People v. Balbuena CA2/2 ( 2021 )

Filed 7/20/21 P. v. Balbuena CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B303752
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA104376)
v.
JOHNNY BALBUENA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Affirmed as
modified.
Mark Yanis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
In an amended information filed by the Los Angeles County
District Attorney’s Office, defendant and appellant Johnny
Balbuena was charged with the murder of Raymond Vasquez
(Vasquez). (Pen. Code, § 187, subd. (a);1 count 1.) Firearm and
gang enhancements were also alleged.
Defendant was tried with codefendant Ulises Jose
Gutierrez (Gutierrez), who had also been charged in the amended
information with count 1, as well as two additional counts of
murder (§ 187, subd. (a), counts 8 & 9) and three counts of
attempted murder (§§ 664, 187, subd. (a); counts 5, 6 & 7). The
jury found defendant guilty of first degree murder in count 1 and
found it true that a principal personally and intentionally
discharged a firearm causing great bodily injury and death
(§ 12022.53, subd. (d) & (e)(1)) and that the crime was committed
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
The jury convicted Gutierrez of counts 1, 5, 6, 7, and 8, but found
him not guilty of count 9.2
The trial court sentenced defendant to an aggregate term of
50 years to life, comprised of 25 years to life for the murder and
an additional and consecutive 25 years to life for the firearm
enhancement (§ 12022.53, subds. (d) & (e)(1)). The court also
imposed a 15-year parole ineligibility term for the gang
enhancement (§ 186.22, subd. (b)(5)).
In this timely appeal, defendant argues that (1) the trial
court abused its discretion by denying defendant’s motion to
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We previously affirmed the judgment against Gutierrez.
(People v. Gutierrez (May 25, 2021, B302264) [nonpub. opn.].)
2
sever his trial from Gutierrez’s and that the subsequent joint
trial violated due process; (2) the trial court committed
instructional error by failing to sua sponte instruct the jury
(a) not to consider evidence admitted on the counts not involving
defendant and (b) that it must find each element of the charge in
count 1 beyond a reasonable doubt; (3) cumulative error denied
defendant due process; and (4) the trial court erred when it
imposed a 15-year parole ineligibility term.
We strike the 15-year parole ineligibility term and impose a
seven-year ineligibility term pursuant to section 3046,
subdivision (a)(1). As modified, the judgment is affirmed.
BACKGROUND
I. The People’s Evidence
A. Count 1: Murder of Vasquez (May 24, 2013)
On the night of May 24, 2013, police responded to Main
Avenue in Baldwin Park, where Vasquez, a member of the
Eastside Bolen Gang, was found bloody and unresponsive in a
driveway. Vasquez was later pronounced dead at the scene. The
cause of death was multiple gunshot wounds. Wolf 7.62 by 39
millimeter cartridge cases were recovered from the scene, and
7.62 by 39 millimeter bullets were recovered from Vasquez’s
body. That type of ammunition is typical for an AK-47.
In August 2013, police searched the house of Elton Bennett
(Bennett) and found a Wolf 7.62 bullet matching the casings
found where Vasquez was murdered.
1. Testimony of Arturo Mendoza (Mendoza)
Mendoza, a member of the Northside Bolen Parque gang,
testified that he was a passenger in a car driven by Gustavo Cruz
(Cruz) in May 2013. Mendoza and Cruz encountered defendant
and Gutierrez, who were driving in a Mercedes near Main and
3
Olive in Baldwin Park. Defendant was the driver, and Gutierrez
was the front passenger.
From the car, Gutierrez asked Mendoza if he had a gun;
Mendoza answered that he did. Gutierrez replied, “‘Me too.’”
Mendoza told Gutierrez to follow them to the store. As they
drove, Mendoza saw a man standing outside of a house on Main.
With the car stopped, Mendoza pointed his gun at the man and
asked him where he was from—meaning, whether he was a gang
member. The man replied, “‘Nowhere.’”
As Cruz and Mendoza started to drive away, Mendoza
heard a single gunshot and then rapid fire. Mendoza looked back
and saw Gutierrez shooting the man with an AK-47 rifle.
Following the shooting, defendant, Gutierrez, Mendoza,
and Cruz went to Bennett’s house. Gutierrez, who had brought
the AK-47 with him, told Mendoza to “‘[p]ut the gun away.’”
Mendoza gave the AK-47 to Bennett, who put it in his garage.
Everyone at Bennett’s house, including defendant, “was excited.”
2. Cruz’s statements to undercover informants
In a recording played for the jury, Cruz told undercover
informants that he had been in one car and Gutierrez in another
when Gutierrez shot a man.
