People v. Alcaraz CA4/1 ( 2022 )

Filed 11/17/22 P. v. Alcaraz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078395
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD278990,
SCD279526)
JOHN ALCARAZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Michael S. Groch, Judge. Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for
Plaintiff and Respondent.
I.
INTRODUCTION
Defendant John Alcaraz appeals from a judgment of conviction entered
after a jury convicted him of four counts of robbery, four counts of conspiracy,
one count of burglary, one count of grand theft, and one count of using
personal identifying information of another.
Alcaraz raises five claims on appeal. First, Alcaraz argues that because
a police officer unlawfully searched his cell phone after conducting a traffic
stop of a vehicle in which Alcaraz was a passenger, the trial court should
have traversed two search warrants that were obtained after the unlawful
search and excluded all evidence obtained pursuant to those search warrants.
Alcaraz contends that the affidavit submitted in support of the search
warrants included some information that was obtained as a result of the prior
unlawful cell phone search.
Second, Alcaraz contends that the trial court erred in permitting the
“repeated admission” of the word “blood” at trial. According to Alcaraz, the
references to the word “blood” constituted prejudicial gang evidence. Third,
Alcaraz challenges the trial court’s admission of a brief cell phone video in
which a hand can be seen holding a firearm and pulling the trigger, as well as
testimony regarding ammunition that police found in Alcaraz’s bedroom.
Fourth, Alcaraz contends that even if the court’s admission of each item of
challenged evidence was not prejudicial on its own, the admission of the
challenged evidence, considered together, constituted prejudicial cumulative
error.
Finally, Alcaraz contends that the trial court erred in denying his
motion to sever the burglary and grand theft offenses, which arose out of a
2
burglary of an Apple Store, from the other offenses, which arose out of
robberies of individuals.
We conclude that Alcaraz’s contentions are without merit. We
therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
The testimony elicited at Alcaraz’s trial demonstrated his participation
in multiple robberies of individuals and the theft of cellular telephones (cell
phones) and laptops from an Apple Store, all of which occurred over a 40-day
period in July and August 2018. The evidence demonstrates that Alcaraz
and a group of three to four accomplices attacked the victims and robbed
them of items of value, including cell phones, wallets and gold chains.1 The
robberies all followed a similar pattern, occurring late at night, and often as a
victim was leaving a party.
Police began to link Alcaraz and his accomplices to the robberies and to
the burglary of the Apple Store when, on August 19, 2018, police stopped an
Infiniti that Smith was driving. Alcaraz and Mall were also in the car at the
time the stop took place. A police officer found several items that belonged to
the robbery victims in the car and in Alcaraz’s pockets.
1 The accomplices to the crimes were identified as Robert Smith,
Rashaad Jackson, Jamal Burton. Bahdoon Mall also participated in some of
the crimes.
3
1. The July 7, 2018 robbery of Y.S. (counts 1, 2)
In July 2018, Y.S. was a student at San Diego State University.2 At
approximately 1:15 a.m. on July 7, 2018, Y.S. was returning to his apartment
complex near campus when he noticed a group of four men at the complex.
One of the men in the group approached Y.S. and asked him if he could
borrow Y.S.’s cell phone—an iPhone X in a blue case—to make a call. Y.S.
asked the man for the number and said that he would dial it for the man. As
Y.S. was dialing, the man grabbed the cell phone from Y.S.’s hand. When
Y.S. attempted to get his cell phone back, the group of men surrounded and
attacked him.3 During the attack, Y.S. managed to knock a beanie off of the
head of the man who had taken the cell phone. Other men punched Y.S. in
the face, kicked him, and “thr[ew] [and] swung [him] around.” When Y.S.
tried to get up, one of the men stepped on his head. The men left, taking
Y.S.’s cell phone
As a result of the attack, Y.S. received five stitches around his eye and
had a lump on his head that was still noticeable a year after the attack. Y.S.
could not describe the physical appearance of any of the assailants.
Evidence found on Alcaraz’s cell phone linked him and some of his
accomplices to the robbery of Y.S. For example, Alcaraz sent a text message
that said, “Going towards State” on July 7, 2018, at 12:41 a.m., which is
approximately a half an hour before Y.S. was robbed in an area a couple of
2 Y.S. provided testimony at a conditional examination that took place
prior to trial because he was going to be out of the country at the time of trial.
A video of Y.S.’s conditional examination was played for the jury.
3 Y.S. testified that it was his impression that the people who attacked
him were working together as a group.
4
miles from San Diego State. Seconds after Alcaraz sent this text, he received
a response that said, “Oh, for another party?”4
Also, a video found on Alcaraz’s cell phone that was created on July 7,
2018, at 12:07 a.m.—approximately an hour before Y.S. was robbed—shows
Alcaraz with Smith. In the video, Smith can be seen wearing a beanie with a
Polo logo that looks like the beanie that Y.S. removed from the head of one of
the perpetrators, which police subsequently recovered.
Another video that was recorded on Alcaraz’s cell phone a few minutes
after Y.S. was robbed shows Alcaraz and has the caption, “Cuz got beat tf
up.” In the video, Smith can be seen holding a cell phone in a blue case. In a
different video that was also recorded a few minutes after the Y.S. robbery, a
voice can be heard saying, “SIM card, blood,” and someone else says, “I took it
out.” Investigators found these comments significant because the removal of
a SlM card from a cell phone prevents the phone’s owner from being able to
use the “find my phone” feature to locate the phone. Also in the same video,
Mall is seen on camera saying, “Sounds like you all did it near my place.”
Mall lived seven-tenths of a mile from the location of the Y.S. robbery. Smith
replies to Mall, “The Boulevard.” The name of the apartment complex where
Y.S. was robbed is Boulevard 63. Jackson, Burton, and Alcaraz can also be
seen in that video.
A photograph on Alcaraz’s phone that was created on July 7, 2018, at
2:03 a.m. shows Alcaraz and Smith holding iPhones; a caption on the
photograph states, “My crash dummy got us money.”
4 The question regarding a “party” was significant because other
robberies that took place around the same time as the robbery of Y.S.
occurred as victims were leaving parties.
5
2. The July 11, 2018 Apple Store burglary and theft (counts 3, 4)
At just before 9:00 p.m. on July 11, 2018, employees at an Apple Store
in Chula Vista were preparing to close the store. Alcaraz entered the store
with Smith, Jackson, and Burton. The men were wearing hooded sweatshirts
with the hoods pulled up, and Alcaraz was holding his hand over his face.
Two of the men walked to a table on which laptop computers were displayed.
The other two men walked to the area where iPhones were displayed. Not
long after the men reached their destinations, the men who were near the
laptops grabbed laptops, and the men who were near the iPhones grabbed
iPhone X’s.
A store employee ran up to one of the men who had grabbed laptops
and tried to pull the computers out of his hand. After some tugging, the store
employee was able to recover three of the laptops. The men then ran out of
the store. The entire incident took place in less than one minute. The men
escaped with approximately $19,000 in Apple merchandise. None of the store
employees who were present that night were able to identify any of the
perpetrators of the thefts because the men had obscured their faces with their
hoodies, and “it all happened very fast.” However, surveillance video from
inside the Apple Store captured the perpetrators committing the burglary
and thefts.
Police found evidence linking Alcaraz to the Apple Store burglary on
his phone. Just over an hour before the Apple Store burglary, someone sent a
text message to Alcaraz asking, “So what are you doing again[?]” Alcaraz
replied with “WYM.”5 A minute later, he messaged that person, saying,
5 A detective testified that he understood the term “WYM” to be a way of
saying, “What [do] you mean.”
6
“Going in and get phones.” Just after the Apple Store burglary was
completed, Alcaraz received a text that said, “I want a phone” and “iPhone X
omm.”6 Alcaraz responded with the word “Same.” At 9:16 p.m., someone
sent Alcaraz the following text: “How much money are you getting wtf?”
Alcaraz responded, “Looks like a lot.” A few minutes later, Alcaraz texted,
“Probably a band each hopefully.”7
In a video that was recorded on July 11, 2018, at 9:30 p.m. (i.e., 30
minutes after the Apple Store closed), Smith can be seen walking toward the
camera fanning a wad of cash that appears to consist of mostly $100 bills.
Jackson and Burton can also be seen on the video. Giovanni Garcia, who is a
friend of Alcaraz, Smith, Jackson and Burton, is heard saying, “We got money
like crash dummies.” Alcaraz is heard saying, “Set.”8 In another video found
on Alcaraz’s phone that was taken on the night of the Apple Store burglary,
Alcaraz is wearing a blue sweatshirt that looks like the one he can be seen
wearing on the surveillance video from the Apple Store.
3. The August 3, 2018 robbery of C.A. (counts 5 and 6)
At approximately 10:00 p.m. on August 3, 2018, C.A. was walking near
his home in Chula Vista when he noticed a party at a nearby house. C.A. had
his cell phone in his hand as he was walking. He became aware of two men
starting to follow him. One of the men approached C.A. on his right side and
asked, “ ‘Is this your only addy?’ ” C.A. did not know what the word “addy”
6 The detective did not have an opinion as to what the term “omm”
meant.
7 The detective testified that the term “band” is slang for $1,000.
8 The detective was not asked about the meaning of the term “Set.”
7
meant and was confused by the question.9 The man then grabbed C.A.’s
phone out of his hand and ran off. The case on C.A.’s phone contained his
credit cards and driver’s license.
C.A. began to chase after the man. The other man who had been
following C.A. said, “ ‘[J]ust walk away.’ ” When C.A. continued to give chase,
one of the men punched C.A. in the nose, knocking him to the ground.10 The
two men then ran away and got into the back of a car that drove off. C.A.
went to a neighbor’s house and called the police.
