Filed 8/20/15 P. v. Oceguera 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F066339
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF132754A)
                   v.

JAIME OCEGUERA,                                                                          OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
         Thea Greenhalgh, 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, Julie A. Hokans and Kevin L.
Quade, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                     INTRODUCTION
       Appellant Jaime Oceguera was convicted by a jury of robbery and the gang
offense set forth in Penal Code1 section 186.22, subdivision (a). The jury deadlocked on
a murder charge, and Oceguera thereafter pled no contest to voluntary manslaughter.
Oceguera contends his state and federal rights were violated in that his once-in-jeopardy
motion to dismiss all charges was wrongly denied. He also contends the trial court erred
prejudicially when it denied his motion to sever the trial on the murder charge from the
robbery charges. We reject his contentions and affirm the judgment.
                        FACTS AND PROCEDURAL HISTORY
       On May 24, 2011, the Kern County District Attorney’s Office filed an amended
information charging Oceguera with premeditated murder, robbery, and active
participation in a criminal street gang. It also was alleged that the murder and robbery
were committed for the benefit of a criminal street gang and that Oceguera discharged a
firearm from a motor vehicle. Leonel Reza also was charged with murder, robbery, and
active participation in a criminal street gang.
       On May 26, 2011, the trial court declared a mistrial on all counts. Oceguera had
refused to waive his right to a speedy trial after Reza’s counsel was unable to appear for
the scheduled trial date because of a medical reason.
       A second trial commenced and a jury was empaneled on February 2, 2012. On
February 10, 2012, the trial court granted Oceguera’s motion for a mistrial based upon a
prosecutorial discovery violation.
       Oceguera entered a once-in-jeopardy plea on February 14, 2012. The People filed
opposition to Oceguera’s double-jeopardy claim. The trial court denied Oceguera’s
request for a jury trial on the issue and rejected the once-in-jeopardy claim on
September 19, 2012.

       1Subsequent   statutory references are to the Penal Code unless otherwise noted.


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       On October 19, 2012, the third jury was empaneled. On November 1, 2012, the
jury returned guilty verdicts on the robbery and criminal-street-gang charges but was
unable to reach a verdict on the murder charge. The jury found the gang enhancement
appended to the robbery charge to be untrue. On November 1, 2012, Oceguera entered a
negotiated plea of no contest to voluntary manslaughter.
       In accordance with his plea agreement, Oceguera was sentenced to an aggregate
term of 12 years 8 months in state prison. Various fines and fees also were imposed.
Homicide facts
       On the night of June 14, 2010, Kern County Sheriff’s deputies responded to
reports of a shooting on McNew Court in Bakersfield. At the scene, deputies saw a trail
of blood leading from the street to a nearby apartment complex parking lot. Blood was
found on two vehicles in the parking lot. Near the street, deputies found wadding from a
shotgun shell. Witnesses told the deputies that a shooting victim had been transported to
a hospital in a private vehicle.
       When responding to the scene, Deputy Joel Swanson observed a blue Toyota
Camry speeding in the opposite direction. A passenger caught Swanson’s attention by
waving out the window. Swanson turned his patrol vehicle around and followed,
catching up to the Camry as it arrived at Kern Medical Center. Swanson saw a male and
two females pull another male into the emergency room.
       Swanson spoke to the group and they told him that several Hispanic males in a
green Thunderbird had shot the victim. The occupants of the Camry returned to the scene
of the shooting; the interior and exterior of the vehicle were stained with blood. Deputies
at the scene interviewed the driver, Whitney Hughes, and the two passengers, Daveon
Jones and Shanice Hill.
       The victim was 18-year-old Andre Jackson. While at the hospital, he underwent
several surgeries for gunshot injuries to his face and shoulder. Jackson was diagnosed