3. Bennett’s statements to undercover informants
A recording of Bennett’s conversation with undercover
informants was also played for the jury.
Bennett told the informants that he had been “caught” with
the same bullets from “the murder weapon, the AK[.]” Regarding
the murder, Bennett said that he “wasn’t there, but after they
smoked that fool they went straight to my house and . . . cleaned
up and . . . put[] the strap away and everything.”
4
Bennett explained that he had been sleeping when
Mendoza called him and asked to come over with defendant,
Gutierrez, and Cruz. At Bennett’s house, Gutierrez—“the one
that smoked this fool”—urinated on his hands to “clean the
gunpowder.” While in Bennett’s living room, the group described
approaching a man, asking where he was from, and Gutierrez
shooting him repeatedly with an “AK.” Bennett allowed the
weapon to be placed in his garage. The next day, Gutierrez
picked up the weapon from Bennett’s house.
4. The Mercedes
Three days before Vasquez’s murder, Kurt Miller (Miller)
left the key fob to his Mercedes underneath the driver’s seat so
that his daughter could collect a gift that he had left in the car.
His daughter retrieved the gift, but left the key fob in the car.
Two days later, Miller noticed that the Mercedes had been stolen.
A Mercedes key fob was later found by officers in a cinder
block outside of defendant’s residence. The Mercedes was
eventually located in West Covina, and the key fob discovered
outside of defendant’s residence was used to open the trunk. A
“big chunk of plastic” was missing from the interior door of the
Mercedes. A piece of plastic that had been found at the scene of
Vasquez’s murder appeared to fit the missing part of the door.
B. Count 5: Attempted murder of Adrian Giron (Giron)
(June 21, 2013)
At approximately 9:45 p.m. on June 21, 2013, a police
officer found some clothing, impact rounds, and several
.40 caliber bullet casings in the area of Clark and Alta Lake in
Baldwin Park. Around the same time, another police officer
responded to a hospital in Baldwin Park regarding “a victim
sustaining gunshot wounds.” In the emergency room, the police
5
officer encountered the victim, Giron, in “[a] lot of pain” with
gunshot wounds on his left thigh and left arm.
1. Interview of Yajahira Flores Arquellas (Arquellas)
On August 24, 2013, Arquellas was interviewed by police
detectives. Arquellas said that Stephanie Torres (Torres) picked
her up in a small black car at approximately 10:00 p.m. on
June 21, 2013. Torres then picked up Gutierrez, Torres’s
boyfriend. Torres drove to the area of Clark and Baldwin Park
Boulevard and slowed down.
Gutierrez got out of the car and asked a man on the street
where he was from. The man answered, “‘CWA.’”3 Gutierrez
took out a handgun from his waistband and pointed it at the
man. Gutierrez fired four rounds and returned to the car, yelling
“‘Northside Bolen. This is Northside[.]’”
2. Arquellas’s statements to undercover deputy sheriff
In December 2013, Arquellas was serving time in jail for a
probation violation. An undercover deputy sheriff pretending to
be a fellow inmate was placed in a cell with Arquellas.
In a recording played for the jury, Arquellas told the
undercover deputy sheriff that she was in a car with her
daughter, Gutierrez, and Torres when Gutierrez shot someone—
“a little youngster; 16 years old”—from the CWA tagging crew.
Gutierrez had asked the man where he was from. The man said:
“‘C Dub A.’” Gutierrez responded: “‘What? Fuck C Dub A.
Northside Bolen.’” Gutierrez started shooting “with a nine
millimeter,” hitting the man twice.
3 “CWA” stands for “Crazy Wicked Artists” or “Crazy Wicked
Assassins” and is a “tagging crew” in Baldwin Park.
6
C. Count 6: Attempted murder of Maria Moreno (Moreno)
(October 2, 2013)
Moreno was an influential member of the Northside Bolen
Parque gang since the 1970’s. On October 2, 2013, a police officer
responded to a hospital, where he saw Moreno being treated for
extensive wounds, including deep lacerations to her body and
face.
Gutierrez was arrested in January 2014 and placed in a jail
cell with two undercover informants. Gutierrez’s conversation
with the undercover informants was recorded and played for the
jury.4
Gutierrez told the undercover informants that he blamed
“two bitches” for the death of his “homie[.]” One of them was
“older” and “could be [Gutierrez’s] grandma.” She “got stabbed
up[.]” Later in the conversation, Gutierrez said that “Maria” had
“got shanked up.” Gutierrez said that he “was this close to kill
[sic] her” but was stopped.