At 11:03 p.m. that night, C.A.’s debit card was used to make a $58.89
purchase of five cheeseburger combo meals at a Carl’s Jr. restaurant in Chula
Vista. The same Infiniti in which Alcaraz was a passenger when the police
stopped the vehicle on August 19, 2018, appears on surveillance video from
the Carl’s Jr. restaurant that night. C.A.’s driver’s license and Chase debit
card were found inside the Infiniti when it was stopped on August 19.
A video found on Alcaraz’s phone that was recorded on August 3, 2018,
shows a Carl’s Jr. receipt for a $58.89 purchase. The same video also shows
C.A.’s debit card and driver’s license. Alcaraz and Smith can be seen in the
video.
Someone texted Alcaraz on August 3, 2018, at 8:49 p.m. asking, “What
addies you going to[?]” Alcaraz responded, saying that he did not know. A
little bit later, Alcaraz received a text that said, “You better get some money,
Jacob,” to which Alcaraz replied, “I know.” At 9:22 p.m., someone texted
Alcaraz saying, “I hope you get a X.” Alcaraz responded, “Same.” At
10:41 p.m., Alcaraz sent a text in which he said, “It’s a party but they not
9 A detective testified that the term “addy” means a party.
10 C.A. did not identify which of the men punched him in the nose.
8
letting anyone in.” At 10:46, Alcaraz received a text that said, “Wow,”
followed moments later with a text that said, “Rob then.”
4. The August 12, 2018 robbery of J.L. (counts 7, 8, and 9)11
J.L. is a Marine who was stationed at Camp Pendleton in mid-August,
2018.12 Late at night on August 11, 2018, J.L. attended a party in Fallbrook
with his friends and fellow Marines, I.C. and T.M. The men had learned
about the party from a flyer posted on Instagram. J.L. noticed a group of six
or seven men who were hanging out together at the party but not socializing
or talking to anyone else. Around midnight or 1:00 a.m., the party ended and
everyone began to leave. As J.L. and his friends were walking to their car,
they saw a crowd of people blocking the roadway. Someone was firing
gunshots into the air and at cars. J.L. was “kind of amazed, kind of
astonished” to see that in one area, people appeared to be “getting jumped,”
and in another location, there were “people jumping on other people’s cars.”
As J.L. and his friends continued walking toward their car, a group of
five to seven men came up to J.L. and his friends and “pull[ed] [them] to the
side, pull[ed] out their guns, and they’re like, ‘Run your pockets,’ and
start[ed] patting” the victims’ pockets. The men were “barking at” J.L. and
his friends “like drill sergeants.” One of the men said, “Run [your] pockets,
blood. What you got in your pockets, blood?” Another man pointed a gun at
J.L.’s stomach. One of the men took J.L.’s wallet, which contained his
Government Travel Charge card, driver’s license, and debit card. A different
11 Although the evidence demonstrated that more than one victim was
robbed by the same group of perpetrators on August 12, 2018, Alcaraz was
charged with offenses related only to the robbery of victim J.L.
12 J.L. testified at a conditional examination. The video of that
examination was played at trial.
9
man asked J.L., “ ‘What boots you got on? You got Tims? Let me get them
Tims.’ ” The men took J.L.’s boots. J.L. recognized the men who were
robbing him as the same men he had seen at the party hanging out together
and not socializing with anyone else.
While some of the men were robbing J.L., someone else pointed a gun
at I.C. and said, “ ‘Give me everything you have.’ ” The man took I.C.’s watch
and his wallet, which contained I.C.’s credit cards, driver’s license and social
security card.13 Around the same time, someone reached into T.M.’s pockets
and took his iPhone and his wallet, which contained a driver’s license, debit
card, military ID, and other cards. A different man came up behind T.M. and
“snatched” a gold chain off of his neck, causing the clasp to break. The group
of men left together after robbing J.L., I.C., and T.M.
J.L.’s Government Travel Charge card was used to purchase six
chicken meals at a restaurant called Raising Cane’s at 2:26 a.m. on August
12, 2018. A video found on Alcaraz’s cell phone that was recorded around the
same time as the food purchase from Raising Cane’s depicts a receipt from
that restaurant. Alcaraz can be heard on the video saying, “ ‘Blood, Cane’s on
me.’ ” When the video was shown to J.L., he confirmed that it was his wallet
and credit card that appeared in the video. J.L. said that the language he
heard being used by the individuals depicted in the video was consistent with
the language that the robbers had used, including the use of the word “blood”
to refer to other people.
Alcaraz’s cell phone contained evidence that the phone had been used
to search for the location of a Raising Cane’s restaurant at 2:05 a.m. that
morning. Surveillance video from the Raising Cane’s restaurant shows that
13 I.C. also testified at a conditional examination. His recorded testimony
was used at trial.
10
the same Infiniti that police eventually stopped on August 19, 2018 went
through the restaurant’s drive-through at 2:24 a.m. on August 12, 2018.
Police found credit cards belonging to I.C. and T.M. in the Infiniti when
they stopped the vehicle on August 19, 2018. Police searched Alcaraz’s room
later that day and found J.L.’s wallet and cards on Alcaraz’s dresser.
Police found a video on Alcaraz’s phone that depicts a hand holding a
silver revolver and “dry firing”14 the gun; the video was recorded on May 9,
2018. A detective testified that the hand holding the silver revolver was
Alcaraz’s hand. Copper tips of live small caliber bullets can also be seen in
video. When I.C. was shown the video, he testified that the gun that
appeared in the video looked similar to the gun that was pointed at him
during the robbery.
5. The August 18, 2018 robbery of B.R. (counts 10, 11)
On August 18, 2018, B.R. and two friends went to a party near
Alvarado Road. They learned about the party on Snapchat or Instagram.
One of the draws to the party was that a rapper named Blueface was going to
be there. As the group was walking up to the party, it was “chaos,” in that
people were running around and “acting kind of crazy.” Three or four men
approached B.R.’s group of friends. One of the men asked one of the friends
what kind of phone he had. When the friend showed the man his cracked
iPhone 6, the man asked the friend if he had any money. The friend gave the
man $10 from his pocket. One of the men then asked B.R. what kind of
phone he had. B.R. said that he had an iPhone 6, but in actuality he
possessed an iPhone 7 Plus. The man told B.R. to show him the cell phone,
and when B.R. did, the man grabbed the phone out of B.R.’s hand.
14 “[D]ry firing” a gun means pulling the trigger when there are no bullets
in the cylinder.
11
Four to six men then surrounded B.R., and someone punched him in
the back of the head. B.R. was punched several more times and fell to the
ground. B.R. pulled out his wallet and handed it to one of the men, hoping
that would make the attack stop. B.R.’s wallet contained his debit card and
health insurance card. Someone eventually helped B.R. to get up off of the
ground. As B.R. was leaving the scene, a man ran up to him and “snatched”
the gold and silver chains that B.R. was wearing.
When police searched Alcaraz’s person on August 19, 2018, they found
B.R.’s debit card in his pocket, as well as a gold chain with a broken clasp.
B.R.’s wallet and health insurance card were found inside the Infiniti, under
the seat in which Alcaraz had been sitting. One of B.R.’s chains was found on
the floor on the passenger side of the Infiniti.
Texts and videos found on Alcaraz’s phone also tended to link Alcaraz
to the robbery of B.R. and his friend. On August 18, 2018, at 2:50 p.m.,
Alcaraz sent a text message to someone in which he said that the rapper
Blueface was going to be at a party and he wanted to go to the party. Alcaraz
recorded a video on his phone later that night; geographic data from the video
indicated that Alcaraz was thirteen one-hundredths of a mile from the party
when he recorded it. There were also videos on Alcaraz’s phone that were
recorded during Blueface’s performance at the party. In addition, Alcaraz
had a photograph of a flyer on his phone advertising the August 18, 2018
party on Alvarado Road, and Alcaraz mentioned the rapper Blueface on
Snapchat. Further, the day after the robbery, Alcaraz exchanged texts with
someone regarding gold and silver chains.
12
6. Police stop of the Infiniti on August 19, 2018; additional evidence
obtained through further investigation
San Diego Police Officer Aziz Brou was on patrol on August 19, 2018, at
approximately 5:20 p.m., when he observed a silver Infiniti on University
Avenue in San Diego with a “huge dent” or crack in the front windshield.
Brou stopped the car after it turned onto on Euclid Avenue.
Smith was in the driver’s seat, Alcaraz was in the front passenger seat,
and Mall was in the rear passenger seat behind Smith. Officer Brou noticed
dried blood on parts of the car’s interior and exterior and broken glass on the
seats. The rear passenger side window was broken. In addition, Smith had
blood on his shirt and what “looked like a stab wound” on his back.
Officers conducted a consensual search of the car, during which they
found the items described in the previous sections. In addition, officers found
a receipt for a gold chain issued by a nearby pawn shop. The receipt was
dated August 19, 2018, and had been issued just a few minutes prior to the
time Brou initiated the traffic stop.
In Mall’s pocket, police found $50 in cash and a pawn receipt that had
been issued approximately 30 minutes prior to traffic stop for a transaction
involving a 14-karat gold chain pawned for $185.
Later that day, officers conducted a “lawful search” of Alcaraz’s
bedroom. In a dresser, they found an identification card in Alcaraz’s name
and a magazine for a firearm that would fit in a handgun. The magazine
contained eight live rounds of 9-millimeter ammunition. Officers also found
an empty iPhone case. On top of the dresser, police found J.L.’s wallet, which
still contained J.L.’s bank and identification cards. Police found four spent
.22 caliber shell casings in a desk drawer in the bedroom.
13
Employees of two pawn shops testified that Mall had pawned several
gold chains with broken clasps in exchange for cash at their stores between
July 1 and August 19, 2018. Surveillance videos from the pawn shops show
Alcaraz with Mall, Smith, and others on July 1, July 8, August 17, and
August 19, 2018.
