Filed 1/16/14 P. v. Kitchens CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064844
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. 10CM1305 &
                   v.                                                                10CM0390)

LANARD LAMAR KITCHENS,
                                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter,
Judge.
         John Ward, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Defendant Lanard Lamar Kitchens was charged with attempted murder, evading a
pursing peace officer, and other offenses based on his conduct following a traffic stop
that occurred in May 2010. In another criminal case, he was charged with robbery and
assault, based on an incident that occurred in December 2009. The two cases were
consolidated for trial, and after a jury trial, Kitchens was convicted of all charges.
       On appeal, Kitchens contends he was deprived of a fair trial because the trial court
refused to sever the charges related to the December 2009 robbery from the charges
related to the May 2010 attempted murder and evasion. Recognizing that this issue was
not properly raised with the trial court, he argues, in the alternative, that he received
ineffective assistance of counsel because his attorney failed to object to the consolidation
of the two cases.
       We reject Kitchens’s contentions and affirm the judgment.
                     FACTUAL AND PROCEDURAL HISTORIES
Pretrial and trial proceedings
       On August 17, 2010, the Kings County District Attorney filed an eight-count
complaint against Kitchens. The complaint alleged that, on May 9, 2010, Kitchens
attempted to murder a peace officer and fled from a pursuing officer. It further alleged
that Kitchens transported and possessed methamphetamine, cocaine, and Ecstasy and was
a felon in possession of a .38-caliber revolver.
       On August 31, 2010, the district attorney filed a three-count complaint against
Kitchens. This complaint alleged that on December 31, 2009, Kitchens and codefendant
Kayla Brown committed robbery and assault, and used a semiautomatic handgun in both
offenses.
       The prosecution moved to consolidate the two cases, and Kitchens’s attorney did
not object. On December 13, 2010, the trial court ordered the cases consolidated, and a
consolidated information was filed.



                                              2.
       The criminal proceedings were suspended from early January until November
2011, during which time the trial court found Kitchens not competent to stand trial and he
was admitted to Atascadero State Hospital. On November 8, 2011, the trial court found
Kitchens competent to stand trial and reinstated the criminal proceedings.
       On November 16, 2011, Kitchens filed a motion for substitution of counsel, which
the trial court treated as a Marsden1 motion. The court denied the motion.
       On December 2, 2011, the prosecution filed a 13-count first amended information
against Kitchens. Related to the events of May 9, 2010, he was charged with: attempted
murder of J. Tyler (§§ 664, 187, subd. (a), count 1)2; attempted murder of a peace officer,
J. Tyler (§ 217.1, subd. (b), count 2); evading a pursuing peace officer while driving with
a willful or wanton disregard for the safety of persons and property (Veh. Code, § 2800.2,
subd. (a), count 3), driving on a highway in a direction opposite to lawful traffic during
flight from a pursuing peace officer (Veh. Code, § 2800.4, count 4); possession of a
firearm by a felon (former § 12021, subd. (a)(1),3 count 5); transporting or importing into
the state of California a controlled substance, to wit, methamphetamine, cocaine, and
Ecstasy (Health & Saf. Code, § 11379, subd. (a), count 6); possession of a controlled
substance for sale, to wit, methamphetamine, cocaine, and Ecstasy (Health & Saf. Code,
§ 11378, count 7); transporting or importing into the state a controlled substance, to wit,
methamphetamine, cocaine, and Ecstasy (Health & Saf. Code, § 11352, subd. (a),
count 8); and vandalism (§ 594, subd. (a), count 9). Related to the events of
December 31, 2009, Kitchens was charged with: unlawfully and by means of force and

1      People v. Marsden (1970) 2 Cal.3d 118.
2      Subsequent references are to the Penal Code unless otherwise noted.
3      Former section 12021, subdivision (a)(1), has been renumbered section 29800,
subdivision (a)(1), without substantive change, effective January 1, 2012. (People v.
Sanders (2012) 55 Cal.4th 731, 734, fn. 2.) For brevity and clarity, we will cite
section 12021, the applicable statute in this case, omitting “former.”