D. Counts 7 and 8: Attempted murder of Jonathan
Maldonado (Maldonado) and murder of Maurio Sotelo (Sotelo)
(July 19, 2013)
At approximate 12:30 a.m. on July 19, 2013, police
responded to Feather Avenue in Baldwin Park and found
Maldonado, a member of the Eastside Bolen Parque gang, lying
on the ground on a front porch. Maldonado had suffered a bullet
wound to his upper chest.
Approximately 45 minutes later, police responded to the
area of Los Angeles Street and Merced Avenue in Baldwin Park,
where they found Sotelo bleeding and unresponsive on a bus
4 Details about Gutierrez’s statements to the undercover
informants are discussed later in this opinion.
7
bench. Paramedics arrived and pronounced Sotelo dead. The
cause of death was a gunshot wound to the neck.
In a recording played for the jury, Francisco Moran (Moran)
told undercover informants that he had been driving at about
midnight with Gutierrez and two other people as passengers
when they saw “two fools walking.” Gutierrez “hop[ped] out on
them[.]” Gutierrez shot one of the men, but “he didn’t die.” The
other man “ran away[,]” but Moran shot him two to three times
at a bus stop at the corner of Merced and Los Angeles.
E. Count 9: Murder of Louis Quintanilla (Quintanilla)
(July 25, 2013)
On the night of July 25, 2013, Aracely Vasquez was inside
her home on Merced Avenue in Baldwin Park, while her husband
was outside talking to Quintanilla. She heard someone outside
ask, “‘Where you fools from?’” followed by multiple gunshots.
After hiding in the back of her home with her children for a few
minutes, she went outside and saw Quintanilla laying in the
driveway with a severe gunshot wound to his face—“like no flesh
on his face[.]” Quintanilla died.
Mendoza testified that Gutierrez told him that he had shot
somebody from KHA, a rival Baldwin Park gang, with a shotgun
on Merced.
Only one shotgun homicide occurred on Merced Avenue in
2013.
F. Gutierrez’s statements to undercover informants
While investigating Vasquez’s murder, the Los Angeles
County Sherriff’s Department conducted a Perkins5 operation,
which entailed placing an undercover agent posing as an inmate
5 Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).
8
in a cell with a suspect to elicit incriminating statements.
Gutierrez was one of several subjects of the Perkins operation.
Following his arrest on January 16, 2014, Gutierrez was
placed in a jail cell with two undercover informants. Gutierrez
told the informants that he was from the Northside Bolen gang.
He explained that he was being implicated in a murder and that
someone was “snitching[.]” One of the informants suggested that
he could do Gutierrez “a favor” regarding the witness. (Italics
omitted.)
Gutierrez was removed from the cell for additional
interviews with law enforcement. When he returned, he told the
informants that he was now being implicated in other murders
and attempted murders, and was facing the death penalty. One
of the informants again suggested that he could kill the witness
but could not make any promises. The informant told Gutierrez:
“[I]f I find the fool for you, if I whack him, you’re gonna owe me a
favor. You know that; right?” (Italics omitted.) Gutierrez
responded: “I’m a rider, dog. I’ll do anything you say.”
Gutierrez explained that the police knew about three
murders and an attempted murder. Regarding why he shot one
of the victims, Gutierrez stated: “Because his son, he had beef
with the barrio. I said, ‘Well, I’m going to go.’ So I went to the
hood.” (Italics omitted.) Gutierrez also described almost killing
“Maria” but being stopped.
One of the informants told Gutierrez: “We’re gonna get you
out, but remember you’re willing to do anything for me; right?”
Gutierrez responded, “I’m gonna do everything, my boy.” The
informant clarified, “Even kill people; right?” Gutierrez replied,
“Shhh, and that ain’t nothing to me.”
9
G. Gang evidence
Police Officer Adam Acuna testified about his experience
with gangs in Baldwin Park. He had become familiar with
defendant through defendant’s older brothers and brother-in-law,
who “were a lot more active[.]” Officer Acuna identified one of
defendant’s tattoos indicating his affiliation with the CWA
tagging crew. It was common for a member of a tagging crew to
“promot[e]” or “graduat[e]” to becoming a member of a gang in
the area. However, Officer Acuna had never identified defendant
as a Northside Bolen gang member. Officer Acuna also
recognized Gutierrez, who had admitted to being a member of
Northside Bolen.
