Filed 9/5/14 P. v. Benitez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048299

         v.                                                            (Super. Ct. No. 12CF0200)

JUAN JUNIOR BENITEZ,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
James A. Stotler, Judge. Affirmed.
                   Russell S. Babcock, 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, Barry Carlton and
James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
                                        INTRODUCTION
              Defendant Juan Junior Benitez was convicted of robbery and assault in
connection with two different events. On appeal, he argues the admission of expert
opinion testimony and lay opinion testimony prejudicially harmed him. We disagree.
              Defendant also argues the trial court erred by denying his motion to sever
the trial of the robbery-related charges from the assault-related charges. We conclude the
trial court did not err in denying the motion, and the joinder of the two sets of crimes for
trial did not have a substantial, injurious effect on the jury’s verdict.
              Therefore, we affirm.


                                    STATEMENT OF FACTS

              The November 2011 Incident
              In November 2011, Angel Balladares and two of his friends were hanging
out in an area behind their school in the City of Orange. Defendant drove up in a blue
Scion; he had one male passenger in his car. They asked Balladares and his friends, “[i]f
we were from somewhere,” which Balladares believed meant if they were in a gang.
Balladares responded, “we don’t claim.” One of Balladares’s friends, nicknamed
“Trooper,” told defendant he was from “Criminals.” Trooper called defendant and
defendant’s friend “cravers” (a term of disrespect toward the Orange Varrio Cypress
(OVC) criminal street gang). Defendant exited the car, but got back in and drove away
when Balladares’s other friend picked up a rock; the friend threw the rock at defendant’s
car as defendant drove off.

              The Ralphs Grocery Store Robbery
              About 6:30 p.m. on January 21, 2012, two loss prevention agents watched
defendant exit a Ralphs grocery store without paying for $66.73 in merchandise. One

                                               2
agent confronted defendant on the sidewalk in front of the store. The agent identified
himself and asked defendant to return to the store. Defendant dropped some of the items
and pushed the agent backwards. The other agent seized defendant’s arm, but defendant
used the fist of his free hand to strike the first agent on the head. Defendant attempted to
run to the parking lot, but he was restrained by the agents.

              The February 2012 Assault
              About 9:00 a.m. on February 16, 2012, Balladares was in an alley outside a
friend’s apartment. A blue Scion driven by defendant pulled into the alley; Balladares
recognized the car from the incident the previous November. Defendant and a passenger
exited the car and asked Balladares where he was from. Balladares responded that he
“wasn’t from nowhere.” Defendant told Balladares that defendant was from OVC.
Another passenger in the car was wearing black clothing, and a black-and-orange
Baltimore Orioles baseball cap with the letters “OVC” stitched on it.
              As Balladares tried to walk away, one of the passengers from the Scion
struck him in the back with a miniature baseball bat. Defendant and the two passengers
beat and kicked Balladares, then got back into the Scion and drove away.

              The Investigation
              On the evening of February 16, Balladares was interviewed and shown
photographic lineups. Balladares identified both passengers from the blue Scion after
reviewing the photographic lineups. He was not able to identify a photograph of
defendant in the initial photographic lineups. Later, Balladares was shown another
photographic lineup; Balladares identified defendant as the Scion’s driver, who had
participated in the attack against him earlier that day.
              Balladares remembered the Scion’s license plate had been detached from
the front bumper and placed inside the front windshield, and there was a white scratch
along the front passenger side of the car. A few days after the incident, a police officer

                                              3
went to defendant’s home, where he took a photograph of a blue Scion, which had
damage along the passenger side door, parked in front of the house. The following day,
an officer searched the vehicle. Inside, he found a license plate wedged between the
console and the passenger seat. At trial, Balladares identified the Scion in the police
photograph as the same one he had seen defendant driving on February 16.
              Defendant’s mother testified that she owned a damaged blue Scion. She
also testified that she had loaned her vehicle to defendant on the morning of February 16,
2012, so he could attend a job interview.
              Defendant’s neighbor, Ami Farrell, testified she had seen defendant in front
of his apartment about 10:00 a.m. on February 16. Defendant was wearing a dress shirt
and dress pants. He returned at 12:00 p.m., dressed in the same clothes. In February
2012, Farrell had been undergoing radiation and chemotherapy to treat cancer. She
acknowledged the medication could have distorted her sense of time and she might not
have seen defendant until as late as 10:30 a.m.