A subsequent search of Alcaraz’s phone completed pursuant to
warrants obtained by police revealed the videos, text messages, and social
media posts that linked him to the robberies.
7. Defense Evidence
Alcaraz called a single witness, Robert Aguero, who testified as an
expert on cell phone data.15 Aguero testified about how cell phones work and
how cell phone towers transmit information and connect with cell phones.
Through Aguero’s testimony, Alcaraz sought to call into question whether he
could have been present at the times of three of the robberies, given how
Alcaraz’s cell phone had connected with cell phone towers during the relevant
time periods. Defense counsel argued that Alcaraz was guilty of the crimes
related to the burglary of the Apple Store (counts 3 and 4), but that he could
not be found guilty of the robberies because the evidence of his participation
in them was insufficient. According to defense counsel, Alcaraz could be
found guilty, at most, of receiving stolen property, given that he was found in
possession of the some of the property that had been taken from the robbery
victims.
15 Although this defense witness’s testimony comprises more than one
hundred pages of the reporter’s transcript, it is not directly relevant to the
issues raised on appeal. We therefore provide only a brief summary of the
testimony.
14
B. Procedural background
On June 28, 2019, a jury convicted Alcaraz of four counts of robbery
(Pen. Code,16 § 211; counts 1, 5, 7, 10); four counts of conspiracy (§ 182,
subd. (a)(1); counts 2, 6, 8, 11); one count of burglary (§ 459; count 3); one
count of grand theft (§ 487, subd. (a); count 4); and one count of use of
personal identifying information (§ 530.5, subd. (a); count 9).
At the sentencing hearing, the court imposed a sentence of six years
eight months,17 ordered the sentence suspended for five years and placed
Alcaraz on probation. Included in the terms of probation was the
requirement that Alcaraz serve 365 days in local custody, to be served
concurrently with a one-year term imposed in a separate case (case
No. SCD281672).
Alcaraz filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court did not err in denying Alcaraz’s motions to suppress
evidence obtained pursuant to search warrants that permitted police to
search Alcaraz’s cell phone and certain other electronic data
Alcaraz contends that Officer Brou’s warrantless search of his cell
phone during the August 19, 2018, traffic stop violated the Fourth
16 Further statutory references are to the Penal Code unless otherwise
indicated.
17 The six-year eight-month term comprised the midterm of three years
on count 1, a consecutive eight-month term on count 3, a consecutive one-year
term on count 5, a consecutive one-year term on count 7, and a consecutive
one-year term on count 10. The court also imposed a concurrent two-year
term on count 9. The court stayed sentence on counts 2, 4, 6, 8 and 11
pursuant to section 654.
15
Amendment. He asserts that Detective Sidhu used the information obtained
in this unlawful search to obtain two search warrants, which permitted
officers to complete a forensic download of the content of Alcaraz’s cell phone.
According to Alcaraz, because the warrants were based on information
obtained as a result of Officer Brou’s unlawful search, the trial court should
have concluded that the search warrants were invalid and should have
suppressed the evidence found on the cell phone as the fruits of Officer Brou’s
unlawful search.
1. Additional background
Prior to trial, Alcaraz filed a “Motion to Suppress Evidence, and
Traverse and Quash Search Warrants” pursuant to section 1538.5. Alcaraz
moved to suppress all of the evidence found on his cell phone that connected
him to the robberies and assaults, contending that police violated his Fourth
Amendment rights by “going through” his cell phone “prior to obtaining a
warrant.” Alcaraz argued that the fact that he was on probation with an
active Fourth Amendment waiver did not allow police to conduct a
warrantless search of his cell phone. According to Alcaraz’s motion, “all of
the evidence alleged to have been seized from the telephone without a
warrant represents the fruits of this unlawful search and seizure.”
In Alcaraz’s motion to quash and traverse search warrant Nos. 58116
and 60099, he made the related argument that the affidavits supporting the
warrants “were made defective and illegal by the fact that the probable cause
is based largely on information that is a product of a prior unlawful search
and seizure of [Alcaraz’s cell] phone conducted without a warrant.”18 Alcaraz
18 Search warrant No. 58116 involved forensic examinations of cell
phones belonging to Alcaraz, Smith, and Mall. Search warrant No. 60099,
which was requested after search warrant No. 58116 had been issued and
16
attached to his motion the affidavit and court order for search warrant
No. 58116, the affidavit and court order for search warrant No. 60099, and
the April 4, 2017 minute order from Alcaraz’s disposition hearing, which
listed the terms and conditions of his probation.
The prosecutor opposed Alcaraz’s motion, but conceded that “officers
mistakenly believed that the defendant’s Fourth Waiver status extended to
cellular phones and, on the day of the vehicle stop, conducted a search of the
defendant’s cellular phone.” The prosecution’s position was that the search
warrants were not rendered wholly invalid because they were obtained, in
part, as a result of Officer Brou’s illegal search of Alcaraz’s cell phone.
According to the prosecution, the proper “remedy is to excise any observations
and information derived from the mistaken belief that the defendant’s
probation conditions extended to his cellular phone from the affidavit to
determine whether the remaining information is sufficient to establish
probable cause.”19 As the prosecutor explained, “The seven and a half pages
of probable cause includes evidence regarding stolen property found in the
defendant’s bedroom, facts pertaining to the recent robberies associated with
that stolen property, facts demonstrating that the perpetrators of the
robberies were armed, evidence showing that the defendant had ammunition
in his bedroom, evidence showing that property from recent robbery victims
searches had been undertaken pursuant to it, involved “Snapchat” records for
three “profile IDs.”
19 The prosecutor cited Franks v. Delaware (1978) 438 U.S. 154, Murray v.
United States (1988) 487 U.S. 533, and People v. Weiss (1999) 20 Cal.4th
1073, in support of its contention that the search warrants were based on
“multiple grounds,” and that the proper remedy was to excise observations
and information obtained through the improper search of Alcaraz’s cell
phone.
17
was found in the silver Infinit[i] (within reach of all the occupants), evidence
pertaining to [the] pawning of stolen items, and evidence connecting the
vehicle to recent Apple Store robberies.”
The trial court conducted a hearing on Alcaraz’s motion to suppress
evidence and quash and traverse the warrants. The parties stipulated that
“the initial search was done of [Alcaraz’s] cell phone without a search
warrant.” The prosecutor called Officer Brou and Detective Amalia Sidhu to
testify at the hearing.
Officer Brou testified that at approximately 5:20 p.m. on August 19,
2018, he observed a silver Infiniti traveling east on the 4700 block of
University Avenue. Brou noticed that the windshield of the Infiniti was
“pushed in” with “spider-webbed” cracks, and testified that such damage to a
windshield constitutes a Vehicle Code violation. Brou also observed that a
pair of goggles was hanging from the rearview mirror. This also constitutes a
Vehicle Code violation. Brou conducted a vehicle stop of the Infiniti.
Smith was driving the car, Mall was seated behind Smith, and Alcaraz
was in the front passenger seat. Smith gave Brou permission to search the
Infiniti.
Meanwhile, another officer conducted a record check on the car’s
occupants and discovered that Alcaraz was on probation. Based on Smith’s
consent and Alcaraz’s probation status, Officer Brou and other officers
conducted a search of the car. While searching the car, Brou discovered
driver’s licenses and other identification cards of individuals who were not in
the car and who were victims of robberies that had recently occurred.
Officers also found a receipt from a nearby pawn shop with Mall’s name on it.
Because Alcaraz was on probation with “a Fourth waiver,” and because
of “everything that was found in the vehicle,” Brou decided to search
18
Alcaraz’s phone. Brou mistakenly believed that Alcaraz’s probation
conditions permitted officers to search Alcaraz’s cell phone. Brou was not
aware of the Electronic Communications Protection Act (“ECPA”) or its
application to the search of Alcaraz’s cell phone.
Brou acknowledged that he did not obtain consent to search Alcaraz’s
cell phone. Brou explained that he was concerned about the blood that he
observed on the car, as well as the damage to the car, and he knew that “with
cell phones and social media, a lot of people will post a lot of the stuff that
they do even if it has to do with them committing a crime. And a lot of
times . . . whether it was a hit and run or a fight, it will help lead us to what
happened to the car, why there is blood on the car, as well as the stolen
property inside of the vehicle.”
When Brou searched Alcaraz’s phone, he saw text messages that
related to Smith being stabbed and a video of Smith with a gold chain. The
caption on the video indicated that Smith “had ripped the chain off of
somebody at a grocery store.” Brou also found a video of four people in the
car with Alcaraz at a Cane’s restaurant with J.L.’s credit card. On the video,
Alcaraz bragged about J.L. paying for the food.
Brou called Detective Sidhu and she responded to the scene. Sidhu
testified that in August 2018, she had been assisting in the investigation of a
series of recent robberies and Apple Store thefts. When she arrived at the
location where Officer Brou had stopped the Infiniti, she observed items that
were taken during the recent robberies.
Detective Sidhu explained that after Brou had effectuated the
August 19, 2018 traffic stop, she continued her investigation into the various
19
robberies and thefts.20 She testified about all of the information that she
gathered during her investigation, and explained that she used all of the
information obtained during her investigation when she prepared the
affidavit for the search warrant for a forensic download of Alcaraz’s cell
phone. Sidhu acknowledged that she had become aware of some of the videos
and other items that Officer Brou found on Alcaraz’s cell phone when he
searched the phone on August 19, 2018, and acknowledged that she had
incorporated some of that information into her search warrant affidavit.
However, Sidhu further testified that even if she had not become aware of
any of the things that Brou found on Alcaraz’s cell phone, she still would have
sought a search warrant for Alcaraz’s cell phone based on the information
that she had gathered in her investigation and the items found in the Infiniti
during the traffic stop. Sidhu explained that, based on the information she
had at the time of the traffic stop on August 19 and information she obtained
within a few days after the stop, she believed that there would be more
information on Alcaraz’s cell phone that would be of evidentiary value and
could possibly assist her in solving other crimes, such as “additional victims,
photographs of maybe areas of where they were.”