                                             3.
fear taking personal property from Cheryl Gonzales (§ 211, count 10); assault upon
Loretto Rico with a semiautomatic firearm (§ 245, subd. (b), count 11); making a
criminal threat (§ 422, count 12); and possession of a firearm by a felon (§ 12021,
subd. (a)(1), count 13).
       With respect to counts 1 and 2, it was further alleged that Kitchens personally
discharged a firearm (§ 12022.53, subd. (c)); with respect to counts 1, 2, and 10, it was
alleged that Kitchens inflicted great bodily injury (§ 12022.7, subd. (a)); with respect to
counts 1, 2, 3, 4, 10, and 11, it was alleged that Kitchens personally used a firearm
(§§ 12022.5, subd. (a), 12022.53, subd. (b)); and, with respect to counts 6, 7, and 8, it was
alleged that Kitchens was personally armed with a firearm (§ 12022, subd. (c)).
       On February 27, 2012, a jury trial began. The prosecutor dismissed count 12
(criminal threats) and renamed count 13 (felon in possession of a firearm) as count 12.
The prosecutor also deleted the allegations of “importing into the state” from counts 6
and 8, leaving the charge that Kitchens transported controlled substances.
       On the morning of February 28, 2012, outside the presence of the jury, Kitchens
told the court he wanted to have more say in his own defense. The court held another
Marsden hearing, and then a Faretta4 hearing to determine whether Kitchens was
competent to represent himself at trial. The court found Kitchens mentally capable of
representing himself, and relieved his attorney, who was to be standby counsel. Kitchens
represented himself for a very short time and gave an opening statement to the jury.
During a recess and before any witnesses were presented, Kitchens indicated that he
wanted to enter a plea for the robbery and assault charges, but he would not admit to the
firearm allegations because he did not use a real gun. He claimed the weapon used in the
robbery was a pellet gun. Kitchens stated that he needed counsel, and the trial court


4      Faretta v. California (1975) 422 U.S. 806.



                                             4.
reappointed his previous attorney. His attorney represented Kitchens through the rest of
the trial.
        Kitchens entered a plea of guilty to count 10 (robbery), but he would not plead
guilty to count 11 (assault with a firearm) because the offense itself involved use of a
semiautomatic firearm, and he would not admit to use of a firearm.
        On February 29, 2012, Kitchens entered a guilty plea to count 3 (evading a
pursuing officer) and count 4 (driving in the wrong direction while fleeing from a
pursuing officer). He also admitted he had suffered two prior felony convictions, an
element of the offense for counts 5 and 12 (felon in possession of a firearm).
Prosecution’s case
        On December 31, 2009, Cheryl Gonzales went to the bank and then returned to her
furniture store, the Hanford Bargain Center. As Gonzales walked toward the store, a
person approached her and started beating her on the head and grabbed the bank bag.
Gonzales screamed. She tried to protect herself and covered her head and closed her
eyes. She opened her eyes for a brief moment and saw silver as it came down onto her
head; she thought it was the butt of a gun. She was hit with something hard that broke
her skin. After the fourth blow, she fell to the ground, and the assailant grabbed the bank
bag and ran. She did not see the assailant’s face, but was able to describe his clothes,
height, weight, and race.
        Gonzales tried to get up and staggered. She was bleeding. She went to the
hospital for her injuries and received seven staples in three different places.
        Loretto Rico was working at the Hanford Bargain Center that day. She noticed
Gonzales pull up into the driveway and park her car. Rico had a question for Gonzales,
so she started to walk out of the store to talk to Gonzales. As she reached the front door
of the store, Rico heard screaming. She saw Gonzales with her hands up, holding a bank
bag and trying to protect her head. A man with a gun stood over her and struck her three
times; he said “Let it go,” as he pulled the bank bag with his other hand. The assailant

