People v. Zepeda CA1/3 ( 2024 )

Filed 2/21/24 P. v. Zepeda CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A165787
v.
ELISEO MARTINEZ ZEPEDA, (Sonoma County
Super. Ct. No. SCR-749366-2)
Defendant and Appellant.
THE PEOPLE,
A165924
Plaintiff and Respondent,
v. (Sonoma County
Super. Ct. No. SCR-749366-1)
MANUEL AVINA-GARCIA,
Defendant and Appellant.
Defendant Manuel Avina-Garcia fired gunshots from a vehicle driven
by his codefendant Eliseo Zepeda as they drove past the residence of someone
who minutes earlier had threatened to call the police on them. Defendants
were tried on various counts, including the felony offense of attempting to
dissuade a witness by force or threat. (Pen. Code, § 136.1, subd. (c)(1).)1 To
maintain her privacy, the complaining witness was referred to throughout
1 Further unspecified statutory references are to the Penal Code.
1
the trial as Jane Doe. On appeal from the judgments of conviction,
defendants raise various claims of error including: (1) insufficient evidence
for the crime of attempted witness dissuasion by force or threat;
(2) ineffective assistance due to counsel’s failure to (a) object to use of the Doe
pseudonym at trial, (b) seek exclusion of a portion of Doe’s testimony under
Evidence Code section 1101, and (c) move for separate trials; and
(3) erroneous failure of the trial court to give unanimity instructions to the
jury. We consolidated the cases and now affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In 2022, the Sonoma County District Attorney charged Avina-Garcia
with five counts: (1) attempting to dissuade a witness by force or threat
(§ 136.1, subd. (c)(1); count one), with an enhancement for personally using a
firearm (§ 12022.5, subd. (a)); (2) shooting from a motor vehicle (§ 26100,
subd. (d); count two); (3) discharging a firearm with gross negligence (§ 246.3,
subd. (a); count three); (4) possessing a firearm as a felon (§ 29800,
subd. (a)(1); count four); and (5) carrying a concealed firearm in a vehicle
(§ 25400, subd. (a)(1); count five).
Zepeda was charged with two counts: (1) attempting to dissuade a
witness by force or threat (§ 136.1, subd. (c)(1); count one); and (2) unlawfully
and knowingly permitting another to discharge a firearm from a vehicle he
was driving (§ 26100, subd. (b); count six).
A. Prosecution Case
In September 2021, at around 10:30 or 10:45 p.m., Jane Doe heard very
loud music and a car “driving back and forth at high speed” in the parking lot
of her apartment complex on West Avenue in Santa Rosa. She went to
investigate and saw two males in a black pickup truck. She approached the
vehicle from the driver’s side and stood approximately five to ten feet away.
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The driver was Avina-Garcia, and Doe noted he was wearing a black baseball
cap, black shirt, and black shorts. The passenger was Zepeda, and he
appeared to be drunk.
Doe asked defendants in Spanish if they knew anyone in the apartment
complex, but they did not say whether they did. She asked what defendants
were doing there, and Avina-Garcia replied that “they can do whatever they
want,” and Zepeda “agreed.” When Doe told defendants they were disturbing
the residents and had to leave, Avina-Garcia stated in English that “he
belonged to a gang,” which frightened Doe. Doe told defendants she was
going to call the police, but “[t]hey just seemed like they didn’t care.” Doe
then recorded the license plate number of the truck. As the truck drove
away, Zepeda threw two bottles out the passenger side window toward the
area where Doe was standing.
Approximately 15 to 20 minutes later, Doe again heard loud music and
a car pulling up outside her apartment. She looked out a window and saw a
black Nissan Altima driving slowly and then stopping near Doe’s apartment
building. Because the vehicle drove slowly past her window, Doe was able to
identify the individuals in the car as defendants. This time Zepeda was
driving, and Avina-Garcia was in the passenger’s seat, still wearing a black
baseball cap. The Nissan stopped, and Avina-Garcia “fired gunshots up to
the sky.” Once the Nissan sped away, Doe called the apartment complex’s
manager as well as 911.
Police officers in the vicinity heard the gunshots and were dispatched
to the West Avenue apartment complex. Doe provided the officers with
descriptions of defendants and the license plate number of the pickup truck,
which was registered to a residence on Kearney Street. Officers found a
black pickup truck parked in the driveway of the Kearney Street home, and
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the hood was still warm to the touch. A little later, a black Nissan Altima
approached the Kearney Street residence with Avina-Garcia driving and
Zepeda in the passenger’s seat. Officer Alec Thompson initiated a traffic stop
and observed that defendants’ clothing and appearance matched those of the
suspects. While Thompson was detaining Avina-Garcia, Zepeda fled but was
eventually detained. Zepeda initially gave officers a false name.
A search of the Nissan uncovered an empty Smith and Wesson .38-
caliber revolver under the front passenger seat and six spent .38-caliber
ammunition casings.
Doe was brought to the location of the arrest for an in-field showup.
Remaining inside the patrol car, Doe identified Avina-Garcia, and she was
“sure it was him.” She observed that Avina-Garcia was wearing the same
black baseball cap with white lettering and a black shirt. Doe also identified
the Nissan Altima and the pickup truck as the two vehicles she saw earlier.
B. Defense Case
1. Avina-Garcia
Officer Jose Andrade searched Avina-Garcia’s cellphone and saw that
“two to three phone calls” had been made between defendants at
approximately 11:15 and 11:17 p.m. on the night of the incident. There was
also a call from Avina-Garcia to Zepeda at 10:44 that evening. Because these
calls occurred at around the time when defendants were allegedly in the
same car, Avina-Garcia argued there was a reasonable doubt that he was the
shooter in the Nissan seen by Doe.