After hearing a hypothetical similar to the murder of
Vasquez as alleged in count 1 against defendant and Gutierrez,
Officer Acuna opined that the murder was committed for the
benefit of and in association with a criminal street gang. He
opined the same about hypotheticals similar to the five other
counts alleged against Gutierrez.
II. Defendant’s Evidence
Detective Michael Valento testified that, on January 16,
2014, Mendoza had stated that a person named “Shadow” had
driven the vehicle occupied by Gutierrez (presumably during the
Vasquez murder). Later, Mendoza mentioned someone named
“Jody[.]”
DISCUSSION
I. Joint Trial with Gutierrez
Defendant argues that the trial court abused its discretion
by denying his motion to sever his trial from Gutierrez’s. In a
related argument, he contends that being tried with Gutierrez
10
violated his right to due process. We disagree with both
contentions.
A. Relevant trial court proceedings
Defendant filed a pretrial motion to sever his trial from
that of Gutierrez, alternatively requesting separate juries. As
relevant to this appeal, defendant contended that “[s]everance
should be granted where the jury would have difficulty in
separating evidence.” Redaction of Gutierrez’s out-of-court
statements was insufficient to protect defendant’s right to
confrontation because the jury would “fill in the blanks or
speculate” that Gutierrez was referring to defendant.6 Defendant
also argued that severance should be granted pursuant to
Evidence Code section 352 because “it would be more prejudicial
than probative to allow codefendant statements that incriminate
[defendant] to be heard by the jury,” given that cross-
examination would not be possible.
Following oral argument, the trial court denied the motion
to sever.
6 Defendant’s arguments below mostly involved the
Aranda/Bruton doctrine. (People v. Aranda (1965) 63 Cal.2d 518,
abrogated in part by Cal. Const., art. I, § 28, subd. (d); Bruton v.
United States (1968) 391 U.S. 123.) “Under the so-called
Aranda/Bruton doctrine, a trial court may generally not allow a
jury in a joint criminal trial of a defendant and codefendant to
hear the unredacted confession of the codefendant that also
directly implicates the defendant—even if the jury is instructed
not to consider the confession as evidence against the defendant.”
(People v. Washington (2017) 15 Cal.App.5th 19, 23.) Defendant
does not claim Aranda/Bruton error on appeal.
11
B. Denial of pretrial motion to sever
1. Applicable law and standard of review
Section 1098 provides, in pertinent part, that “[w]hen two
or more defendants are jointly charged with any public offense,
whether felony or misdemeanor, they must be tried jointly, unless
the court order separate trials.” (Italics added.) The Legislature
has thus codified its preference for joint trials of defendants
charged with the same crime or crimes. (People v. Sánchez (2016)
63 Cal.4th 411, 463–464 (Sánchez).) “Joint trials promote
efficiency and help avoid inconsistent verdicts.” (Id. at p. 464.)
The legislative preference for joint trials is, however,
“subject to a trial court’s broad discretion to order severance.”
(People v. Thompson (2016) 1 Cal.5th 1043, 1079.) “Factors that
may bear on a trial court’s decision to order separate trials
include ‘“an incriminating confession, prejudicial association with
codefendants, likely confusion resulting from evidence on
multiple counts, conflicting defenses, or the possibility that at a
separate trial a codefendant would give exonerating testimony.”’
[Citations.] Severance may also be appropriate where ‘“there is a
serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.”’ [Citations.]” (People
v. Gomez (2018) 6 Cal.5th 243, 274 (Gomez).)
A trial court also has the discretion, “in the interests of
justice and for good cause shown,” to “order that . . . different
offenses or counts set forth in the accusatory pleading be tried
separately . . . .” (§ 954.) In this context, “‘[t]he factors to be
considered are these: (1) the cross-admissibility of the evidence
in separate trials; (2) whether some of the charges are likely to
unusually inflame the jury against the defendant; (3) whether a
12
weak case has been joined with a strong case or another weak
case so that the total evidence may alter the outcome of some or
all of the charges; and (4) whether one of the charges is a capital
offense, or the joinder of the charges converts the matter into a
capital case.’” (Alcala v. Superior Court (2008) 43 Cal.4th 1205,
1220–1221 (Alcala).)
“We review a trial court’s denial of a severance motion for
abuse of discretion, based on the facts at the time of the trial
court’s ruling.” (People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 819 (Daveggio and Michaud).) “To establish an abuse of
discretion, defendant[] must demonstrate that the trial court’s
decision was so erroneous that it ‘falls outside the bounds of
reason.’ [Citation.] A merely debatable ruling cannot be deemed
an abuse of discretion.” (People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 390 (Bryant, Smith and Wheeler).)
