Filed 7/24/13 P. v. Williams CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B240665

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA386991)
         v.

MALI WENDELL WILLIAMS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Dennis J. Landin, Judge. Affirmed as modified.


         Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by
the Court of Appeal, for Defendant and Appellant Mali Wendell Williams.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Michael
Katz, Deputy Attorneys General, for Plaintiff and Respondent.


                                      ____________________________
       A jury convicted defendant and appellant Mali Wendell Williams of attempted
kidnapping to commit robbery, attempted second degree robbery, and illegal possession
of a firearm by a person who was adjudged a ward of the juvenile court. On appeal,
defendant contends: (1) insufficient evidence supported the attempted kidnapping for
robbery convictions; (2) the trial court erred in failing to sua sponte instruct the jury on an
abandonment defense; (3) the trial court erred in using the dictionary definition of a term
in the kidnapping for robbery jury instruction; (4) the trial court erred in denying his
motion to sever the illegal possession of a firearm count; and (5) the trial court should
have stayed sentences on two counts. We modify the judgment to correct the sentencing
error and otherwise affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Kidnapping/Robbery Incident
       In the early morning hours of July 12, 2011, Christina B. and Alex Feliciano
arrived at their Los Angeles apartment in a rented truck. They double parked the truck
outside to take items upstairs to their second floor apartment, then returned downstairs.
When Feliciano went to the rear of the truck someone knocked Christina to the ground.
Christina turned, saw a woman behind her, and screamed. A man put a gun to the back
of Feliciano’s head. The man told Feliciano: “Give it up. I know you got it. Where’s it
at?” Feliciano understood his assailant to mean money or valuables. The man searched
Feliciano’s pockets and the truck. The woman went through Christina’s pockets and took
her keys. The woman told Christina to “start moving.” The man and woman directed
Christina and Feliciano to the front of the apartment complex, then up the stairs to their
apartment. At the front door of the apartment, the man asked where the keys were, and
said: “We’re going to get in.” The man wanted to take a chain Feliciano was wearing;
Feliciano tried to convince him not to. The woman appeared to grow nervous and wanted
to leave. She told the man: “We need to leave,” or “we need to go.”
       Eventually the man and woman left. Feliciano yelled after them, asking them to
leave the keys. The woman dropped the keys on the ground. Feliciano and Christina
called the police and searched for the keys in grass near the apartment. They found the

                                              2
keys and a cell phone. When they looked through the content on the phone, they saw a
picture of their male assailant, in which he wore the same black and white striped sweater
or sweatshirt he was wearing during the incident.
       At a preliminary hearing, Feliciano testified he was not 100 percent sure Williams
was his attacker. However, he was 100 percent sure the man in the picture on the phone
was his attacker. At trial, Feliciano and Christina identified Williams as their attacker.
       Illegal Firearm Incident
       On November 23, 2011, Los Angeles Police Officer John Carlyle responded to a
call about an unauthorized party at a hotel. As Carlyle approached the party, people
began leaving. Carlyle saw Williams remove a small black semiautomatic weapon from
his waistband. Williams took a red purse from the hand of a woman in front of him and
put the firearm inside the purse. Williams then put his left arm against the woman and
pushed her through the crowd while he held the purse in his right hand. They walked
toward Carlyle and his partner. Carlyle attempted to make contact with Williams.
Williams pushed the woman into Carlyle and tried to jump between a guardrail and the
woman to get past. Carlyle grabbed Williams and kicked the purse out of Williams’s
hand. Inside the purse, Carlyle found a black semiautomatic weapon.
       The People initially charged Williams with two counts of aggravated kidnapping
(Pen. Code, § 209, subd. (b)(1); counts 1 & 2), one count of attempted second degree
robbery (Pen. Code, §§ 664, 211; count 3), one count of second degree robbery (Pen.
Code, § 211; count 4), and one count of unlawful firearm activity in violation of former
Penal Code section 12021, subdivision (e) (count 5). The court denied Williams’s
motion to sever count 5. Williams also moved to dismiss counts 1 and 2, arguing there
was insufficient evidence of a kidnapping. The trial court agreed. The prosecution then
sought leave to amend counts 1 and 2 to charge attempted aggravated kidnapping. The
court allowed the amendment. Before the case was submitted to the jury, the court also
allowed the People to amend count 4 to allege attempted second degree robbery.




