Filed 2/4/14 P. v. Garcia CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057421

v.                                                                       (Super.Ct.No. SWF1102817)

DIEGO ROSALINO GARCIA,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. John M. Davis, Judge.

Affirmed.

         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Elizabeth M.

Carino, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant, Diego Garcia, was charged with two counts of attempted robbery (Pen.

Code, §§ 664 & 211),1 one count of assault with a firearm (§ 245, subd. (a)(2)), and one

count of being an active participant in a criminal street gang (§ 186.22, subd. (a)). The

defense was mistaken identification, and during in limine proceedings, defendant made a

motion to sever the gang count from the balance of the charges, which was denied. He

was found guilty after a jury trial and sentenced to an aggregate term of 13 years in state

prison. He appealed, arguing that his due process rights were violated by the court’s

ruling on his severance motion. We affirm.

                                      BACKGROUND

       a. Counts 1, 2, and 4—The Incident

       At approximately 9:30 or 10:00 p.m. on October 4, 2011, Clayton Shuler and

Dawn Franklin were hanging out at a dog park in Temecula, California. While there,

they saw two males and one female walking down a sidewalk. One of the males,

identified at trial as the defendant, entered through the park gates and got a drink of water

at the water fountain. After getting a drink, the defendant walked over to Shuler and

Franklin, pulled a gun out and slammed it on the table, telling them they did not need to

be afraid. The defendant then instructed the two to show him what they had.

       Shuler removed his cell phone, wallet and keys from his pocket and put them on

the table, but he had only a few dollars in his wallet. After defendant went through the

wallet, he threw it down and told his companions to come inside the park. Defendant


       1   All further statutory references are to the Penal Code unless otherwise indicated.


                                              2
directed the male companion to pat down Shuler and Franklin. The male companion

started making sexual gestures at Franklin by licking his lips. Defendant became irritated

and pointed his gun at the male companion. Defendant then directed the female

companion to search Shuler and Franklin. Franklin recognized the female as a friend of

her cousin’s. The female companion checked Shuler and Franklin, and confirmed they

did not have anything. Then defendant and his two companions left the park.

      Shuler called the police, who responded and took a report. Shuler and Franklin

described the robber as a Hispanic adult male, wearing a black hoodie, blue jeans. Shuler

described defendant’s weapon as a Beretta, black with a rounded top. When shown a

photographic lineup, Shuler was uncertain about the defendant, but was able to pick out

the female companion.

      On October 14, 2011, Franklin saw the defendant and the female companion,

along with several others, behind the Paul Mitchell cosmetology school. Defendant was

wearing the same hoodie. Franklin recognized defendant and the female, and called the

police. A deputy sheriff arrived at the location and detained defendant and the female

companion.

      On October 20, 2011, the same deputy met with Franklin at her residence. He

showed Franklin a photographic lineup, and Franklin recognized the person who held her

up. Shuler also arrived at Franklin’s residence and was interviewed separately by the

deputy. Shuler repeated his description of the defendant and the incident, adding the

detail that the defendant pointed the gun at him during the robbery attempt. Shuler also

described a necklace that had two metal spikes crossed, worn by the robber. The deputy


                                            3
showed Shuler a photographic lineup but Shuler was unsure about the robber and did not

want to choose the wrong person.

       A search of defendant’s residence was conducted pursuant to a search warrant. In

the garage of the residence, a deputy located a gun underneath a cushion of a couch.

Another deputy located an item consistent with a necklace that looked like a cross in one

of the bedrooms.2 Defendant was arrested following the search.

       b. Count 3—Active Participation in Street Gang

       A gang expert testified about Old Town Trece. In Temecula, there is only one

traditional Hispanic gang: Old Town Trece. The turf claimed by Old Town Trece

includes the park where the attempted robbery occurred. Members of Old Town Trece

earn respect within the gang by committing crimes, which is known as “putting in work.”

Tattoos are important because they show that a person supports the group for life.