2. Analysis
Count 1 was charged against both defendant and Gutierrez,
thus requiring a joint trial absent a court order to the contrary.
(§ 1098.) In arguing that the trial court improperly denied
severance here, defendant does not focus on the factors typically
relevant to whether jointly charged defendants should be tried
together. (See § 1098; Gomez, supra, 6 Cal.5th at p. 274.)
Rather, he argues that the factors usually considered in
connection with severing the trial of different counts set forth in
an accusatory pleading (see § 954; Alcala, supra, 43 Cal.4th at
pp. 1220–1221) demonstrate that severance was “required” to
avoid unfair prejudice.
Specifically, defendant contends that: (1) evidence
introduced regarding counts 5 through 9 against Gutierrez would
not have been cross-admissible if defendant was tried separately
13
on just count 1; (2) defendant was prejudiced by the spillover
effect of the inflammatory evidence regarding counts 5 through 9;
(3) a “weak case” against defendant was “bolstered” by six strong
cases against Gutierrez; and (4) two special circumstances were
alleged against Gutierrez.
The fundamental problem with each of defendant’s
arguments is that it overlooks that “there is a difference between
when a trial court may order a severance and when it must do
so.” (Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 379.) At
most, defendant shows that the trial court had the discretion to
order severance under section 954 or section 1098. But this
merely points to a “debatable ruling” and does not establish that
“the trial court’s decision was so erroneous that it ‘falls outside
the bounds of reason[]’” such that it constituted an abuse of
discretion. (Id. at p. 390.)
As to the cross-admissibility of evidence, “[i]n cases in
which two or more different offenses of the same class of crimes
or offenses have been charged together in the same accusatory
pleading, . . . evidence concerning one offense or offenses need not
be admissible as to the other offense or offenses before the jointly
charged offenses may be tried together before the same trier of
fact.” (§ 954.1, italics added.) Here, all counts tried together
were either murder or attempted murder, which are of the same
class of crimes. (People v. Jones (2013) 57 Cal.4th 899, 924
(Jones).) Thus, the lack of cross-admissibility of some evidence
was “not, by itself, sufficient to show prejudice and bar joinder.”
(People v. Stitely (2005) 35 Cal.4th 514, 532.)
Nor did the possibility of a “‘spillover effect,’ i.e., the risk
that evidence not admissible as to one of the charges, but
admitted in connection with another, will affect the verdict on the
14
charge as to which it is inadmissible” (People v. Earle (2009)
172 Cal.App.4th 372, 387 (Earle)), require severance.
Two of the main concerns regarding the spillover effect are
that certain charges might be unusually inflammatory and that a
weak case regarding one count may be bolstered by a strong case
regarding a different count. (Earle, supra, 172 Cal.App.4th at
p. 388.) Neither concern is particularly strong in this case.
Evidence regarding counts 5 through 9, alleging two murders and
three attempted murders, was not likely to be more inflammatory
or offensive than the evidence of the gang-related murder of
Vasquez in count 1 with an AK-47. And, we disagree with
defendant’s contention that the case against defendant on count 1
was weak compared to that against Gutierrez on counts 1 and 5
through 9. To the contrary, the evidence that the trial court
could anticipate being presented against defendant as to count 1
was strong, including eyewitness testimony and evidence that the
key fob to the stolen vehicle used during the murder was found
just outside of defendant’s residence.
Defendant also makes a cursory argument suggesting that
the fact that two special circumstances were alleged against
Gutierrez rendered the denial of severance an abuse of discretion.
We disagree. Even a capital case “does not automatically require
severance” of other charges. (People v. Anderson (2018) 5 Cal.5th
372, 390.)
Finally, we note that defendant relies heavily on two cases
to support his contention that severance was required. Both
cases are distinguishable from the circumstances present here
and neither compels reversal.
In Calderon v. Superior Court (2001) 87 Cal.App.4th 933(Calderon), the defendant and his codefendant were to be tried
15
together on two jointly charged counts of premeditated attempted
murder arising from one incident, as well as a count of murder
and a count of attempted murder against the codefendant arising
from an entirely separate incident. (Id. at p. 935.) After
weighing various factors, the Court of Appeal concluded that the
defendant would face undue prejudice from such a joint trial. (Id.
at pp. 939–941.) Unlike here, the counts charged against the
codefendant but not the defendant were highly inflammatory
(involving an “execution-style murder” and a “gratuitous”
attempted murder) compared to the counts against the defendant
(attempted murders that “arose out of exchanged insults, with
the implication of a challenge”). (Id. at p. 941.) Also, unlike here,
the evidence against the defendant in Calderon was particularly
weak—one victim did not identify the defendant and the other
who did “got only a fleeting glimpse” in a time of great “stress”
and “in the dark of night[.]” (Ibid.) As discussed above, in the
present case, the additional counts alleged against Gutierrez
were not inherently more inflammatory than the murder of
Vasquez and a strong case was presented against defendant.