2. Zepeda
Zepeda testified he worked with Avina-Garcia’s father and had been
living at the Kearney Street residence for about a month. Zepeda had not
spent time with Avina-Garcia outside of the home and did not know that
4
Avina-Garcia owned a gun or whether he had committed any crimes in the
past. On the night in question, Zepeda wanted to go to the West Avenue
apartment complex because a coworker had asked for a case of beer. Avina-
Garcia agreed to take Zepeda there in his truck.
After arriving at the apartment complex, Zepeda drank one beer inside
the truck as they waited for the coworker, who did not answer Zepeda’s phone
call. Defendants waited for about three minutes before Doe confronted them.
According to Zepeda, Avina-Garcia was not driving fast within the complex,
but there was loud music coming from the truck. Zepeda recalled Doe asking
what defendants were doing there, “and we said nothing.” He also recalled
her asking them to leave. Zepeda knew Doe was angry because of the loud
music, but Avina-Garcia turned the music even louder. As defendants left,
Zepeda noticed Doe taking a picture of the license plate number of the truck
with her phone. Zepeda denied throwing a beer bottle at her.
After returning to the Kearney Street home, Zepeda called the
coworker, but he did not respond. Zepeda suggested to Avina-Garcia that
they attempt to deliver the beer again. This time, they took a car that
Zepeda had borrowed from a friend because Avina-Garcia’s truck “did not
have gas anymore.” Zepeda drove, while Avina-Garcia rode in the passenger
seat. Zepeda knew they were returning to the location where they
encountered “the lady that didn’t like the loud music before,” but the music
was again playing loudly. Defendants again made no contact with Zepeda’s
coworker.
Zepeda testified he drove slowly through the parking lot because “it
was a little narrow” for him to turn around. Avina-Garcia did not tell Zepeda
to stop the vehicle, and Zepeda slowed down because of a pothole. Avina-
Garcia then reached his hand out of the passenger side window and fired a
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gun into the air. Zepeda did not know Avina-Garcia was going to shoot and
did not even realize he had a gun. As soon as defendants left the apartment
complex, Zepeda pulled over and “gave the car to” Avina-Garcia so he could
drive, asking him “why did you shoot.” Zepeda was “scared” and “[a] little
bit” upset and did not want to continue driving because he “had already been
told by the law not to.” Defendants then went to a taco truck and ate before
Avina-Garcia drove them home, where the police were waiting for them.
When Avina-Garcia saw the police, he handed the gun to Zepeda to put
underneath the passenger seat. Zepeda attempted to flee from the police and
gave untruthful responses to their questions because he was scared.
Several months prior to the trial, Zepeda spoke with the district
attorney and Officer Andrade, seeking leniency from the prosecution.
3. Rebuttal Evidence
Officer Andrade testified that Zepeda, at the time of the arrests,
provided a false name and date of birth and lied that he had not previously
been arrested. He denied knowing the owner of the Nissan and of the
presence of a weapon in the vehicle, and said he was not with Avina-Garcia
when the gun in the Nissan was fired.
Officer Thompson was recalled and testified that Zepeda gave him a
false name and produced an identification card with that name. In light of
Zepeda’s testimony that defendants switched vehicles because the pickup
truck was out of gas, Thompson testified there were several gas stations
along the route from the West Avenue apartment complex to the Kearney
Street address.
4. Verdict, Sentence, and Appeal
The jury convicted defendants of the charged offenses and found the
personal firearm use allegation against Avina-Garcia to be true. Avina-
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Garcia was sentenced to nine years and four months in prison. Zepeda was
sentenced to two years of formal probation.
Defendants filed timely notices of appeal. After they filed their
opening briefs, we granted the People’s unopposed motion to consolidate the
appeals for purposes of further briefing, any oral argument, and decision. We
also granted Zepeda’s unopposed motion to join in Avina-Garcia’s briefing.
DISCUSSION
A. Sufficiency of the Evidence
1. Avina-Garcia’s Liability for Attempted Witness
Dissuasion by Force or Threat
Avina-Garcia contends the evidence was insufficient to support his
conviction for attempted witness dissuasion by force or threat because the
prosecution failed to prove that (1) Doe witnessed any crimes by defendants
prior to the alleged acts of dissuasion; and (2) at the time of the shooting,
Avina-Garcia had the requisite intent to deter Doe from reporting any such
crimes.
“ ‘When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial evidence—that
is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’ ”
(People v. Avila (2009) 46 Cal.4th 680, 701.) “Reversal on this ground is
unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin
(1998) 18 Cal.4th 297, 331.)
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“Section 136.1 criminalizes trying to dissuade a [witness] from
reporting a crime.” (People v. Ortiz (2002) 101 Cal.App.4th 410, 415–416.) To
prove attempted witness dissuasion under section 136.1, subdivision (b)(1),
“ ‘the prosecution must show (1) the defendant has attempted to prevent or
dissuade a person (2) who is a victim or witness to a crime (3) from making
any report of his or her victimization to any peace officer or other designated
officials.’ [Citation.] The prosecution must also prove the defendant
specifically intended that his acts would prevent or dissuade the victim or
witness from making the report.” (People v. Cook (2021) 59 Cal.App.5th 586,
590.) An act or attempted act of witness dissuasion constitutes a felony when
the act is done “knowingly and maliciously” and “is accompanied by force or
by an express or implied threat of force or violence[.]” (§ 136.1, subd. (c)(1).)
