People v. Te'o CA1/4 ( 2020 )

Filed 12/22/20 P. v. Te’o CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A157530
v.
MANU UIVA TE’O, (San Mateo County
Super. Ct. No. 17NF015330A)
Defendant and Appellant.
Defendant Manu Uiva Te’o was involved in two violent
assaults, one in which he assaulted a police officer and resisted
arrest, and one in which he assaulted two men. Defendant
moved to sever trial of the counts arising from the separate
incidents. After the trial court denied his motion, the case
proceeded to a jury trial. The jury found defendant guilty of eight
charges and found true an allegation regarding personal
infliction of great bodily injury. Defendant appeals, asserting
that the trial court abused its discretion and violated his due
process right to a fair trial by denying his motion to sever. We
affirm.
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I. BACKGROUND
A. Procedural Background
Defendant was charged in an 11-count information based
on crimes from two incidents. For an incident on November 22,
2017, the information charged defendant with resisting an
executive officer (count 1, Pen. Code1, § 69); battery with injury
on a peace officer (count two, § 243, subd. (c)(2)); misdemeanor
public intoxication (count 3, § 647, subd. (f)); misdemeanor
resisting a peace officer (counts 4 and 5, § 148, subd. (a)(1));
misdemeanor battery (count 10, § 242); and resisting a peace
officer resulting in great bodily injury (count 11, § 148.10, subd.
(a)). For an incident on January 7, 2018, the information charged
defendant with assault by means likely to produce great bodily
injury (counts 6 and 7, § 245, subd. (a)(4)), with an enhancement
allegation for personal infliction of great bodily injury (§ 12022.7,
subd. (a)2); battery with serious bodily injury (count 8, § 243,
1All further statutory references are to the Penal Code
unless otherwise indicated.
2 The information also alleged an enhancement under
section 1203.075, subdivision (a) for counts 6 and 7, but the court
instructed the jury only on the section 12022.7, subdivision (a)
enhancement.
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subd. (d)); misdemeanor vandalism of property (count 9, § 594,
subd. (b)(2)(A)); and misdemeanor battery (count 103, § 242).
Defendant pled not guilty and denied the enhancement
allegations. The trial court denied defendant’s motion to sever
the charges for the two incidents. It similarly denied his renewed
motion for severance on the first day of trial, finding that,
although the evidence regarding the incidents was not cross-
admissible, defendant had not established prejudice and judicial
economy was furthered by a joint trial. After trial, a jury found
defendant guilty on counts 1, 3, 4, 5, 6, 7, 8, and 9, and not guilty
on counts 2, 10, and 11; the jury found true the great bodily
injury enhancement allegation on count 7 but not true on count 6.
After his sentencing, defendant timely appealed.
B. November 22, 2017 (Counts 1–5 and 11)
The Prosecution’s Case
On November 22, 2017, Doris Lang returned to her home in
Daly City and found her son, defendant, upset and drinking.
After speaking with his girlfriend on the phone, defendant began
angrily yelling from the garage. He walked to the backyard, and
Lang asked him to come back inside. Defendant returned to the
3 Count 10 alleged misdemeanor battery occurring on or
about November 22, 2017, but named as victims both a police
officer involved in the November 2017 incident and Reynalde
Morales. As set forth in section III of this Background, infra,
Morales was the mother of the two men involved in the January
2018 incident with defendant. At trial, the court instructed the
jury on count 10 regarding Morales and the January 2018
incident only.
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garage but then went into the backyard to smoke a cigarette. He
yelled at Lang when she followed him. Neighbors overheard the
two and said something. Angered, defendant jumped the
backyard fence and confronted three men on the adjacent street.
Lang and her mother defused the situation, but someone called
the police.
In response to 911 calls, several police officers arrived at
Lang’s house at about 8:00 p.m. Defendant, who appeared
intoxicated, yelled at them and threatened to fight them if they
touched him. An officer urged him to go inside and sleep it off.
Defendant refused and ran or walked into a nearby busy street,
yelling at the officers. He then returned to the garage and shut
the door. An officer testified that he heard yelling from within
the garage, defendant came out of the garage and yelled once
more, and then he went back inside. Another officer testified
that defendant continually opened the garage door and stepped in
and out of the garage.