Sidhu signed a search warrant affidavit on August 28, 2018, and the
judge authorized a warrant to search Alcaraz’s cell phone that day. Sidhu
did not know, either on August 19 or August 28, 2018, when she applied for a
search warrant, that the Fourth Amendment waiver to which Alcaraz was
subject was “limited to things other than electronic devices.” Sidhu also
testified that she did not know that the ECPA limitations were in place as of
20 Later on August 19, 2018, Brou and other officers conducted a search of
Alcaraz’s residence, pursuant to the Fourth Amendment waiver applicable to
him based on his probationary status.
20
August 28, 2018. After Sidhu obtained the search warrant for Alcaraz’s
phone, she submitted it to the police department’s forensics unit to conduct a
forensic download of the phone.
The prosecutor argued that Officer Brou reasonably believed that
Alcaraz’s Fourth Amendment waiver included his cell phone and thus, that
the good faith exception to the exclusionary rule should apply. Alternatively,
the prosecutor contended that even if the court determined that Brou’s search
of Alcaraz’s cell phone was unlawful and conducted without a good faith
belief in its lawfulness, there was sufficient probable cause to support the
application for the search warrants even if all of the information that was
derived from Brou’s search of Alcaraz’s cell phone was excised from the
affidavit in support of the search warrant.
Defense counsel argued that good faith was irrelevant where an officer
fails to “keep up on the law,” and that Officer Brou’s lack of awareness of the
ECPA, which went into effect in 2016, was insufficient to support a
conclusion that Brou had a reasonable belief in the lawfulness of his search of
Alcaraz’s cell phone. Defense counsel further argued that without the
information that Brou obtained unlawfully, the affidavit supporting the
search warrant did not provide any indication that evidence of a crime could
be found on Alcaraz’s cell phone.
The trial court explained that the court’s analysis required a
determination as to whether Officer Brou’s search of the cell phone “was
lawful or unlawful and if unlawful, what flows from that.” The court
determined that Brou had not acted in bad faith in searching the cell phone,
in that Brou had “no ill will and [engaged in] an attempt to follow the law as
he understood it to be.” However, the court further noted that the situation
in this case was “unlike a situation where a police officer . . . reli[es] on
21
someone else’s mistake,” because the mistake was Brou’s, and this distinction
was significant. Given that Brou misunderstood the law and that his
misunderstanding was not due to a recent change in the law, the court
concluded that the warrantless search of Alcaraz’s cell phone was unlawful
and that evidence obtained as a result of the unlawful search must be
suppressed.21
However, the trial court did not agree with the defense that the
evidence obtained pursuant to the search warrants had to be suppressed.
The court explained that in order to determine whether suppression of that
evidence was warranted, the court would need to “examine the affidavit, and
absent bad faith, reckless behavior, some nefarious actions by the detective of
which there are none -- she also acted in good faith -- excise out any
information received as a result of Officer Brou’s observations and then make
a determination as to whether probable cause still exists.” The court
undertook such an analysis, and noted that the affidavit contained “discrete
references to Officer’s Brou’s observations,” which the court identified by line
and page numbers, that constituted the information that would have to “be
excised out.” The court explained that it was excising the following
information from Sidhu’s affidavit: page 6, lines 20-25; page 7, lines 4-5;
page 8, line 8, beginning with the words “the magazine,” through the end of
line 9, line 12, starting with the word “which,” and ending on line 14 with the
word “food,” and page 8, line 15. The attorneys for both parties agreed that
the court had removed “all the direct references to Officer Brou’s
observations.”
21 The trial court noted that for purposes of trial, Officer Brou would not
be permitted to “testify as to what he did the moment he took that phone and
[about] what he saw on it and its contents that he observed.”
22
The trial court explained that under the portion of the affidavit titled
“Opinions and Conclusions,” Detective Sidhu “is justifying why she
thinks . . . , based on her training and experience, the items of evidence that
she has articulated will likely be found or there’s probable cause to believe
they will be found on the device that she’s asking to search.” The court
continued, “She’s not referencing anything specific to this investigation. And
she’s talking about her training and experience showing that analysis of cell
phones will reveal evidence or additional victims of robberies, evidence taken
from these robberies, possession of firearms, et cetera. She also relies on her
training and experience when she opines that images or data stored on
digital devices may exist even if they have been erased. She also opines
based on her training and experience, not . . . Officer Brou’s observations,
that computers [sic] are basically small computers. They have the ability to
send text messages, store vast quantities of information. And she opines,
based on her training and experience, that cellular telephones could have
been used to communicate with additional unidentified suspects. [¶] She
also opines, not referencing Officer Brou’s observations but her training and
experience in general, that criminal acts will often be boasted about by
criminals using electronic devices, verbally, e-mails, instant message[s],
texts, et cetera, and that in her training and experience these documents and
items can be found on devices such as the ones she was seeking to search.”
The court noted that in that portion of the affidavit, Sidhu made “no
reference to Officer Brou,” but instead based it “on her collective years of
training and experience.”
The trial court denied Alcaraz’s motion to quash search warrant
No. 58116. The court explained, “[A]s I analyze the affidavit for probable
cause, excising out the portions that I’ve already articulated, there is more
23
than substantial evidence that supports probable cause for a search of all
three of these phones.[22] . . . [T]hat’s where . . . the additional investigation
that [Detective Sidhu] completed and relayed in this affidavit matter. There
is ample evidence that would support a judge signing this search warrant
with these sections excised without really any hesitation.” The court
proceeded to consider warrant No. 60099, and concluded that the same
analysis applied with respect to that warrant.23
The trial court concluded by noting that it was not finding that the
officers involved had made any false statements “knowingly or intentionally
or with a reckless disregard for the truth that would support traversing
either of the warrants.” The court therefore denied Alcaraz’s motion to
traverse the two warrants.
2. Analysis
The trial court determined that Officer Brou’s search violated the
ECPA and suppressed the evidence that Brou obtained through his search of
Alcaraz’s cell phone. The court then excised the information attributable to
Brou’s unlawful search of the cell phone from Detective Sidhu’s affidavit filed
in support of the search warrant applications and considered whether,
without the excised information, the affidavit contained sufficient facts
constituting probable cause to support the issuance of the warrants
requested. In doing so, the court considered only information that had been
22 The court’s reference to three phones arose from the fact that in the
affidavit, Detective Sidhu was seeking to support warrants to search not only
Alcaraz’s cell phone, but also the cell phones belonging to Smith and Mall.
23 The court stated, “I agree with both counsel that whether the second
warrant remains valid and viable . . . rises and falls on the decision
regarding” the first warrant.
24
lawfully obtained and recited in Sidhu’s affidavit, and concluded that the
information in the affidavit provided ample probable cause to support issuing
the warrants.
Alcaraz concedes that the trial court’s ruling was correct insofar as the
court suppressed all of the evidence that Officer Brou obtained during his
initial search of Alcaraz’s cell phone.24 Alcaraz takes issue with the court’s
subsequent conclusion that, after excising the evidence obtained through
Officer Brou’s unlawful search of the cell phone, sufficient information
remained in the affidavit to establish probable cause to support the warrants.
According to Alcaraz, “[m]aterial facts were omitted from the affidavit for the
search warrant—namely that appellant’[s] cell phone had already been
previously searched without a warrant and that much of the information
discovered in these cases stemmed from that search.” Alcaraz complains that
Detective Sidhu “was either deliberately false, or at a minimum acted in
reckless disregard of the truth” because she represented the facts obtained by
Officer Brou as having been “legal ‘fruits’ of a legal search,” even though the
initial search of Alcaraz’s cell phone was unlawful. Alcaraz further argues
that once the “tainted observations of Officer Brou are excised from the
warrant, what is left is essentially a curriculum vitae of [Detective] Sidhu,”
and argues that this is insufficient to constitute probable cause to support the
issuance of a warrant. According to Alcaraz, the trial court should have
24 The People agree that the trial court properly excised from Detective
Sidhu’s affidavit all of the evidence that Officer Brou obtained as a result of
his warrantless search of Alcaraz’s cell phone, and assessed whether the
remainder of the affidavit established probable cause. (See, e.g., People v.
Werner (2012) 207 Cal.App.4th 1195, 1213 [“Under the ‘fruit of the poisonous
tree’ doctrine, both direct and indirect products of an unreasonable search are
subject to exclusion,” and the rule “ ‘logically ought to bar the use of such
evidence to support the issuance of a search warrant’ ”].)
25
granted his motion to suppress all evidence that police obtained pursuant to
the search warrants that were issued in reliance on Detective Sidhu’s
affidavit.
In reviewing a trial court’s ruling on a motion to suppress evidence,
“[w]e defer to the trial court’s factual findings, express or implied, where
supported by substantial evidence. In determining whether, on the facts so
found, the search or seizure was reasonable under the Fourth Amendment,
we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th
354, 362.)
Where an affidavit supporting a search warrant contains information
derived from unlawful conduct as well as other untainted information, “the
reviewing court must excise all tainted information but then must uphold the
warrant if the remaining information establishes probable cause.” (People v.
Weiss (1999) 20 Cal.4th 1073, 1081.) Probable cause exists for a search
warrant when “there is a fair probability that contraband or evidence of a
crime will be found in a particular place” to be searched. (Illinois v. Gates
(1983) 462 U.S. 213, 238 (Gates).) A reviewing court accords great deference
to the magistrate’s determination regarding probable cause. (Id. at p. 236;
People v. Kraft (2000) 23 Cal.4th 978, 1041.) The task of the magistrate
issuing a search warrant is “to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him . . .
there is a fair probability that contraband or evidence of a crime will be found
in a particular place. And the duty of a reviewing court is simply to ensure
that the magistrate had a ‘substantial basis for . . . [concluding]’ that
probable cause existed.” (Gates, at pp. 238-239 [magistrate may draw
reasonable inferences from the material supplied by the affiant].) The
26
sufficiency of the search warrant affidavit is evaluated in light of the totality
of the circumstances. (Id. at p. 238.)
