People v. Tonga CA2/2

Filed 9/10/21 P. v. Tonga CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301310
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA094013)
v.
CALVIN LEONARD TONGA et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County. Curtis B. Rappe, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant Calvin Leonard Tonga.
Janyce Keiko Imata Blair, under appointment by the Court
of Appeal, for Defendant and Appellant Taniela Fonoifua.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Stacy Schwartz and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
After a shooting attack on the Tongan Crips Gang (TCG),
TCG members went on a murderous rampage within surrounding
rival gang territories. For their crimes, defendants and
appellants Calvin Leonard Tonga (Tonga) and Taniela Fonoifua
(Fonoifua) were charged and tried together by jury.1
1 Codefendants Fonuamana Ofeina Fuahala (Fuahala),
Lebanon Fifita (Fifita), Samisoni Ilifeleti Lauaki (Lauaki), and
Otoniel Ventura-Leon (Ventura-Leon) were also charged and
tried with appellants. In the third amended information, Fifita,
Lauaki, Ventura-Leon, Fuahala, and Tonga were charged with
conspiracy to commit murder (count 1); Fonoifua was charged
with the murder of Sheila Renee Gomez (Gomez; count 2) and the
attempted murder of Henry Godines (Godines; count 3); Lauaki
and Fonoifua were charged with the murder of Aldalberto
Salcedo III (Salcedo; count 4); Fifita, Lauaki, Ventura-Leon,
Fuahala, and Tonga were charged with the attempted murder of
Sabrina Young (Young; count 5) and the murder of Kenneth
Campos (Campos; count 6); Fonoifua was charged with the
attempted murder of Hernesto Ruiz (Ruiz; count 7); Fifita was
charged with possession of a firearm by a felon (count 8);
Fonoifua was charged with possession of a firearm by a felon
(count 9); and Fifita, Lauaki, Ventura-Leon, Fuahala, and Tonga
were charged with the attempted murder of Harry Coburn
(Coburn; count 10). (People v. Fifita (July 28, 2020, B294952
2
The jury found Tonga guilty of: (1) conspiracy to commit
murder (Pen. Code, § 187, subd. (a); count 1),2 (2) the attempted
willful, deliberate, and premeditated murder of Young (§ 664,
187; count 5), (3) the first degree murder of Campos (§ 187, subd.
(a); count 6), and (4) the attempted willful, deliberate, and
premediated murder of Coburn (§§ 667, 187, subd. (a); count 10).
Fonoifua was found guilty of the first degree murder of
Gomez (§ 187, subd. (a); count 2), the attempted murder of
Godines (§§ 667, 187, subd. (a); count 3), the first degree murder
of Salcedo (§ 187, subd. (a); count 4), the attempted murder of
Ruiz (§§ 667, 187, subd. (a); count 7), and possession of a firearm
by felon (§ 29800, subd. (a)(1); count 9).3
Appellants timely appealed the judgments of conviction.
[nonpub. opn.], at p. 2, petitions for review denied Sept. 30, 2020,
S264050 (Fifita).)
2 All further statutory references are to the Penal Code
unless otherwise indicated.
3 As summarized in Fifita, supra, B294952, at page 3,
Ventura-Leon, Lauaki, and Fifita were convicted of multiple
charges, including conspiracy to commit murder and charges
relating to the murders and attempted murders. Fifita, Lauaki,
and Ventura-Leon separately appealed their judgments of
conviction. Other than striking a gang enhancement left
unimposed against Fifita in connection with one of his sentences,
we affirmed the judgments. (Id. at p. 4.) Fuahala was found
guilty of counts 1, 5, 6, and 10. (Id. at p. 4, fn. 3.) His separate
appeal is pending (B306812).
3
FACTUAL BACKGROUND
I. Prosecution’s Evidence
A lengthy and detailed summary of the People’s case is set
forth in Fifita, supra, B294952, at pages 4 through 27.
II. Defense Evidence
As set forth in Fifita, supra, B294952, at page 27, Fonoifua
testified in his defense.