“Trece” refers to 13, or the 13th letter of the alphabet, “M,” which represents the

Mexican Mafia. Symbols used by members of Old Town Trece include the number 13,

the letters “O” and “T,” for “Old Town,” the numbers “15” (for “O,” the 15th letter of the

alphabet) and “20” (for “T,” the 20th letter of the alphabet), and three dots, which signify




       2 This item was never well-described on the record, but was apparently a rosary,
found hanging from a peg of a coat rack shelf. The deputy noted that Shuler’s
description did not indicate the necklace was a rosary or that it had beads. In fact, Shuler
was pretty adamant that the suspect’s necklace was not a rosary. Shuler told an
investigator that the item in the photograph was not what the defendant was wearing,
although at trial, Shuler was unsure that the necklace (of which a photograph was shown
to him) was the one defendant was wearing.


                                             4
the phrase, “mi vida loco.” The three dots are usually the first tattoos a gang member

will get.

       As of October 2011, there were 15 to 20 members of Old Town Trece. To become

a member, one usually has to be “jumped in,” or beaten for 13 seconds, as respect to the

Mexican Mafia. The primary activities of Old Town Trece include graffiti, vandalism,

weapon possession, car theft, assaults, including assaults with deadly weapons, marijuana

and methamphetamine sales, and robbery. Members of Old Town Trece have been

convicted of at least four crimes arising from the gang’s primary activities. In the

expert’s opinion, Old Town Trece qualified as a criminal street gang.

       The expert was familiar with defendant, who had been contacted by other

members of the gang task force, although the expert had never personally spoken to the

defendant. Defendant acquired a tattoo of an “O” and a “T,” plus three dots, sometime

after March 20, 2011.3 He was known to associate with other active members of Old

Town Trece since at least March 18, 2009, when he was contacted in the company of

other gang members. On March 21, 2010, defendant was contacted again in the company

of other known gang members.

       The use of a gun to attempt to rob someone in gang territory is consistent with

putting in work for the gang, and consistent with being an active member. Based on his

tattoos, his known associates, information on field interview cards and conversations with


       3  Defendant’s tattoo looks different from those of other gang members because it
is not in Old English script, and the “O” is not a complete circle. Defendant’s mother
was told that it was a family symbol in the Aztec or Mistec language.


                                             5
other gang members, the gang expert formed the opinion that defendant was an active

participant in Old Town Trece.

       c. Defense Evidence

       Defendant lived at home with his parents, five siblings and one cousin. Defendant

worked at a nursery six days a week and he was working on October 4, 2011.

Defendant’s mother was sure of the date because he did not have a car so she, along with

her husband, and two of her other children, picked him up after work and then went to

Escondido where they purchased an airline ticket from a travel agency, and then went to a

Taco Bell. She had receipts from Taco Bell showing they were at the Taco Bell at about

7:16 p.m. They did more shopping in Escondido and returned home to Temecula at

about 10:00 p.m. After they returned home, defendant did not leave the house again.

       Defendant’s mother identified the item in the photograph (thought to be a

necklace) as a rosary, and stated defendant did not wear a rosary around his neck.

       An expert testified that eyewitness identification following a stressful event is

fraught with problems relating to unreliability.4

       d. Proceedings Below

       Defendant was charged with two counts of attempted robbery (§§ 664 & 211), one

count of active participation in a criminal street gang (§ 186.22, subd. (a)), and one count

of assault with a firearm (§ 245, subd. (a)(2)). It was further alleged that defendant



       4 Because defendant does not challenge the sufficiency of the evidence to support
his convictions, it is unnecessary to give a detailed account.


                                             6
personally used a firearm in the commission of the attempted robberies (§ 12022.53,

subd. (b)).

       At trial, both Shuler and Franklin positively identified defendant as the person

who used the gun in the attempt to rob them. He was convicted of all counts and

sentenced to an aggregate term of 13 years in state prison. Defendant appealed.

                                       DISCUSSION

1. Denial of Defendant’s Severance Motion Did Not Prejudice His Right to a Fair
Trial.

       At the inception of the trial, defendant filed a motion entitled “Motion to Sever

Gang Charge (Penal Code § 954),” to sever the charge of active participation in a

criminal street gang (count 3) from the remaining counts. During in limine proceedings,

defense counsel conceded that bifurcation was inappropriate, and that this was a

severance matter. However, counsel argued that separate trials might not be necessary if

the court were interested in trying something new and different, such as bifurcation. The

trial court denied the motion On appeal, defendant argues that the court violated

defendant’s State and Federal Constitutional rights to Due Process of Law by denying

bifurcation. We disagree.