We disagree with Alcaraz’s assertion that the content that remained in
Detective Sidhu’s affidavit, after the excision of all evidence that resulted
from Officer Brou’s initial illegal search of Alcaraz’s cell phone, was
insufficient to establish probable cause and that all evidence obtained
pursuant to the search warrants should have been suppressed. After the
unlawfully obtained material was excised, significant content remained.
Detective Sidhu attested that she learned that on August 19, 2019, San Diego
police stopped an Infiniti in which Alcaraz, Smith, and Mall were riding. In
the Infiniti, police found driver’s licenses in the names of D.B. and C.A.
A records check revealed that D.B. had been robbed in San Diego on August
17, and C.A. had been robbed in Chula Vista on August 3, 2018.
The following day, Detective Sidhu read a police report regarding the
D.B. robbery. The report reflected that D.B. had been at a large party on
August 17, 2018, when she was confronted by a group of men. After a
physical altercation, the men stole her cell phone and purse. Police found not
only D.B.’s driver’s license in the Infiniti on August 19, 2018, but also other
items belonging to D.B. in the vehicle. Detective Sidhu also read the police
report for the C.A. robbery, which indicated that C.A. had been robbed on
August 3, 2018, as he was leaving a friend’s house. C.A. had been
approached by a man who asked him if this was his “ ‘only addy?’ ” The man
then grabbed C.A.’s cell phone. When C.A. tried to get his phone back, the
man punched him in the face. The man also took C.A.’s driver’s license and
debit card. C.A.’s debit card was used at a Carl’s Jr. at 11:30 p.m. that night.
Sidhu learned that video surveillance from the Carl’s Jr. where the debit card
27
was used showed that someone in the Infiniti had used the card to purchase
food. In addition, C.A.’s driver’s license was found in the Infiniti.
On August 21, 2018, Detective Sidhu learned from another detective
that friends and co-Marines J.L., I.C., and T.M. had been robbed at gunpoint
on August 12, 2018, after attending a party in Fallbrook. The perpetrators
took the victims’ credit cards, wallets, money and iPhones. Officers found
debit cards belonging to I.C. and T.M. in the Infiniti on August 19, 2018.
Police found J.L.’s wallet, military ID, and other bank cards in Alcaraz’s
bedroom during the lawful search that had been conducted on August 19,
2018. Police also found a black handgun magazine loaded with eight rounds
of 9mm ammunition in Alcaraz’s room, as well as four spent .22 caliber
casings.
Detective Sidhu had also become aware of the fact that when police
searched Alcaraz’s person on August 19, 2018, they found a gold chain with a
broken clasp and a Union Bank card in the name of a robbery victim in
Alcaraz’s pocket. Sidhu also recounted the discovery of pawn shop receipts
from August 19, 2018 on Mall’s person and in the Infiniti.
Detective Sidhu learned that on August 21, 2018, another detective
contacted the pawn shops that were listed on the receipts found on August
19, 2018, and discovered that Mall had recently pawned eight chains at two
pawnshops. All of the chains had broken clasps.
On August 22, 2018, Sidhu contacted a detective with the Costa Mesa
Police Department who informed her that on July 23, 2018, five men in
hooded sweatshirts entered an Apple Store in Costa Mesa and stole cell
phones and computers. Surveillance video showed the men leaving in the
same Infiniti that police stopped on August 19, 2018.
28
Also on August 22, 2018, Sidhu learned from a detective in Carlsbad
that on July 13, 2018, four men entered an Apple Store in Carlsbad and stole
20 cell phones. A witness saw the men flee in an Infiniti that appeared to be
the same vehicle that police stopped on August 19, 2018.
Detective Sidhu stated that, based on the evidence that became known
to her, as well as her training and experience, she believed that a search of
the cell phones at issue would reveal “evidence and/or additional victims of
robberies,” as well as “evidence taken from these robberies.” Additionally,
Sidhu believed that items related to the crimes, such as e-mails and texts
about the criminal activity, could be located on the cell phones.
All of this information is more than sufficient to establish the probable
cause necessary to support the issuance of the search warrants. We therefore
reject Alcaraz’s contention that the trial court erred in denying his motion to
suppress all evidence obtained as a result of searches conducted pursuant to
the challenged search warrants.
B. The trial court did not abuse its discretion in admitting evidence that
Alcaraz used the word “blood” when talking with his friends and in
connection with the robberies
Alcaraz contends that the trial court abused its discretion under
Evidence Code section 352, and denied him his rights to due process and a
fair trial, by allowing several witnesses to repeatedly use the “gang[-]related”
word “blood” during their testimony, even though the case did not involve
gang charges. According to Alcaraz, the testimony regarding the use of the
word “blood” had little probative value, and was “extremely prejudicial.”
1. Additional background
Prior to conducting video-taped conditional examinations of some of the
witnesses in this case, defense counsel for Smith indicated that some of the
witnesses who would be testifying had told police that the individuals who
29
robbed them said things such as “ ‘What’s up blood?’ ” and “ ‘Give me your
Tims, blood.’ ” Smith’s attorney argued that because the case involved no
gang allegations, the witnesses should be precluded from providing testimony
about whether the perpetrators appeared to be gang members or were
wearing gang clothing, even though the witnesses had told police that the
perpetrators had used the word “blood” in reference to another person during
the robberies. Alcaraz’s attorney joined in the motion.
In response to this argument, the prosecutor contended that the
perpetrators’ use of the word “blood” during the robberies was relevant to
establish their identity, noting that Alcaraz used the word in a similar
manner in a recording made after one of the robberies.
The trial court denied the motion without prejudice to allow defense
counsel to raise the issue again at trial.
After the conditional examinations were completed but prior to trial,
Alcaraz filed “motions in limine,” one of which included a request to “limit
and exclude gang evidence.” However, the motion did not specify what “gang
evidence” Alcaraz was seeking to exclude. At the hearing on the in limine
motions, the trial court asked the prosecutor, “What gang evidence, if any, do
the People anticipate producing?” The prosecutor explained, “In multiple
robberies the victims describe gang [type] phrases being used, for example,
‘blood.’ When [one of the victims] was robbed, . . . he was told, ‘Give me your
Tims, blood,’ and ‘run your pockets, blood,’ or something along those lines.”
Another robbery victim also heard the word “blood.” The prosecutor
continued, “In the defendant’s own phone videos, he says the word ‘blood’
multiple times. I think that is evidence consistent with the identification of
the defendant.” The prosecutor explained that he was “not going to be going
through field interviews about gang evidence, gang territory, gang nexus,
30
gang predicate offenses. None of that information will be covered, and it will
be very limited to the fact that this is just what happened in these incidents.
And so the robbery victims describe the word ‘blood’ being used multiple
times. The defendant himself uses the word ‘blood’ several times.”
After hearing from the prosecutor, the trial court said, “So it sounds
like I won’t even hear the word ‘gang’ uttered by anyone. It’s just the
terminology that the defendant uses and that one of the reporting parties
uses, but we won’t hear the word ‘gang.’ ” The prosecutor responded that
there was no gang allegation, and added that he was “not aware of what gang
it would be.” The prosecutor further commented that if there had been
evidence linking these crimes to a gang, he would have filed a gang
allegation. The court asked whether this was “a situation where the
defendant and coconspirators are associated with the same gang?” The
prosecutor responded, “No,” and indicated that that “they seem to be just
organizing themselves in the manner that gangs do and attacking victims in
the manner that gangs do and using the verbiage of gangs. But they’re not
your typical 59 Brims or West Coast Crips.” The prosecutor reaffirmed that
he did not intend to elicit testimony that would indicate that Alcaraz was a
gang member. After hearing this, the court stated that its tentative ruling
was “to grant the motion [to limit and exclude gang evidence but] that the
word ‘blood’ could be used. But we’re not going to go into who claims that
word, et cetera.”
Defense counsel stated that he was unaware that the prosecutor had
been planning to use evidence regarding the word “blood” only for
identification purposes. As defense counsel explained, “we didn’t know
whether they were going to call some kind of expert to start giving opinions
about all this language” or maybe admitting other types of gang evidence,
31
“[a]nd we’re asking for that to be excluded. [¶] But understanding now the
identification context, I think some information related to the fact that the
use of the word ‘blood’ is quite common among young men whether they’re in
a gang or not is a relevant inquiry to defeat the identification argument [the
prosecutor] is putting forward.”
The court agreed, indicating that defense counsel would be permitted to
“ask witnesses who might know the answer, is ‘blood’ a term that teenagers
use outside of an actual gang context, if you want to open that door and walk
through it to prevent against any inference.”
At trial, the jury heard the testimony that J.L. provided during his
conditional exam. The prosecutor asked J.L. whether, during the robbery on
August 12, he heard “anything about the Bloods at all?” J.L. testified that he
heard someone in the group say, “ ‘Run my pockets, blood. What you got in
your pockets, blood?’ ” J.L. was shown a video in which someone is heard
saying “ ‘Blood, Cane’s [sic] on me.’ ” J.L. testified that the language used by
the person in the video was consistent with some of the language he heard
used during the robbery, such as the use of the word “blood.” T.M., who was
with J.L. on August 12, 2018, testified that during the robbery, one of the
perpetrators said, “ ‘We are bloods fam.’ ”
A detective testified that when he interviewed J.L. on the day of the
robbery, J.L. told him that one or more of the men who perpetrated the
robbery had made statements such as, “What’s up, blood,” “What you got in
your pockets, blood,” and “[G]ive me your Tims, blood.”
