Filed 6/7/16 P. v. Arroyo CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067976
Plaintiff and Respondent,
v. (Super. Ct. No. SCD253950)
RENE ARROYO, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Louis R.
Hanoian, Judge. Affirmed.
Steven J. Carroll, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Rene Arroyo, Jr., of assault with a firearm (Pen. Code, § 245,
subd. (a)(2))1 and found true an allegation he personally used a firearm during the
commission of the offense (§ 1192.7, subd. (c)(8)). The jury also convicted Arroyo of
being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and found true an
allegation he personally used a firearm during the commission of the offense (§ 1192.7,
subd. (c)(23)). Arroyo further admitted having three prior prison commitment
convictions (§ 667.5, subd. (b)). The court sentenced him to six years in prison.
Arroyo appeals, contending the court erred in denying his motion to sever the trial
of the charges against him from the trial of the charges against his father. Arroyo
additionally contends the court erred in failing to declare a mistrial after the admission of
evidence of Arroyo's gang affiliation. Lastly, he contends the accumulation of these
errors deprived him of a fair trial.
BACKGROUND
Arroyo's father lived in the garage of a home owned by the estate of Arroyo's
deceased grandfather. Arroyo's aunt and her family lived in the home. One night,
Arroyo's father and aunt argued over the disposition of the home. Arroyo, who was
visiting his father, stood next to his father and watched the argument. Arroyo's father
grabbed Arroyo's aunt by her hair and hit her right shoulder. As she picked up a phone
and called 911, Arroyo's father asked Arroyo for a gun. Arroyo pulled out a gun from
1 Further statutory references are to the Penal Code unless otherwise stated.
2
inside his clothes and handed it to his father. Arroyo's father pointed the gun at Arroyo's
aunt. He told her he was going to kill her and lay her next to their deceased mother.
Around that time, Arroyo's uncle arrived to investigate the confrontation. Arroyo's
father handed Arroyo the gun and told Arroyo to "smoke him" or "shoot him." Arroyo
pointed the gun at his uncle. Arroyo's aunt moved to stand in front of Arroyo's uncle and
Arroyo pointed the gun at her. Arroyo's uncle quickly diffused the situation and Arroyo
and his father left the home.
While Arroyo's father lived at the home, prison inmates sent mail to him. One
item of mail contained a check for $400. After the above incident, Arroyo's aunt began
rejecting the mail, which made Arroyo's father angry. He called her home and threatened
to kill her. A week or two after the incident, Arroyo went to his aunt's home to pick up
his father's mail. His aunt told him she did not have his father's mail. She also told him
the police were looking for him. He laughed and thanked her for letting him know.
About two months after the incident, Arroyo's father unexpectedly barged into the
home, ran over to Arroyo's aunt, and started hitting her left side and the back of her head
with his fist. Arroyo's cousin came into the room, ran to Arroyo's father, and stabbed his
lower left ribs twice with a knife. Arroyo's father stopped, noticed himself bleeding,
started going toward Arroyo's aunt again, stopped again, and then left through the front of
the home.
The parties stipulated Arroyo and his father had each been convicted of a felony in
California within the seven years preceding the trial.
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DISCUSSION
I
The prosecutor jointly charged Arroyo and his father with crimes related to the
first incident. The prosecutor also charged Arroyo's father with crimes related to the
second incident. Before trial, Arroyo moved to sever the trial of the charges against him
from the trial of the charges against his father. Arroyo sought the severance because he
believed the jury would be inflamed by limited gang evidence being admitted against his
father as well as the circumstances of the second incident, which involved physical
violence and injury. The court denied the motion, but indicated it would instruct the jury
Arroyo had no charges related to the second incident.
In the midst of the prosecution's case-in-chief, one of the jurors sent the court a
note requesting a reminder of the charges against Arroyo and his father. With the parties'
agreement, the court reread the information. While doing so, the court emphasized none
of the charges against Arroyo related to the second incident.