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with irreversible brain damage and ultimately died on July 8, 2010. During an autopsy,
shotgun pellets were removed from Jackson’s brain and left shoulder.
       Ricardo Guerra stated that, on the evening of the shooting, he was socializing
outside a friend’s house on Cannon Avenue. At one point, he and his friend were
contacted by four Hispanic males driving a green Thunderbird. The occupants of the
Thunderbird asked Guerra his gang affiliation; he told them he had none. The men
identified themselves by street monikers and stated they were members of the Okie
Bakers gang. The front passenger was “Toker” and the driver was “Green Eyes.” Guerra
saw a sawed-off shotgun and a revolver inside the Thunderbird.
       The men in the Thunderbird asked Guerra if he had seen “Crackhead Carlos.”
Guerra indicated the direction in which he had earlier seen Carlos traveling. The
Thunderbird pulled away, and, about 10 to 15 seconds later, Guerra heard a loud gunshot.
       Jones testified he met up with Jackson shortly before the shooting. As he walked
up to Jackson, a green Thunderbird rolled past, made a U-turn, and pulled up beside
them. Jones saw two men in the vehicle. Jackson started speaking with a heavyset
Hispanic male sitting in the front passenger seat. Jones heard “this is … Okie” and then
the passenger pulled out a big gun and shot Jackson. Jackson fell backwards as the
Thunderbird sped away. Jones flagged down a car, loaded Jackson into it, and told the
driver to take them to the hospital.
       Hughes testified she and Hill were driving out of McNew Court late in the evening
of June 14, 2010. As they drove out, a green Thunderbird was driving in the opposite
direction. Hughes pulled over and watched as the Thunderbird made a U-turn and
stopped. Hughes saw Jackson and Jones arguing with the men in the Thunderbird, then
there was a gunshot. Jackson fell backwards and the Thunderbird sped away at about 50
miles per hour.
       Jackson’s girlfriend, Latasha Batiste, was in her apartment on McNew Court
before the shooting. Batiste was looking out the window and saw a green Thunderbird

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pull up beside Jackson and Jones. She went outside and stood by a gate that overlooks
the parking lot and street. Batiste could hear Jones arguing with the Thunderbird’s front
passenger. After a few minutes, Batiste heard the word “Okie” and saw the passenger
pull out a gun and fire. Batiste identified Oceguera as the shooter, both in a photographic
line-up and in court.
       Reza reached a plea agreement with the People and agreed to testify against
Oceguera. Reza pled guilty to manslaughter with a gang enhancement and was sentenced
to a term of 21 years in state prison. Reza testified that he and Oceguera were together
on June 14, 2010. Reza’s moniker was “Green Eyes” and Oceguera was known as
“Toker.” That evening, Reza and Oceguera were in Reza’s green Thunderbird looking to
buy marijuana. At one point, they stopped to speak to a person on the street and Reza
introduced himself as “Green Eyes.”
       Reza and Oceguera made their way to McNew Court. As they turned around, two
African American males jumped in front of their car. The two men claimed to be East
Side Crips and asked Reza and Oceguera their gang affiliation. Oceguera began to argue
and eventually pulled out a shotgun and fired at one of the men. Reza drove off. As they
drove away, Oceguera, told him one of the men had a gun. Reza drove to where
Oceguera had parked his truck so Oceguera could hide the shotgun. They then drove off
together in the Thunderbird.
Robbery facts
       After hiding the shotgun, Reza and Oceguera were headed to a friend’s house
when they ran out of gas near Casa Loma Park. While waiting for friends to arrive, they
were approached by German Tapia, who asked if they had any drugs to sell. Reza stated
that he did and told Tapia to meet them at a nearby gas station. Reza parked his car and
the three men drove around in Oceguera’s truck looking for a smoking pipe.
       Eventually, they parked the truck and the three men exited the vehicle and headed
out into an open field. Reza hit Tapia in the back of the head and demanded Tapia give

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up “all [his] stuff.” Tapia handed over his wallet, watch, MP3 player, bicycle, pants,
shirt, hat, and shoes. Reza gave the wallet and watch to Oceguera and told Tapia to
leave.
         Tapia reported the robbery to law enforcement. Tapia identified Reza and
Oceguera from photographic line-ups. Deputies arrested Oceguera on June 27, 2010, and
searched his residence. Inside Oceguera’s dresser was a black and silver watch and a
gray wallet. Tapia identified the watch and wallet as items taken from him during the
robbery. The MP3 player and bicycle taken from Tapia were found at Reza’s residence.
Gang evidence
         Deputy Richard Hudson testified as the People’s gang expert. Based on his
extensive experience, Hudson opined that the Okie Bakers were a criminal street gang
whose primary activities included assaults, robberies, possession of firearms, and
homicides.
         Oceguera had numerous prior contacts with law enforcement; on all of these
occasions, he admitted being a member of the Okie Bakers gang. He told law
enforcement officers on numerous occasions that his gang moniker was “Toker.” Among
the tattoos on Oceguera’s body were the word “Malditos” with three dots above the letter
“I” on his forearm, the number “13” on his right shoulder, and the letter “O” on the back
of his head.
         Based upon Oceguera’s prior contacts with law enforcement, Hudson opined that
Oceguera was a member of the Okie Bakers gang during the shooting of Jackson and the
robbery of Tapia. He also was of the opinion that both crimes were committed in
connection with and for the benefit of the Okie Bakers street gang.
                                        DISCUSSION
         Oceguera contends his state and federal rights were violated in that his once-in-
jeopardy motion to dismiss all charges was wrongly denied. He also contends the trial