Tonga did not offer any evidence in defense.
DISCUSSION
I. Tonga’s Batson/Wheeler4 Objections
Just as Fifita, Ventura-Leon, and Lauaki did in their prior
appeal (Fifita, supra, B294952, at p. 29), Tonga contends that the
trial court erred in denying the defense’s Batson/Wheeler
objections to the People’s peremptory challenge to two African-
American female prospective jurors. Fonoifua joins in this
argument, specifically addressing it in his reply brief.
A. Relevant proceedings
Because Tonga and Fonoifua raise the identical objection
summarized and addressed in Fifita, supra, B294952, at pages 29
through 35, we do not repeat our summary of the relevant
proceedings.
B. Forfeiture
The People argue that Tonga forfeited a Batson/Wheeler
challenge as to one of the prospective jurors because he did not
4 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).
4
raise it below.5 Given that (1) he admittedly made a proper
objection concerning the other prospective juror, and (2) we are
addressing the same argument raised by Fonoifua, we address
Tonga’s arguments in conjunction with those raised by Fonoifua.
C. Relevant law
Both the state and federal Constitutions prohibit the use of
peremptory challenges to remove prospective jurors based solely
on group bias, such as race, gender, or ethnicity. (Batson, supra,
476 U.S. at p. 89; People v. O’Malley (2016) 62 Cal.4th 944, 974;
Wheeler, supra, 22 Cal.3d at pp. 276–277.) It is presumed that
the prosecutor exercised peremptory challenges in a
constitutional manner, and the appellant bears the burden of
rebutting that presumption. (People v. Johnson (2015) 61 Cal.4th
734, 755; People v. Manibusan (2013) 58 Cal.4th 40, 76.)
In determining whether the presumption of
constitutionality is overcome, the trial court applies the well-
established three-step inquiry set forth in Batson. (People v.
Taylor (2009) 47 Cal.4th 850, 885.) “‘First, the trial court must
determine whether the defendant has made a prima facie
showing that the prosecutor exercised a peremptory challenge
based on race. Second, if the showing is made, the burden shifts
to the prosecutor to demonstrate that the challenges [were]
exercised for a race-neutral reason. Third, the court determines
whether the defendant has proven purposeful discrimination.
5 In a supplemental letter brief filed on January 28, 2021,
Fonoifua argues that his Batson/Wheeler challenge was not
forfeited. The People do not argue that Fonoifua forfeited this
objection.
5
The ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike.
[Citation.] The three-step procedure also applies to state
constitutional claims. [Citations.]’” (People v. Taylor, supra, at
pp. 885–886; see also People v. Thomas (2011) 51 Cal.4th 449,
473.)
“At the third stage of the Wheeler/Batson inquiry, ‘the
issue comes down to whether the trial court finds the prosecutor’s
race-neutral explanations to be credible. Credibility can be
measured by, among other factors, the prosecutor’s demeanor; by
how reasonable, or how improbable, the explanations are; and by
whether the proffered rationale has some basis in accepted trial
strategy.’ [Citation.] In assessing credibility, the court draws
upon its contemporaneous observations of the voir dire. It may
also rely on the court’s own experiences as a lawyer and bench
officer in the community, and even the common practices of the
advocate and the office that employs him or her. [Citation.]”
(People v. Lenix (2008) 44 Cal.4th 602, 613.) The proper focus is
on the subjective genuineness of the nondiscriminatory
justifications given, not on their objective reasonableness.
(People v. Reynoso (2003) 31 Cal.4th 903, 924.) A “‘legitimate
reason[]’” for excusing a prospective juror is not a reason that
makes perfect sense, but one that is nondiscriminatory. (Id. at
p. 916.)
“Review of a trial court’s denial of a Wheeler/Batson motion
is deferential, examining only whether substantial evidence
supports its conclusions. [Citation.] ‘We review a trial court’s
determination regarding the sufficiency of a prosecutor’s
justifications for exercising peremptory challenges “‘with great
6
restraint.’” [Citation.] We presume that a prosecutor uses
peremptory challenges in a constitutional manner and give great
deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses. [Citation.] So long as the trial court
makes a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered, its conclusions are
entitled to deference on appeal. [Citation.]’ [Citation.]” (People
v. Lenix, supra, 44 Cal.4th at pp. 613–614.)