At some point, defendant opened the garage door and said
something like, “I might as well go with you.” Sergeant Scott
Bowman told him he was under arrest. Bowman had decided to
arrest defendant based on information gathered from witnesses
while defendant was in the garage, as well as defendant’s
intoxication, belligerence, and threats against the officers.
Defendant moved back as Bowman stepped toward him. The
sergeant grabbed defendant’s sweatshirt to prevent him from
going back into the garage. Defendant swung his right arm down
and hit Bowman’s hand, fracturing one of the sergeant’s fingers.
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Wanting defendant in custody as quickly as possible, Bowman
struck him in the face with his palm. Defendant fell to the
ground and clenched a fist under his chest while lying on his
stomach. He ignored orders to put his hands behind his back,
and Bowman warned him that he would be tasered if he did not
comply. Bowman then tasered defendant and took him into
custody. Several officers aided Bowman in detaining defendant.
According to Lang, she stayed inside the garage with
defendant for about 20 minutes after police arrived, and
defendant did not leave the garage; during this time, defendant
expressed his fear that the officers would take him away, but he
was also angry because they were there. She testified that
several officers ran into the garage when defendant opened the
door and took him to the ground. One of the officers punched
defendant six or seven times. One police officer testified that he
observed another officer engage in distraction punches to
defendant’s leg.
Defendant’s Case
Defendant drank a pint of vodka from about 4 p.m. to 6
p.m. after arguing with his girlfriend. At some point thereafter,
his girlfriend called again, three neighbors overheard his
conversation with her, and they began mocking defendant while
he was in his backyard. Defendant became upset and exchanged
words with the men. Believing he was being “taunt[ed]” and
“called [] out,” he jumped the fence and challenged one of them to
a fight. The confrontation ended when his mother and
grandmother intervened.
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Defendant saw police officers when he returned to the front
of his home. He cursed and warned them, “If you touch me, it
will get worse.” He was angry and wanted them to leave.
Defendant went inside his garage, and at some point, he or his
mother closed the door. He then looked through the mail slot in
the garage door and saw the officers. He opened the garage door
to go out and smoke a cigarette. However, he immediately closed
it and remained inside when he saw that the officers were still
there. He was no longer yelling, but he was irritated by the
officers’ continued presence.
At one point, he said to the officers, “I guess you want me to
go to you because you’re still here.” After defendant said this and
opened the garage door, an officer stepped inside the garage and
tried to grab him by the arm. Defendant stepped back while the
officer pulled at his sweatshirt. Defendant fell to the ground and
several officers set upon him. Officers kneed and punched him
and told him to give up his left hand which was underneath his
body. Defendant was unable to comply because officers were on
his back and shoulders. He was tasered and handcuffed.
A neighbor and defendant’s brother-in-law witnessed
defendant’s arrest. They saw four to seven officers on top of
defendant in the garage. One of the officers repeatedly punched
defendant, and the neighbor yelled at that officer to stop.
C. January 7, 2018 (Counts 6–10)
The Prosecution’s Case
After spending the evening drinking, Andres Morales,
Sergio Morales, and a friend, Jonathan Vasquez, woke up on
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January 7, 2018 at the Morales brothers’ home and started
drinking again. Between 11:00 a.m. and noon, they went to buy
beer at a nearby convenience store.
At the store, Jonathan got into an argument with a
homeless man. Defendant confronted Jonathan. Andres and
Sergio got caught up in Jonathan’s argument with defendant. At
one point, the three men stepped into the street, acting as if they
wanted to fight defendant. Andres testified that they did this to
scare defendant away. Defendant, in turn, reached for his
waistband, causing the men to believe he had a weapon. Andres,
Sergio, and Jonathan backed away and headed for the Morales
home. Defendant followed.
During the walk home, Jonathan and Sergio confronted an
unidentified man on the street. Andres urged Sergio to continue
home. About a half block from the Morales home, Sergio noticed
defendant approaching quickly from behind. He called out to
Andres, put his bike down and lifted his hands, and defendant
punched him in the face. When Andres heard his brother scream,
he turned and saw defendant punch Sergio in the face. Andres
walked towards defendant to aid his brother, and the next thing
he remembered was waking up in an ambulance.
On the afternoon of January 7, 2018, from a house on the
street down which the Morales brothers and Jonathan walked to
go home, Randy Tziu heard yelling, looked out of an upstairs
window of his uncle’s house, and saw a man wearing a golf hat
pummeling two other men near the stairwell of the house. The
attacker threw one or two punches that knocked unconscious a
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victim who looked like he had been trying to defend himself, and
he punched the other victim in the face more than once, including
after that person was on the ground. Tziu went to get his phone
to call the police, and when he returned to the window, he saw
the two victims walking away arm-in-arm.