Viewing the record in the light most favorable to the judgment, we
conclude there was substantial evidence that Doe witnessed defendants
committing crimes prior to the attempted acts of witness dissuasion. Doe
testified that the reason she confronted defendants was because she noticed
the pickup truck “driving back and forth at high speed” and playing “very
loud” music in the West Avenue apartment complex, all of which occurred
late on a Sunday evening outside a building where residents were
presumably trying to sleep. A rational trier of fact could conclude from this
evidence that Doe witnessed defendants’ illegal conduct of reckless driving
(Veh. Code, § 23103, subd. (b)) or disturbing the peace (§ 415, subd. (2)).
Indeed, when Doe confronted defendants, she told them that they were
disturbing the residents and that she would call the authorities, a clear
indication she believed she had witnessed illegal conduct.
Defendants maintain the jury could not have made such findings
because the People never charged defendants for the witnessed crimes or
8
identified what those offenses were. Their first point fails because
defendants cite no authority requiring that charges be filed on a witnessed
crime in order to support a conviction for dissuading a witness from reporting
that crime. (See People v. Williams (1997) 16 Cal.4th 153, 226, fn. 6
(Williams) [arguments for which a party provides no supporting authority
need not be addressed].)
As to their second point, we note that the trial court appropriately
instructed the jury under CALCRIM No. 2622 as to count one,~(CT185)~ and
that defendants do not contend the instruction was insufficient for failing to
specifically identify the witnessed crimes. But even assuming the jury
instructions were incomplete in this regard, any error was harmless in light
of the prosecutor’s closing arguments that Doe told defendants she was “going
to call the police” and that she intended to do so “because of [defendants’]
reckless driving, because they had their music loud at 10:30 p.m. on Sunday
night.” Thus, it was made clear to the jury that the People’s theory on count
one was based on the evidence of Doe’s having witnessed defendants’ unsafe
driving and/or disturbance of the residents’ peace. “Considering the
instruction, the prosecutor’s argument, and the strength of the evidence, we
are satisfied the jury understood its mission and completed it properly.
Assuming the instruction [was] incomplete, there was no harm in this case.”
(People v. Nguyen (1988) 204 Cal.App.3d 181, 189.)
Zepeda insists the People’s failure of proof is evidenced by the fact that
during deliberations, jurors asked questions regarding the elements and
statutory language of section 136.1,2 and further inquired whether the act of
2 Those questions were as follows: “Provide a copy of the count 1 section
136(c)”; “Legal definition of ‘Abetting’ ”; and “Please send clarification on
subdivisions a + b of section 136.1 for count 1.”
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dissuasion could “be defined as the act of driving in with loud music or must
it include the act of shooting the gun.” We discern no confusion from these
questions as to the jurors’ understanding of the witnessed crimes. Nor do we
accept Zepeda’s broader conclusion that the questions reflect the jurors’
“concerns about whether this crime had been committed by either defendant.”
Again viewing the record in the light most favorable to the judgment, the
questions reasonably reflect the jurors’ desire to review the statutory
language of section 136.1 and their attempts to agree on the act or acts giving
rise to each defendant’s liability.
Avina-Garcia contends the evidence of his gang affiliation statement to
Doe could not support the crime of attempted witness dissuasion because the
statement preceded Doe’s threat to call the police. Doe testified, however,
that Avina-Garcia made the statement after she asked defendants to leave
because they were causing a disturbance. A trier of fact could reasonably
conclude that Avina-Garcia, having brushed off Doe’s request, believed she
might yet proceed to notify authorities, and that claiming gang membership
would dissuade her from doing so. Moreover, and in any event, the
dissuasion element was satisfied by the evidence of Avina-Garcia firing the
gun, which occurred after Doe threatened to call the police.
Avina-Garcia nevertheless insists the shooting was not done with the
requisite intent to dissuade Doe from calling the police because it “occurred
well after the men had left the area[,] and that if Doe had intended to call the
police, she would have already done so.” But viewing the record in the light
most favorable to the judgment, a trier of fact could reasonably find that,
notwithstanding the 15-minute period between the first encounter and the
shooting, defendants’ intent in returning to the scene was to make Doe
fearful after she witnessed their crimes, took down their license plate
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number, and threatened to call authorities. True, Doe could have called the
police during that 15-minute interval, but a trier of fact could reasonably
infer from defendants’ decision to switch vehicles that they took this measure
to evade detection in the event officers were already on the scene.3
Avina-Garcia contends the shooting could simply have been an act of
anger or retaliation against Doe, not an attempt to dissuade her from calling
the police. But because that is not the only plausible inference from the
evidence, it is not grounds for reversal. (People v. Hudson (2016) 244
Cal.App.4th 1318, 1324.) And Avina-Garcia’s reliance on People v. Ford
(1983) 145 Cal.App.3d 985 is unavailing because, unlike the situation in that
case, the jury here was properly instructed on the specific intent element of
section 136.1.
Finally, we reject the contention that the evidence was insufficient
because defendants did not know precisely where Doe lived or whether she
was still in the area when the shots were fired. A trier of fact could
reasonably conclude that in returning to the same parking lot where Doe had
confronted them just 15 minutes earlier, playing loud music as they had
before, defendants believed Doe would likely hear both the music and the
gunfire and would thereby be dissuaded from following through on her prior
threat to call the police.
In sum, we conclude there was substantial evidence supporting Avina-
Garcia’s conviction on count one.
2. Zepeda’s Liability for Aiding and Abetting and for
Permitting Another to Shoot from Vehicle
Zepeda contends there was insufficient evidence to support his
conviction for aiding and abetting Avina-Garcia’s crime of attempted witness
3 As the prosecutor argued in closing, Zepeda “switched cars so as not to
be easily detected[.]”