D. Analysis
1. No step one prima facie showing
For the same reasons set forth in Fifita, supra, B294952, at
pages 38 through 40, we conclude that Tonga and Fonoifua’s
claim fails at the outset because the defense failed to make a step
one prima facie showing at trial that the prosecutor excused the
two prospective jurors based on group bias. (People v. Scott
(2015) 61 Cal.4th 363, 391 [where trial court determined no
prima facie case of discrimination but allowed the prosecutor to
state reasons for the challenges and thereafter accepted the
reasons as genuine, “an appellate court should begin its analysis
of the trial court’s denial of the Batson/Wheeler motion with a
review of the first-stage ruling”].) The trial court here made an
express finding after each Batson/Wheeler motion was made that
each appellant failed to establish a prima facie case of
discrimination. The trial court’s express finding of no prima facie
case is supported by substantial evidence.
And, like Fifita, Lauaki, and Ventura-Leon, appellants here
have not sustained their burden of showing a prima facie case of
discrimination. (People v. Scott, supra, 61 Cal.4th at p. 384.)
They failed to demonstrate on the record how many African-
7
American prospective jurors remained on the panel at all times
and how many African-American prospective jurors remained in
the jury pool. (People v. Zambrano (2007) 41 Cal.4th 1082, 1105,
fn. 3 [“the defendant carries the sole burden to establish an
inference of discrimination”], overruled in part on other grounds
in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Moreover,
the prosecutor’s voir dire of the excused prospective jurors was
thorough and appropriate, as previously set forth. Furthermore,
Tonga and Fonoifua did not belong in the identified minority
groups (African-American and females) subject to the alleged
discrimination. Nor was there any showing that the victims in
this case were members of a group to which the majority of the
jury belonged. Because defense counsel failed to make a step one
prima facie showing of group bias, each Batson/Wheeler motion
was properly denied.
2. Prosecutor provided race-neutral reasons
In addition, as summarized in Fifita, supra, B294952, at
pages 40 through 44, the trial court properly denied the
Batson/Wheeler motions because the prosecutor provided
inherently plausible, race-neutral reasons for exercising the
peremptory challenges, and those reasons are amply supported
by the record. While appellants may disagree with some of those
reasons, they have not shown that these reasons were inherently
implausible or contradicted by the record. (People v. Lenix,
supra, 44 Cal.4th at p. 613; People v. Reynoso, supra, 31 Cal.4th
at p. 924.)
8
II. Conspiracy Instruction Cross-referencing the Murder
Instruction
Tonga contends that the instructions on murder and
conspiracy to commit murder were inconsistent and likely
confused the jury on the necessary mental state for conspiracy.
Specifically, he claims that by cross-referencing the instruction
on murder, the conspiracy instruction essentially allowed the jury
to erroneously consider implied malice murder as a basis for the
alleged conspiracy to commit murder. Fonoifua joins in this
argument (although he was not convicted of conspiracy to commit
murder).
We addressed this identical issue in Fifita, supra, B294952,
at pages 80 through 84. Because Tonga offers nothing new, we
reach the same conclusion. Assuming without deciding that the
trial court erred, any such error was harmless.
The cross-reference to the murder instructions was made in
the given instruction on conspiracy to commit murder (CALCRIM
No. 563). It appears that the murder instructions were not
modified to delete references to implied malice as they relate to
the charge of conspiracy as suggested by the bench notes. It is
also arguable whether the instructions as given conformed to our
Supreme Court’s recent suggestion in People v. Beck and Cruz
(2019) 8 Cal.5th 548, 642 that it be made clear that “what is
required is a conspiracy to commit first degree murder.”
Even assuming there was error, it was harmless.