Reynalde Morales went outside to wait for her sons when
they did not return home from the convenience store as expected.
She went outside to wait, and, when she walked a bit off her
property, she saw the three men walking towards her. One of her
sons was bloody and a man with a cap was jogging toward them,
yelling. When the man reached Jonathan, he knocked Jonathan
to the ground. Morales shepherded the young men inside the
house and stepped between them and the man. The man pushed
her aside, injuring one of her fingers. She went inside and called
the police. According to Reynalde Morales, the man remained
outside her home, yelling and kicking the front gate until the
police arrived. About a month later, a doctor diagnosed Reynalde
Morales with a finger fracture.
When the police arrived at the Morales home on January 7,
2018, defendant was kicking the front gate and shouting. The
door handle and a wooden plank from the gate were damaged.
When police arrested defendant, he was wearing a golf hat.
Andres was treated for a broken nose and a cut to his right
eyebrow, and Sergio suffered a bump over his left eyebrow and a
bloody nose.
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Defendant’s Case
Defendant was outside of a convenience store drinking
when he heard yelling. He investigated and saw Sergio yelling at
a man in a red jacket. Defendant told him to leave the man
alone, and Sergio pumped his hand and called defendant a “bitch-
ass nigger.” Defendant backed away when he saw Andres and
Jonathan, and he tried to scare the men by pretending to have a
weapon. The three men eventually left.
The man in the red jacket followed Andres, Sergio, and
Jonathan when they left, and defendant caught up with the man
in the red jacket. Sergio then confronted a different man in a red
hat. After that confrontation ended, defendant asked the man in
the red hat what had happened. He then followed when the man
in the red hat followed the three young men.
At some point thereafter, Sergio and defendant approached
each other. Sergio came at defendant with raised fists and threw
a punch at defendant. The two exchanged blows and Sergio fell
to the ground. Andres and defendant then approached one
another, with Andres swinging his fists. Defendant struck
Andres several times. Defendant could not recall having any
contact with Reynalde Morales, but he admitted kicking the
Moraleses’ front gate.
II. DISCUSSION
Section 954 provides in relevant part: “An accusatory
pleading may charge two or more different offenses connected
together in their commission . . . or two or more different offenses
of the same class of crimes or offenses . . . provided, that the court
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in which a case is triable, in the interests of justice and for good
cause shown, may in its discretion order that the different
offenses or counts set forth in the accusatory pleading be tried
separately or divided into two or more groups and each of said
groups tried separately.”
Where, as here, there is no dispute that the charges were
properly joined pursuant to section 954, we review the denial of a
motion for severance for abuse of discretion. (People v. Smith
(2007) 40 Cal.4th 483, 510.) A trial court’s denial of a motion for
severance amounts to a prejudicial abuse of discretion where the
denial “ ‘ “ ‘ “falls outside the bounds of reason.” ’ ” ’ ” (Alcala v.
Superior Court (2008) 43 Cal.4th 1205, 1220.) Since the
requirements for joinder were satisfied, defendant can predicate
error only on a clear showing of potential prejudice. (People v.
Soper (2009) 45 Cal.4th 759, 774 (Soper).) To make such a
showing, he must show “an ‘extreme disparity’ in the strength or
inflammatory character of the evidence.” (People v. Ybarra
(2016) 245 Cal.App.4th 1420, 1436.)
“In determining whether a trial court abused its discretion
under section 954 in declining to sever properly joined charges,”
we consider the record before the trial court when the motion was
made and first “consider the cross-admissibility of the evidence in
hypothetical separate trials.” (Soper, supra, 45 Cal.4th at p. 774.)
“If the evidence underlying the charges in question would be
cross-admissible, that factor alone is normally sufficient to dispel
any suggestion of prejudice and to justify a trial court’s refusal to
sever properly joined charges.” (Id. at pp. 774–775.) Lack of
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cross-admissibility itself, however, will not establish prejudice or
an abuse of discretion by the trial court in denying severance.
(§ 954.1; Soper, at p. 775.)