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dissuasion, and his conviction for knowingly permitting another to shoot from
a vehicle while he was driving.
As to the first offense, “[a] person aids and abets the commission of a
crime when he or she, (i) with knowledge of the unlawful purpose of the
perpetrator, (ii) and with the intent or purpose of committing, facilitating or
encouraging commission of the crime, (iii) by act or advice, aids, promotes,
encourages or instigates the commission of the crime.” (People v. Cooper
(1991) 53 Cal.3d 1158, 1164.) Among the factors that may be considered in
making this determination are “ ‘presence at the scene of the crime,
companionship, and conduct before and after the offense.’ ” (People v.
Campbell (1994) 25 Cal.App.4th 402, 409.) As discussed in part A.1, ante,
there was sufficient evidence supporting Avina-Garcia’s conviction for
witness dissuasion.
As for the second crime, the People had to show that Zepeda was a
driver or owner of a vehicle, and that he knowingly permitted another person
to discharge any firearm from the vehicle. (§ 26100, subd. (b).)
A trier of fact could reasonably conclude from the prosecution’s
evidence that Zepeda knew Avina-Garcia intended to commit the crime of
dissuading a witness by threat (shooting a gun), and that Zepeda intended to,
and did aid, abet, and permit the shooting to occur while Zepeda was driving.
As the record reflects, Zepeda drove Avina-Garcia back to the same
apartment complex where Doe had just threatened to call the police, and
Zepeda stopped the car as Avina-Garcia extended his arm out the window
and fired the shots. From this, the jury could reasonably infer that Zepeda
intentionally stopped in order to allow Avina-Garcia to fire. And based on the
evidence that Zepeda was previously present when Doe threatened to call
police and saw her record the license plate number of the truck, the jury
12
could also reasonably conclude that Zepeda knew the shooting was intended
to dissuade Doe from calling the police.
The jury was not required to credit Zepeda’s self-serving version of the
events. (People v. Silva (2001) 25 Cal.4th 345, 369 (Silva).) Indeed, Zepeda’s
repeated falsehoods to law enforcement gave the jury ample reason to reject
his credibility. Moreover, Zepeda’s statements were undermined in key
respects. For instance, Zepeda’s claim that he and Avina-Garcia returned to
the West Avenue apartment complex to deliver beer to his coworker was
weakened by his acknowledgment on cross-examination that he had not
spoken to the coworker after the first unsuccessful attempt. And his
testimony that defendants changed vehicles because the truck was low on
fuel was undermined by evidence that there were several gas stations along
the route between the West Avenue apartment complex and the Kearney
Street home at which defendants could have refueled.
Zepeda attempts to cast doubt on the evidence of his intent by claiming
he does not speak English and therefore did not know that Avina-Garcia
claimed gang membership. He also emphasizes that he had known Avina-
Garcia only for a short time, so there was no reason to believe he knew
Avina-Garcia owned a gun. Again, the jury was entitled to reject Zepeda’s
self-serving testimony. (Silva, supra, 25 Cal.4th at p. 369.) Moreover, and in
any event, Doe testified that she spoke mostly in Spanish during the first
encounter, and Zepeda acknowledged that he understood the nature of the
confrontation. We may also credit Doe’s testimony that Zepeda appeared to
agree with what Avina-Garcia was saying, and that Zepeda threw two beer
bottles at Doe as defendants left the complex. From this, a trier of fact could
reasonably conclude Zepeda understood the nature of the disagreement, sided
with Avina-Garcia, and intended to permit and assist him in the crime of
13
witness dissuasion on their return. It matters not how long Zepeda knew
Avina-Garcia prior to the shooting. That Zepeda stopped the car at the
precise time of the shooting was sufficient to support a finding that Zepeda
knowingly aided, abetted, and permitted Avina-Garcia to fire a gun while
Zepeda was driving.
In sum, substantial evidence supported Zepeda’s convictions for aiding
and abetting attempted witness dissuasion and for knowingly permitting
another person to fire from a vehicle while driving.
B. Ineffective Assistance of Counsel
Avina-Garcia argues certain actions and omissions of his trial counsel
amounted to ineffective assistance. Specifically, he contends counsel
committed unprofessional errors by: (1) withdrawing her prior objection to
the use of the pseudonym “Jane Doe”; (2) failing to object to Doe’s testimony
that Avina-Garcia claimed gang membership; and (3) failing to move for
separate trials of the two defendants.
“In order to demonstrate ineffective assistance, a defendant must first
show counsel’s performance was deficient because the representation fell
below an objective standard of reasonableness under prevailing professional
norms. [Citation.] Second, he must show prejudice flowing from counsel’s
performance or lack thereof. Prejudice is shown when there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Williams,
supra, 16 Cal.4th at pp. 214–215 citing Strickland v. Washington (1984) 466
U.S. 668, 687–688 (Strickland).)
“A reviewing court will indulge in a presumption that counsel’s
performance fell within the wide range of professional competence and that
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counsel’s actions and inactions can be explained as a matter of sound trial
strategy. . . . If the record on appeal sheds no light on why counsel acted or
failed to act in the manner challenged, an appellate claim of ineffective
assistance of counsel must be rejected unless counsel was asked for an
explanation and failed to provide one, or there simply could be no satisfactory
explanation.” (People v. Gamache (2010) 48 Cal.4th 347, 391 (Gamache).)
“[E]xcept in those rare instances where there is no conceivable tactical
purpose for counsel’s actions, claims of ineffective assistance of counsel
should be raised on habeas corpus, not on direct appeal.” (People v. Lopez
(2008) 42 Cal.4th 960, 972.)