                                              5.
ran, and Rico ran after him. The assailant turned around and pointed the gun at her. He
said something to effect of “I’ll shoot you” and called her a bitch. At that point, Rico
ducked and stopped chasing the man. No shots were fired during the incident.
       Rico saw that the assailant was wearing a coat with a hood and he had a gun that
was silver and large. The gun appeared to be a semiautomatic firearm. Rico was familiar
with certain firearms because she had taken peace officer training in 2005 and the duty
weapon was a semiautomatic handgun. At trial, Rico identified Kitchens as the man who
attacked Gonzales.
       Jason Verhoeven was working across the street from the Hanford Bargain Center
on December 31, 2009. From his office, he heard screaming and then saw a woman
struggling with an African-American man. Verhoeven saw that the assailant had a gun,
and he called 911. He observed the assailant run west on Sixth Street and jump into the
passenger side of a maroon Mercury Capri that was waiting at the corner of Sixth and
Brown Street. The car sped away. Verhoeven identified Kitchens as the man he saw that
day.
       Kayla Brown testified that Kitchens was her boyfriend in December 2009,
although they were not in a relationship at the time of trial. On December 31, 2009, she
was with Kitchens near the Hanford Bargain Center. She was driving her red Mercury
Capri. Brown stopped the car, and Kitchens got out and went around the corner. She did
not see anything in his hands, but she thought he might have had a gun in his pocket
because he often carried a firearm. Kitchens was gone for a couple minutes. When he
returned, he rushed to get in the car and said “Go.”
       Later, Brown was in jail when she received a letter from Kitchens in which he
wrote about shooting at a California Highway Patrol (CHP) officer. Brown told a
detective about the letter. She told the detective that Kitchens carried either a silver or
black gun. At the time of trial, Brown was serving a prison term for the robbery at the
Hanford Bargain Center. She received no benefit for testifying at Kitchens’s trial.

                                              6.
       John Tyler is a peace officer for the CHP. On the evening of May 9, 2010, he was
on duty as a traffic officer in Hanford. He saw a maroon Dodge Caravan with its license
plate partially covered such that the registration stickers were not visible. The officer
initiated a traffic stop by turning on his overhead lights. The Caravan came to a stop on
the shoulder of the roadway, and Tyler got out of his patrol car and walked to the driver’s
side of the Caravan.
       As Tyler approached the driver’s window and started to say, “good afternoon, sir,”
he could see the driver’s face. The driver looked angry, and Tyler thought, “he’s going to
punch me.” Tyler flinched and, at the same instant, heard a gunshot which came from the
driver’s window. The first gunshot disoriented the officer, and then he heard another
shot, which “kind of woke [him] up.” He stumbled back and returned fire. After Tyler
“unloaded all of [his] rounds,” the Caravan started to pull away. He felt his head and
there was blood coming from his ear. At trial, Tyler identified Kitchens as the driver of
the Caravan who shot at him.
       Tyler got back in his patrol car and pursued the Caravan. He activated his car’s
lights and siren. Kitchens ran a red light and a stop sign and drove at speeds of at least 85
miles per hour. Driving on a highway, Kitchens passed cars on the right-hand shoulder
and drove eastbound in a westbound lane, driving into oncoming traffic and forcing five
cars to the side of the road. Kitchens turned off the highway and then drove into a dirt
field where a cotton crop was growing. Kitchens drove through about half of the field
and then got out of the Caravan and began running. Tyler followed Kitchens in his patrol
car and then got out of his car and chased him on foot.
       Tyler had his tactical rifle with him, and he ordered Kitchens to stop. Kitchens
looked back and put his hands up. Tyler had his rifle pointed at Kitchens, and Kitchens
said, “Don’t shoot, don’t shoot, please don’t kill me.” Another CHP officer, Joseph
Machado, arrived at the scene and handcuffed Kitchens. Additional law enforcement
officers arrived. At the Caravan, officers saw that the passenger side sliding door was

                                             7.
open and they found two people, later identified as Miguel Acuna and Desiree Shoals,
lying in the rows of cotton. They were also handcuffed and placed in CHP patrol cars.
Several items that appeared to be drugs were found in the Caravan. A K-9 officer and his
dog located a black revolver in the dirt about midway between the Caravan and where
Kitchens was apprehended.
       Tyler suffered burn marks on his face from gunpowder residue. He has also lost
50 percent of his hearing in his right ear and suffers from constant ringing in his ears.
       Desiree Shoals knows Kitchens because they share a mutual friend, Miguel
Acuna. On May 9, 2010, Shoals and Acuna were passengers in Kitchens’s burgundy-
colored van. Acuna was in the front passenger’s seat and Shoals was in the back. Shoals
saw police lights flash in the rearview mirror, and Kitchens turned to Acuna and said,
“Should I shoot him? Should I shoot him?” Kitchens pulled over, and the officer
approached the van. Kitchens said, “What’s the problem, Officer,” and, as the officer
began to speak, Kitchens reached his hand out the window and shot at the officer. Shoals
saw fire by the officer’s face. The officer returned fire, and the back window of the van
shattered on Shoals.
       According to Shoals, right after he fired a shot, Kitchens “instantly drove off.”
Kitchens said, “I thought I killed him, I thought I killed him.” Acuna began throwing
things out the window. He threw out cell phones, baggies —which Shoals believed
contained drugs—and a gun. Shoals saw Kitchens was holding a handgun; it was black
and the handle was brown.
       Kitchens kept driving until they came to a cotton field, and a tire went flat. He
then got out and ran. Shoals and Acuna got out of the van and went to the ground with
their hands up.
       Chris Fernandes, a Kings County Deputy Sheriff, investigated the scene where
Kitchens was taken into custody. He identified the firearm found in the dirt as an RG 40,