In addition, after the close of evidence, the court instructed the jury with a tailored
version of CALCRIM No. 203 as follows: "Because more than one defendant is on trial
here, I am going to remind you which individuals are charged with which crimes. [¶]
[Arroyo's father] is charged with the charges and allegations as set forth in Counts One,
Two, Three, Four, Five and Seven of the information. [¶] [Arroyo] is charged with
Assault with a Firearm, with specified allegations as alleged in Count Two and
Possession of a Firearm by a Felon, with specified allegations, as alleged in Count Four.
[¶] You must separately consider the evidence as it applies to each defendant. You must
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decide each charge for each defendant separately. If you cannot reach a verdict on both
of the defendants, or on any of the charges against any defendant, you must report your
disagreement to the court and you must return your verdict on any defendant or charge on
which you have unanimously agreed. [¶] Unless I tell you otherwise, all instructions
apply to each defendant."
The court also instructed the jury with CALCRIM Nos. 304, 305, and 3515. The
CALCRIM No. 304 instruction stated, "I instructed you during the trial that certain
evidence was admitted only against a certain defendant. You must not consider that
evidence against any other defendant."
The CALCRIM No. 305 instruction stated, "You have heard evidence that each
defendant made a statement before trial. You may consider that evidence only against
him, not against any other defendant."
The CALCRIM No. 3515 instruction stated, "Each of the counts charged in this
case is a separate crime. You must consider each count separately and return a separate
verdict for each."
II
Arroyo contends the court prejudicially erred in denying his severance motion
because of the risk the evidence related to the second incident would inflame the jury
against him.2 " 'We review a trial court's denial of a severance motion for abuse of
2 Arroyo arguably waived this contention by his subsequent conduct. (See Gould v.
Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179 [waiver, or the intentional
relinquishment of a known right, may be implied from conduct manifesting an intent to
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discretion based upon the facts as they appeared when the court ruled on the motion.'
[Citations.] 'If we conclude the trial court abused its discretion, reversal is required only
if it is reasonably probable the defendant would have obtained a more favorable result at
a separate trial.' [Citations.] '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.' " ' " (People v. Souza (2012) 54
Cal.4th 90, 109 (Souza).)
The parties do not dispute there was nothing inherently improper about jointly
trying Arroyo's father for the charges related to both incidents. A court may jointly try a
defendant for different offenses involving different transactions or events if the offenses
are of the same class. (§ 954.)3 The parties also do not dispute there was nothing
inherently improper about jointly trying Arroyo and his father, notwithstanding the
additional charges against his father. Indeed, a court generally must jointly try two or
more defendants who are jointly charged with the same offense. (§ 1098; People v.
waive]. Specifically, after the jury was sworn, but before the prosecutor began presenting
evidence, Arroyo's father's counsel fell ill, necessitating the trial be recessed as to
Arroyo's father. Arroyo had the opportunity to either proceed to trial on his own,
stipulate to a mistrial, or waive time until he and his father could be tried together.
Rather than proceed to trial on his own, which would have given him the severance he
sought, he chose to waive time or stipulate to a mistrial so he could be tried with his
father.
3 Section 954 provides in part: "An accusatory pleading may charge two or more
different offenses connected together in their commission, or different statements of the
same offense or two or more different offenses of the same class of crimes or offenses,
under separate counts."
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Chapman (1959) 52 Cal.2d 95, 97.)4 Joint trials are legislatively preferred because they
promote judicial economy and efficiency. They also serve the interests of justice by
avoiding inconsistent verdicts. (People v. Mackey (2015) 233 Cal.App.4th 32, 99
(Mackey).) Since Arroyo and his father were charged with common crimes involving
common events and victims, this case presented a classic case for a joint trial. (Souza,
supra, 54 Cal.4th at p. 110; Mackey, supra, at p. 99.)
Nonetheless, " '[t]he court may, in its discretion, order separate trials [of
defendants] if, among other reasons, there is an incriminating confession by one
defendant that implicates a codefendant, or if the defendants will present conflicting
defenses.' [Citations.] 'Additionally, severance may be called for when "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." ' " (Souza, supra, 54 Cal.4th at p. 109.) "[S]everance may [also] be granted
based on ' "prejudicial association with codefendants." ' " (Mackey, supra, 233
Cal.App.4th at p. 99.)