1. Withdrawing Objection to “Jane Doe” Pseudonym
a. Additional Facts
In his motions in limine, Avina-Garcia sought an order prohibiting the
prosecutor from referring to Doe as the “victim.” During arguments on the
motions, Avina-Garcia’s counsel additionally objected to referring to the
complaining witness as Jane Doe. The trial court promptly denied the
motion as to “victim” but asked both sides to conduct further research
regarding the propriety of using Jane Doe in this case. Later, the prosecutor
informed the trial court that the parties reached an agreement in which the
prosecution would not use the term “victim” and would refer to the
complaining witness as Jane Doe. Based on this stipulation, Avina-Garcia’s
counsel withdrew her Doe objection.
b. Analysis
Avina-Garcia contends his counsel’s conduct fell below an objective
standard of reasonableness because there was no legal basis for a non-sexual
assault victim’s identity to be withheld from the jury, and because the
pseudonym “endowed” Doe with “a false aura of credibility” and unfairly
15
portrayed Avina-Garcia to be a violent person. We are not persuaded that
counsel’s acceptance of the stipulation and withdrawal of her Doe objection
fell below an objective standard of reasonableness.
“ ‘In order to prevail on [an ineffective assistance of counsel] claim on
direct appeal, the record must affirmatively disclose the lack of a rational
tactical purpose for the challenged act or omission.’ ” (Williams, supra, 16
Cal.4th at p. 215.) Here, the record reflects that a clear tactical reason for
counsel’s withdrawal of her objection was to gain the prosecutor’s agreement
not to use the term “victim.” We therefore accord that tactical decision
substantial deference. (Ibid.)
Avina-Garcia nevertheless maintains the stipulation was “unnecessary”
and “can only be reasonably interpreted as [counsel’s] ignorance of the law or
an eagerness to unnecessarily accommodate.” However, Avina-Garcia cites
no authority holding or otherwise indicating that a Jane Doe pseudonym
enhances a complaining witness’s credibility or constitutes prosecutorial
vouching for the witness. His reliance on Alvarado v. Superior Court (2000)
23 Cal.4th 1121 (Alvarado) is unavailing. There, the identities of crucial
witnesses were concealed from the defendant and his counsel both prior to
and at trial, and such nondisclosure violated the defendant’s right to
confrontation by precluding effective investigation and cross-examination of
those witnesses. (Alvarado, at p. 1151.) No such concealment occurred here,
and Alvarado did not suggest that nondisclosure of a witness’s identity at
trial unfairly boosts their credibility.
Avina-Garcia further argues it was “unnecessary” for his counsel to
withdraw her Doe objection based on the parties’ stipulation, as both
designations—“Doe” and “victim”—were improper. For this, Avina-Garcia
relies on non-California decisional authorities holding that the use of the
16
term “victim” during a criminal trial may be inconsistent with the
presumption of innocence. (See, e.g., State v. Mundon (2012 Haw.) 292 P.3d
205, 230.) What matters here, however, is that at the time counsel entered
into the stipulation with the prosecution, the trial court had already denied
Avina-Garcia’s motion in limine to prohibit use of the term “victim.” Thus,
Avina-Garcia’s counsel obtained some measure of tactical success by
procuring the prosecutor’s agreement not to use a term the court had already
permitted him to use.
Finally, even assuming counsel performed deficiently, we conclude
Avina-Garcia fails to demonstrate a reasonable probability of a different
outcome had the Doe objection been maintained. (Williams, supra, 16
Cal.4th at pp. 214–215, citing Strickland, supra, 466 U.S. at pp. 687–688.)
As mentioned, Avina-Garcia cites no authority supporting his notion that the
use of a Jane Doe pseudonym enhanced Doe’s credibility or painted Avina-
Garcia as a violent person; thus, it is unlikely the trial court would have
sustained the objection on those grounds. Moreover, we presume the jury
followed the trial court’s instructions not to consider Doe’s anonymity for any
reason other than maintaining her privacy. (See People v. Thompson (2010)
49 Cal.4th 79, 138.)4
In sum, we conclude trial counsel’s tactical decision on this matter
neither fell below an objective standard of reasonableness nor prejudiced
Avina-Garcia.
4 The jury was instructed as follows: “In this case, a person is called
Jane Doe. This name is used only to protect her privacy, as required by law.
The fact that the person is identified in this way is not evidence. Do not
consider this fact for any purpose.”
17
2. Failing to Move to Exclude Gang Affiliation Statement
Avina-Garcia next argues his counsel was ineffective for failing to
object under Evidence Code section 11015 to Doe’s testimony that Avina-
Garcia claimed gang membership.
a. Additional Background
Avina-Garcia argues “[t]he record is not clear” and is “vague” as to
whether defense counsel’s motions in limine included Doe’s testimony about
the gang affiliation statement. We conclude that, reasonably understood,
these motions did not seek to prohibit admission of this aspect of Doe’s
testimony.
Instead, the topic of Doe’s testimony about the gang affiliation
statement arose indirectly during arguments on the People’s second
supplemental motion in limine. In that motion, the People sought to admit
evidence of a prior arrest of Avina-Garcia by Healdsburg police officers in
March 2021, both as a similar prior bad act to show his intent for purposes of
count one in the instant case, and for impeachment purposes should be
choose to testify. As the prosecutor argued, “the People would be cross-
examining [Avina-Garcia] about the statement he made to Jane Doe about
being in a gang. If Defendant denies he is in a gang or denies saying he told
Jane Doe he was in a gang, the People seek to ask him about . . . statements
[he made] to [a Healdsburg police officer] on March 23, 2021 and his pending
5 Evidence Code section 1101, subdivision (a), prohibits evidence of a
person’s character to prove his or her conduct on a specified occasion, but
subdivision (b) permits “the admission of evidence that a person committed a
crime, civil wrong, or other act when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake or accident, or whether a defendant in a prosecution for an
unlawful sexual act or attempted unlawful sexual act did not reasonably and
in good faith believe that the victim consented)[.]”