In People v. Ortiz (1978) 22 Cal.3d 38 (Ortiz), the California
Supreme Court held that, under section 1098, “a defendant may
not be tried with others who are charged with different crimes
than those of which he is accused unless he is included in at least
one count of the accusatory pleading with all other defendants
with whom he is tried.” (Ortiz, supra, at p. 43.) Accordingly,
because the defendant had not been jointly charged on any count
with all his codefendants, the lower court had erred when it
denied his motion for severance. (Id. at pp. 42, 45.) Here, in
contrast, there is no question that the joint-charge requirement of
16
section 1098 was satisfied: Both defendant and Gutierrez were
charged with Vasquez’s murder in count 1.
Defendant has not established an abuse of the trial court’s
broad discretion in denying his motion to sever.
C. Due process
1. Applicable law and standard of review
We have already concluded that the trial court did not
abuse its discretion when it denied defendant’s pretrial motion to
sever, but we “still must determine whether, in the end, the
joinder of counts or defendants for trial resulted in gross
unfairness depriving . . . defendant of due process of law.”
(People v. Rogers (2006) 39 Cal.4th 826, 851.) “Defendant[]
bear[s] the burden of establishing that the trial was grossly
unfair and denied [him] due process of law, and ‘a judgment will
be reversed on this ground only if it is “reasonably probable that
the jury was influenced [by the joinder] in its verdict of guilt.”’”
(Daveggio and Michaud, supra, 4 Cal.5th at p. 821.)
We review this claim de novo. (See In re Jonathan V.
(2018) 19 Cal.App.5th 236, 241 [“We review procedural due
process claims de novo because ‘the ultimate determination of
procedural fairness amounts to a question of law[]’”].)
2. Analysis
Defendant points to numerous examples from his trial that
he contends rendered it grossly unfair and a violation of due
process to be tried alongside Gutierrez. These include the
admission of graphic photographs and descriptions of the crimes
charged in counts 5 through 9; excerpts from the prosecutor’s
opening and closing statements speaking generally about
defendant and Gutierrez and all of the counts; and prejudicial
association with Gutierrez based on Gutierrez’s callous attitude
17
toward his crimes and his disclosure to the undercover
informants that he was “illegal” and on an immigration hold.
Several factors lead us to conclude that no due process
violation occurred.
First, the evidence of defendant’s guilt as to count 1 was
very strong. Indeed, defendant does not argue that there was
insufficient admissible evidence to support his conviction.
Mendoza identified defendant as the driver of the stolen
Mercedes used during the commission of Vasquez’s murder.
Gutierrez—defendant’s front seat passenger—had an AK-47 with
him in the car. Lest there be any doubt that defendant knew that
Gutierrez was armed, prior to the murder Gutierrez told
Mendoza, from the car that defendant was driving, that he was.
Following the shooting, defendant fled the scene with Gutierrez
and went to Bennett’s house, where he was part of an “excited”
group discussing the murder. And, the key fob of the stolen
Mercedes used during the murder was found outside of
defendant’s residence. “[G]iven the strength of the independent
evidence against . . . defendant[], we perceive no reasonable
likelihood that the jury was influenced by the joinder in its
verdict of guilt.” (Daveggio and Michaud, supra, 4 Cal.5th at
p. 821.)
Second, while it is certainly true that most, if not all, of the
graphic evidence of the crimes alleged against Gutierrez in
counts 5 through 9 would not have been shown to the jury if
defendant had been tried alone, we cannot say that this rendered
the trial grossly unfair. In addressing a similar argument, the
California Supreme Court has observed that “the primary error
in such a claim is [the] defendant’s ‘characterization of the issue
presented here as affecting his trial, as opposed to the actual trial
18
in this case—the joint trial . . . .’ [Citation.] In other words, the
issue is not whether a theoretical separate trial of one defendant
would have been different, but whether the joint trial that
actually occurred was in some manner prejudicially unfair or
unreliable.” (Bryant, Smith and Wheeler, supra, 60 Cal.4th at
pp. 380–381.)