(Chapman v. California (1967) 386 U.S. 18, 24.) The question
presented is whether it can be “determined beyond a reasonable
doubt that the erroneous implied malice murder instructions
. . . contribute[d] to the conviction[] on the conspiracy count[].”
9
(People v. Swain (1996) 12 Cal.4th 593, 607.) It did not. The jury
found Tonga guilty of first degree murder with premeditation and
deliberation being the only theory presented to the jury. Under
the trial court’s instructions, such a verdict entailed a finding
that each defendant acted “willfully,” i.e., that he “intended to
kill.” As such, there is no “reasonable possibility” that the jury
convicted Tonga of conspiracy to commit murder without first
finding an intent to kill. It follows that any instructional error
was harmless beyond a reasonable doubt.
III. Tonga’s 15 Years to Life Base Terms Must be Modified to
Seven Years to Life Base Terms
On counts 5 and 10, the jury found true the allegations that
(1) the offenses were committed for the benefit of a criminal
street gang, and (2) that “a principal personally and intentionally
discharged a firearm.” It did not find that Tonga personally
discharged a firearm. The trial court sentenced him to
consecutive life terms with a minimum of 15 years (§ 186.22) plus
25 years to life for the gun enhancement (§ 12022.53).
Tonga contends that because the jury did not find that he
discharged a firearm, the gang enhancement on these same
counts (§ 186.22, subd. (b)(4)) requiring a minimum parole
eligibility of 15 years in prison, cannot take effect if the trial
court imposed the 25-year minimum parole eligibility for the
firearm enhancement (§ 12022.53). In other words, Tonga
asserts that he is not subject to both enhancements. The People
agree.
We agree with the parties. “Section 12022.53’s sentencing
scheme distinguishes between four types of offenders. The first
group consists of those offenders who personally used or
10
discharged a firearm in committing a gang-related offense that is
specified in section 12022.53. These defendants are subject to
both to the harsh enhancement provisions of 12022.53 and the
gang-related sentence increases of section 186.22. The second
group consists of accomplices to a gang-related offense specified
in section 12022.53 in which, as here, not the defendant but
another principal personally used or discharged a firearm. They
are subject to additional punishment under either section
12022.53 or the gang-related sentence increases under section
186.22, but not both.” (People v. Brookfield (2009) 47 Cal.4th 583,
593–594.)
In other words, absent a determination that the accused is
subject to the enhanced sentencing provisions of section 186.22 or
some other provision of law, a sentence for willful, deliberate, and
premeditated murder is for a life term with a minimum wait for
parole of seven years. (§ 3046, subd. (a)(1).) If a finding pursuant
to section 186.22, subdivision (b)(5), is returned, the minimum
wait for parole eligibility under a life sentence is increased to 15
years. (People v. Salas (2001) 89 Cal.App.4th 1275, 1280–1281.)
But, if a defendant is “never found to have personally used a
firearm, the section 186.22, subdivision (b)(5) 15-year minimum
parole eligibility term is inapplicable.” (People v. Salas, supra, at
p. 1281.)
Here, the jury did not find that Tonga personally
discharged a firearm. Thus, we direct the trial court to modify
the 15-year-to-life minimum parole eligibility to reflect the
default minimum parole eligibility of seven years designated for
life terms under section 3046, subdivision (a)(1). (People v. Salas,
supra, 89 Cal.App.4th at p. 1283.)
11
IV. Sufficient Evidence to Support the Gang Enhancement as to
Fonoifua for Counts 2, 3, and 4
Fonoifua contends that there was insufficient evidence to
show the requisite intent to establish the gang enhancement on
counts 2, 3, and 4.
A. Standard of review
To assess a claim of insufficient evidence, “‘we review the
whole record to determine whether any rational trier of fact could
have found the essential elements of the crime . . . beyond a
reasonable doubt. [Citation.] The record must disclose
substantial evidence to support the verdict—i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.]’” (People v. Manibusan, supra, 58 Cal.4th at
p. 87.)