Victim B.R. testified that as he was being robbed on August 18, 2018,
he could hear the perpetrators saying, “ ‘What’s up blood.’ ” One of B.R.’s
friends who was present during the robbery testified that while the
32
perpetrators were beating B.R. and taking his belongings, the friend heard
the men yelling, “ ‘[B]lood, blood.’ ”
An investigator testified that in a video recording created on August 18,
2018 found on Alcaraz’s phone, Alcaraz is heard saying, “ ‘I think you’re boo,
blood.’ ” Detective Sidhu testified that on August 19, 2019, the day after the
robbery of B.R., Alcaraz sent a text from his phone that said, “ ‘I was going to
keep this chain, but it’s thin AF, blood.’ ”25
2. Analysis
The People contend that because Alcaraz failed to object to the
references to the term “blood” at trial, Alcaraz has forfeited his contention on
appeal that the trial court abused its discretion in permitting references to
the word “blood” at trial. We agree that in failing to object to the
prosecution’s elicitation of witness testimony and video testimony involving
references to the word “blood” being used to refer to another person, Alcaraz
has forfeited his appellate challenge to the admission of this evidence.
Alcaraz contends that if this court concludes that his trial counsel’s failure to
object to the references to the word “blood” at trial amounts to forfeiture of
his claim, then trial counsel’s failure to “renew” his objection constituted
25 The parties initially disagreed in their briefing as to the number of
references to “blood” in the trial transcript that were not references to the
bodily fluid but rather, references to another person. Alcaraz contended in
his opening brief that there were “no less than fifty-two mentions” of the
word “blood” in the record made in reference to another person or people,
while the People contended that there were 25 references to the word “blood”
used in the challenged manner. However, in his reply brief Alcaraz agreed
with the People that there are 25 references to the word “blood,” as it is being
used to refer to another person, in the trial transcript. Our review of the
record is consistent with this.
33
ineffective assistance of counsel.26 Given Alcaraz’s assertion of ineffective
assistance of counsel in connection with the substantive claim of evidentiary
error, we elect to reach the merits of his evidentiary contention rather than
address the ineffective assistance of counsel claim, in the interest in judicial
economy. (See, e.g., People v. Russell (2010) 187 Cal.App.4th 981, 993; People
v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7 [concluding it is unnecessary to
address defendant’s ineffective assistance claim where court considers the
merits of the underlying issue]).)
Alcaraz’s substantive claim is that the trial court abused its discretion
in permitting the prosecution to elicit testimony regarding the perpetrators’
repeated use of the word “blood” and in linking that testimony to the video
evidence from the perpetrators’ cell phones in which the same word was used
repeatedly. Alcaraz maintains that because this evidence amounted to gang
evidence, it was far more prejudicial than probative. We disagree with
Alcaraz’s assessment.
Relevant evidence is evidence “having any tendency in reason to prove
or disprove any disputed fact that is of consequence to the determination of
26 Defense counsel filed a motion in limine seeking to “limit and exclude
gang evidence.” However, counsel’s argument at the hearing on the motions
in limine clarified that counsel was not registering an objection to the use of
the word “blood” for identity purposes, as proposed by the prosecutor.
Rather, defense counsel indicated that he believed that the prosecutor was
considering “call[ing] some kind of expert to start giving opinions about all
this language or maybe admitting some Killebrew or Sanchez-type
information,” and that defense counsel was seeking to exclude that kind of
evidence, not mere references to the fact that witnesses heard the
perpetrators using the word “blood” in reference to another person, or digital
data evidence demonstrating that Alcaraz and his friends used the word
“blood” in reference to another person. Defense counsel’s objection to “gang
evidence” was not an objection to the evidence that Alcaraz challenges on
appeal.
34
the action.” (Evid. Code, § 210.) Even where evidence may be relevant, a
trial court nevertheless has discretion to exclude such evidence “if its
probative value is substantially outweighed by the probability that its
admission will . . . create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.” (Evid. Code, § 352.)
“ ‘In applying [Evidence Code] section 352, “prejudicial” is not
synonymous with “damaging.” ’ ” (People v. Bolin (1998) 18 Cal.4th 297, 320.)
Rather, “[e]vidence is substantially more prejudicial than probative [citation]
if, broadly stated, it poses an intolerable ‘risk to the fairness of the
proceedings or the reliability of the outcome’ [citation].” (People v. Waidla
(2000) 22 Cal.4th 690, 724.) “ ‘ “The prejudice that section 352 ‘ “is designed
to avoid is not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence.” [Citations.]’ ” ’ ” “ ‘ “[E]vidence [is]
unduly prejudicial when it is of such nature as to inflame the emotions of the
jury, motivating them to use the information, not to logically evaluate the
point upon which it is relevant, but to reward or punish one side because of
the jurors’ emotional reaction. In such a circumstance, the evidence is
unduly prejudicial because of the substantial likelihood the jury will use it for
an illegitimate purpose.” ’ [Citation.]” (People v. Scott (2011) 52 Cal.4th 452,
490-491.) A trial court’s rulings under section 352 are reviewed for an abuse
of discretion. (People v. Leon (2015) 61 Cal.4th 569, 597 (Leon).)
At trial, the prosecutor asked the victims what the perpetrators said
during the robberies. The fact that the perpetrators used the word “blood” to
refer to the victims themselves or to others was relevant to, and probative of,
the identity of the individuals who perpetrated the robberies. The victims of
these robberies were not able to visually identify the perpetrators of the
robberies. However, multiple victims heard the perpetrators use the word
35
“blood” in reference to another person (either the victim or another person).
And video and text evidence found on Alcaraz’s cell phone showed that
Alcaraz used the word “blood” in a similar manner. Thus, the evidence was
probative of identity and was clearly admissible for this purpose.
Further, the trial court reasonably concluded that this evidence was
not unduly prejudicial, and that any potential minimal prejudice that might
result from its admission did not outweigh its probative value. Contrary to
Alcaraz’s contention on appeal, it is clear that this evidence was not
presented as “gang evidence.” There was no suggestion or other indication
presented to the jury that Alcaraz or anyone else involved in the commission
of these offenses was a member of a gang. Alcaraz contends that “[a]lmost
anyone in Southern California knows that when someone refers to ‘Blood,’
and the context of the reference is not a liquid, it is a reference to a criminal
street gang member.” Although the use of the word “blood” in reference to a
person could, in certain circumstances, refer to a member of a particular
street gang, it is not used solely in that manner. As Alcaraz’s trial counsel
recognized “the word ‘blood’ is quite common among young men whether
they’re in a gang or not.” Although trial counsel was raising that point to
note the type of evidence that he could put forward to contradict the People’s
identification argument, the point remains that the use of the word “blood”
was not used in a gang context by any witness at the trial in this case, and
the mere mention of the word did not suggest to jurors that Alcaraz was a
gang member.27 We therefore reject Alcaraz’s contention that the evidence
27 The prosecutor’s phrasing of the question to J.L. as to whether he had
heard “anything about the Bloods at all” could have been understood to be a
reference to the criminal street gang by that name. However, J.L.’s response
made it clear that he heard the perpetrators using the word “blood” in
reference to other people, only. Neither J.L.’s testimony nor the testimony of
36
regarding the perpetrators’ use of the word “blood” to refer to another person
and the digital evidence from Alcaraz’s phone indicating his personal use of
the word “blood” to refer to another person constituted unduly prejudicial
“gang evidence.” These references were not particularly inflammatory nor
were they likely to have caused the jury to make decisions based on emotion
rather than reason.
In sum, we reject Alcaraz’s contention that the trial court abused its
discretion in not excluding under Evidence Code section 352 all references to
the word “blood,” as used in reference to another person.
Alcaraz also asserts that the trial court’s admission of evidence related
to the word “blood,” as used in reference to another person, violated his Fifth,
Sixth and Fourteenth Amendment rights to a fair trial and due process.
Alcaraz’s constitutional argument is premised on his contention that the
admission of this evidence was more prejudicial than probative and that the
court abused its discretion in admitting it. We have rejected this argument;
as a result, Alcaraz’s constitutional claims also fail. (See People v. Chhoun
(2021) 11 Cal.5th 1, 26 [“Because the court did not abuse its discretion under
state law [with respect to evidence admitted at trial], defendant’s
constitutional claims also fail”].)
C. The trial court did not abuse its discretion in admitting in evidence a
video of a gun and testimony regarding a firearm magazine and other
ammunition found in Alcaraz’s bedroom
Alcaraz contends that his robbery convictions should be reversed
because the trial court abused its discretion and violated his right to due
process by admitting a video showing Alcaraz’s hand dry firing a revolver
any other witness suggested that the perpetrators of the robberies were
affiliated with a criminal street gang.
37
that looked similar to a gun seen by one of the victims during the August 12,
2018, robbery, and by admitting testimony about a magazine and
ammunition that police found when they searched Alcaraz’s room. Alcaraz
claims that this evidence was irrelevant and highly prejudicial.
1. Additional relevant background
I.C. testified that as his group was leaving the party on the night of the
robbery, he heard someone firing gunshots into the air; T.M. also heard shots
being fired. Soon after they heard the gunshots, someone pointed a gun at
I.C. and demanded his belongings. I.C. believed that the group of men who
robbed him and his friends was in possession of more than one gun. J.L.
testified that one of the robbers pointed a gun at him while demanding that
J.L. hand over his boots. T.M. testified that he saw men pointing guns at
both I.C. and J.L. during the robberies.
Detective Sidhu testified that a video that investigators found on
Alcaraz’s phone, recorded on May 9, 2018, shows Alcaraz’s hand, holding a
silver revolver and “dry firing” the gun in his bedroom. The copper tips of
live, small caliber bullets can also be seen in the video. When this video was
played for I.C. during his conditional examination, I.C. testified that the
revolver in the video looked similar to the revolver that was pointed at him
during the robbery. Detective Sidhu further testified that when officers
searched Alcaraz’s bedroom on August 19, 2018, they found several spent
shell casings and a nine-millimeter gun magazine that contained eight live
rounds.