                                              3
       At trial, Williams offered alibi evidence through the testimony of his grandmother
and his pregnant girlfriend. Williams also offered the testimony of an expert on factors
affecting the reliability of eyewitness identifications and memory.
       The jury found Williams guilty on all counts. On the first four counts, the jury
found true an allegation that Williams personally used a firearm within the meaning of
section 12022.53, subdivision (b). Williams admitted a prior strike. The trial court
sentenced Williams to a total prison term of 21 years and four months.
                                       DISCUSSION
I.     Sufficient Evidence Supported the Attempted Aggravated Kidnapping
       Convictions
       Williams first contends his conviction for attempted aggravated kidnapping was
not supported by sufficient evidence. We disagree.
       “ ‘In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is
unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].” [Citation.]’ [Citation.]” (People v.
Wilson (2010) 186 Cal.App.4th 789, 805.) We presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. (People v.
Virgil (2011) 51 Cal.4th 1210, 1263.)
       Penal Code section 209, subdivision (b)(1), sets forth criminal punishment for
“[a]ny person who kidnaps or carries away any individual to commit robbery. . . .”
The subdivision “shall only apply if the movement of the victim is beyond that merely
incidental to the commission of, and increases the risk of harm to the victim over and
above that necessarily present in, the intended underlying offense.” (§ 209, subd. (b)(2).)
The statute codified the holding of People v. Daniels (1969) 71 Cal.2d 1119, 1139




                                              4
(Daniels).1 A defendant may be convicted of attempted kidnapping for robbery.
(People v. Mullins (1992) 6 Cal.App.4th 1216, 1219.) “To convict, the fact finder must
find beyond a reasonable doubt that the defendant had the specific intent required for
kidnapping to commit robbery and that the movement, if completed as the defendant
intended, would have been more than merely incidental to the underlying crime of
robbery and would have substantially increased the risk of harm over and above that
necessarily present in the robbery.” (Id. at p. 1221.)
       The evidence was sufficient to allow the jury to conclude Williams’s intended
movement would have satisfied both aspects of Penal Code section 209, subdivision
(b)(1). To determine whether the movement was more than merely incidental to the
robbery, “the jury considers the ‘scope and nature’ of the movement, which includes the
actual distance a victim is moved. [Citations.] There is, however, no minimum distance
a defendant must move a victim to satisfy the first prong.” (People v. Vines (2011)
51 Cal.4th 830, 870 (Vines).) “We also consider the ‘context of the environment in
which the movement occurred.’ [Citation.] ‘This standard suggests a multifaceted,
qualitative evaluation rather than a simple quantitative assessment.’ [Citation.]”
(People v. Leavel (2012) 203 Cal.App.4th 823, 833 (Leavel).)
       Whether a defendant’s movement of the victims increased the risk of harm to them
above and beyond that inherent in the robbery “ ‘ “includes consideration of such factors
as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable
attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes.
[Citations.]” ’ ” (Vines, supra, 51 Cal.4th at p. 870.) “The two prongs [of section 209,
subdivision (b)(2)] ‘are not mutually exclusive but are interrelated.’ [Citation.] Whether
a victim’s forced movement was merely incidental to the robbery ‘is necessarily
connected to whether it substantially increased the risk to the victim.’ [Citation.] ‘[E]ach


1      Under Daniels, the movement had to substantially increase the risk of harm to the
victim. In 1997, the Legislature revised section 209 and eliminated the requirement that
there be a substantial increase in the risk of harm. (People v. Robertson (2012) 208
Cal.App.4th 965, 980-981.)