In defendant’s actual trial with Gutierrez, each count tried
involved a violent crime with graphic evidence. The murder of
Vasquez alleged in count 1 was no exception. The jury heard
testimony that Vasquez “looked pale” and “had very shallow
breathing” when law enforcement responded to the scene. The
jury heard that blood was “oozing out on the driveway” and saw a
photograph depicting Vasquez’s wounds and blood. The deputy
medical examiner who conducted Vasquez’s autopsy described, in
detail, the trajectory of the numerous gunshot wounds through
Vasquez’s body.
The evidence regarding the other counts alleged against
Gutierrez was not so inherently more disturbing or inflammatory
that the jury would be influenced by it to find defendant guilty of
Vasquez’s murder.
Third, and finally, we are unconvinced that prejudicial
association of defendant with Gutierrez rendered the jury unable
to fairly assess defendant’s individual culpability. “Prejudicial
association might exist if ‘the characteristics or culpability of one
or more defendants [is] such that the jury will find the remaining
defendants guilty simply because of their association with a
reprehensible person, rather than assessing each defendant’s
individual guilt of the crimes at issue.’” (Sánchez, supra,
63 Cal.4th at p. 464.)
19
Significantly, the jury acquitted Gutierrez of the murder of
Quintanilla as alleged in count 9. This indicates that the jury
could and did put aside the evidence that Gutierrez committed
two other murders and three attempted murders, as well as the
graphic eyewitness and autopsy evidence regarding Quintanilla.
It shows that the jury assessed the evidence relevant to each
count separately and differentiated between the various alleged
crimes. (See Gomez, supra, 6 Cal.5th at p. 277 [the fact that the
jury acquitted the defendant of one charge and could not reach a
verdict on other charges “tend[s] to show that ‘the jury was
capable of, and did, differentiate among [the defendant’s]
crimes’”]; Jones, supra, 57 Cal.4th at p. 927 [a jury’s failure to
reach a unanimous verdict on some counts shows the jury’s
ability “to consider each case on its individual merits”].) If the
jury could differentiate between the various counts alleged
against Gutierrez, we are even more confident that it could
differentiate defendant’s culpability from that of Gutierrez.
The joint trial did not deprive defendant of his right to due
process.
II. No Instructional Error
Defendant raises two claims of instructional error.
First, defendant argues that the trial court erred by failing
to sua sponte instruct the jury that it could not consider, in
relation to defendant’s guilt on count 1, evidence regarding
counts 5 through 9 against Gutierrez. Defendant argues, in the
alternative, that his trial counsel was ineffective for not
requesting such a limiting instruction.
Second, defendant argues that the trial court erred by
failing to instruct the jury that it must find each element of the
charge beyond a reasonable doubt.
20
We find no instructional error.
A. Standard of review
We review claims of instructional error and ineffective
assistance of counsel de novo. (People v. Mitchell (2019) 7 Cal.5th
561, 579 [instructional error]; People v. Mayfield (1993) 5 Cal.4th
142, 199 [ineffective assistance of counsel].)
B. Limiting instruction
Pursuant to Evidence Code section 355, “When evidence is
admissible as to one party or for one purpose and is inadmissible
as to another party or for another purpose, the court upon request
shall restrict the evidence to its proper scope and instruct the
jury accordingly.” (Italics added.) If not requested, the trial court
has no sua sponte duty to give such a limiting instruction.7
(People v. Cowan (2010) 50 Cal.4th 401, 479; People v. Hernandez
(2004) 33 Cal.4th 1040, 1051–1052 (Hernandez).)
Here, assuming that evidence regarding the counts alleged
against Gutierrez but not defendant was inadmissible against
defendant, defendant failed to request a limiting instruction
regarding that evidence. Accordingly, the trial court did not err
in failing to give a limiting instruction when none was requested.
We also reject defendant’s claim that his trial counsel was
ineffective for failing to request a limiting instruction.
7 “There is a ‘possible’ narrow exception in the ‘“occasional
extraordinary case”’ in which the evidence ‘“is a dominant part of
the evidence against the accused, and is both highly prejudicial
and minimally relevant to any legitimate purpose.”’ [Citations.]”
(People v. Murtishaw (2011) 51 Cal.4th 574, 590.) This is not
such an extraordinary case, as the evidence admitted regarding
the counts against Gutierrez not involving defendant did not
constitute a dominant part of the evidence against defendant.
(See People v. Valdez (2012) 55 Cal.4th 82, 139.)