“‘In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] “Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify
the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination
depends. [Citation.]”’” (People v. Manibusan, supra, 58 Cal.4th
at p. 87.) We do not resolve credibility issues or evidentiary
conflicts, but instead look for substantial evidence. (Ibid.)
Reversal for insufficient evidence “is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support”’ the verdict. (People v. Bolin
12
(1998) 18 Cal.4th 297, 331; accord, People v. Manibusan, supra,
58 Cal.4th at p. 87.)
These same standards apply when a conviction is based
primarily on circumstantial evidence. (People v. Zamudio (2008)
43 Cal.4th 327, 357; People v. Valdez (2004) 32 Cal.4th 73, 104.)
And intent is often inferred from the circumstances. (People v.
Rios (2013) 222 Cal.App.4th 542, 567–568; People v. Ewing (2016)
244 Cal.App.4th 359, 379.)
B. Relevant law
Pursuant to section 186.22, subdivision (b)(1), the People
were required to prove that the underlying felony was “gang
related,” namely committed ‘for the benefit of, at the direction of,
or in association with any criminal street gang.” The People were
also required to prove “that a defendant commit[ted] the gang-
related felony ‘with the specific intent to promote, further, or
assist in any criminal conduct by gang members.’” (§ 186.22,
subd. (b)(1); see also People v. Albillar (2010) 51 Cal.4th 47, 64–
65.)
“[F]acts concerning particular events and participants
alleged to have been involved in predicate offenses . . . constitute
case-specific facts that must be proved by independently
admissible evidence.” (People v. Valencia (2021) 11 Cal.5th 818,
839.) But, “[a] gang expert may still render an opinion regarding
the gang membership of the perpetrator of a predicate offense in
response to a proper hypothetical question based on premises
established by competent evidence. [Citation.]” (People v.
Valencia, at p. 839.) In other words, “[i]n order to prove the
elements of the criminal street gang enhancement, the
prosecution may, as in this case, present expert testimony on
13
criminal street gangs.” (People v. Hernandez (2004) 33 Cal.4th
1040, 1047–1048.) “‘Expert opinion that particular criminal
conduct benefited a gang’ is not only permissible but can be
sufficient to support [a] gang enhancement.” (People v. Vang
(2011) 52 Cal.4th 1038, 1048.)
C. Analysis
Applying these legal principles, we readily conclude that
there was ample evidence to support the gang enhancement.
These crimes were committed in retaliation for the shootings
against Fonoifua and Fuahala. And, as we noted in Fifita, supra,
B294952, at page 52, in none of the shootings did Fonoifua act
alone. Further gang evidence between Fonoifua and the other
defendants was the evidence of Ventura-Leon’s gestures to
Fonoifua instructing him not to talk while at the jail cell. (Id. at
p. 52.)
Finally, as the gang expert testified, by committing (1) the
shooting at Lennox Park (rival gang territory), (2) the shooting of
Salcedo, and (3) the shooting of Ruiz while yelling “‘“Tongan
Gang Crip, man,”’” Fonoifua and the other defendants intended
to further and assist the TCG gang by instilling fear and respect
for the TCG gang in the community and amongst rival gangs.
(Fifita, supra, B294952, at pp. 14, 24–27.)
V. Denial of Fonoifua’s Motion to Sever
Fonoifua argues that the trial court erred in denying his
motion to sever counts 2, 3, 4, 7, and 9 from the rest of the
charges.
A. Relevant proceedings
“On April 5, 2018, Fonoifua filed a motion for severance of
all the charges pertaining to him from the other charges. He
14
argued that the only count he shared with another defendant was
count 4, in which the evidence against Lauaki was weak. He
asserted that the evidence would show all six defendants were
TCG members and to try all the counts together ‘would make it
more [believable] that he participated in the ones he is actually
charged with.’
“At the time the motion was filed, the second amended
information had yet to be filed. In the original information,
Fonoifua was charged with six counts, i.e., counts 1, 2, 3, 4, 7, and
9. In the second and third amended informations,[6] Fonoifua was
charged with five counts, being left off of count 1. Fonoifua was
the only defendant named in counts 2, 3, 7, and 9. He shared the
charge in count 4 with Lauaki.