                                             5
case must be considered in the context of the totality of its circumstances.’ [Citation.]”
(Leavel, supra, 203 Cal.App.4th at p. 834.)
       Here, there was evidence Williams moved Feliciano and Christina away from their
truck, out of the street, through an apartment courtyard, and up a flight of stairs. There
was also evidence Williams intended to move them farther, from the street outside to
inside the apartment. The jury could consider this intended movement substantial, and
even unnecessary to facilitate the robbery. (People v. Ellis (1971) 15 Cal.App.3d 66, 72-
74 (Ellis) [victims confronted on street, forced upstairs into apartments and robbed;
movement satisfied Daniels test].) Williams had an accomplice, a weapon, and keys to
the apartment. He could have kept Feliciano and Christina outside in the street, while the
accomplice went inside the apartment alone. Movement unnecessary to a robbery is not
merely incidental to it. (Leavel, supra, 203 Cal.App.4th at p. 835; People v. James (2007)
148 Cal.App.4th 446, 454-455 (James).)
       Further, the jury could reasonably conclude Williams’s intended movement of
Feliciano and Christina inside the apartment would have increased the risk of harm to
them. The jury could find that moving Feliciano and Christina inside would have placed
them at an increased risk of being physically assaulted or otherwise harmed, with less
risk of detection from a passerby. Moving them into the apartment from the street also
would have allowed less opportunity for either of them to escape, and increased the risk
of harm should either attempt to flee. (Vines, supra, 51 Cal.4th at p. 871; James, supra,
148 Cal.App.4th at pp. 456, 457-458 [no rigid indoor-outdoor rule, but it is often held
that defendants who moved their victims to more secluded or enclosed areas increased
the risk of harm]; Ellis, supra,15 Cal.App.3d at p. 73.)
       We reject Williams’s principal contention that no evidence established Williams
intended to move Feliciano and Christina into the apartment.2 The incident began at


2      On appeal, Williams asserts he “does not concede that if [he] had brought
Feliciano and Christina into their apartment, he necessarily would have been guilty of
kidnapping for robbery. . . . Nevertheless, for the purposes of Argument I, appellant shall
assume that the jury could have convicted appellant of kidnapping for robbery if the

                                              6
Feliciano and Christina’s truck on the street. Williams and his accomplice moved the
victims, with coercion, to the front door of their apartment. At the door, defendant said:
“Where is the keys at? We’re going to get in.” Christina testified that at the door,
Williams and the accomplice “were trying to get us to – let them into the apartment.”
Although Christina did not testify to the words exchanged, she permissibly testified about
her understanding of what Williams and the accomplice were communicating to her, with
words or otherwise. This was substantial evidence that Williams’s goal was to force
Feliciano and Christina into the apartment. Indeed, the jury could reasonably infer
Williams did not move Feliciano and Christina into the apartment only because his
accomplice was nervous and stopped cooperating. (People v. Medina (2007) 41 Cal.4th
685, 699 (Medina).) This, combined with the other circumstances described above, was
sufficient evidence for the jury to conclude Williams formed the specific intent to commit
kidnapping for robbery.
       There was also substantial evidence that Williams took a direct but ineffectual act
toward committing kidnapping for robbery. (People v. Toledo (2001) 26 Cal.4th 221,
229-230; People v. Mullins, supra, 6 Cal.App.4th at pp. 1220-1221.) After failing to find
anything on Feliciano and Christina in the street, he forced them up the stairs to the front
door of their apartment while holding a gun, he said he would “get in,” and asked where
the keys were. They stood at the door for several minutes, while Williams spoke with
Feliciano and tried to get his chain. The accomplice was nervous and told Williams they
needed to leave. While Williams did not put the keys into the lock of the apartment door,
the jury could reasonably find his actions prior to leaving the scene went beyond mere
preparation, and were direct but ultimately ineffectual acts in furtherance of a kidnapping
for robbery. (Medina, supra, 41 Cal.4th at p. 699; Toledo, supra, 26 Cal.4th at p. 230.)



prosecution had presented substantial evidence of both appellant’s specific intent to bring
Feliciano and Christina into their apartment and a direct, but ineffectual, step by appellant
to effectuate his intent.” Aside from asserting no evidence supported a conclusion that
Williams intended to take his victims into the apartment, Williams does not otherwise
argue the evidence was insufficient to support the convictions.