       Pursuant to section 954, the People are permitted to join counts if they arose out of

a single course of conduct or were connected in their commission. A party seeking

severance is required to clearly establish that there is substantial danger of prejudice

requiring that the charges be separately tried. (People v. Hernandez (2004) 33 Cal.4th

1040, 1050; People v. Bean (1988) 46 Cal.3d 919, 938 (Bean).) On appeal, an order



                                              7
denying a motion to sever counts is reviewed for abuse of discretion. (People v. Jones

(2013) 57 Cal.4th 899, 925, citing People v. Vines (2011) 51 Cal.4th 830, 855.)

       Joint trials have long been prescribed—and broadly allowed—by the Legislature’s

enactment of section 954. (People v. Soper (2009) 45 Cal.4th 759, 771 (Soper).) The

purpose underlying this statute is clear: a joint trial “ordinarily avoids the increased

expenditure of funds and judicial resources which may result if the charges were to be

tried in two or more separate trials.” (Frank v. Superior Court (1989) 48 Cal.3d 632,

639.) A unitary trial requires a single courtroom, judge, and court attachés. 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. (Bean, supra, 46 Cal.

3d at p. 940.)

       In addition, the public is served by the reduced delay on disposition of criminal

charges both in trial and through the appellate process, promoting judicial efficiency.

(Bean, supra, 46 Cal.3d at pp. 939–940; see also, e.g., People v. Geier (2007) 41 Cal.4th

555, 578; People v. Ochoa (1998) 19 Cal.4th 353, 409; People v. Mason (1991) 52

Cal.3d 909, 935.) For these and related reasons, consolidation or joinder of charged

offenses is the course of action preferred by the law. (Alcala v. Superior Court (2008) 43

Cal.4th 1205, 1220.) When the statutory requirements of joinder are met, a defendant

must make a clear showing of prejudice to establish an abuse of discretion by the trial

court. (People v. Marshall (1997) 15 Cal.4th 1, 27 (Marshall).)




                                              8
       a. A Substantive Gang Offense Cannot Be “Bifurcated.”

       Although he conceded at trial that severance was the appropriate procedure for

culling separate counts from trial, defendant asserts the court erred in failing to bifurcate

the gang count from the remaining counts. He cites decisional authorities involving

severance of counts (People v. Hernandez (2004) 33 Cal.4th 1040; Price v. Price (1991)

1 Cal.4th 324; People v. Balderas (1985) 41 Cal.3d 144; People v. Grant (2003) 113

Cal.App.4th 579), and other authorities involving bifurcation of issues [such as sanity

defenses, or prior convictions in criminal cases, or damages in civil trials] or allegations.

(Citing People v. Calderon (1994) 9 Cal.4th 69 [prior convictions]; People v. Cline

(1998) 60 Cal.App.4th 1327 (Cline) [prior convictions]; Fed. Rules of Civ. Proc., rule

42(b)5.) However, he cites no authority imposing a duty on a trial court to “bifurcate” a

substantive count, the denial of which would give rise to a Due Process violation.

       Pursuant to Penal Code section 1044, a trial court has authority to bifurcate the

trial of a gang enhancement from the trial of guilt. (People v. Hernandez (2004) 33

Cal.4th 1040, 1049 (Hernandez).) Bifurcation of enhancements or prior conviction

allegations is a matter within the trial court’s discretion. (Cline, supra, 60 Cal.App.4th at

p. 1333.) However, in the context of severing charged offenses, additional factors favor

joinder, where trial of the counts together avoids the increased expenditure of funds and

judicial resources which may result if the charges were tried in two or more separate

trials. (Hernandez, supra, at p. 1050.)

       5   In state court, bifurcation is governed by Code of Civil Procedure, sections 597-
598.


                                              9
       The language referring to the “context of severing charged offenses,” as used by

the California Supreme Court in Hernandez, supports the trial court’s concern that

severance of the counts would entail an entirely separate trial by a different jury, as

opposed to a deferred issue. None of the authorities argued by defendant suggest that a

different procedure would be authorized, particularly where the language of Penal Code

section 954 refers to “order[ing] that the different offenses or counts set forth in the

accusatory pleading be tried separately . . . .” [Italics added.] By definition, a motion to

sever means a motion for separate trials.