                                             8.
a type of revolver. The chamber of the revolver contained two live .38-caliber bullets
and four spent casings, indicating that four bullets had been fired.
       The field of cotton Kitchens drove through was damaged from the events of
May 9, 2010. The farmer who planted the cotton crop lost about a bail and a half of
cotton, which was worth approximately $1,000. The damage to the farmer’s cotton crop
was the basis for the charge of vandalism (count 9).
       Robert Waggles, of the Kings County Sheriff’s Department, was the lead
investigator of the officer shooting. As part of his investigation, he monitored Kitchens’s
mail while Kitchens was held in jail. In his outgoing letters, Kitchens wrote about the
shooting and the robbery. Kitchens wrote that he fired three shots at the CHP officer and
he used hollow point bullets.
       Waggles also searched the MySpace accounts of Kitchens and Acuna. He found
photographs of Kitchens, Acuna, and Brown. One photograph from Kitchens’s MySpace
account showed a revolver that was similar in color, style, and shape to the revolver used
in shooting Officer Tyler. The photo also showed a digital weighing scale and a stack of
$100 and $50 bills fanned out on a desk. A photograph from Acuna’s account showed
Acuna and Kitchens together with Acuna holding what appeared to be a semiautomatic
pistol. On cross-examination, Waggles agreed that the firearm in the photo could be a
replica. Another photograph from Acuna’s account showed Kitchens and Acuna sitting
in a large red chair together. This photo was significant to Waggles because it appeared
to depict a friendship between Kitchens and Acuna. Another photo from Acuna’s
account showed a revolver very similar to the one shown in the photograph from
Kitchens’s account, plus a cell phone, a stack of money, a glass jar filled with marijuana,
and a plastic bindle containing something white.
Defense
       Kitchens testified on his own behalf. He admitted that he robbed Gonzales and “it
was just a stupid move.” The weapon he used during the robbery was the same gun

                                             9.
Acuna was holding in the MySpace photograph. Kitchens said the gun was “a
Hollywood prop” that did not fire. He knew the gun was inoperable because the slide did
not slide back, the clip had a weight in it to make it feel solid, and there was a metal plug
in the barrel; he said the metal plug was visible in the photograph. Kitchens did not have
“a history of doing violent crimes” and he was “extremely scared” after the robbery. He
admitted that he had committed “petty crimes, selling drugs, and petty thefts.”
       When he was pulled over by Officer Tyler, Kitchens was thinking that he wanted
to die. He knew that he “had destroyed [his] life” when he committed the robbery. His
intent was to “commit suicide by cop,” referring to when a person fires a weapon at an
officer, causing the officer to return fire and kill the person. On cross-examination,
Kitchens claimed he had been suicidal ever since he saw himself on the news as a suspect
in the robbery.
       Kitchens stuck his upper body out the window and fired three rapid shots. He “put
the gun parallel to [the officer’s] head, not to impact it but on the side clearly parallel past
his head.” The officer flinched and the last shot gave him a powder burn. Kitchens
testified, “I still had two more shots but I sat there and … I braced” “[f]or death.”5 He
heard the back window shatter and the officer shot the rearview mirror. Then someone in
the car yelled, “go.” At that point, “adrenaline kicked in,” and Kitchens “didn’t want to
die anymore.” He denied saying, “I think I killed him,” or anything about the officer. He
was scared, and he did not want anyone to know he was trying to kill himself. He tried to
commit suicide in 2003 by slicing his wrist. He denied throwing any drugs or cell phones
out the window.




