60 Cal.4th 335, 383; People v.

Letner and Tobin (2010) 50 Cal.4th 99, 152.)

       "In deciding the severance issue, the trial court must determine whether 'the

realistic benefits from a consolidated trial are outweighed by the likelihood of

"substantial" prejudice to defendant.' [Citation.] 'In determining the degree of potential

prejudice, the court should evaluate whether (1) consolidation may cause introduction of

damaging evidence not admissible in a separate trial, (2) any such otherwise-inadmissible

evidence is unduly inflammatory, and (3) the otherwise-inadmissible evidence would

have the effect of bolstering an otherwise weak case or cases.' [Citation.] That balancing

process is a ' "highly individualized exercise." ' [Citation.] Less drastic measures than

severance, such as limiting instructions, often will suffice to cure any risk of prejudice."

(Mackey, supra, 233 Cal.App.4th at pp. 99-100.)

       Here, the record does not show the evidence against Arroyo's father, which

included the second incident and general information about the Mexican Mafia criminal

prison gang (see pt. III, post), portrayed Arroyo's father so reprehensibly the jury would

have found Arroyo guilty simply by association. While the evidence tended to show

Arroyo's father appeared more violent and rash than Arroyo, Arroyo's counsel

highlighted this contrast throughout the trial as it aided Arroyo's defense. (See People v.

Pinholster (1992) 1 Cal.4th 865, 933 [the court did not err in denying severance where

                                              8
evidence of codefendant's gang affiliation was more useful than prejudicial as it tended to

make codefendant appear more culpable], disapproved on another ground in People v.

Williams (2010) 49 Cal.4th 405, 459.)

       The record also does not show the evidence against Arroyo's father was stronger

than the evidence against Arroyo. Instead, the evidence against each of them was

equivalent, and the evidence against Arroyo was independently sufficient to support his

convictions.

       In addition, the jury was explicitly reminded throughout the trial by the court and

through the strategic cross-examination of witnesses by Arroyo's counsel that Arroyo had

no involvement in the second incident. Moreover, the court instructed the jury to

separately consider the evidence against each defendant and to reach a verdict as to each

defendant solely based upon the evidence against that defendant. We presume the jury

followed this instruction. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 152.)

Arroyo has not rebutted this presumption, as he has not identified anything in record

showing the jury was unwilling or unable to independently assess the respective

culpability of him and his father. Accordingly, Arroyo has not established the court

prejudicially erred in denying his severance motion.

                                            III

                                             A

       Before trial, the prosecutor filed a motion to admit expert evidence Arroyo and his

father were affiliated with the East San Diego criminal street gang and his father was an

associate of the Mexican Mafia criminal prison gang. The court denied the motion as to

                                             9
Arroyo, but granted the motion as to Arroyo's father. One of the charges against Arroyo's

father was making a criminal threat (§ 422), which has a reasonable fear element (People

v. Toledo (2001) 26 Cal.4th 221, 227). The court noted Arroyo's aunt feared Arroyo's

father because she believed he was a gang member and the gang evidence was relevant to

set up the predicate for her state of mind. Nonetheless, the court limited the evidence to

Arroyo's father's membership in a criminal street gang and a prison gang, without

references to the specific gang names. The parties understood the court's ruling to mean

the prosecutor could present expert testimony about gangs and gang membership

generally, but could not present any expert testimony indicating Arroyo and his father

were documented gang members.

          At trial, Arroyo's aunt testified she believed Arroyo's father was a gang member

and only associated with gang members. She explained that he had a paper with codes on

it and he told her he had to get the codes out to people. She believed he was referring to

gang members because he told her about the codes right after he had been released from

prison.

          A gang expert later testified about the difference between a criminal street gang

and a criminal prison gang. The expert also testified about the Mexican Mafia criminal

prison gang, including its membership and hierarchy, its methods of communicating

inside and outside of prison using codes, and its laundering of drug proceeds by having

money sent to and from prisoner accounts.