                                             7
Considering the totality of the circumstances, and viewing the evidence in the light most
favorable to the judgment, we conclude substantial evidence supported the attempted
kidnapping for robbery convictions. (People v. Corcoran (2006) 143 Cal.App.4th 272,
280.)
II.     Any Instructional Error Was Harmless
        The trial court instructed the jury with CALCRIM No. 1203 on kidnapping for
robbery as follows, in relevant part: “To prove the crime of kidnapping for the purpose
of robbery, the People must prove that the defendant intended to commit robbery, number
two, acting with that intent, the defendant took, held or detained another person by using
force or by instilling a reasonable fear, number three, using that force or fear, the
defendant moved the other person a substantial distance, number four, the other person
was moved or made to move a distance beyond that is merely incidental to the
commission of a robbery, number five, when that movement began, the defendant already
intended to commit robbery, and number six, the other person did not [consent] to the
movement. [¶] As used here, substantial distance means more than a slight or trivial
distance. The movement must have substantially increased the harm to the person
beyond that necessarily present in the robbery. In deciding whether the movement was
sufficient, consider all the circumstances relating to the movement.”
        During deliberations, the jury sent out the question: “ ‘The jury would like a
definition of quote ‘incidental,’ as it relates to the definition of 1203: kidnapping for
robbery.’ ” The court suggested to the parties that it respond with a partial dictionary
definition: “ ‘Happening as a chance or undersigned feature of something; casual hence
minor of secondary importance.’” After proposing this dictionary definition, the court
asked counsel if there were objections. Defense counsel asked if there were additional
definitions. The court read a second definition: “ ‘Liable to happen or to follow as a
chance feature or incident.’ ” Defense counsel said he felt the first definition was
appropriate. The prosecutor agreed.




                                              8
       Williams now contends “incidental” is a legal term of art and the court’s definition
was an incorrect statement of law. He asserts the court should have “devised” a
definition that instructed the jury to consider whether the movement was for a substantial
distance and substantially increased the risk of harm. We initially note Williams has
forfeited any claim of error. At trial, defense counsel indicated it felt the first dictionary
definition of incidental was appropriate, did not object to the use of a dictionary
definition, and in fact assented. Thus, Williams’s claim of error is forfeited. (People v.
Davis (2009) 46 Cal.4th 539, 616-617 [defendant forfeited claim that court erred in using
legal dictionary definition of “incidental” instead of ordinary dictionary where defense
counsel said common dictionary meaning would not be helpful, assented to use of legal
dictionary definition, and did not renew request for pinpoint instruction].)
       Forfeiture aside, we conclude any error was harmless beyond a reasonable doubt.
Several cases have criticized or rejected dictionary definitions of “incidental” as either
too narrow, too broad, or otherwise inconsistent with the term “beyond merely
incidental” as used in Daniels. (In re Earley (1975) 14 Cal.3d 122, 130, fn. 11 (Earley)
[dictionary definition of incidental as nonessential not the sense in which the word
incidental was used in Daniels]); Ellis, supra,15 Cal.App.3d at p. 68 [dictionary
definition of incidental too broad to define the word as used in Daniels]; People v.
Williams (1970) 2 Cal.3d 894, 902 [Attorney General reliance on dictionary definitions of
incidental criticized; meaning of “beyond merely incidental” not as narrow as
suggested].) However, in Earley, the court concluded: “Brief movements to facilitate
robbery . . . are incidental thereto within the meaning of Daniels . . . . On the other hand
movements to facilitate [robbery] . . . that are for a substantial distance rather than brief
are not incidental thereto within the meaning of Daniels.” (Earley, supra, 14 Cal.3d at
pp. 129-130.) In that case, because the movement was substantial – 10 to 13 blocks – “it
was not ‘merely incidental to the commission of the robbery’ [citation], even though it