5      On cross-examination, Kitchens explained that he bought the gun loaded, and he
had fired one shot at the time he bought it. Therefore, there were five live cartridges in
the gun when he was pulled over by Officer Tyler.



                                              10.
       Kitchens testified that he did not intend to kill Officer Tyler. He said it would be
hard for him to miss at pointblank range with three shots.
       Kitchens admitted that, prior to the robbery, he was a street-level drug dealer and
he sold cocaine and Ecstasy, but he denied any prior knowledge of the drugs found in his
minivan. He suggested the drugs had been in Acuna’s backpack. Acuna also sold drugs,
but Kitchens and Acuna were not partners in drug sales. Kitchens admitted that he had
guns to protect himself.
Jury verdict and sentence
       On March 6, 2012, the jury found Kitchens guilty of all the remaining counts and
found true the enhancement allegations of firearm use and great bodily injury. The trial
court sentenced Kitchens to an indeterminate term of 40 years to life in prison, plus a
determinate term of 44 years eight months.
       He filed a notice of appeal on April 24, 2012.
                                      DISCUSSION
I.     Consolidation of cases and “refusal” to sever
       Kitchens contends that he was prejudicially deprived of a fair trial “by the court’s
refusal to sever the December 31, 2009 robbery from the May 9, 2010 shooting.” This
contention fails because Kitchens never raised this issue before the trial court, and, on the
merits, consolidation of the two criminal cases was within the trial court’s discretion.
       A.     Kitchens forfeited the issue
       As a preliminary matter, Kitchens has forfeited this claim. Where a defendant
“never asked the trial court to sever the case[], did not oppose the prosecutor’s motion for
consolidation, and never gave the trial court any explanation as to why joinder would
prejudice him,” the defendant may not raise the issue for the first time on appeal. (People
v. Champion (1995) 9 Cal.4th 879, 906, overruling on another ground recognized in
People v. Combs (2004) 34 Cal.4th 821, 860; see also People v. Kopp (1969) 275
Cal.App.2d 38, 40 [“Failure to object to consolidation … precludes appellant from urging

                                             11.
that such consolidation was error on appeal.”].) Here, Kitchens’s attorney did not object
to the People’s motion to consolidate the two cases, and there is no evidence that a
motion to sever was ever filed.
       Kitchens attempts to avoid forfeiture by arguing that he, “inartfully, objected to
consolidation and was cut off by the trial judge.” He relies on a statement he made to the
trial court on February 28, 2012, during the short period he represented himself. In a
discussion outside the presence of the jury, Kitchens indicated that he wanted to plead
guilty to the robbery and assault charges. He then asked the court why there was one trial
for two different cases. The court responded that the cases were consolidated because
they were the same class of crimes. Kitchens tried to interrupt, and the following brief
colloquy occurred:

       “THE COURT: Mr. Kitchens I’m not going to argue with you. You asked
       a question and I answered it. They are the same class, they were
       consolidated in an earlier proceeding so we’re not going to revisit that. [¶]
       Next question.

       “THE DEFENDANT: I’m just saying I never agreed to this.

       “THE COURT: All right.

       “THE DEFENDANT: Okay.

       “THE COURT: Thank you.”
       We disagree with Kitchens’s premise that his statement to the court (“I never
agreed to this”) should have been construed as an objection to consolidation or, more
appropriately, a motion to sever the two cases that had been consolidated 14 months
earlier. Kitchens’s statement did not affirmatively show that he wanted the two cases to
be tried separately, and he did not try to explain how consolidation of the two cases
would prejudice him. There was no reason for the trial court to understand Kitchens’s