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court erred prejudicially when it denied his motion to sever the trial on the murder charge
from the robbery charges.
I.     Double jeopardy
       Oceguera contends his state and federal double-jeopardy rights were violated
when the trial court rejected his once-in-jeopardy plea. He contends retrial, the third trial,
was barred because the mistrial at the second trial was the result of purposeful
misconduct by the People. His contention lacks merit.
       A.     Factual summary
       A second mistrial was declared on February 10, 2012. During the second trial, the
People called Deputy Wilson, who testified he seized a black and silver watch during the
search of Oceguera’s home on June 27, 2010. When Wilson was asked to remove the
watch from the evidence envelope, defense counsel asked for a sidebar. At the sidebar,
Oceguera’s counsel objected to the evidence on the grounds the People had failed to
disclose they had physical evidence tying Oceguera to the robbery of Tapia.
       Defense counsel also objected to allowing Tapia to testify that he could identify
the watch because the People had only just informed the defense of their intent to elicit
this testimony. Defense counsel opined that he had given an opening statement declaring
there was no evidence Oceguera ever had any of the items from the robbery. The defense
argued the People had intentionally committed a discovery violation.
       The People responded that there had been no objection when the evidence of the
stolen bike, subsequently recovered from Reza’s house, was admitted into evidence the
day prior, thus putting the defense on notice that the People intended to introduce the
proceeds of the robbery. As for Tapia’s identification of the watch, the prosecutor stated
that he had not thought to ask Tapia about this until the day before and had only learned
Tapia could identify the watch yesterday afternoon.
       Oceguera requested exclusion from evidence of the watch and any identification
by Tapia. Codefendant Reza’s counsel requested a mistrial. The trial court conducted an

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evidentiary hearing, verifying that Tapia had only been asked the day before to identify
the watch and wallet found in Oceguera’s dresser.
       After a brief recess, the trial court reconvened to determine whether a discovery
violation had been committed. At this point, Oceguera joined in the request for a
mistrial.
       The prosecutor conceded that he had not informed the defense the previous
afternoon of Tapia’s proposed identification of the items; he had been distracted by the
ongoing trial proceedings. To the extent the omission was a discovery violation, the
prosecutor asserted it was not committed in bad faith. The prosecutor also argued that a
mistrial was unnecessary because Tapia had already given a description of the watch and
identified both defendants, testifying they both participated in the robbery.
       The trial court found the People had committed a discovery violation; however,
the trial court expressly stated it was not making any finding as to the prosecutor’s intent.
Having “the greatest reservations about it,” the trial court granted the motion for mistrial.
Oceguera entered a once-in-jeopardy plea four days later.
       A few months later, the once-in-jeopardy claim was addressed. Defense counsel
argued the discovery violation was intentionally committed by the prosecutor in order to
force a mistrial because it was likely Oceguera would be acquitted on the murder charge,
and the prosecutor was unhappy trying the case before separate juries and with the trial
court’s decisions on in limine motions.
       The People asserted their prior position that a mistrial had not been warranted.
The People denied having intended to cause a mistrial and disagreed with Oceguera’s
description of the probable outcome.
       After a brief recess to consider the arguments, the trial court rejected Oceguera’s
once-in-jeopardy claim. The trial court noted that it had reviewed the trial transcripts of
the second trial and was taking judicial notice of all pertinent records. The trial court
specifically found that, although there had been a discovery violation, there was no