21
To establish ineffective assistance of counsel, a defendant
must show that counsel’s performance was both deficient and
prejudicial. (People v. Mai (2013) 57 Cal.4th 986, 1009.) “[A]
reviewing court defers to counsel’s reasonable tactical decisions,
and there is a presumption counsel acted within the wide range
of reasonable professional assistance. . . . On direct appeal, a
conviction will be reversed for ineffective assistance only if (1) the
record affirmatively discloses counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked
for a reason and failed to provide one, or (3) there simply could be
no satisfactory explanation.” (Ibid.) None of these circumstances
warranting reversal is present here.
“A reasonable attorney may have tactically concluded that
the risk of a limiting instruction . . . outweighed the questionable
benefits such instruction would provide.” (People v. Maury (2003)
30 Cal.4th 342, 394.) After all, the jury was already instructed
with CALCRIM No. 203 that it “must separately consider the
evidence as it applies to each defendant” and that it “must decide
each charge for each defendant separately.”
An additional limiting instruction regarding evidence of
counts 5 through 9 against Gutierrez “properly might explain
how it could be used [against defendant] as well as how it could
not be used.” (Hernandez, supra, 33 Cal.4th at p. 1053.) For
example, defendant contends that his trial counsel should have
objected to or requested limiting instructions about Bennett’s
statements and Mendoza’s testimony about crimes unrelated to
the Vasquez murder. But doing so could have highlighted the
substantial parts of this evidence that were in fact related to the
Vasquez murder and admissible as to defendant. Thus, a
rational, tactical reason existed for trial counsel to refrain from
22
requesting a more detailed limiting instruction regarding specific
evidence.
C. Reasonable doubt instruction
The trial court instructed the jury with CALCRIM No. 220
regarding reasonable doubt. That instruction explains, in part:
“A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty
beyond a reasonable doubt. Whenever I tell you the People must
prove something, I mean they must prove it beyond a reasonable
doubt.” Defendant contends that CALCRIM No. 220 was
inadequate because it did not specify that the jury must find each
element of the offense proven beyond a reasonable doubt.
Defendant failed to object to or request an amplification of
CALCRIM No. 220 as given, thus forfeiting his claim of error.
(People v. Covarrubias (2016) 1 Cal.5th 838, 911 (Covarrubias).)
Forfeiture aside, the California Supreme Court has
previously rejected a similar argument. (Covarrubias, supra,
1 Cal.5th at p. 911 [rejecting contention that “CALJIC No. 2.90 is
inadequate because it fails to inform jurors that ‘every element’ of
the charges must be proved beyond a reasonable doubt”].) As
defendant concedes, we are bound by this precedent (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and must
therefore reject defendant’s claim.
III. No Cumulative Error
Defendant argues that the cumulative impact of the alleged
errors violated his due process rights and requires reversal of the
judgment. “Cumulative error is present when the combined
effect of the trial court’s errors is prejudicial or harmful to the
defendant. [Citations.] Although a defendant is entitled to a fair
trial, he or she is not entitled to ‘a perfect one.’” (People v. Capers
23
(2019) 7 Cal.5th 989, 1017.) Here, defendant has not established
any error to aggregate.
IV. Parole Ineligibility
Defendant contends that the trial court erred when it
imposed a 15-year parole ineligibility term for the gang
enhancement under section 186.22, subdivision (b)(5). The
People agree. We agree with the parties.
When, as here, a trial court imposes a 25-year
enhancement pursuant to section 12022.53, subdivision (d), based
on a violation of section 186.22, subdivision (b), the trial court
may not also impose the parole ineligibility term set forth in
section 186.22, subdivision (b)(5), unless the defendant personally
used or discharged a firearm. (See People v. Brookfield (2009)
47 Cal.4th 583, 593–594 [“accomplices to a gang-related offense
specified in section 12022.53 in which, as here, not the defendant
but another principal personally used or discharges a
firearm . . . . are subject to additional punishment under either
section 12022.53 or the gang-related sentence increases under
section 186.22, but not both”].)
Gutierrez personally used a firearm to kill Vasquez, not
defendant. Accordingly, the 15-year parole ineligibility term
must be stricken. As an inmate imprisoned for life, defendant
should instead receive a seven-year parole ineligibility term.
(§ 3046, subd. (a)(1).)
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DISPOSITION
As to count 1, the section 186.22, subdivision (b)(5), 15-year
parole ineligibility term is stricken and a seven-year ineligibility
term is imposed pursuant to section 3046, subdivision (a)(1). As
modified, the judgment is affirmed.
The trial court shall prepare and file an amended abstract
of judgment reflecting defendant’s corrected sentence. Copies of
the amended abstract shall be forwarded to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
25