                                            12.
statement, followed by, “Okay,” as indicating any kind of objection or motion to the
court.
         Moreover, even if Kitchens’s statement had been treated as a motion to sever, it
would have been untimely. As the People point out, an objection to consolidation or
motion to sever must be made “before the commencement of the trial.” (People v. Simms
(1970) 10 Cal.App.3d 299, 306.) Kitchens made his statement on the second day of trial,
after opening statements. “Since the motion was not made before the commencement of
the trial it was not timely, and, accordingly, any objection to the consolidated trial is
deemed waived and not subject to review on appeal.” (People v. Burns (1969) 270
Cal.App.2d 238, 251-252.)
         B.     Consolidation was proper
         In any event, the trial court properly consolidated the two criminal cases. Had
Kitchens raised the issue of severance, the court’s order of consolidation would still have
been within its discretion.
         Section 954 sets forth rules of pleading for criminal matters. It provides that “[a]n
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, and if two or
more accusatory pleadings are filed in such cases in the same court, the court may order
them to be consolidated.” Not only is consolidation permitted, it is encouraged. Our
Supreme Court has observed, “[B]ecause consolidation or joinder of charged offenses
ordinarily promotes efficiency, that is the course of action preferred by the law.” (Alcala
v. Superior Court (2008) 43 Cal.4th 1205, 1220.)
         On appeal, Kitchens does not dispute that the December 2009 offenses of robbery
and assault were “of the same class of crimes” as the May 2010 offense of attempted
murder. (§ 954) Indeed, it is well settled that offenses that share the “common
characteristics as … assaultive crime[s] against the person” are “of the same class of

                                              13.
crimes,” and, therefore, may be consolidated. (People v. Rhoden (1972) 6 Cal.3d 519,
524-525; § 954; see also People v. Walker (1988) 47 Cal.3d 605, 622 [robbery, murder,
and assault with intent to commit murder are all assaultive crimes against the person and
properly may be joined].) Since the robbery and assault offenses and the attempted
murder offense were all assaultive crimes against the person, the trial court properly
consolidated the two criminal cases pursuant to section 954.
         Nevertheless, Kitchens contends the trial court abused its discretion by
consolidating the charges because of the risk of prejudice to him. Section 954 does grant
trial courts the discretion to sever different offenses “in the interests of justice and for
good cause shown.” “The burden is on the party seeking severance to clearly establish
that there is a substantial danger of prejudice requiring that the charges be separately
tried.” (People v. Soper (2009) 45 Cal.4th 759, 773 (Soper).) As we have seen, Kitchens
did not raise the issue of severance, and so it is not surprising that he did not make any
showing that there was a substantial danger of prejudice if the robbery and assault
charges were tried together with the attempted murder and evasion charges. The trial
court had no sua sponte duty to consider severance. (People v. Maury (2003) 30 Cal.4th
342, 392 [neither section 954 nor the federal or state constitutions imposes a duty of
severance on trial courts].) For this reason, we reject Kitchens’s characterization of the
consolidation order as a “refusal” by the trial court to sever the cases. There was no
motion to sever pending, and the trial court had no independent duty to consider the
issue.
         Even if we assume for the sake of argument that Kitchens raised a timely objection
to consolidation or motion to sever, it would not have been an abuse of discretion for the
trial court to consolidate the cases or deny the motion to sever. A trial court abuses its
discretion by denying a motion to sever only if the ruling falls outside the bounds of
reason. (Soper, supra, 45 Cal.4th at p. 774.)



                                              14.
       In determining whether the trial court abused its discretion by declining to sever
properly joined charges, “[f]irst, we consider the cross-admissibility of the evidence in
hypothetical separate trials.” (Soper, supra, 45 Cal.4th at p. 774.) “If the evidence
underlying the charges in question would be cross-admissible, that factor alone is
normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s
refusal to sever properly joined charges. [Citation.] Moreover, even if the evidence
underlying these charges would not be cross-admissible in hypothetical separate trials,
that determination would not itself establish prejudice or an abuse of discretion by the
trial court in declining to sever properly joined charges.” (Id. at pp. 774-775.)
       If the evidence would not be cross-admissible, the next consideration is “‘whether
the benefits of joinder were sufficiently substantial to outweigh the possible “spill-over”
effect of the “other-crimes” evidence on the jury in its consideration of the evidence of
defendant’s guilt of each set of offenses.’ [Citations.]” (Soper, supra, 45 Cal.4th at
p. 775.) This assessment involves “three additional factors, any of which—combined
with … absence of cross-admissibility—might establish an abuse of the trial court’s
discretion: (1) whether some of the charges are particularly likely to inflame the jury
against the defendant; (2) whether a weak case has been joined with a strong case or
another weak case so that the totality of the evidence may alter the outcome as to some or
all of the charges; or (3) whether one of the charges (but not another) is a capital offense,
or the joinder of the charges converts the matter into a capital case.” (Ibid.) Finally, we
“balance the potential for prejudice to the defendant from a joint trial against the
countervailing benefits to the state.” (Ibid., fn. omitted.)
       Here, at least some of the evidence was cross-admissible. In particular, the
MySpace photographs would have been admissible in a trial of the May 2010 charges to
show that Acuna and Kitchens were friends and both appeared to possess and sell
controlled substances. This evidence, in turn, would tend to show that Kitchens was
aware of the drugs found in his minivan. The photographs of Acuna and Kitchens