18
case involving him tagging various buildings in Healdsburg with gang
graffiti.” During that arrest, Avina-Garcia purportedly “indicat[ed] he was in
a gang and, essentially, insinuat[ed] the same thing he said to Jane Doe.”
Avina-Garcia’s counsel objected on three grounds: (1) the information
was not timely disclosed by the prosecution under section 1054.7; (2) the
incident with Healdsburg police was not sufficiently similar to the incident
with Doe; and (3) the evidence should be excluded under Evidence Code
section 352 because it was more prejudicial than probative and could confuse
the jury and risk undue consumption of time.
In response, the prosecutor argued that Avina-Garcia’s counsel was
provided with her client’s rap sheet, which included the March 2021 arrest
record and police report. The prosecutor further argued that the statements
from the Healdsburg incident were relevant because “[i]n this case we have
him telling Jane Doe that he’s in a gang and she better watch out and then
further coming back and firing . . . multiple gunshots into the air at the side
of her house when she indicated that she was going to call the police.” “The
People are simply seeking to get in the statements that the defendant made
to the officers which are almost exactly the same type of statements that he
made to Jane Doe in this case[.]”
The trial court focused primarily on Avina-Garcia’s objection under
Evidence Code section 352, remarking that while it “anticipate[d] that Mr.
Avina-Garcia’s statement at least according to Ms. Doe that he’s in a gang is
going to be heard by this jury[,]” the court would not permit introduction of
the Healdsburg police officers incident during the prosecution’s case-in-chief
because the probative value of the “conduct involving the Healdsburg police
officers . . . is substantially outweighed and would create a substantial
danger of undue prejudice in this case[.]” As for the People’s motion to allow
19
questioning regarding the Healdsburg incident for impeachment purposes,
the trial court found the issue was not ripe and deferred ruling on the motion.
At trial, Doe testified without objection that Avina-Garcia said “he
belonged to a gang.”
Avina-Garcia did not testify.
b. Analysis
The record sheds no light on why Avina-Garcia’s counsel did not object
or move to exclude Doe’s testimony that Avina-Garcia claimed gang
membership. As such, this claim of ineffective assistance of counsel is not
cognizable on direct appeal. (Gamache, supra, 48 Cal.4th at p. 391.)
Although Avina-Garcia maintains there could be no conceivable explanation
for counsel’s actions, we disagree. Because of the trial court’s remark that it
“anticipate[d]” the gang affiliation statement would come in through Doe’s
testimony, Avina-Garcia’s counsel could reasonably have viewed efforts to
object to that testimony as futile. (See People v. Diaz (1992) 3 Cal.4th 495,
562; People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)
In any case, we conclude Avina-Garcia was not prejudiced because he
has not demonstrated a reasonable likelihood that the objection would have
been sustained, or that the exclusion of the evidence would have led to a more
favorable result. Here, the evidence that defendant claimed gang
membership was part of Doe’s testimony recounting the events of the crime;
it was not, as Avina-Garcia conclusorily argues, “a merely gratuitous
assertion unrelated to [the People’s] theory of the case” and “in essence no
different than the [Evidence Code] section 1101 subd. (b) evidence the court
had excluded.” The evidence the trial court previously excluded (under
Evidence Code section 352, not Evidence Code section 1101, subdivision (b))
involved statements Avina-Garcia made to Healdsburg police on an unrelated
20
occasion. Avina-Garcia does not contend or establish that the evidence of his
gang affiliation statement to Doe was subject to exclusion under the
standards of Evidence Code section 352. (Cf. People v. Cardenas (1982) 31
Cal.3d 897, 904–905 [gang membership evidence should have been excluded
under Evid. Code, § 352 because it had limited probative value and created
substantial danger of undue prejudice].)
Nor does Avina-Garcia persuade us that the evidence was subject to
exclusion under Evidence Code section 1101. Evidence of gang membership
may be admissible where it is relevant to a material issue in the prosecution’s
case other than as character evidence. (See People v. Sandoval (1992) 4
Cal.4th 155, 175 [gang evidence admissible as relevant to motive].) Here, the
gang affiliation statement was not offered as evidence of Avina-Garcia’s
character, but to prove he made an express or implied threat of force or
violence in an attempt to dissuade Doe from reporting a crime—an element of
felonious witness dissuasion under section 136.1, subdivision (c)(1).6 As such,
counsel had a conceivable reason not to object to admission of the gang
affiliation statement under Evidence Code section 1101, namely, that the
objection lacked merit. (See People v. Cudjo (1993) 6 Cal.4th 585, 616 [failure
to object to admission of evidence is not ineffective assistance where “there
was no sound legal basis for objection”].)
6 During closing arguments, the prosecutor argued that Avina-Garcia
acted maliciously and threatened either directly or indirectly to use force or
violence within the meaning of section 136.1 by “threaten[ing] [Doe] directly
when he said I’m in a gang. That’s a threat. There’s no other reasonable way
to take that. He threatened her indirectly by shooting a gun directly into the
air outside of her house. That’s another threat.”
21
3. Failure to Move for Separate Trials
Avina-Garcia contends his counsel rendered ineffective assistance by
failing to move for separate trials due to antagonistic defenses.
Section 1098 provides in pertinent part: “When 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.”