During closing arguments, the prosecutor discussed the gun-related
evidence:
“Now, Mr. Alcaraz had a video of a firearm in his room. If
you look on the very bottom left of this [video], you see
ammunition that had not been fired. If you look at the
38
photos of the ammunition that was in his room [when
police searched it], you now see the expended shell casings.
[¶] Now, I believe defense counsel, who’s done an excellent
job and is a very good defense attorney, will argue that,
[l]ook, that’s . . . an old video. Put it aside. [¶] My job as a
prosecutor is to present you with all the evidence, and if I
have a victim in a robbery case describing a firearm that is
consistent with a firearm that is on his phone in his room,
I’m going to present it to you. You may be, like, I’m going
to disregard that. That’s fine. I’m going to present it to
you, though. [¶] And that’s what he had in his own
bedroom, dry firing that gun, evidence to support this
information that [I.C.] didn’t know.”
2. Analysis
The same evidentiary standards that we set out in part III.B.2, ante,
related to application of Evidence Code section 352 apply to Alcaraz’s
contention regarding the trial court’s admission of firearm-related evidence.
We reiterate for emphasis that we review the trial court’s ruling under
Evidence Code section 352 for an abuse of discretion. (Leon, supra,
61 Cal.4th at p. 597.)
Despite Alcaraz’s contention to the contrary, the video found on
Alcaraz’s cell phone in which a hand is seen holding a silver revolver and dry
firing the gun in his bedroom was relevant to prove the offenses charged in
counts 7 and 8, which involved the August 12, 2018, robberies of J.L., I.C.
and T.M., during which I.C. and J.L. were robbed at gunpoint. Specifically,
I.C. testified that a silver revolver was used during the robbery. When asked
whether the revolver was similar to a .44 Magnum, I.C. testified that the gun
he saw “was smaller.” I.C. was then showed the video, and he testified that
the silver revolver seen on the video was “consistent with” the gun that he
saw during the robbery. Thus, the video of Alcaraz’s hand holding a gun that
looked like the gun used in the robbery a few months prior to the robbery
39
tended to link Alcaraz to this robbery. Moreover, the probative value of the
video was not outweighed by a danger of undue prejudice. The video is not
the type of evidence that tended to evoke an emotional response, given its
brevity, and the fact that it depicts only Alcaraz’s hand and the dry firing of
the gun. The most significant aspect of the video is the fact that it shows a
gun that looked similar to the one that was pointed at I.C. during the
robbery. There is nothing to suggest that the playing of the video required an
undue consumption of time, or that it somehow created the possibility of
confusion or misled the jury.
Alcaraz also contends that “any slight probative value that the video
might have had” was “diminished” by the fact that the video was made at
least two months before any of the robberies took place. However, the fact
that the recording was made two months prior to the robbery in question does
not render it distant or remote. Further, whether the two-month period
between the recording of the video and the robbery at issue “diminish[es]” the
probative value of the video evidence goes to the weight that one might give
to the evidence; it does not mean that the video lacked sufficient probative
value to outweigh potential prejudice. We also reject Alcaraz’s contention
that the video was extremely prejudicial because it was “highly likely to lead
jurors to believe appellant had a propensity to commit gun crimes.” Alcaraz
argues that the video “linked him with urban gun violence” and “made him
look like a thug.” Nothing about the video is particularly violent or likely to
inflame the passions of the jury; the video depicts a hand holding and dry
firing a gun. To the extent that such evidence might be damaging, that is
because it links Alcaraz to a firearm that looks like the one used during one
of the robberies. The video cannot be said to have been likely to cause the
jury to seek to punish Alcaraz merely out of an emotional reaction.
40
We also conclude that the trial court did not abuse its discretion in
allowing Detective Sidhu to briefly discuss the fact that empty shell casings
and a magazine containing live rounds were found in Alcaraz’s bedroom.
First, the presence of empty shell casing and a magazine with live rounds
tended to demonstrate that Alcaraz had access to ammunition. Based on that
fact, one could draw the reasonable inference that Alcaraz had access to a
firearm other than the silver revolver. Even if the probative value of such
evidence was limited, a court could reasonably conclude that the probative
value was not outweighed by any possible prejudice; the testimony about this
evidence was extremely brief, and testimony about the presence of
ammunition is not likely to evoke an emotional response in jurors.
We therefore conclude that Alcaraz cannot demonstrate that the trial
court abused its discretion under Evidence Code section 352 in admitting in
evidence the video of a firearm found on Alcaraz’s cell phone or in allowing
testimony about ammunition found in his bedroom. Because we conclude
that the trial court did not abuse its discretion in admitting the firearm-
related evidence, we also conclude that Alcaraz has failed to show that the
admission of this evidence violated his constitutional rights to a fair trial or
due process (See, e.g., People v. Fuiava (2012) 53 Cal.4th 622, 670
[determination that trial court did not abuse its discretion under state law in
admitting evidence over defendant’s objections rendered meritless the related
contention that the admission of this evidence violated defendant’s
constitutional right to a fair trial)]; People v. Jablonski (2006) 37 Cal.4th 774,
835 [where trial court did not abuse its discretion under Evid. Code, § 352,
court necessarily rejects “the edifice of constitutional violation” that a
defendant attempts to make based on that claim of evidentiary error].)
41
D. There was no cumulative error with respect to the challenged evidence
Alcaraz contends that even if any of the claimed evidentiary errors may
be considered to be individually harmless, the “admission of the gang related
evidence and the evidence of Alcaraz’s possession of a firearm . . . had a
synergistic effect of unfairly portraying appellant as a dangerous gangster,”
and therefore jointly amounted to prejudicial error. “Under the ‘cumulative
error’ doctrine, errors that are individually harmless may nevertheless have a
cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694,
772, fn. 32.) Because we have found no evidentiary errors to cumulate, we
conclude that the cumulative error doctrine does not require reversal of the
judgment.
E. The trial court did not err in declining to sever the theft and burglary
counts pertaining to the Apple Store burglary from the robbery
counts
1. Additional relevant background
Prior to trial, Alcaraz moved in limine to sever the burglary and grand
theft charges in counts 3 and 4 from the remaining counts, all of which
pertained to the robberies that occurred on four different dates. Alcaraz
asserted that counts 3 and 4, related to the Apple Store burglary, were “not
connected together” with the remaining counts; he argued that the modus
operandi differed, that the Apple Store burglary occurred on a separate date
from any of the robberies, that “burglary is a completely different type of
crime” from robbery, and that “the interests of justice require severance.”
At the hearing on the motions in limine, the prosecutor argued that
joinder was appropriate because the charges involved the same class of
crimes, in that theft was an overarching element of each offense. The
prosecutor also argued that the fact there was overlapping evidence that was
to be presented “just buttresses the fact that this is the appropriate [case]” for
42
joinder. Among the evidence the prosecutor identified as being cross-
admissible was the fact that in all of the crimes cell phones were stolen, and
evidence tending to show that Alcaraz’s group had “a method” and the
“ability to flip cell phones that are stolen at the drop of a hat, essentially.”
The prosecutor also argued that evidence going to the various crimes was
cross-admissible because “it’s the same exact group that’s working together . .
. . You have Mr. Jackson, Mr. Smith, [Mr. Alcaraz], and Mr. Burton, the
same four individuals. That’s the same four individuals from the night of the
[Y.S.] robbery, the same four individuals from the robbery of [C.A.]” The
prosecutor added that another item of “overlapping evidence” is “the way they
work together in the theft. They . . . all walk in there at the same time.
They’re concealing their face in some manner.” With respect to the Apple
Store burglary, the “team” did those things, and then “[t]hey all steal
multiple items from the store, flee, . . . and then later sell the items and have
hundreds of dollars in front of them.” The prosecutor explained that,
similarly, the robberies all took place at night, with a coordinated group
attack. The victims could not identify who was involved, but it was “all a
group working together in the exact same way.”
The prosecutor also noted that all of the criminal events took place
within a period of just over a month; the robberies occurred on July 7, August
3, August 12, and August 18, and the Apple Store incident occurred “right
dab in the middle of these things,” on July 11. Finally, the prosecutor argued
that Alcaraz would not be prejudiced by joinder because the details involving
the Apple Store incident were “way less egregious” than the details involving
the robberies.
Defense counsel responded that the prosecutor was attempting to join a
strong case with a weak case. According to the defense, the prosecutor had a
43
strong case against Alcaraz with regard to the Apple Store burglary, given
that there was a surveillance video that essentially showed Alcaraz
committing the crime. Defense counsel added that he would be conceding
Alcaraz’s guilt on counts 3 and 4 during trial. However, counsel believed that
joinder would prejudice Alcaraz because the jury would use the Apple Store
evidence “as sort of inappropriate character evidence” and convict Alcaraz of
the other crimes because he committed the Apple Store crimes. Counsel
argued that the robberies were different from the Apple Store burglary in
that they involved violence, while the Apple Store burglary did not, and he
contended that the Apple Store burglary was, in effect, akin to shoplifting
and was “not even close to being as serious as a robbery.” Defense counsel
also stated that he believed the evidence pertaining to the robberies and the
evidence from the Apple Store burglary was not cross-admissible.
The trial court interjected that it believed the prosecutor’s theory of
joinder was not simply the cross-admissibility of evidence, but rather “the
1101(b) purposes, including common scheme and plan, which requires less
similarity if it was excised out through a separate trial.” The prosecutor
confirmed the court’s understanding, and argued that “stealing phones and
flipping phones for money is not something your average person knows how
to do. This evidence shows they know how to do that and they’re actively
doing it in the timeline of this offense.” The prosecutor responded to defense
counsel’s claim that he was attempting to bootstrap a weak case to a strong
case by explaining that he had evidence of Alcaraz on video bragging about
committing the robberies of the individual victims and that as a result, this
was “not a weak case and a strong case.”