              The Gang Expert’s Testimony
              Detective Miguel Cuenca testified as the prosecution’s gang expert.
Cuenca testified that OVC was a criminal street gang; its primary rival gang was the
Orange County Criminals. Cuenca opined that defendant was an active member of OVC
on February 16, 2012, based on Cuenca’s personal contacts with defendant; review of
California Street Terrorism Enforcement and Prevention Act (Pen. Code, § 186.20 et
seq.) (STEP) notices issued to defendant, field interview cards generated about defendant,
and references to defendant in multiple police reports; and discussions about defendant
with other active OVC gang members. Cuenca also opined that Diego Osorio, who was
identified as one of the passengers in the Scion and who participated in the assault on
Balladares, was also an active member of OVC on February 16, 2012.




                                             4
                                   PROCEDURAL HISTORY
              Defendant was charged in an amended information with commercial
burglary (Pen. Code, §§ 459, 460, subd. (b)) (count 1) and robbery (id., §§ 211, 212.5,
subd. (c)) (count 2), in connection with the January 21, 2012 incident at the Ralphs
grocery store. Defendant was also charged with assault with a deadly weapon (id., § 245,
subd. (a)(1)) (count 3) and assault by means of force likely to produce great bodily injury
(id., § 245, subd. (a)(4)) (count 4), in connection with the February 16, 2012 incident.
The amended information alleged counts 3 and 4 were committed for the benefit, at the
direction of, or in association with a criminal street gang (id., § 186.22, subd. (b)(1)), and
while defendant was released from custody on bail for a previous felony charge (id.,
§ 12022.1, subd. (b)).
              Before trial, defendant moved to sever counts 1 and 2 from counts 3 and 4.
The trial court denied the motion to sever, but gave a limiting instruction informing the
jury that the gang evidence was only relevant to counts 3 and 4. The court also instructed
the jury, “[e]ach of the counts charged in this case is a separate crime” and it “must
consider each count separately.”
              The jury convicted defendant of robbery (count 2) and assault by means of
force likely to produce great bodily injury (count 4). The jury also found the gang
sentencing enhancement allegation true. The jury did not reach verdicts on the charges of
burglary (count 1) and assault with a deadly weapon (count 3); the court declared a
mistrial on those counts, and ultimately dismissed those counts on the prosecution’s
motion. The trial court conducted a bench trial of the crime-bail-crime sentencing
enhancement allegation, and found it true.
              Defendant was sentenced to six years in state prison: three years for the
assault conviction, two years for the gang enhancement, and one year for the robbery
conviction. The trial court struck the crime-bail-crime enhancement for the purpose of
sentencing. Defendant timely appealed.

                                              5
                                       DISCUSSION
                                             I.
                           GANG EXPERT’S OPINION TESTIMONY
              Defendant argues his due process rights were violated when the
prosecution’s gang expert was permitted to express an opinion about defendant’s guilt
and specific intent. We review the trial court’s ruling admitting the gang expert’s
testimony for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)
              An expert witness may render an opinion based on facts presented “‘in a
hypothetical question that asks the expert to assume their truth.’ [Citation.]” (People v.
Gardeley (1996) 14 Cal.4th 605, 618.) Hypothetical questions that track the evidence of
the case in only a “‘thinly disguised’” manner are permissible. (People v. Vang (2011)
52 Cal.4th 1038, 1045.) Defendant contends that in this case, the facts of the
hypothetical presented to the expert were not disguised at all, but merely recited the
evidence and asked the expert to opine on defendant’s guilt and intent.
              The prosecution’s hypothetical question used the names of defendant and
one of the passengers in the Scion when asking the gang expert witness to opine on
whether the attack on Balladares was gang related. The hypothetical began as follows:
“Now let me ask you a hypothetical, and for the purposes of this hypothetical, assume
that everything that I’m going to describe to you is factually accurate. So let’s assume
that Mr. Benitez based on your opinion, active participant of Orange Varrio Cypress on
February 16th with another active participant of Orange Varrio Cypress, Diego Osorio, in
the City of Orange in the area that I showed you in People’s number 3, which is within
gang territory claimed by Orange Varrio Cypress. That Mr. Benitez is driving a car,
enters an alley in that area, sees an individual that he has contacted before.” The
hypothetical continued on, consistently using the names of defendant and Osorio. The
questions, however, were clearly phrased as hypotheticals. The jury was properly
instructed regarding the weight to give the expert’s opinion testimony. Specifically, the