However, "there is no rule that separate trials must be granted whenever evidence
of the bad acts of a codefendant is admissible. [Citations.] To allow severance whenever
a codefendant's unsavory background might reflect poorly on another defendant would
result in severance in so many cases that it would defeat the professed legislative
preference for joint trials." (Mackey, supra, 233 Cal.App.4th at p. 102.) Rather, "[t]o
4 Section 1098 provides: "When two or more defendants are jointly charged with
any public offense … they must be tried jointly, unless the court order separate trials."
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justify severance the characteristics or culpability of one or more defendants must be
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." (People v. Bryant (2014) 60 Cal.4th 335, 383; People v.
Letner and Tobin (2010) 50 Cal.4th 99, 152.)
"In deciding the severance issue, the trial court must determine whether 'the
realistic benefits from a consolidated trial are outweighed by the likelihood of
"substantial" prejudice to defendant.' [Citation.] 'In determining the degree of potential
prejudice, the court should evaluate whether (1) consolidation may cause introduction of
damaging evidence not admissible in a separate trial, (2) any such otherwise-inadmissible
evidence is unduly inflammatory, and (3) the otherwise-inadmissible evidence would
have the effect of bolstering an otherwise weak case or cases.' [Citation.] That balancing
process is a ' "highly individualized exercise." ' [Citation.] Less drastic measures than
severance, such as limiting instructions, often will suffice to cure any risk of prejudice."
(Mackey, supra, 233 Cal.App.4th at pp. 99-100.)
Here, the record does not show the evidence against Arroyo's father, which
included the second incident and general information about the Mexican Mafia criminal
prison gang (see pt. III, post), portrayed Arroyo's father so reprehensibly the jury would
have found Arroyo guilty simply by association. While the evidence tended to show
Arroyo's father appeared more violent and rash than Arroyo, Arroyo's counsel
highlighted this contrast throughout the trial as it aided Arroyo's defense. (See People v.
Pinholster (1992) 1 Cal.4th 865, 933 [the court did not err in denying severance where
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evidence of codefendant's gang affiliation was more useful than prejudicial as it tended to
make codefendant appear more culpable], disapproved on another ground in People v.
Williams (2010) 49 Cal.4th 405, 459.)
The record also does not show the evidence against Arroyo's father was stronger
than the evidence against Arroyo. Instead, the evidence against each of them was
equivalent, and the evidence against Arroyo was independently sufficient to support his
convictions.
In addition, the jury was explicitly reminded throughout the trial by the court and
through the strategic cross-examination of witnesses by Arroyo's counsel that Arroyo had
no involvement in the second incident. Moreover, the court instructed the jury to
separately consider the evidence against each defendant and to reach a verdict as to each
defendant solely based upon the evidence against that defendant. We presume the jury
followed this instruction. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 152.)
Arroyo has not rebutted this presumption, as he has not identified anything in record
showing the jury was unwilling or unable to independently assess the respective
culpability of him and his father. Accordingly, Arroyo has not established the court
prejudicially erred in denying his severance motion.
III
A
Before trial, the prosecutor filed a motion to admit expert evidence Arroyo and his
father were affiliated with the East San Diego criminal street gang and his father was an
associate of the Mexican Mafia criminal prison gang. The court denied the motion as to
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Arroyo, but granted the motion as to Arroyo's father. One of the charges against Arroyo's
father was making a criminal threat (§ 422), which has a reasonable fear element (People
v. Toledo (2001) 26 Cal.4th 221, 227). The court noted Arroyo's aunt feared Arroyo's
father because she believed he was a gang member and the gang evidence was relevant to
set up the predicate for her state of mind. Nonetheless, the court limited the evidence to
Arroyo's father's membership in a criminal street gang and a prison gang, without
references to the specific gang names. The parties understood the court's ruling to mean
the prosecutor could present expert testimony about gangs and gang membership
generally, but could not present any expert testimony indicating Arroyo and his father
were documented gang members.
At trial, Arroyo's aunt testified she believed Arroyo's father was a gang member
and only associated with gang members. She explained that he had a paper with codes on
it and he told her he had to get the codes out to people. She believed he was referring to
gang members because he told her about the codes right after he had been released from
prison.