                                               9
may have been solely to facilitate the commission of the robbery.”3 (Id. at p. 130,
fn. omitted; James, supra, 148 Cal.App.4th at p. 454.)
       Williams does not suggest how the jury in this case might have understood the
dictionary definition of incidental in the context of the instruction.4 But any error in the
use of the definition was harmless, under any standard, because the remaining portions of
the instruction required the jury to find the movement was not merely incidental to the
robbery in order to convict. (People v. Rogers (2006) 39 Cal.4th 826, 873-875; People v.
Hughes (2002) 27 Cal.4th 287, 352.) Specifically, the instruction required the jury to
conclude the People proved the defendant moved the victim a “substantial distance.”
The instruction subsequently defined “substantial distance” as more than slight or trivial.
Under Earley, movements to facilitate a robbery that are for a “substantial distance” are
not merely incidental to the robbery, even if they also facilitate the robbery.
       The instruction also required the jury to find the movement increased the risk of
harm to the victim, and it directed the jury to consider all the circumstances relating to
the movement. These portions of the instruction required the jury to make the necessary
findings to satisfy both prongs of the Daniels standard, and were consistent with the case
law interpreting Penal Code section 209, subdivision (b)(2). (See Vines, supra, 51
Cal.4th at p. 870.) Even if confusing, the “merely incidental” portion of the instruction
did not relieve the jury of making other findings pursuant to the rest of the instruction.




3      As noted above, other cases have concluded movement unnecessary to the target
offense, or that does not facilitate the offense, is not “merely incidental” to the offense.
(Leavel, supra, 203 Cal.App.4th at p. 835; James, supra, 148 Cal.App.4th at p. 455;
People v. Corcoran, supra, 143 Cal.App.4th at pp. 279-280.)

4     With the definition, the fourth prong of the instruction would essentially have
been: The People must prove the other person was moved or made to move a distance
beyond that merely incidental [i.e., happening as a chance or undersigned feature of
something; casual hence minor of secondary importance] to the commission of a robbery.

                                             10
       When considering a claim that an instruction was subject to an incorrect
interpretation, we look at the instructions as a whole to determine whether it is reasonably
likely they caused the jury to misapply the law. (People v. Solomon (2010) 49 Cal.4th
792, 822; People v. Carrington (2009) 47 Cal.4th 145, 192.) Given the instructions as a
whole, even if the trial court’s definition of “incidental” was incorrect, the error could not
have contributed to the verdict. (People v. Sakarias (2000) 22 Cal.4th 596, 625.) The
“substantial distance” portion of the instruction adequately instructed the jury on the
interrelated requirements that the movement be not merely incidental to the robbery, and
that it increase the risk of harm to the victims beyond that necessarily present in a
robbery. We find no basis for reversal in the court’s definition of “incidental.”
III.   The Trial Court Did Not Err in Failing to Sua Sponte Instruct on an
       Abandonment Defense
       We also reject Williams’s contention that the trial court should have sua sponte
instructed on an abandonment defense.5 “In the absence of a request for a particular
instruction, a trial court’s obligation to instruct on a particular defense arises ‘ “only if [1]
it appears that the defendant is relying on such a defense, or [2] if there is substantial
evidence supportive of such a defense and the defense is not inconsistent with the
defendant’s theory of the case.” ’ [Citations.]” (People v. Dominguez (2006) 39 Cal.4th
1141, 1148.) Here, Williams relied on an alibi theory. Further, in his closing argument,
defense counsel argued the prosecutor had not established Williams ever intended to
kidnap the victims, not that he abandoned his efforts before making an overt act in
furtherance of the crime.