“On July 6, 2018, the motion was heard. None of the other
defendants joined. Fonoifua’s counsel argued that as to the count
that he shared with Lauaki, there was weak evidence against
Lauaki. Counsel also argued that being tried with the rest of the
defendants would link him, by virtue of their membership in the
same gang, with murders that he ‘ha[d] nothing to do with.’ The
prosecutor noted that the evidence of guilt as to all the
defendants was intertwined. The murders occurred within the
short span of time, i.e., between October 2015 and January of
2016. And, Fonoifua was implicated in the murders during
Ventura-Leon’s phone conversation.
“Moreover, in the Lennox Park murder for which Fonoifua
was charged, Fuahala was identified as a cosuspect in that case.
This showed a common link between Fonoifua and the
coconspirators. The prosecutor further noted Lauaki was charged
6 The first amended information was lodged but not filed.
15
in count 4 as was Fonoifua. The prosecutor argued that the cell
phone records show that Lauaki was with Fonoifua from the
morning hours all the way through nighttime, although his phone
was turned off during the Salcedo murder. The prosecutor
asserted that there was cross-admissible evidence that was not
inflammatory. The crimes charged were murder and so no one
crime was more inflammatory than another. The prosecutor
noted no Aranda/Bruton[7] problems. The prosecutor concluded
that it was in the interest of justice and time for there to be a
joint trial and Fonoifua would not be prejudiced.
“The trial court denied the motion.” (Fifita, supra,
B294952, at pp. 47–48.)
B. Legal principles
“Section 1098 expresses a legislative preference for joint
trials.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.)
The statute provides: “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[s] separate
trials. In ordering separate trials, the court in its discretion may
order a separate trial as to one or more defendants, and a joint
trial as to the others, or may order any number of the defendants
7 People v. Aranda (1965) 63 Cal.2d 518; 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, 22–23.)
16
to be tried at one trial, and any number of the others at different
trials, or may order a separate trial for each defendant; provided,
that where two or more persons can be jointly tried, the fact that
separate accusatory pleadings were filed shall not prevent their
joint trial.” (§ 1098; see also § 954 [setting forth the procedures
governing charging more than one count or offense].)
Generally, four factors are considered when determining
whether the trial court abused its discretion in denying a motion
for severance: “‘(1) whether evidence of the crimes to be jointly
tried is cross-admissible; (2) whether some charges are unusually
likely to inflame the jury against the defendant; (3) whether a
weak case has been joined with a stronger case so that the
spillover effect of aggregate evidence might alter the outcome of
some or all of the charges; and (4) whether any charge carries the
death penalty or the joinder of charges converts the matter into a
capital case.’ [Citation.] ‘We then balance the potential for
prejudice to the defendant from a joint trial against the
countervailing benefits to the state.’ [Citation.] However, ‘[i]f the
evidence underlying the joined charges would have been cross-
admissible at hypothetical separate trials, “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.”
[Citations.]’ [Citation.]” (People v. Westerfield (2019) 6 Cal.5th
632, 689.)
A denial of a severance motion is reviewed “for abuse of
discretion, based on the facts as they appeared at the time of the
court’s ruling.” (People v. Winbush (2017) 2 Cal.5th 402, 456.)
“‘[R]eversal is required only if it is reasonably probable the
defendant would have obtained a more favorable result at a
17
separate trial.’ [Citations.]” (People v. Souza (2012) 54 Cal.4th
90, 109.) “‘If the court’s joinder ruling was proper when it was
made, however, we may reverse a judgment only on a showing
that joinder “‘resulted in “gross unfairness” amounting to a denial
of due process.’”’ [Citations.]” (Ibid.)
C. Analysis
Applying these legal principles, and as we previously held
in Fifita, supra, B294952, at page 51, the trial court’s ruling was
proper at the time it was made.