       On appeal, defendant argues, without authority, that the trial court could have

followed the same procedure as bifurcation of a gang enhancement. However, whether

or not a trial court “could” have done something does not establish that the court

“should” have done so, or that a trial was rendered fundamentally unfair for its failure to

do so. At trial, defendant suggested that the trial court try something new and different

by bifurcating a substantive count, which he conceded was more appropriately a

severance matter. This suggestion was based on the assumption that the gang count

could just be tried after the verdict on the attempted robberies, much like a gang

enhancement or a prior conviction allegation. However, rejecting such a suggestion is

not reversible error, and does not render a trial fundamentally unfair.

       Absent any authority for “bifurcating” separate counts, the trial court’s denial

cannot be viewed as a denial of due process. The trial court addressed this argument by

observing that it had not seen any cases authorizing bifurcation of a substantive charge of

Penal Code section 186.22, subdivision (a). Neither have we.


                                              10
       b. The Court Properly Denied the Defense Motion for Severance.

       In determining whether a trial court abused its discretion in denying a motion to

sever properly joined charges, we consider the record before the court when it made its

ruling. (Soper, supra, 45 Cal.4th at p. 774, quoting Alcala v. Superior Court (2008) 43

Cal.4th 1205, 1220.) The pertinent factors include: (1) would the evidence of the crimes

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

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

or another weak case so that the total evidence on the joined charges may alter the

outcome of some or all of the charged offenses; and (4) is any one of the charges a death

penalty offense, or does joinder of the charges convert the matter into a capital offense.

(Marshall, supra, 15 Cal.4th at pp. 27-28.) Because this case does not involve a capital

offense, we do not need to analyze that factor.

              1. Cross-admissibility

       We first consider whether the evidence of the separate offenses would have been

cross-admissible if the offenses had been separately tried. (People v. Thomas (2012) 53

Cal.4th 771, 798.) The first step in assessing whether a combined trial would have been

prejudicial is to determine whether evidence on each of the joined charges would have

been admissible, under Evidence Code section 1101, subdivision (b), in separate trials on

the others; if so, any inference of prejudice is dispelled. (People v. Carter (2005) 36

Cal.4th 1114, 1154.) Cross-admissibility suffices to negate prejudice, but it is not

essential for that purpose. (Ibid.)




                                             11
        Section 954 authorizes joinder for offenses connected together in their

commission. This requirement may be satisfied even though the offenses charged do not

relate to the same transaction and were committed at different times and places against

different victims. (Alcala v. Superior Court, supra, 43 Cal.4th at pp. 1205, 1218.) The

intent or motivation with which different acts are committed can qualify as a common

element of substantial importance in their commission and establish that they were

connected together in their commission. (Id., at p. 1219.) Thus, offenses “‘committed at

different times and places against different victims are nevertheless “connected together

in their commission” if they are linked by a “‘common element of substantial

importance.’” [Citations.]’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130,

160.)

        Here, the attempted robberies were connected together with the gang count in their

commission because, according to the prosecution theory, the attempted robberies

represented “work” being put in by defendant to further the criminal purposes of the

gang. The elements of active participation in a criminal street gang include proof that the

defendant did an act that “promotes, furthers, or assists in any felonious criminal conduct

by members of that gang.” (§ 186.22, subd. (a); People v. Rodriguez (2012) 55 Cal.4th

1125, 1132.) The prosecution relied on the attempted robbery counts to prove the

defendant’s active participation which furthered felonious criminal conduct by members

of the Old Town Trece. The gang expert testified that robbery and assault crimes were

some of the primary activities of the gang.




                                              12
       Further, defendant acknowledges that gang evidence is admissible where it is

relevant to issues such as motive and intent. (People v. Olguin (1994) 31 Cal.App.4th

1355, 1369.) He also acknowledges that if the gang evidence is sufficiently relevant to

the charged offenses, neither exclusion nor bifurcation is required, even if the evidence

would be inadmissible under Evidence Code section 352, citing Hernandez, supra, 33

Cal.4th at pp. 1049-1050.