5       Williams argues the court should have included the following bracketed portion of
CALCRIM No. 460: “A person who attempts to commit [kidnapping for robbery] is
guilty of attempted [kidnapping for robbery] even if, after taking a direct step towards
committing the crime, he or she abandoned further efforts to complete the crime or if his
or her attempt failed or was interrupted by someone or something beyond his or her
control. On the other hand, if a person freely and voluntarily abandons his or her plans
before taking a direct step toward committing [kidnapping for robbery], then that person
is not guilty of attempted [kidnapping for robbery].”

                                               11
       Moreover, there was no substantial evidence to support an abandonment defense.
Once a defendant’s actions have “reached such a stage of advancement that they can be
classified as an attempt . . . there can be no exculpatory abandonment.” (People v.
Staples (1970) 6 Cal.App.3d 61, 69.) The uncontradicted evidence was that Williams did
not stop in his efforts until he and his accomplice were at the front door of the apartment,
after having accosted the victims with a gun in the street, forcing them through the
apartment courtyard and up a flight of stairs, and after he demanded keys and proclaimed
they would get into the apartment. The evidence also strongly suggested the impediment
to completing the planned crimes was Williams’s accomplice, who was unwilling to
proceed. Either the jury would believe this evidence and find him guilty of attempted
kidnapping for robbery or attempted robbery, or they would find him not guilty. The
evidence did not support a finding that Williams engaged in only mere preparation, then
voluntarily abandoned his plans. (People v. Crary (1968) 265 Cal.App.2d 534, 540 [after
intent has been formed and is coupled with an overt act toward the commission of the
contemplated offense, abandonment of the criminal purpose will not constitute a defense
to a charge of attempting to commit a crime].)
       The trial court did not err in failing to sua sponte include the abandonment portion
of CALCRIM No. 460.
IV.    The Trial Court Did Not Abuse its Discretion in Denying Williams’s
       Severance Motion
       We review a trial court’s ruling on a severance motion for abuse of discretion.
(Vines, supra, 51 Cal.4th at p. 855.) “ ‘ “ ‘Refusal to sever may be an abuse of discretion
where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in
separate trials; (2) certain of the charges are unusually likely to inflame the jury against
the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another
‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might
well alter the outcome of some or all of the charges; and (4) any one of the charges
carries the death penalty or joinder of them turns the matter into a capital case.
[Citations.]’ ” ’ [Citations.]” (Ibid.)

                                              12
       Under Penal Code section 954, an accusatory pleading may charge two or more
different offenses of the same class of crimes or offenses under separate counts.
Williams concedes the two charged incidents were of the same class of crimes, and that
the threshold for joinder was met. However, he argues there was no cross-admissibility
of evidence between the two incidents, and evidence concerning the firearm charge likely
had a “prejudicial spillover effect.” He asserts the evidence supporting the kidnapping
for robbery charges was weak, and the evidence offered to prove the firearm charge
constituted impermissible propensity evidence. Williams contends the failure to sever
count five resulted in a fundamentally unfair trial. His arguments are unavailing.
       The absence of cross-admissible of evidence does not, by itself, demonstrate
prejudice when severance is not ordered. (Vines, supra, at p. 856; People v. Soper (2009)
45 Cal.4th 759,779-780 (Soper).) Thus, we consider the other factors mentioned above.
The trial court could reasonably conclude there was little likelihood of “spillover” from
linking a weak case with a stronger one. (People v. Myles (2012) 53 Cal.4th 1181, 1201.)
Although Williams presented evidence intended to refute the eyewitness identifications in
this case, the evidence indicating Williams was the assailant was strong. In addition to
two eyewitness identifications, a telephone connected to Williams was recovered at the
scene of the crime. The telephone contained a photograph depicting Williams wearing a
sweater similar in pattern to the one the assailant wore during the incident. Williams’s
girlfriend’s testimony that the phone belonged to her, but she had lost it, was of little help
to defendant’s case. The trial court could reasonably conclude the strength of the
evidence supporting count 5 would simply have no effect on the jury’s evaluation of the
less certain aspects of the kidnapping for robbery charges, such as Williams’s intent in
moving the victims. Any difference in the strength of the evidence of the two crimes was
minimal. “Furthermore, the benefits of joinder are not outweighed – and severance is not
required – merely because properly joined charges might make it more difficult for a
defendant to avoid conviction compared with his or her chances were the charges to be
separately tried.” (Soper, supra, 45 Cal.4th at p. 781.)



