Filed 7/29/13 P. v. Bellazain CA1/5


             NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
         Plaintiff and Respondent,                                       A133985
                   v.
PAUL BELLAZAIN,                                                          (San Francisco City and County
                                                                         Super. Ct. No. 212437-03)
         Defendant and Appellant.

         Paul Bellazain (appellant) appeals from a final judgment of conviction of
numerous felonies following a jury trial. Appellant contends the trial court erred in
denying his motion for a mistrial. We reject appellant‟s contention and affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         On January 4, 2010, Latanya Gaitlin lived on Redondo Street in San Francisco
with several of her family members. Around 3:00 p.m. on that day, officers responded to
a report of a burglary in progress at Gaitlin‟s home. San Francisco Police Officers
Misaghi and Hargreaves were the first to arrive, and they directed other responding units
to set up a perimeter. Shortly thereafter, Misaghi observed three males walk out of the
house toward the front gate. The males were approximately 12 feet from Misaghi.
         Appellant was walking behind two of the males, DeShawn Christopher and
Terence Smith, and Misaghi immediately recognized appellant‟s face from a “photo” he
had seen. Misaghi ordered the men to raise their hands to ensure they were unarmed.

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Smith and Christopher immediately complied, but appellant turned and ran back into the
house. As appellant did so, Misaghi observed him make a “furtive throwing motion” in
the hallway. A gun was later recovered from a box in the hallway.
       Misaghi radioed for other officers to pursue appellant while he proceeded to take
Smith and Christopher into custody. Appellant ran out the back of the house and was
seen jumping over a fence. After detaining the two other suspects, Misaghi pursued
appellant. A short time later, Misaghi encountered appellant midway down the next
block as he was scaling a nearby fence. Misaghi ordered appellant to stop, but he
continued to climb over the fence.
       Misaghi then lost sight of appellant. After following appellant over several more
fences, Misaghi found him sitting on top of a fence, which separated a backyard area
from a road. Appellant was uncooperative, but he was eventually taken into custody.
       Around the same time appellant was arrested, officers received a report of another
person, a juvenile, who was attempting to flee from police. The juvenile was taken into
custody in connection with the burglary of a different house in the same area. Police
recovered a silver iPod and a package of cigars along the flight path of the juvenile.
       Later that afternoon, Gaitlin was notified at her workplace that her house had been
burglarized. She returned home to find that her bedroom and several other areas of the
house had been disturbed. Handbags, jewelry, and a purple iPod were missing from the
house. These items were later found in the possession of either Smith or Christopher.
Gatlin reported that the box of cigars and the silver iPod recovered from the juvenile did
not belong to any of her family members.
       The jury trial commenced on August 16, 2011, and the three men were jointly
tried. On August 22, the San Francisco District Attorney filed a second amended
information charging appellant with first degree residential burglary (Pen. Code, § 459)
(count 1); receipt of stolen property (id., § 496, subd. (a)) (count 2); illegal possession of
a firearm by a felon (id., former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)) (count
3); possession of a loaded firearm (id., former § 12031, subd. (a)(1), now § 25850, subd.
(a)) (count 4); and two counts of resisting arrest (id., § 148, subd. (a)(1)) (counts 5 & 6).

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Counts 1 and 2 also alleged an enhancement for use of a firearm (id., § 12022, subd.
(a)(1)). On August 24, the jury found appellant guilty on counts 1, 2, 3, 5, and 6, and
acquitted him on count 4.1 On September 23, the court sentenced appellant to an
aggregate term of eight years in prison. Appellant filed a timely notice of appeal.
                                      DISCUSSION
       Appellant contends the trial court erred in refusing to order a mistrial when Smith
offered a defense that conflicted with his own. We disagree. Although appellant and
Smith took different paths in defending against the charges, the defenses were not
mutually exclusive. The jury‟s acceptance of Smith‟s approach would not foreclose the
possibility the jury could also have believed appellant‟s theory.
       Prior to trial, appellant brought a motion to sever based on concerns the
prosecution planned to introduce statements by Smith and Christopher that implicated
him. The prosecutor indicated he did not plan to use the statements, and the court denied
the motion as “largely moot.” Appellant does not challenge that ruling on appeal. At the
close of the prosecution‟s case, appellant made a motion for a mistrial based on the
court‟s failure to sever his case from those of Christopher and Smith. Appellant
challenges the ruling denying that motion.
       “The Legislature has expressed a preference for joint trials.” (People v. Carasi
(2008) 44 Cal.4th 1263, 1297 (Casari).) “When two or more defendants are jointly
charged with any public offense, whether felony or misdemeanor, they must be tried
jointly, unless the court order[s] separate trials.” (Pen. Code, § 1098.) “A „classic‟ case
for joint trial is presented when [the] defendants are charged with common crimes
involving common events and victims. [Citation.]” (People v. Keenan (1988) 46 Cal.3d
478, 499-500.) “We review a trial court‟s denial of a severance motion for abuse of
discretion based on the facts as they appeared when the court ruled on the motion.
[Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 452.) If the court‟s ruling was
proper at the time it was made, a reviewing court may reverse a judgment only on a