       Because the People’s theory was that the attempted robberies constituted the

affirmative act committed by the defendant to further criminal conduct of the gang, the

evidence was relevant to motive and intent. Thus, even if the crimes had been severed

from the gang offense, evidence of the same crimes would have to be offered in a

separate trial on the gang count to show the nature of the “felonious criminal conduct”

which defendant was alleged to have willfully promoted, furthered or assisted, within the

meaning of section 186.22, subdivision (a).

              2. Certain Charges Likely to Inflame the Jury.

       Next we consider whether some of the gang charge was unusually likely to

inflame the jury against defendant. The burden of demonstrating that consolidation or

denial of severance was a prejudicial abuse of discretion is upon him who asserts it;

prejudice must be proved, and a bald assertion of prejudice is not enough. (People v.

Balderas (1985) 41 Cal.3d 144, 171 [severance of counts involving one victim from

those involving another].) Defendant does not point to any particularly inflammatory

evidence other than “the usual litany of violent criminal acts committed by people other

than [defendant].”


                                              13
       The “litany” referred to in the opening brief was the expert’s generic testimony

about gangs, including tattoos (which defendant also had), how persons become

members, how gang members prove their allegiance, how they maintain the respect of

other gang members, how Old Town Trece pays respect to the Mexican Mafia, four

predicate crimes committed by other gang members (reduced from seven proffered

predicates). The only gang evidence linked specifically to defendant related to his

tattoos, his field interview contacts with police in the presence of gang members, and the

expert’s opinion that defendant was a member of Old Town Trece based on his

associations with known gang members.

       The gang evidence itself was not inflammatory. There was no reference to the

facts of any of the predicate crimes, no mention of excessively violent predicate crimes,

and no introduction of irrelevant, gratuitous inflammatory evidence relating to gangs.

(See, People v. Albarran (2007) 149 Cal.App.4th 214, 226-228 [references to threats to

kill police officers and descriptions of criminal activities by other gang members not

related to the underlying charges or the gang allegation].) None of the evidence admitted

in this case was particularly inflammatory, especially in light of the fact that Old Town

Trece’s primary activities, as described by the expert, do not include any particularly

inflammatory crimes. We conclude the gang evidence was not so inflammatory that

severance was required.

              3. Joinder of a Weak Charge with a Strong One.

       Next, we consider whether a weak case has been joined with a strong case. In this

respect, defendant points to the fact that the eyewitness identification evidence relating to


                                             14
the attempted robbery counts was notoriously weak. As between any two charges, it is

always possible to point to individual aspects of one case and argue that one is stronger

than the other. A mere imbalance in the evidence will not indicate a risk of prejudicial

spillover effect, militating against the benefits of joinder and warranting severance of

properly joined charges. (Soper, supra, 45 Cal.4th at p. 781.) The real question is: how

likely is the spillover evidence to influence the jury and how susceptible is the charge to

such influence? (People v. Earle (2009) 172 Cal.App.4th 372, 388.)

       Defendant has not carried his burden of establishing that the spillover evidence of

defendant’s gang membership influenced the jury. Although the identification of

defendant as the robber was a weakness in the early stages of the prosecution’s case,

Shuler and Franklin positively identified him at trial. Further, there was other evidence

linking him to the crime which would have supported the conviction even in the absence

of the gang evidence. Franklin was familiar with the female who participated in the

attempted robbery and saw that person after the crime, in the company of defendant, who

was wearing the same black hoodie worn by the person who attempted to rob them.

       After this information was reported to investigators, a search warrant was issued

for defendant’s residence where the gun was found in the cushions of a couch in the

garage. Shuler identified that gun as the same one used in the attempted robbery.

       Even without the gang evidence, there was substantial evidence linking defendant

to the attempted robberies, and it is not likely a different result would have been obtained.

The jury was free to accept Clayton’s and Dawn’s in court identification and to reject the

defense eyewitness identification expert’s opinion. (See People v. Combs (2004) 34


                                             15
Cal.4th 821, 851, citing People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 [jury

remained free to reject Dr. Loftus’s testimony although it was uncontradicted].) Given

the preference and authority for joinder of counts where evidence is cross-admissible, and

the absence of authority allowing bifurcation of substantive counts, the trial court

properly exercised its discretion to deny the severance motion.

                                         DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                       P. J.


We concur:

HOLLENHORST
                          J.

McKINSTER
                          J.




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