                                              15.
together, including the photo with Acuna holding a semiautomatic pistol, would also have
been admissible in the trial of the December 2009 charges to show that Kitchens had
access to a semiautomatic firearm. Further, evidence of the crimes would likely have
been admissible for impeachment purposes in light of Kitchens’s defense theories.
Kitchens’s testimony that he did not intend to kill Officer Tyler and only wanted to
provoke him in order to “commit suicide by cop,” may have been impeached by evidence
showing that he knew that he was suspected of a robbery at the time of the traffic stop.
From this evidence, it could be inferred that Kitchens shot at the officer to avoid arrest,
not to commit suicide.
       Although the cross-admissibility of evidence is sufficient to justify denial of
severance, we observe that the remaining factors do not support Kitchens’s claim either.
(Soper, supra, 45 Cal.4th at p. 774.) First, it does not appear that any of the charges
would have been particularly likely to inflame the jury against Kitchens. Beating a
woman with a firearm to steal money is no less inflammatory than shooting at a CHP
officer. Second, the evidence for the two cases was equally strong. In both cases, there
were eyewitnesses and Kitchens admitted the conduct. In both cases, Kitchens relied on
his own testimony to dispute an allegation (intent for the attempted murder charge and
use of a firearm for the robbery and assault charges). Third, consolidation did not
convert the case into a capital case. In light of all these considerations, it would not have
been an abuse of discretion for the trial court to consolidate the two cases even if
Kitchens had objected to consolidation or requested severance.
II.    Ineffective assistance of counsel claim
       Kitchens argues, in the alternative, that he received ineffective assistance of
counsel based on his attorney’s failure to make a motion for severance. This argument
lacks merit.
       To prevail on an ineffective assistance of counsel claim, Kitchens must show both
that his attorney’s performance was deficient and that the deficiency caused him

                                             16.
prejudice. (People v. Cowan (2010) 50 Cal.4th 401, 493, fn. 31.) When the reasons for
an attorney’s decisions are not apparent from the record, “‘we will not assume
inadequacy of representation unless counsel had no conceivable tactical purpose.’
[Citation.]” (People v. Hines (1997) 15 Cal.4th 997, 1065.)
       Here, the reasons that Kitchens’s attorney declined to object to consolidation are
not apparent from the record, and we will not assume inadequacy of representation.
       Furthermore, Kitchens cannot show prejudice. We have concluded that it would
not have been an abuse of discretion to consolidate the cases even if an objection or
motion to sever had been raised. As a result, we “have no basis for concluding there was
a reasonable probability that a motion for severance would have been granted. Ipso facto,
we cannot conclude there was a reasonable probability that counsel’s request for
severance would have resulted in a verdict more favorable to defendant.” (People v.
Hawkins (1995) 10 Cal.4th 920, 941, fn. omitted [rejecting ineffective assistance of
counsel claim based on failure to make a motion to sever where it would not have been
abuse of discretion to deny motion had it been made], abrogated on another point by
People v. Lasko (2000) 23 Cal.4th 101, 110.)
       Finally, there is no reasonable probability that Kitchens would have received a
more favorable outcome even if a motion to sever had been granted and he was subject to
two trials. There was strong evidence to support both cases, and Kitchens’s testimony in
each case was somewhat implausible and subject to impeachment.




                                            17.
                                 DISPOSITION
     The judgment is affirmed.


                                               _____________________
                                                              Kane, J.
WE CONCUR:


 _____________________
Levy, Acting P.J.


 _____________________
Franson, J.




                                     18.