“Defendants ‘charged with common crimes involving common events and
victims’ present ‘ “a classic case” ’ for a joint trial.” (People v. Tafoya (2007)
42 Cal.4th 147, 162 (Tafoya).)
Section 1098 “abrogated the former rule that codefendants enjoyed an
absolute right to separate trials, restoring the common law rule which placed
the matter within the discretion of the trial court.” (People v. Massie (1967)
66 Cal.2d 899, 916.) In Massie, our Supreme Court held that courts “should
separate the trials of codefendants in the face of 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.” (Massie, at
pp. 916–917, internal footnotes omitted.)
Some years later, the Supreme Court clarified that “the fact of
conflicting or antagonistic defenses alone” does not compel severance, because
such a rule “would negate the legislative preference for joint trials and
separate trials ‘would appear to be mandatory in almost every case.’
[Citation.] [¶] Moreover, although no California case has discussed at length
what constitutes an ‘antagonistic defense,’ the federal courts have almost
uniformly construed that doctrine very narrowly. Thus, ‘[a]ntagonistic
defenses do not per se require severance, even if the defendants are hostile or
attempt to cast the blame on each other.’ [Citation.] ‘Rather, to obtain
22
severance on the ground of conflicting defenses, it must be demonstrated that
the conflict is so prejudicial that [the] defenses are irreconcilable, and the
jury will unjustifiably infer that this conflict alone demonstrates that both
are guilty.’ [Citations.] Stated another way, ‘ “mutual antagonism” only
exists where the acceptance of one party’s defense will preclude the acquittal
of the other.’ ” (People v. Hardy (1992) 2 Cal.4th 86, 168 (Hardy).) “When,
however, there exists sufficient independent evidence against the moving
defendant, it is not the conflict alone that demonstrates his or her guilt, and
antagonistic defenses do not compel severance.” (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 41 [Coffman and Marlow].)
As with Avina-Garcia’s prior ineffective assistance claim, the record
sheds no light on why his trial counsel did not move for separate trials. In
light of the authorities above, counsel could reasonably have concluded a
motion to sever was futile because defendants were charged with having
committed common crimes involving common events and a common victim,
making this a classic case for a joint trial. (Tafoya, supra, 42 Cal.4th at
p. 162.)
Avina-Garcia nevertheless maintains there was no conceivable reason
to agree to a joint trial given Zepeda’s earlier attempts to obtain prosecutorial
leniency in exchange for incriminating testimony against Avina-Garcia.
Avina-Garcia acknowledges, however, that his counsel may not have known
at the start of trial whether Zepeda would testify. Certainly, as it turns out,
Zepeda’s defense claiming he did not know Avina-Garcia had a firearm and
was going to use it was at odds with one facet of Avina-Garcia’s defense—that
phone records between the defendants at the time of the shooting raised a
reasonable doubt that Avina-Garcia was the shooter. But Avina-Garcia falls
short of establishing, pursuant to the antagonistic defense doctrine, that this
23
tension was so irreconcilable that the jury would have unjustifiably inferred
from the conflict alone that both defendants were guilty. (Hardy, supra, 2
Cal.4th at p. 168.) The jury could have believed Zepeda’s testimony and
found that only Avina-Garcia had the requisite intent to commit witness
dissuasion. Or, it could have found that even if Avina-Garcia was the
shooter, the evidence supported one of his alternative defense theories—e.g.,
there were no witnessed crimes prior to the shooting; the shooting was
merely an act of anger—none of which was antagonistic to Zepeda’s defense.
Furthermore, because there was “sufficient independent evidence”
against Avina-Garcia, we cannot say it was the “conflict alone” that
demonstrated his guilt. (Coffman and Marlow, supra, 34 Cal.4th at p. 41.)
As recounted above, Doe’s identification of the pickup truck’s license plate led
police directly to the Kearney Street residence where the pickup truck was
found. Defendants then arrived at that same location in a vehicle that
matched Doe’s description of the second vehicle. That vehicle was later found
to contain an empty firearm and spent shell casings. Doe, who had
previously stood about five to ten feet from Avina-Garcia during the first
encounter, confidently identified him during the infield showup as the
shooter in the passenger seat during the second encounter. Thus,
notwithstanding any antagonism between defendants, the prosecution
presented a strong case against Avina-Garcia independent of Zepeda’s
testimony.
For the same reasons, even if we assume counsel should have moved for
separate trials, we conclude Avina-Garcia fails to show resulting prejudice.
In light of the strong circumstantial evidence against Avina-Garcia
independent of Zepeda’s incriminating testimony, we see no reasonable
probability that Avina-Garcia would have obtained a more favorable result
24
had his counsel successfully moved for severance. (Williams, supra, 16
Cal.4th at pp. 214–215, citing Strickland, supra, 466 U.S. at pp. 687–688.)
The same chain of evidence, including Doe’s eyewitness identification of
Avina-Garcia, would have been presented in the separate trial, likely leading
to the same result.
C. Instructional Error
Avina-Garcia contends the trial court erred by failing to give unanimity
instructions to the jury as to (1) which crimes Doe witnessed defendants
committing prior to the dissuading acts; and (2) which acts by defendants
constituted witness dissuasion by force or threat. According to Avina-Garcia,
the evidence disclosed three possible acts that could have constituted acts of
witness dissuasion—(1) the gang affiliation statement, (2) throwing beer
bottles at Doe, and (3) firing the gun—and thus, the trial court was required
to instruct the jurors that they had to unanimously agree on the specific act
or acts that supported the conviction.