                                             6
jury was instructed: “An expert witness may be asked a hypothetical question. A
hypothetical question asks the witness to assume certain facts are true and to give an
opinion based on the assumed facts. It is up to you to decide whether an assumed fact
has been proved. If you conclude that an assumed fact is not true, consider the effect of
the expert’s reliance on that fact in evaluating the expert’s opinion.”
              While the form of the prosecutor’s hypothetical questions was not ideal,
they were still hypothetical questions, and there is little practical distinction between a
hypothetical question based directly on the evidence in the case that refers to defendant
by name rather than by a pseudonym. “It is required, not prohibited, that hypothetical
questions be based on the evidence. The questioner is not required to disguise the fact
the questions are based on that evidence.” (People v. Vang, supra, 52 Cal.4th at p. 1041.)
              Further, the jury was properly instructed that the value of the expert’s
opinion was dependent on whether the jury found true the facts supporting it. The trial
court did not abuse its discretion in permitting the form of the prosecutor’s hypothetical
questions to the gang expert witness.
                                              II.
                                  CONFRONTATION CLAUSE
              Defendant next argues that his rights under the confrontation clause were
violated because the prosecution’s gang expert witness was permitted to base his opinion
on hearsay evidence. In Crawford v. Washington (2004) 541 U.S. 36, 59 (Crawford), the
United States Supreme Court held that “the admission of testimonial out-of-court
statements violates a defendant’s confrontation rights unless the witness is unavailable to
testify and the defendant had a prior opportunity for cross-examination” (People v.
Valadez (2013) 220 Cal.App.4th 16, 30). In Williams v. Illinois (2012) 567 U.S. ___
[132 S.Ct. 2221], the Supreme Court considered whether a laboratory expert’s
testimony—that a DNA report from another case, which was not admitted into evidence,
matched the defendant’s DNA sample—violated the confrontation clause. Four justices

                                              7
concluded the report was not offered for its truth, and was not testimonial. (Id. at p. ___
[132 S.Ct. at p. 2228] (plur. opn. of Alito, J.).) The five other justices found the report
was offered for its truth (id. at p. ___ [132 S.Ct. at pp. 2257, 2260] (conc. opn. of
Thomas, J.); id. at p. ___ [132 S.Ct. at p. 2268] (dis. opn. of Kagan, J.)), but one of those
justices found it was not testimonial (id. at p. ___ [132 S.Ct. at p. 2271] (dis. opn. of
Kagan, J.)).
               In People v. Dungo (2012) 55 Cal.4th 608, 621, a majority of the California
Supreme Court held that statements in an autopsy report, on which a testifying forensic
pathologist based his opinion, were not testimonial, and therefore were not subject to the
Confrontation Clause. Both the concurring opinion by Justice Werdegar and the
dissenting opinion by Justice Corrigan, which together garnered a total of six votes,
concluded that the statements in the autopsy report were offered for their truth. (Id. at
p. 627 (conc. opn. of Werdegar, J.); id. at p. 635, fn. 3 (dis. opn. of Corrigan, J.).)
               We cannot determine whether the out-of-court statements complained of in
this case were offered for their truth because there is no evidence of what these
statements were. Cuenca testified he relied on certain types of information in rendering
his opinion, but did not specify what that information was. Assuming for purposes of this
opinion that the out-of-court statements on which Cuenca relied in rendering his opinion
were offered for their truth, we would still conclude there was no violation of the
confrontation clause because those statements were not testimonial. In People v.
Valadez, supra, 220 Cal.App.4th at page 28, the gang expert’s opinions were based on
written information from the police department regarding gangs, conversations with other
gang officers, conversations with gang members, self-admissions by gang members, field
interview cards, the facts of the case, and the defendants’ tattoos. The appellate court
assumed the general out-of-court statements on which the gang expert relied were offered
for their truth, but nevertheless concluded there was no confrontation clause violation
because they were not testimonial. (Id. at p. 32.)