The trial court denied Alcaraz’s motion to sever the robbery counts
from the burglary counts. The court explained, “I do agree that they’re the
44
same class of crimes. I don’t find cross-admissible evidence, at least in what’s
been proffered. But I think there’s a strong argument that could be an
1101(b) offer or request, at least, for common scheme and plan and also for
showing that these four worked together, the manner that they worked
together. But I’m more focused on the 352 analysis. And I don’t see a weak
case being joined to a strong case, at least to a degree that would give me
concern. [¶] And for the reasons that have been articulated, a shoplift
compared to a robbery is not at all going to inflame the passions of the jury in
an unfair way. If this was in reverse, that argument would be stronger.
There is a preference for joinder, and in the absence of a reason to sever,
joinder is proper; so I will decline to sever those counts.”
2. Analysis
“ ‘The law favors the joinder of counts because such a course of action
promotes efficiency.’ ” (People v. Scott (2015) 61 Cal.4th 363, 395.) Under
section 954, crimes are triable together if they are either “ ‘connected together
in their commission,’ ” or are “ ‘of the same class.’ ” (§ 95414; People v. Soper
(2009) 45 Cal.4th 759, 771-772 (Soper).) If charges satisfy either of section
954’s two requirements, the presumption is that they will be tried together,
as any other course wastes public resources and delays justice. (Soper, at
pp. 771-772.) Thus, once section 954 is satisfied, the People have no burden
of justifying joinder; rather, for charges to be tried separately, the defense
must “clearly establish that there is a substantial danger of prejudice
requiring that the charges be separately tried.” (Soper, at p. 773.)
Where charges have been properly joined and a defendant is seeking to
sever the counts for trial, “ ‘[t]he burden is on the party seeking severance to
clearly establish that there is a substantial danger of prejudice requiring that
the charges be separately tried.’ ” (Soper, supra, 45 Cal.4th at p. 773.) This
45
is because “[u]nlike what occurs in situations involving the admissibility of
uncharged misconduct—in which the People bear the burden of establishing
that the evidence has substantial probative value that clearly outweighs its
inherent prejudicial effect—by contrast, in the context of properly joined
offenses, ‘[t]he burden is reversed.’ [Citation.]” (Ibid.) “ ‘When the offenses
are [properly] joined for trial the defendant’s guilt of all the offenses is at
issue and the problem of confusing the jury with collateral matters does not
arise. The other-crimes evidence does not relate to [an] offense for which the
defendant may have escaped punishment. That the evidence would
otherwise be inadmissible [under Evidence Code section 352] may be
considered as a factor suggesting possible prejudice, but countervailing
considerations [of efficiency and judicial economy] that are not present when
evidence of uncharged offenses is offered must be weighed in ruling on a . . .
motion [to sever properly joined charges]. The burden is on the defendant
therefore to persuade the court that these countervailing considerations are
outweighed by a substantial danger of undue prejudice.’ [Citations]” (Id. at
pp. 773-744.) Further, “[n]ot only is the burden allocated differently in cases
involving properly joined charges as compared with cases involving the
introduction of uncharged misconduct, but the nature of the abuse of
discretion standard—and the ensuing method utilized to analyze prejudice,
undertaken to determine whether a trial court abused its discretion in a
specific case—also are significantly different from what is employed in
determining whether a trial court erred in allowing the introduction of
evidence of uncharged misconduct.” (Id. at p. 774, italics added.)
“In determining whether a trial court abused its discretion under
section 954 . . . ‘we consider the record before the trial court when it made its
ruling.’ [Citation.] Although our assessment ‘is necessarily dependent on the
46
particular circumstances of each individual case, . . . certain criteria have
emerged to provide guidance in ruling upon and reviewing a motion to sever
trial.’ [Citation.]” (Soper, supra, 45 Cal.4th at p. 774.) “First, we consider
the cross-admissibility of the evidence in hypothetical separate trials.
[Citation.] If the evidence underlying the charges in question would be cross-
admissible, that factor alone is normally sufficient to dispel any suggestion of
prejudice and to justify a trial court’s refusal to sever properly joined charges.
[Citation.] Moreover, even if the evidence underlying these charges would
not be cross-admissible in hypothetical separate trials, that determination
would not itself establish prejudice or an abuse of discretion by the trial court
in declining to sever properly joined charges. [Citation.]” (Id. at pp. 774-
775.)28 Instead, where a court determines “that evidence underlying
properly joined charges would not be cross-admissible,” that court “proceed[s]
to 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.’ [Citations.]” (Soper, supra, at p. 775.) In making such an
assessment, a court is to “consider three additional factors, any of which—
combined with [the] 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
28 Section 954.1 codifies this idea, providing that where properly joined
charges are of the same class, the fact that the evidence underlying those
charges would not be cross-admissible at hypothetical separate trials is,
standing alone, insufficient to establish that a trial court abused its
discretion in refusing to sever those charges.
47
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.]” (Ibid.) The court then balances “the potential for
prejudice to the defendant from a joint trial against the countervailing
benefits to the state.” (Ibid.)
Alcaraz was charged with burglary and theft offenses in counts 3 and 4,
and robbery offenses in the remaining counts. Despite Alcaraz’s argument to
the contrary, it is clear that these offenses are of the same “class of crimes.”
(See People v. Koontz (2002) 27 Cal.4th 1041, 1075 [offenses sharing the
common characteristic of the wrongful taking of another’s property fall within
the same class]; People v. Biehler (1961) 198 Cal.App.2d 290, 293 [“robbery
and burglary are of the ‘same class of crimes,’ within the meaning of section
954”].) As a result, there was a presumption favoring the joinder of the
counts at issue for trial. (See Soper, supra, 45 Cal.4th at pp. 771-772 [once
either of section 954’s requirements are met, presumption in favor of joint
trial is triggered].)
We therefore first consider whether the evidence of the different
offenses would be cross-admissible in hypothetical separate trials. We are
not convinced that there was no cross-admissible evidence at issue, despite
the trial court’s suggestion otherwise. Specifically, evidence relating to the
fact that Alcaraz was present in the Infiniti when it was stopped on August
19, 2018 was cross-admissible, given that the same vehicle was involved in all
of the crimes, including the burglary of, and thefts from, the Apple Store. In
addition, evidence regarding the fact that the principal items that were stolen
were cell phones, and that Alcaraz and the other perpetrators knew how to
sell the stolen phones quickly, would have been cross-admissible in
hypothetical separate trials. However, even if we assume for argument’s
48
sake that the evidence pertaining to the robbery counts would not be cross-
admissible with respect to counts 3 and 4, the trial court acted well within
the bounds of its discretion in denying Alcaraz’s motion to sever.
We reach this conclusion by considering the three factors identified in
Soper, which, when “combined with [an] earlier determination of absence of
cross-admissibility—might establish an abuse of the trial court’s discretion.”
(Soper, supra, 45 Cal.4th at p. 775.) First, we consider whether some of the
charges are particularly likely to inflame the jury against the defendant. In
this regard, we cannot conclude that any of the charges were particularly
inflammatory. Although Alcaraz suggests that the robberies were more
inflammatory than the Apple Store burglary, given that the robberies tended
to involve some degree of violence, we cannot say that any of the charges was
so inflammatory as to present a risk of heightening the jury’s passions to
such a degree as to cause undue prejudice. Nor does this case involve a
capital offense, or a situation in which joinder would convert the case into a
capital case. Thus, neither of these factors weighs against the benefits of
joinder of the charges alleged here.
The final consideration—i.e., 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—also does not persuade us
that the benefits of joinder would be outweighed by prejudice to Alcaraz.
Alcaraz suggests that the robberies presented a weaker case than the Apple
Store burglary case. We agree, but only to a point. Although the evidence
supporting the robbery charges was relatively weaker than the evidence
supporting the Apple Store burglary related offenses because the Apple Store
burglary was recorded on surveillance video that depicted the perpetrators
committing the offenses charged in counts 3 and 4, the record discloses that
49
the evidence supporting all of the charged offenses was strong. While the
evidence of Alcaraz’s guilt with respect to the Apple Store burglary was so
strong that defense counsel made the strategic decision to admit Alcaraz’s
guilt as to counts 3 and 4, this does not mean that the evidence of Alcaraz’s
guilt with respect to the robberies was weak. Alcaraz appeared in multiple
recorded videos in which he is seen bragging about the robberies. Some of
the items taken from one victim were found in Alcaraz’s bedroom, and he was
found to be in possession of other items taken during the robberies at the
time the Infiniti was stopped. “[I]t always is possible to point to individual
aspects of one case and argue that one is stronger than the other. A mere
imbalance in the evidence, however, will not indicate a risk of prejudicial
‘spillover effect,’ militating against the benefits of joinder and warranting
severance of properly joined charges.” (Soper, supra, 45 Cal.4th at p. 781.)
There may have been some slight imbalance in the evidence as between the
Apple Store offenses and the robberies, but this record does not indicate that
the joinder of the offenses for trial amounted to bootstrapping a weak case to
a strong case.
In sum, the crimes are of the same class, some evidence was cross-
admissible, and, even if we assume that none of the evidence was cross-
admissible, none of the offenses was particularly inflammatory, and the
record does not indicate that a weaker case was joined with a strong case, or
that a capital offense was at issue. Given this record, we conclude that the
trial court did not abuse its discretion in determining that the benefits of
joinder were substantial enough to outweigh any possible minimal spillover
prejudice to Alcaraz that may have resulted from joinder. We therefore reject
Alcaraz’s contention that the trial court abused its discretion in denying
Alcaraz’s severance motion.
50
IV.
DISPOSITION
The judgment is affirmed.
AARON, Acting P. J.
WE CONCUR:
DATO, J.
BUCHANAN, J.
51