“A criminal defendant has a constitutional right to a unanimous jury
verdict, meaning ‘the jury must agree unanimously the defendant is guilty of
a specific crime.’ [Citation.] Thus, ‘if one criminal act is charged, but the
evidence tends to show the commission of more than one such act, “either the
prosecution must elect the specific act relied upon to prove the charge to the
jury, or the court must instruct the jury that it must unanimously agree that
the defendant committed the same specific criminal act.” [Citations.]’
[Citation.] Accordingly, where no election has been made by the prosecution,
the trial court has a sua sponte duty to provide a unanimity instruction.”
(People v. Jo (2017) 15 Cal.App.5th 1128, 1178 (Jo), italics omitted.)
“Neither an election nor a unanimity instruction is required when the
crime falls within the ‘continuous conduct’ exception.” (People v. Salvato
25
(1991) 234 Cal.App.3d 872, 882 (Salvato).) “This exception arises in two
contexts. [Citation.] First, a unanimity instruction is not required when the
criminal acts are so closely connected that they form part of the same
transaction, and thus one offense. The second context occurs when the
statute defines the offense to comprise a continuous course of conduct over a
period of time. [Citation.] ‘Cases applying the continuous conduct exception
have generally relied on statutory interpretation to justify a conclusion that
the nature of the crime is ongoing.’ ” (Jo, supra, 15 Cal.App.5th at p. 1178.)
Salvato is instructive. There, the defendant was charged with multiple
counts of witness dissuasion (§ 136.1), making terrorist threats (§ 422),
obtaining signatures by extortionate means (§ 522), and sending extortionate
letters (§ 523), arising from threatening communications he made to his wife
and her attorney over a nine-month period. (Salvato, supra, 234 Cal.App.3d
at p. 876.) Before trial, the defendant moved to require the prosecution to
elect the specific acts it would try to prove for each count, but the motion was
denied. (Id. at p. 878.) The jury was then instructed that “ ‘all jurors must
agree that [defendant] committed the same act or acts,’ ” before it found the
defendant guilty on all but one of the seven counts. (Ibid.)
Reversing the judgment in part, Salvato held the trial court erred by
rejecting the demand for a prosecutorial election as to the criminal threats
count under section 422, but not as to the counts for witness dissuasion under
section 136.1, as the latter counts fell within the continuous course of conduct
exception to the unanimity requirement. As the court explained, “[d]ecisions
on the continuous course of conduct exception have focused on the statutory
language in an attempt to determine whether the Legislature intended to
punish individual acts or entire wrongful courses of conduct.” (Salvato,
supra, 234 Cal.App.3d at p. 882.) On that score, Salvato found that the
26
language of section 136.1 “focuses on an unlawful goal or effect, the
prevention of testimony, rather than on any particular action taken to
produce that end. ‘Prevent’ and ‘dissuade’ denote conduct which can occur
over a period of time as well as instantaneously. The gravamen of the offense
is the cumulative outcome of any number of acts, any one of which alone
might not be criminal. Thus it falls within the continuous conduct exception,
and no election or unanimity instruction was required.” (Salvato, at p. 883.)
However, Salvato held an election should have been required for the criminal
threats count because the language of section 422 focuses on specific acts.
(Id. at pp. 883–884.) The error was prejudicial notwithstanding the
unanimity instruction given because the defendant committed numerous acts
over a nine-month period which could have served as the basis for the
criminal threats count, and he had different defenses for the distinct acts.
(Id. at p. 884.)
Like Salvato, we conclude the charge of witness dissuasion required no
unanimity instruction because it fell within the second aspect of the
continuous course of conduct exception. Because section 136.1 punishes the
overall goal of dissuading a witness, not any particular action taken to
achieve that goal, the trial court was not required to instruct that unanimity
was required as to any specific act of witness dissuasion in order to convict
under this statute. (Salvato, supra, 234 Cal.App.3d at p. 883.) Avina-Garcia
does not attempt to distinguish Salvato or contend it was wrongly decided; to
the contrary, he claims Salvato supports his argument that a unanimity
instruction was required. We disagree, as Avina-Garcia appears to rely on
Salvato’s holding on the criminal threats count (irrelevant here) rather than
its pertinent analysis of section 136.1.
27
We also reject Avina-Garcia’s contention that the trial court was
required to give a unanimity instruction for the witnessed crimes, i.e.,
reckless driving and disturbing the peace. He cites no authority for this
proposition (see Williams, supra, 16 Cal.4th at p. 226, fn. 6), which is
unpersuasive in any event. “ ‘The unanimity requirement is constitutionally
rooted in the principle that a criminal defendant is entitled to a verdict in
which all 12 jurors concur, beyond a reasonable doubt, as to each count
charged.’ ” (People v. Percelle (2005) 126 Cal.App.4th 164, 181.) Because
Avina-Garcia was not charged for the witnessed crimes, the constitutional
principle underlying the unanimity requirement is inapplicable.
D. Cumulative Error
Finally, Avina-Garcia contends the cumulative effect of the claimed
errors infected the trial with such unfairness as to undermine confidence in
the result. Under the cumulative error doctrine, we reverse the judgment if
there is a “reasonable probability” that the jury would have rendered a result
more favorable to defendant absent a combination of errors. (E.g., People v.
Williams (2009) 170 Cal.App.4th 587, 646.) However, we have found no
error, and no prejudice where we have assumed error. Considered together,
the assumed errors remain harmless. (See People v. Cain (1995) 10 Cal.4th
1, 82 [“Defendant was entitled to a fair trial, not a perfect one.”].)
DISPOSITION
The judgments are affirmed.
28
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
People v. Zepeda (A165787)
People v. Avina-Garcia (A165924)
29