                                               8
              The out-of-court statements on which Cuenca relied were not testimonial
and, therefore, Cuenca’s reliance on them could not have violated the confrontation
clause. Cuenca testified he had reviewed STEP notices, field interview cards, contacts
with defendant and other OVC members, and police reports. Field interview cards
document contacts between police officers and members of the public, whether or not
they are involved in a gang, and represent something of significance but are not
necessarily connected with the commission of a crime. STEP notices are provided by the
police to individuals, advising them of the Penal Code definitions of a criminal street
gang and its activities, and are signed or initialed by the individuals and maintained by
the police department. Field interview cards and STEP notices are not testimonial in
nature. Contacts between the police and gang members are not necessarily testimonial,
and nothing in the record before us shows the contacts considered by Cuenca were
testimonial in nature. Police reports are not covered by Crawford. (People v. Morris
(2008) 166 Cal.App.4th 363, 372-373 [business records and official records such as rap
sheets are not testimonial under Crawford].)
                                             III.
             GANG EXPERT’S DISCLOSURE OF EVIDENCE CONTAINING HEARSAY
              An expert may base his or her opinion on inadmissible hearsay.
(Evid. Code, § 801, subd. (b).) Specifically, an expert witness may rely on hearsay
evidence that would not otherwise be admissible in rendering an opinion as to whether an
act was committed for the benefit of, at the direction of, or in association with a criminal
street gang. (People v. Gardeley, supra, 14 Cal.4th at pp. 617-620.) People v. Gardeley
remains the law of this state, which we must follow. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)
              Defendant argues that under the California Supreme Court’s recent decision
in People v. Dungo, supra, 55 Cal.4th 608, his due process rights were violated when
Cuenca testified as to his expert opinion based on hearsay evidence. In that case, the

                                               9
expert forensic pathologist opined regarding the cause of the victim’s death. (Id. at
p. 614.) The testifying expert did not perform the autopsy on the victim, and did not
prepare the autopsy report. (Id. at pp. 613, 614.) To reach his conclusion regarding the
cause of death, the expert relied on, and testified about the existence of, the objective
facts stated in the autopsy report. (Id. at pp. 614-615.) As explained ante, six justices
concluded that for purposes of deciding whether Crawford, supra, 541 U.S. 36, applied to
the statements in an autopsy report, the statements were offered for their truth. (People v.
Dungo, supra, at p. 627 (conc. opn. of Werdegar, J.); id. at p. 635, fn. 3 (dis. opn. of
Corrigan, J.).)
              We do not agree that the concurring and dissenting opinions in People v.
Dungo lead inevitably to the conclusion that the California Supreme Court is prepared to
overrule its long-standing rule that a gang expert may rely on hearsay evidence in
reaching his or her conclusions. People v. Dungo addresses the issue of hearsay evidence
in connection with an alleged violation of the confrontation clause, an issue we have
addressed and resolved against defendant, ante. To say that an out-of-court statement is
offered for its truth for the purpose of determining whether its admission violates the
confrontation clause does not resolve whether it is inadmissible hearsay if relied on by an
expert witness, against a long line of cases that would hold otherwise. Whether the same
configuration of Supreme Court justices would reach that conclusion if the issue were
presented to them is purely speculative.
                                             IV.
            LAY OPINION REGARDING GANG SIGNIFICANCE OF CLOTHING ITEMS
              City of Orange Police Officer Matthew Moss testified he executed a search
warrant at defendant’s home, and found the following clothing items in defendant’s
bedroom: three button-up orange shirts, a Washington Nationals baseball cap, and a
Chicago Bears T-shirt featuring a large “C.” Over defendant’s objection, Moss testified
the color of the shirts and the letters on the cap and the T-shirt were representative of the

                                             10
OVC gang. On appeal, defendant argues that Moss was impermissibly permitted to offer
lay opinion testimony.
              Even if the trial court erred by admitting Moss’s lay opinion testimony, the
error was harmless because it is not reasonably probable the jury would have reached a
more favorable decision in the absence of the testimony. (People v. Watson (1956) 46
Cal.2d 818, 836.) Cuenca, who was admittedly an expert on gangs, testified that OVC
uses the “C” in the Chicago Bears logo, the script “O” in the Baltimore Orioles logo, and
the color orange to represent itself. Even if Moss impermissibly testified regarding the
significance of the clothing items he seized from defendant’s bedroom, the same
testimony was provided by Cuenca without objection. Further, defendant had the
opportunity to cross-examine Moss regarding his testimony, and specifically elicited
testimony that Moss had never qualified as an expert as to OVC, and that defendant had
clothing items featuring logos of another professional sports team which was not seized.
(See People v. Bradley (2012) 208 Cal.App.4th 64, 84 [the defendants had “ample
opportunity” to cross-examine witnesses who provided lay opinion testimony, “dispelling
any possible prejudice”].)
                                              V.
                                     MOTION TO SEVER
                                              A.