A gang expert later testified about the difference between a criminal street gang
and a criminal prison gang. The expert also testified about the Mexican Mafia criminal
prison gang, including its membership and hierarchy, its methods of communicating
inside and outside of prison using codes, and its laundering of drug proceeds by having
money sent to and from prisoner accounts.
Arroyo's counsel did not cross-examine the gang expert; however, Arroyo's
father's counsel asked the expert about the expert's knowledge of Arroyo and Arroyo's
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father's status as gang members. The expert testified he did not research them and did not
know anything about their status.
The prosecutor believed and the court agreed this line of questioning and the
manner in which it was done created a false impression Arroyo and his father were not
gang members. The prosecutor requested the parties stipulate Arroyo's father was a gang
member. Instead of granting the request, the court told the prosecutor she could ask the
gang expert on redirect what he was asked to do and how he prepared.
Arroyo's counsel objected to any questioning of the gang expert as to anything he
may or may not have been asked to do with reference to Arroyo because there was no
gang connection to the charges against Arroyo. Before the court could address this
concern, Arroyo's counsel moved for a mistrial.
The court responded, "You're going to ask for a mistrial because the guy testified
that he doesn't know whether or not your guy is a member of a gang?" Arroyo's counsel
replied, "It's not so much that, your honor. It'smy concern is that somehow opening the
door has opened the door for further inquiry as to whether my client is a gang member.
[¶] We covered this in limine, and there's absolutely no relevance to my client being in a
gang. He has nothing to do with this check. He has nothing to do with any letters. He
has nothing to do with their level of fear because he's not charged with anything that has
anything to do with [Arroyo's aunt's] level of fear of my client. [¶] That's my concern.
It's justit should be clean and left alone as to my client."
The court asked the prosecutor, "Have any problem with that?" She replied, "No."
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After both defense counsel assured the court and the prosecutor they would not
exploit the situation by arguing in closing that there was no evidence their clients were
gang members, the court ruled: "With this witness, I think you canyou can go along
the lines of what I've suggested. You contacted him yesterday, he knows about gangs in
general, that's what he was here to testify about, and he does not know whether or not
[Arroyo's father] or anybody involved in this case is or is not a member of a gang. That's
not what he was asked to do, and leave it at that."
When the trial resumed, the prosecutor had the expert clarify that the prosecutor
had only asked him to testify about gang members generally. The prosecutor had not
asked him to conduct any investigation into Arroyo's father's background.
B
Arroyo contends the court erred in implicitly denying his mistrial motion because
highly prejudicial and irrelevant gang evidence had been indirectly admitted against him
through the gang expert's testimony and no curative instruction was given. We disagree.
"A motion for ' "mistrial should be granted if the court is apprised of prejudice that
it judges incurable by admonition or instruction." ' " (People v. Montes (2014) 58 Cal.4th
809, 888.) We review the denial of a mistrial motion for abuse of discretion. (Id. at
p. 884.)
In this case, Arroyo's counsel moved for a mistrial preemptively because he was
concerned the court might allow further questioning of the gang expert as to Arroyo and
he believed any such further questioning, even to confirm the expert did not know
whether Arroyo was a gang member, would prejudice Arroyo. Although the court did
12
not expressly grant or deny the motion, the court effectively eliminated the grounds for
the motion by obtaining the prosecutor's acquiescence to Arroyo's counsel's concerns and
limiting what she could ask the gang expert on redirect. Consistent with her
acquiescence to Arroyo's counsel concerns and the court's direction to her, the prosecutor
limited her redirect questions solely to Arroyo's father. Thus, to the extent the court's
actions may be considered an implicit denial of the mistrial motion, we cannot conclude
from these circumstances the denial was an abuse of discretion.
IV
Finally, Arroyo contends we must reverse his conviction because the accumulation
of the above claims of error deprived him of a fair trial. Because we have rejected the
above claims of error, we must necessarily reject Arroyo's cumulative error claim as well.
(People v. Vieira (2005) 35 Cal.4th 264, 294; People v. Bolin (1998) 18 Cal.4th 297,
335.)
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DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
NARES, J.
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People v. Arroyo CA4/1
Combined Opinion