                                             13
        The trial court could also reasonably conclude none of the charges were unusually
likely to inflame the jury against defendant. The evidence offered in support of count 5
was brief and not unusually inflammatory. The evidence came from the testimony of a
single police officer who saw defendant in possession of a gun. Williams attempted to
evade police, but no one was injured, and the gun was not discharged. There was no
evidence offered suggesting Williams had used or intended to use the gun in any crime,
other than the possession crime charged in the case. As to the fourth factor, the joinder of
charges did not result in a capital offense. (Myles, supra, 53 Cal.4th at p. 1202.)
        To establish error in the trial court’s ruling denying his motion to sever the
charges, defendant was required to make a “ ‘ “clear showing of prejudice to establish
that the trial court abused its discretion . . . .” ’ [Citation.] A trial court’s denial of a
motion to sever properly joined charged offenses amounts to a prejudicial abuse of
discretion only if that ruling ‘ “ ‘ “ ‘falls outside the bounds of reason.’ ” ’ ” ’ [Citation.]”
(Soper, supra, 45 Cal.4th at p. 774, italics omitted.) Williams did not meet this burden
here.
        Last, the trial court’s denial of severance did not result in actual unfairness so
great that it denied Williams due process or deprived him of his right to a fair trial.
(Soper, supra, 45 Cal.4th at p. 783; People v. Cook (2006) 39 Cal.4th 566, 583.) As in
People v. Mendoza (2000) 24 Cal.4th 130, “the consolidated offenses were factually
separable. Thus, there was a minimal risk of confusing the jury or of having the jury
consider the commission of one of the joined crimes as evidence of defendant’s
commission of another of the joined crimes.” (Mendoza, supra, 24 Cal.4th at p. 163;
Soper, supra, 45 Cal.4th at p. 784.) The prosecution did not suggest that evidence from
one incident could be used to prove or strengthen the other incident. There was no
suggestion or implication that the gun in Williams’s possession at the November 2011
incident was the same one used in the robbery of Christina and Feliciano. The joint trial
of all of the charges did not result in a grossly unfair trial.




                                                14
V.     No Cumulative Error
       We have identified no error that, alone or cumulatively, was prejudicial.
(People v. Williams (2013) 56 Cal.4th 165, 201.)
VI.    The Trial Court Should Have Stayed the Sentences For Counts Three and
       Four
       We agree with the parties that the trial court should have stayed the sentences on
count three (attempted second degree robbery of Feliciano) and count four (attempted
second degree robbery of Christina), rather than imposing concurrent sentences on those
counts. At sentencing, the trial court determined section 654 applied to counts 3 and 4.
However, instead of imposing the sentences and staying their execution, the court
imposed concurrent sentences. This was error. (People v. Duff (2010) 50 Cal.4th 787,
796; People v. Alford (2010) 180 Cal.App.4th 1463, 1472.) We exercise our authority to
modify the judgment so that the sentences on counts 3 and 4 are stayed.
                                     DISPOSITION
       The judgment is modified to stay the sentences on counts 3 and 4. The trial court
is directed to forward a new abstract of judgment reflecting this modification to the
Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.




                                                        BIGELOW, P. J.
We concur:




              FLIER, J.




              GRIMES, J.



                                            15