1. Cross-admissible evidence
There was ample cross-admissible evidence given that
(1) Lauaki and Fonoifua were jointly charged for Salcedo’s
murder, and (2) Ventura-Leon’s and Fonoifua’s phones were in
the area of the shooting of Ruiz. Moreover, at the time the
motion to sever was brought, which is the operative time for the
current analysis, Fonoifua was still charged in count 1 with
conspiracy to commit murder along with the other defendants,
effectively linking Fonoifua to all the crimes charged in this case.
Indeed, at the time the severance motion was argued, the
conspiracy charge against Fonoifua was a big part of the
prosecutor’s argument against severance. (See People v. Hardy
(1992) 2 Cal.4th 86, 170 [conspiracy charge provides basis for
cross-admissibility of evidence]; People v. Vega-Robles (2017) 9
Cal.App.5th 382, 432 [same], overruled in part on other grounds
in People v. Valencia, supra, 11 Cal.5th at p. 839, fn. 17.)
Significantly, despite the eventual deletion of count 1 as to
Fonoifua, the prosecution’s theory remained unchanged at trial
that all of the defendants, including Fonoifua, were TCG
members hunting victims pursuant to a “‘pack mentality.’”
18
(Fifita, supra, B294952, at p. 52.) The precipitating event for this
crime spree was apparently a four-month old incident during
which Fonoifua himself, as well as Fuahala, suffered multiple
gunshot wounds from an attack by rival gang members.
Fonoifua’s charged crimes, therefore, were part of a whole series
of collaborative gang-style assaults by TCG members against
their rivals.
And, as we noted in Fifita, supra, B294952, at page 52, in
none of the shootings did Fonoifua act alone. It was only due to
prosecutorial discretion that no other defendants were charged in
counts 2, 3, and 7.
Furthermore, as set forth above, the evidence of Ventura-
Leon’s gestures to Fonoifua in a jail cell demonstrated the
existence of an uncharged gang conspiracy between Fonoifua and
the rest of the defendants. (Fifita, supra, B294952, at pp. 18, 52.)
Given that Fonoifua’s crimes were part and parcel of this
concerted four-month crime-spree by TCG members in retaliation
for a gang-style assault on Fonoifua and Fuahala, much, if not
all, of the evidence relating to Fonoifua’s charged crimes was
cross-admissible as to the other defendants, including as motive
evidence as well as evidence of a common plan. To join Fonoifua
to the rest of the defendants in this case was not only warranted,
but the most natural and compelling way to view the set of
crimes charged in this case.
2. Unlikely to inflame the jury
All of the charges that mattered in this case, attempted
murder and murder, were equally serious and equally appalling.
As such, no single one of these charges serves to inflame another.
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3. Weak case not joined with strong case
Moreover, this was not a situation where a weak case was
joined to a stronger case. The case against Fonoifua was strong.
He and his codefendants were all close-knit members of the TCG.
(Fifita, supra, B294952, at p. 62.) As set forth in Fifita, supra, at
page 63, months after Fuahala and Fonoifua were shot and
injured by rival gang members, Fonoifua, along with individuals
that came in two cars, including an SUV-type truck that fit the
description of Ventura-Leon’s car, committed the brutal killing of
Gomez and the attempted murder of Godines. Eleven days later,
Fonoifua and another TCG member ambushed and killed a rival
gang member, Salcedo.
4. Not a capital case
Finally, this case was not charged as a capital case.
5. Trial court properly denied Fonoifua’s severance
motion
Because the factors favor joinder in this case, the trial court
did not abuse its discretion in denying Fonoifua’s severance
motion. Nor is there any reasonable probability Fonoifua would
have obtained a more favorable result at a separate trial. (People
v. Ortiz (1978) 22 Cal.3d 38, 46.)
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DISPOSITION
That portion of the judgment against Tonga that imposes a
15-year minimum parole eligibility date pursuant to section
186.22, subdivision (b)(5), is reversed. The judgment against
Tonga is to be modified to reflect that Tonga is subject to a seven-
year minimum parole eligibility date pursuant to section 3046,
subdivision (a)(1). In all other respects, the judgments are
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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