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evidence the error was intended to trigger a mistrial or otherwise thwart a foreseen
acquittal. The trial court refused to bar a retrial, and the third trial proceeded.
       B.     Analysis
       Our federal and state Constitutions both prohibit putting a defendant in jeopardy
for the same offense more than once. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.)
Generally, when a mistrial is declared based upon a motion from a defendant, the
defendant’s request for a mistrial constitutes consent that waives any double jeopardy bar
to retrial. (People v. Batts (2003) 30 Cal.4th 660, 679-680 (Batts).)
       There is a narrow exception to the general rule under the United States
Constitution, however, and that is “when a defendant has moved for a mistrial because of
the prosecutor’s misconduct and the mistrial motion has been granted, the sole basis for
barring a retrial is a narrow one: retrial is barred only if the prosecutor intended by his or
her misconduct to produce a mistrial.” (Batts, supra, 30 Cal.4th at p. 681.) Under our
state Constitution, when a prosecutor “intentionally and knowingly commits misconduct
in order to thwart such an acquittal,” retrial is barred. (Id. at p. 695.) It must appear
objectively that an acquittal was likely to occur in the absence of misconduct. (Id. at
p. 696.)
       Oceguera contends the trial court erred under both the federal and state double-
jeopardy protections when it rejected his once-in-jeopardy plea. He is incorrect.
       The trial court specifically found that the prosecutor’s discovery violation was not
committed with the intent to cause a mistrial or because the prosecutor felt Oceguera was
likely to be acquitted by the jury. Therefore, the trial court specifically found that a bar
to retrial was not established under either the federal or state Constitutions. This
determination is entitled to deference if supported by substantial evidence. (Oregon v.
Kennedy (1982) 456 U.S. 667, 676; Batts, supra, 30 Cal.4th at p. 683.) Our review of the
record discloses that substantial evidence supports the trial court’s determination.



                                               9.
       The new evidence the prosecutor failed to disclose was that Tapia could identify
the watch seized from Oceguera’s residence as the one taken from him during the
robbery. Though this proposed testimony would have provided additional evidence
linking Oceguera to the robbery, there was other overwhelming evidence linking
Oceguera to the robbery.
       The day of the robbery, Tapia had driven around with Oceguera and Reza.
Immediately before being robbed, Tapia was made by Oceguera and Reza to walk
through an open field. After he was physically attacked from behind, Tapia turned and
then Oceguera was “kind of like … in my face.” A few days after the robbery, Tapia
identified Oceguera from a photographic line-up. Tapia again identified Oceguera as one
of the robbers when he testified in court. This overwhelming evidence of Oceguera’s
guilt on the robbery charge supports the trial court’s finding that, objectively, Oceguera
was not likely to be acquitted on the robbery charge, and the prosecutor did not act in the
belief an acquittal was likely.
       Oceguera, however, maintains that this court should not apply a deferential
standard of review because many months had passed from the date of the mistrial to the
hearing on the once-in-jeopardy claim. This contention is specious; the trial court
specifically stated it had reviewed the trial transcript prior to ruling on the once-in-
jeopardy plea.
       Oceguera also argues that the prosecutor likely expected an acquittal after defense
counsel’s opening statement pointing out the lack of a connection between Oceguera and
the items taken in the robbery. Defense counsel, however, never made any such
statement. Defense counsel’s opening statement portrayed Oceguera as a passive
observer who was with Reza and simply watched as Reza robbed Tapia; no mention was
made of the physical items. Regardless, the prosecutor was highly unlikely to have
feared a mistrial based upon anyone’s opening statement, and the argument ignores the
other significant evidence of Oceguera’s involvement in the robbery. Additionally, the

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prosecutor initially maintained that he had not committed any discovery violation and
then repeatedly argued strongly against granting a mistrial, providing further evidence of
the lack of any subjective intent to trigger a mistrial.
       Oceguera also contends the prosecutor was trying to trigger a mistrial because of a
fear of acquittal on the murder charge. First, the ability to link Oceguera to the proceeds
of the robbery would have little impact on the murder charge. Second, there was
independent evidence linking Oceguera to the murder such that it was unlikely the
prosecutor acted to trigger an acquittal.
       Batiste testified she personally observed the shooting and that the passenger in the
Thunderbird pulled out a gun and shot Jackson. A week after the shooting, Batiste
identified Oceguera as the shooter after looking at a photographic line-up. During the
second trial, Batiste identified Oceguera in court as the man who shot Jackson. Batiste’s
testimony as to the events surrounding the shooting of Jackson was supported by
testimony from other witnesses, including Hughes and Guerra.
       In light of all the evidence produced at the second trial before a mistrial was
declared, it is unlikely the prosecutor intended to cause a mistrial or thwart an acquittal,
and the trial court’s finding in this regard is supported by substantial evidence. As such,
deference is accorded that determination. (Oregon v. Kennedy, supra, 456 U.S. at p. 676;
Batts, supra, 30 Cal.4th at p. 683.)
II.    Motion to sever
       Oceguera moved to sever the trial on the murder charge from the robbery charges
prior to the start of the third and final trial.2 The trial court denied the motion. In
denying the motion to sever, the trial court found that the murder and robbery charges
were part of the same class of offenses and were neither exceptionally prejudicial nor
inflammatory to one another.