When evidence for the separate charges is not cross-
admissible, courts next consider “ ‘whether the benefits of joinder
were sufficiently substantial to outweigh the possible “spill-over”
effect of the “other-crimes” evidence on the jury in its
consideration of the evidence of defendant’s guilt of each set of
offenses.’ ” (Soper, supra, 45 Cal.4th at p. 775.) “In making that
assessment, we consider three additional factors, any of which—
combined with our earlier determination of absence of cross-
admissibility—might establish an abuse of the trial court’s
discretion: (1) whether some of the charges are particularly likely
to inflame the jury against the defendant; (2) whether a weak
case has been joined with a strong case or another weak case so
that the totality of the evidence may alter the outcome as to some
or all of the charges; or (3) whether one of the charges (but not
another) is a capital offense, or the joinder of the charges converts
the matter into a capital case. [Citations.] We then balance the
potential for prejudice to the defendant from a joint trial against
the countervailing benefits to the state.” (Ibid., italics and fn.
omitted.)
Here, the evidence of the two incidents was concededly not
cross-admissible. However, defendant does not establish the
strong showing of potential prejudice required to defeat proper
joinder and to outweigh the benefits of such joinder.
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Defendant contends that the November 2017 charges
involving police were unduly inflammatory because police hold a
special place in society. But the November 2017 incident was no
more inflammatory than the January 2018 incident. Both
incidents involved defendant’s aggressive acts, and his acts
during the November 2017 incident were less violent than those
in the January 2018 incident where he rendered at least one
victim unconscious, sent another to the hospital, and angrily
caused damage to the family’s home. Defendant’s January 2018
assault was also targeted as he followed his victims and hit at
least one victim unprovoked. In contrast, in November 2017,
defendant swung his arms to dislodge an officer’s grip after the
officer grabbed defendant’s sweatshirt. In sum, the facts of the
November 2017 incident were not reasonably likely to so inflame
jurors that they would have convicted defendant of the charges
for the January 2018 incident without independently finding
guilt beyond a reasonable doubt.
We also reject defendant’s assertion that the case for the
November 2017 incident was strong whereas the case for the
January 2018 incident was weak. Several witnesses were
involved in each incident, including a third party eyewitness to
the January 2018 incident, the number of charges was about the
same for each, and the jury ultimately acquitted defendant of
charges related to each incident. Defendant argues that he had
no defense to the November 2017 incident, in contrast to his
allegedly strong claim of self-defense for the January 2018
incident, but the evidence before the court when it decided the
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motion to sever provided cause to doubt the strength of his self-
defense claim. In opposing the motion to sever, the prosecution
represented that defendant followed the victims in January 2018,
hitting one unprovoked, and a witness saw defendant continually
hitting two unmoving victims. The prosecution also stated that
the evidence would show that defendant shoved the victims’
mother, injuring her finger, after she merely placed herself in
between defendant and her sons. And the trial testimony was
consistent with the prosecution’s representations. Because the
record does not support defendant’s claim that the prosecution
bolstered a weak case with a strong one, denial of defendant’s
motion to sever did not “ ‘ “ ‘ “fall[ ] outside the bounds of
reason.” ’ ” ’ ” (Alcala, supra, 43 Cal.4th at p. 1220.)
Defendant’s due process claim also lacks merit. “ ‘[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 . . . for trial resulted in gross unfairness
depriving the defendant of due process of law.’ ” (Soper, supra,
45 Cal.4th at p. 783.) Defendant’s argument regarding “gross
unfairness” consists of a single paragraph. Therein, he merely
reiterates arguments that we have rejected—that the charges for
the November 2017 incident were unduly inflammatory and one
case was strong and the other weak—and he concludes without
reasoned argument that joinder precluded fair consideration of
his self-defense claim. Defendant has not satisfied his “high
burden” of showing “ ‘gross unfairness.’ ” (Ibid.) The jury’s
verdict acquitting defendant of charges related to both incidents
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and rejecting a great bodily injury enhancement for the January
2018 incident further demonstrates that it was able to separate
and fairly evaluate the evidence of both incidents, thus showing
that joinder was not “grossly unfair.” (Id. at p. 783; People v.
Ybarra, supra, 245 Cal.App.4th at p. 1440 [verdict of acquittal on
charges from one incident tended to show jury considered
evidence separately and defendant was not prejudiced by
evidence related to charges from a separate, joined incident].)
III. DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
STREETER, ACTING P. J.
TUCHER, J.
People v. Te’o (A157530)
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