                 The Trial Court Did Not Abuse Its Discretion by Denying
                    Defendant’s Motion to Sever Trial of the Charges.
              Defendant argues the trial court erred by denying his motion to sever trial
of the charges related to the robbery from the charges related to the assault. We review
the denial of a motion to sever for abuse of discretion. (Alcala v. Superior Court (2008)
43 Cal.4th 1205, 1220.) To prevail, the defendant must make a “‘clear showing of
prejudice.’” (Ibid., italics omitted.) We will uphold the trial court’s ruling unless it



                                             11
“‘“‘“falls outside the bounds of reason.”’”’” (Ibid.) We consider only the record
available to the trial court prior to the denial of the motion to sever. (Ibid.)
              Trial of charges together is in the interests of justice and efficiency, and is
preferred. (People v. Manriquez (2005) 37 Cal.4th 547, 574.) When deciding whether to
grant a motion to sever, the court considers (1) whether the evidence relevant to each
charge would be cross-admissible in separate trials, (2) whether some of the charges are
likely to unusually inflame the jury against the defendant, (3) whether a weak case is
being joined with a strong case, and (4) whether one of the charged offenses is a capital
offense. (Alcala v. Superior Court, supra, 43 Cal.4th at pp. 1220-1221.)

              1. Cross-admissibility
              Evidence of one charged crime would be cross-admissible in the separate
trial of another charged crime if relevant to show the intent, motive, or identity of the
accused. (Evid. Code, § 1101, subd. (b).) The Attorney General does not argue the
evidence would have been cross-admissible to show intent or motive.
              Evidence is relevant to the identity of the accused if evidence from one
crime is similar to evidence from another crime; the similarities must be “‘“‘so unusual
and distinctive as to be like a signature’”’” (People v. Soper (2009) 45 Cal.4th 759, 777),
raising the inference the crimes were committed by the same person (id. at pp. 778-779,
fn. 14 [evidence that both victims were homeless men who had been killed by similar
facial blunt force trauma and had been seen with the defendant shortly before their deaths
was sufficient to demonstrate identity]; see Williams v. Superior Court (1984) 36 Cal.3d
441, 448-449 [evidence that two separate shootings were gang related was not sufficient
to show identity].)
              The evidence related to the robbery shows that defendant exited the store
without paying, struck a loss prevention agent after being questioned, and attempted to
flee. The evidence related to the assault shows that defendant had an initial confrontation


                                              12
with Balladares in November 2011 and assaulted him in February 2012 to further the
reputation of defendant’s gang. There are no common factors in the evidence which are
so unusual and distinctive as to suggest the crimes were committed by the same person.
The Attorney General argues the use of violence in the commission of both crimes
demonstrates identity. During the robbery, defendant struck a loss prevention agent once
before attempting to flee. During the assault, defendant and two other men repeatedly
kicked and struck Balladares. The evidence related to the two incidents is not similar
enough to demonstrate identity, and would not be cross-admissible.
              This lack of cross-admissibility does not establish prejudice, however. We
also must consider whether one of the charged offenses was unusually likely to inflame
the jury against defendant or whether a weak case was combined with a strong case.
(People v. Elliott (2012) 53 Cal.4th 535, 553.)

              2. Likelihood the Jury Was Unusually Inflamed
              Defendant argues the jury convicted him of robbery because it was
inflamed against him due to the introduction of gang evidence relevant only to the
assault. We disagree. Gang evidence is not necessarily prejudicial when relevant to one
charged offense, but not another. (People v. Sandoval (1992) 4 Cal.4th 155, 173 [gang
evidence was not prejudicial because both the defendant and the victims belonged to
gangs]; People v. Burnell (2005) 132 Cal.App.4th 938, 947 [the benefits of joinder
outweighed any prejudice derived from gang evidence not relevant to all of the charged
offenses].) Further, a motion to sever has properly been denied in cases in which charged
offenses were substantially more inflammatory than the gang evidence presented in this
case. (People v. Thomas (2012) 53 Cal.4th 771, 799 [charges related to the executions of
two police officers were not severed from an unrelated murder charge]; People v.
Mendoza (2000) 24 Cal.4th 130, 162 [robbery charges were not severed from rape and
kidnapping charges].)