1  Christopher and Smith were charged with counts 1 and 2, and the jury found them
guilty on both counts.
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showing that the joint trial “ „resulted in “gross unfairness” amounting to a denial of due
process.‟ ” (People v. Mendoza (2000) 24 Cal.4th 130, 162.)
       “A trial court should grant a mistrial only when a party‟s chances of receiving a
fair trial have been irreparably damaged . . . . [Citation.]” (People v. Silva (2001) 25
Cal.4th 345, 372.) “ „ “Whether a particular incident is incurably prejudicial is by its
nature a speculative matter, and the trial court is vested with considerable discretion in
ruling on mistrial motions.” [Citation.]‟ ” (People v. Harris (1994) 22 Cal.App.4th
1575, 1581.)
       Initially, appellant argues severance was warranted because he was prejudiced by
the testimony of Smith‟s father, Alfred Terrell, who told jurors that Smith acknowledged
he had made “a huge mistake,” and felt remorse over the incident. Appellant seems to
contend this was tantamount to testifying to a confession by Smith. Even if this properly
characterizes Terrell‟s testimony, severance was not required. Confessions by
codefendants require a severance only if they implicate other jointly tried defendants.
(People v. Hoyos (2007) 41 Cal.4th 872, 895 [“if the prosecutor in a joint trial seeks to
admit a nontestifying codefendant‟s extrajudicial statement, either the statement must be
redacted to avoid implicating the defendant or the court must sever the trials”], overruled
on another ground by People v. McKinnon (2011) 52 Cal.4th 610, 637-643; accord,
People v. Gamache (2010) 48 Cal.4th 347, 379.) While the statement suggested Smith
was guilty of some crime, it did not implicate appellant. At no point during his testimony
did Terrell refer to appellant by name or suggest appellant was in any way involved.
       Second, appellant contends severance was required because Terrell‟s testimony
created conflicting defenses among the codefendants. He argues Smith‟s approach was
essentially to admit guilt to possessing stolen property, maintain his innocence as to the
burglary charge, and cast himself as remorseful and cooperative. Appellant, on the other
hand, continued to maintain he was mistakenly identified as the third perpetrator. But
this conflict did not mandate separate trials. As our Supreme Court has explained, in
order to justify severance, a defendant must demonstrate “ „ “that the conflict is so
prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that

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this conflict alone demonstrates that [all] are guilty.” ‟ [Citation.]” (People v. Souza
(2012) 54 Cal.4th 90, 111.) Even defense theories that are hostile to one another or
attempt to cast blame on codefendants do not warrant separate trials. (People v. Tafoya
(2007) 42 Cal.4th 147, 162 (Tafoya).) Instead, conflicting defenses warrant severance
only “where the acceptance of one party‟s defense precludes the other party‟s acquittal.
[Citation.]” (Carasi, supra, 44 Cal.4th at p. 1296.) Smith‟s and appellant‟s defense
theories were not irreconcilable: Jurors could have believed Smith was guilty of only
possession of stolen property and felt remorseful for his actions, and also that appellant
had been misidentified by police as the third perpetrator simply because he was in the
wrong place at the wrong time.
       Finally, appellant contends separate trials were required because Smith‟s counsel
“consistently” and “repeatedly” referred to the third person by name as appellant, in
conflict with appellant‟s theory he had been misidentified by police.2 Assuming that
counsel in fact made such comments, they did not warrant trial severance. The jury was
instructed that neither counsel‟s questions nor her closing argument were evidence and
could not be used as a basis to decide the case. “We assume that the jury followed this
instruction.” (People v. Wilson (2008) 44 Cal.4th 758, 798.) Additionally, as noted
above, hostile defense theories that attempt to cast aspersions on codefendants are an
insufficient basis for severance. (Tafoya, supra, 42 Cal.4th at p. 163.)3
                                      DISPOSITION
       The judgment is affirmed.




2   We note, despite these claims, appellant never provides any citation in his briefing to
a place in the record where Smith‟s counsel actually did so.
3  To the extent appellant raises Smith‟s objection to CALCRIM No. 373 as a separate
basis for reversal, we reject it. The court ultimately agreed to instruct the jury with
CALCRIM No. 373, as appellant requested, so no possible prejudice resulted from the
objection.
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                    SIMONS, J.



We concur.




JONES, P.J.




BRUINIERS, J.




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