       2Oceguera     also had unsuccessfully moved to sever the charges prior to the first
and second trials.

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         Oceguera contends the trial court erred prejudicially when it denied his motion to
sever.
         A.     Factual summary
         Defense counsel argued that the shooting and the robbery were unrelated incidents
with entirely different victims and that a potential self-defense claim to the murder charge
would be undermined by evidence that Oceguera participated in a robbery fewer than two
hours after the shooting.
         The trial court rejected the defense arguments, finding the charges were of the
same class and properly joined. The trial court also noted that it had heard a
“considerable portion of the evidence on previous occasion[s],” and stated “that the
evidence as it relates to—most of the issues [are] of relatively equal strength in terms of
the two different [offenses] so I don’t view this as a case where either two weak cases or
weak case and a strong one are being joined to improperly create a bootstrapping effect.”
Additionally, the trial court found that, given the assaultive nature of the murder and
robbery charges, it could not be said that the more serious murder charge was particularly
inflammatory. Considering all these facts, in addition to judicial-economy
considerations, the trial court found that severance was unwarranted.
         B.     Analysis
         Two or more different offenses may be tried together if they are “of the same
class.” (People v. Stanley (2006) 39 Cal.4th 913, 933.) Murder and robbery have been
deemed to be of the same class. (People v. Lucky (1988) 45 Cal.3d 259, 276.) Joinder is
preferred because of its efficiency. (Stanley, supra, at p. 933.) Even where joinder is
permitted, however, if a defendant establishes that a substantial danger of prejudice exists
from joinder, the charges should be tried separately. (People v. Cunningham (2001) 25
Cal.4th 926, 985.)
         A trial court’s denial of a motion to sever properly joined offenses is reviewed for
abuse of discretion. (People v. Soper (2009) 45 Cal.4th 759, 774.) An abuse of

                                              12.
discretion is shown only if the ruling “‘“‘“‘falls outside the bounds of reason.’”’”’”
(Ibid.) No such showing has been made by Oceguera.
        Although Oceguera contends evidence of the robbery had nothing to do with the
homicide and vice versa, the trial court found that evidence pertaining to the murder and
robbery charges would be cross-admissible. Here, the trial court found that evidence
from the robbery placing Oceguera and Reza in each other’s company shortly after the
shooting would be admissible in the murder trial as probative of connecting Oceguera to
Reza and to counter Reza’s version of events. Evidence from the earlier trials placed
Oceguera and Reza together in the green Thunderbird minutes after the shooting and only
a short distance from where the killing occurred, which is the time when Tapia
approached the two men and the robbery was thereafter committed. When a
determination has been made that evidence is cross-admissible, that fact alone is
sufficient to dispel any suggestion of prejudice from joinder and justifies a trial court’s
refusal to sever properly joined charges. (People v. Soper, supra, 45 Cal.4th at pp. 774-
775.)
        In addition, both the robbery and murder charges had gang-enhancement
allegations appended to them. The allegations asserted that both the murder and the
robbery were committed for the benefit of the Okie Bakers gang. Evidence to support the
gang enhancements also would be cross-admissible. (People v. Arias (1996) 13 Cal.4th
92, 127.) Interests of judicial economy would support denying a motion to sever under
these facts. (People v. Earle (2009) 172 Cal.App.4th 372, 407-408.)
        The trial court, during the motion to sever, determined that the evidence of each
offense was relatively equal; there was not a strong case combined with a weak case. In
fact, although Oceguera contends the evidence of the murder would tend to be
inflammatory, the jury failed to convict on the murder charge. Although the jury failed to
convict on the murder charge, the trial court’s assessment of the strength of the cases is
supported. Two witnesses could be expected to testify they saw Oceguera fire a gun at

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Jackson; one witness would be expected to testify to Oceguera’s participation in the
robbery, plus the proceeds of the robbery were found in his residence.
       In sum, Oceguera has failed to show that the trial court’s denial of his motion to
sever was an abuse of the trial court’s discretion.
                                        DISPOSITION
       The judgment is affirmed.

                                                                _____________________
                                                                              Smith, J.
WE CONCUR:


 _____________________
 Kane, Acting P.J.


 _____________________
 Detjen, J.




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