                                            13
              Here, the evidence relevant to all of the charged offenses included
testimony that defendant violently struck another person. Considering this evidence, we
do not believe the gang evidence, related to the assault conviction, was substantially more
inflammatory than the evidence related to the robbery. We also accept the trial court’s
finding that any possible prejudice could be mitigated by instructing the jury not to
consider gang evidence when determining defendant’s guilt on the charges related to the
robbery. Finally, there was an overwhelming amount of evidence supporting the robbery
conviction. Two loss prevention agents watched defendant exit the store with stolen
merchandise. When confronted by the agents, defendant struck one of them and
attempted to flee. Given the strength of this evidence, any possible prejudice from the
gang evidence related to the assault conviction was harmless.
              None of the cases defendant cites in support of his argument is on point. In
People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1051, the Supreme Court held the
trial court did not abuse its discretion by refusing to bifurcate the trial of a gang
sentencing enhancement allegation from the trial of the substantive crime. In People v.
Carter (2003) 30 Cal.4th 1166, 1194-1196, the Supreme Court found there was no abuse
of discretion in the denial of the defendant’s motion in limine to exclude gang evidence
because the evidence was relevant to the murder charges against the defendant, despite
the fact no gang sentencing enhancement was alleged.
              In People v. Perez (1981) 114 Cal.App.3d 470, 477-479, the admission of
evidence of the defendant’s gang membership was prejudicial because it was not relevant
to prove any of the charged offenses, and no gang sentencing enhancement was alleged.
Here, by contrast, a gang sentencing enhancement was alleged against defendant and the
gang evidence was relevant to prove that enhancement.
              In People v. Albarran (2007) 149 Cal.App.4th 214, 227, the court found the
admission of gang evidence was prejudicial because large portions of the evidence were
irrelevant to proving any of the charged offenses. In People v. Albarran, the defendant

                                              14
was charged with attempted murder, and a gang enhancement was alleged, after he fired
multiple shots into a residence. (Id. at p. 217.) At trial, the prosecution did not present
any evidence suggesting the defendant committed the crimes for the benefit of, at the
direction of, or in association with his gang. (Id. at p. 227.) However, the prosecution
gave a detailed history of the violent crimes committed by other members of the
defendant’s gang, and presented evidence that the defendant’s gang had threatened to kill
police officers and was associated with the Mexican Mafia. (Id. at pp. 227-228.)
Because there was no link between the attempted murder and the defendant’s gang, it was
prejudicial to admit the unrelated gang evidence. (Id. at p. 228.)
              Here, substantial evidence showed defendant committed the assault on
Balladares for the benefit of, at the direction of, or in association with defendant’s gang.
The first time defendant met Balladares he asked about his gang affiliation. While
Balladares stated he was not affiliated with a gang, one of his friends claimed a rival gang
affiliation, got into an argument with defendant, and another of Balladares’s friends threw
a rock at defendant’s vehicle. On the day of the assault, defendant again asked
Balladares about his gang affiliation before attacking him. Defendant stated he was a
member of OVC and one of his associates wore paraphernalia associated with OVC.

              3. Combining a Strong Case with a Weak Case
              Defendant argues that the weak case related to the assault on Balladares
was combined with the strong case related to the robbery at the Ralphs grocery store.1
Defendant is incorrect. Neither case was weak. In the robbery case, defendant was seen
by loss prevention agents leaving the store without paying for his merchandise. When
questioned in front of the store, defendant struck an agent and attempted to flee. He was

       1
         Defendant elsewhere argues he was convicted of robbery because inflammatory
gang evidence relevant only to the assault was admitted. Defendant’s argument here that
he was convicted of assault because of the overwhelming evidence supporting the
robbery conviction is obviously contradictory.