          Arroyo's counsel did not cross-examine the gang expert; however, Arroyo's

father's counsel asked the expert about the expert's knowledge of Arroyo and Arroyo's

                                               10
father's status as gang members. The expert testified he did not research them and did not

know anything about their status.

       The prosecutor believed and the court agreed this line of questioning and the

manner in which it was done created a false impression Arroyo and his father were not

gang members. The prosecutor requested the parties stipulate Arroyo's father was a gang

member. Instead of granting the request, the court told the prosecutor she could ask the

gang expert on redirect what he was asked to do and how he prepared.

       Arroyo's counsel objected to any questioning of the gang expert as to anything he

may or may not have been asked to do with reference to Arroyo because there was no

gang connection to the charges against Arroyo. Before the court could address this

concern, Arroyo's counsel moved for a mistrial.

       The court responded, "You're going to ask for a mistrial because the guy testified

that he doesn't know whether or not your guy is a member of a gang?" Arroyo's counsel

replied, "It's not so much that, your honor. It'smy concern is that somehow opening the

door has opened the door for further inquiry as to whether my client is a gang member.

[¶] We covered this in limine, and there's absolutely no relevance to my client being in a

gang. He has nothing to do with this check. He has nothing to do with any letters. He

has nothing to do with their level of fear because he's not charged with anything that has

anything to do with [Arroyo's aunt's] level of fear of my client. [¶] That's my concern.

It's justit should be clean and left alone as to my client."

       The court asked the prosecutor, "Have any problem with that?" She replied, "No."



                                             11
       After both defense counsel assured the court and the prosecutor they would not

exploit the situation by arguing in closing that there was no evidence their clients were

gang members, the court ruled: "With this witness, I think you canyou can go along

the lines of what I've suggested. You contacted him yesterday, he knows about gangs in

general, that's what he was here to testify about, and he does not know whether or not

[Arroyo's father] or anybody involved in this case is or is not a member of a gang. That's

not what he was asked to do, and leave it at that."

       When the trial resumed, the prosecutor had the expert clarify that the prosecutor

had only asked him to testify about gang members generally. The prosecutor had not

asked him to conduct any investigation into Arroyo's father's background.

                                             B

       Arroyo contends the court erred in implicitly denying his mistrial motion because

highly prejudicial and irrelevant gang evidence had been indirectly admitted against him

through the gang expert's testimony and no curative instruction was given. We disagree.

       "A motion for ' "mistrial should be granted if the court is apprised of prejudice that

it judges incurable by admonition or instruction." ' " (People v. Montes (2014) 58 Cal.4th

809, 888.) We review the denial of a mistrial motion for abuse of discretion. (Id. at

p. 884.)

       In this case, Arroyo's counsel moved for a mistrial preemptively because he was

concerned the court might allow further questioning of the gang expert as to Arroyo and

he believed any such further questioning, even to confirm the expert did not know

whether Arroyo was a gang member, would prejudice Arroyo. Although the court did
                                             12
not expressly grant or deny the motion, the court effectively eliminated the grounds for

the motion by obtaining the prosecutor's acquiescence to Arroyo's counsel's concerns and

limiting what she could ask the gang expert on redirect. Consistent with her

acquiescence to Arroyo's counsel concerns and the court's direction to her, the prosecutor

limited her redirect questions solely to Arroyo's father. Thus, to the extent the court's

actions may be considered an implicit denial of the mistrial motion, we cannot conclude

from these circumstances the denial was an abuse of discretion.

                                             IV

        Finally, Arroyo contends we must reverse his conviction because the accumulation

of the above claims of error deprived him of a fair trial. Because we have rejected the

above claims of error, we must necessarily reject Arroyo's cumulative error claim as well.

(People v. Vieira (2005) 35 Cal.4th 264, 294; People v. Bolin (1998) 18 Cal.4th 297,

335.)




                                             13
                                 DISPOSITION

     The judgment is affirmed.




                                               McCONNELL, P. J.

WE CONCUR:



HUFFMAN, J.



NARES, J.




                                     14