                                             15
apprehended moments later. The assault case was also strong. Balladares identified
defendant as his attacker and defendant’s mother’s car as the vehicle used during the
assault. The prosecution’s gang expert testified that defendant was a member of a gang
and had a motive to commit the crime to further the gang’s reputation. Defendant argues
the assault case was weak because Balladares only identified him as his attacker after
being shown a second set of photographs of defendant. This was a possible weakness
that defendant could have exploited. It does not establish that the entire case was weak.
There was a substantial amount of other evidence supporting a conviction.
                                             B.

                Joinder Did Not Render Defendant’s Trial Fundamentally
                     Unfair in Violation of His Right to Due Process.
              Defendant argues joinder of the robbery and burglary charges with the
assault charges violated his right to due process. “[E]ven if a trial court’s ruling on a
motion to sever is correct at the time it was made, a reviewing court still must determine
whether, in the end, the joinder of counts resulted in gross unfairness depriving the
defendant of due process of law.” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254,
281.) Reversal is required if misjoinder had a “‘“substantial and injurious effect or
influence”’” on the jury’s verdict. (People v. Grant (2003) 113 Cal.App.4th 579, 587.)
              Defendant argues the strength of the evidence related to the robbery and
burglary charges led the jury to convict him of assault on “the basis of criminal
propensity.” To the contrary, there was ample evidence supporting the assault
conviction. Balladares identified defendant as his attacker and identified a car belonging
to defendant’s mother as the car used during the assault. Defendant’s mother testified
defendant had borrowed her car on the day of the assault. Cuenca testified that defendant
was a member of a criminal street gang and had a motive to commit the crime to further
the gang’s reputation. Considering this evidence, we do not believe evidence related to



                                             16
the robbery-related charges substantially affected the jury’s verdict on the assault
charges.
              Defendant cites Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 to support
his argument that joinder violated his right to due process. Bean v. Calderon is a case
from the Ninth Circuit Court of Appeals and is not binding on this court. (People v.
Uribe (2011) 199 Cal.App.4th 836, 875.) Further, prior to being heard by the Ninth
Circuit, the case was first heard by the California Supreme Court in People v. Bean
(1988) 46 Cal.3d 919. Unlike the Ninth Circuit, the Supreme Court ruled that joinder did
not violate the defendant’s right to due process. (Id. at p. 940.) The court found the
evidence related to the charged offenses would not have been cross-admissible at separate
trials (id. at p. 938), but also found the defendant did not carry the burden of showing a
weak case was combined with a strong case or that one of the charged offenses was
“particularly inflammatory in comparison to the other” (id. at p. 939). The court held
there was substantial evidence suggesting the defendant had committed both crimes and
neither was more inflammatory than the other. (Ibid.) The Supreme Court’s ruling is
binding on this court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at
p. 455.)
              People v. Grant, supra, 113 Cal.App.4th at page 588, does not support
defendant’s argument. In People v. Grant, the Court of Appeal, Fourth Appellate
District, Division Two, ruled that joinder violated a defendant’s right to due process
because (1) the evidence in support of the charged offenses would not have been
cross-admissible in separate trials, (2) the prosecution improperly urged the jury to
consider evidence relating to any of the charged offenses when determining the
defendant’s guilt on a particular charge, (3) the court did not instruct the jury it could not
consider evidence related to other charged offenses when determining the defendant’s
guilt on a particular charged offense, and (4) the case for one of the charged offenses was
substantially stronger than the case for the others. (Ibid.)

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              Only one of those factors is met here; as explained ante, none of the
evidence related to the robbery and assault cases would have been cross-admissible. The
prosecution did not argue that the jury could consider evidence related to the robbery and
burglary charges when determining defendant’s guilt on the assault charges. The court
did issue limiting instructions informing the jury to consider each charge separately and
informing the jury when and for what purpose gang evidence could be considered. The
gang evidence instruction was issued prior to the direct examination of the witnesses
presenting gang evidence and again before jury deliberations. Neither case was
substantially stronger than the other.
              Joinder did not have a substantial and injurious effect on the jury’s verdict,
and defendant was not deprived of his right to due process.
                                             VI.
                                    CUMULATIVE ERROR
              Having concluded there was no error, we necessarily conclude there was no
cumulative error. (People v. Bolin (1998) 18 Cal.4th 297, 335.)

                                         DISPOSITION
              The judgment is affirmed.


                                                   FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.




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