Not to be published in the official reports california Rules of Court, rule 1115
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The court also properly exercised its discretion in excluding the evidence under Evidence Code section 352. In making this determination, we examine whether the probative value of the rap lyrics was "substantially outweighed by the probability that its admission [would] create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Prejudice in this context means the creation of an emotional bias against the defendant through evidence with little probative value. (People v. Karis (1988) 46 Cal.3d 612, 638.) "'[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." . . . In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" (Ibid.) "Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias." (Olguin, supra, 31 Cal.App.4th at p. 1369.) As we have explained, the rap songs were highly probative of Mize's intent and motive to commit the charged crimes. Although the songs "would undoubtedly be disturbing to most people[,] we cannot say [they were] substantially more prejudicial than probative, for [their] value in establishing defendant's [requisite mental state] to [commit first degree murder] was substantial." (People v. Memro (1995) 11 Cal.4th 786, 865.) "The mere fact the lyrics might be interpreted as reflective of a generally violent attitude could not be said 'substantially' to outweigh their considerable probative value." (Olguin, supra, 31 Cal.App.4th at p. 1373.) We also note that the jury was instructed not to consider the gang evidence as proof that Mize was a person of bad character or that he had a disposition to commit crimes. We presume the jury understood and followed these instructions. (People v. Lindberg (2008) 45 Cal.4th 1, 26.) We conclude the evidence would not have evoked a bias against Mize for reasons unrelated to his guilt (see People v. Scheid (1997) 16 Cal.4th 1, 19) because the violence of the charged crimes themselves subsumes any additional prejudice from the lyrics. Because the evidence was highly probative of Mize's intent and motive to commit first degree murder and attempted murder, the trial court did not abuse its discretion in finding the prejudicial effect did not substantially outweigh the probative value of the evidence.
In the first trial, Mize was convicted of the attempted murder of Sotelo. In addition to direct liability, the jury was instructed on the theory that Mize could be found guilty of attempted murder as a natural and probable consequence (NPC) of an assault with a deadly weapon. Although the jury was also given instructions on the target offense of assault with a deadly weapon, it was not given the option of convicting him of that offense instead of attempted murder. Mize contends this was error. He claims that while assault with a deadly weapon is a lesser related offense to attempted murder and not a lesser included offense (People v. Nelson (2011) 51 Cal.4th 198, 215), the crime is "the functional equivalent of an element of the crime as pleaded" where, as here, it is identified as the target offense under an NPC theory. Even if Mize is correct, his claim fails. If the jury relied on the NPC theory in convicting Mize (which is highly unlikely, given the prosecutor's argument and the state of the evidence), it necessarily decided not only that Mize had committed an assault with a deadly weapon, but also that attempted murder was an NPC of that crime. In doing so, the jury rejected a finding that Mize was merely guilty of assault. The error is thus harmless, whether it is characterized as the failure to instruct on lesser included offense (People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086), or the failure to instruct on an element of an offense (People v. Flood (1998) 18 Cal.4th 470, 485). Moreover, "[i]n determining whether a failure to instruct on a lesser included offense was prejudicial, an appellate court may consider 'whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 870.) The strength of the evidence supporting Mize's attempted murder conviction lies in his own admissions that he stabbed his victim 16 times and broke a beer bottle on his head. The evidence suggesting he was merely guilty of assault was comparatively weak. It is thus not reasonably probable that the claimed error affected the verdict.
Appellants assert that cumulative error compels the reversal of their convictions. We have identified and ordered correction of one sentencing error. There is thus no error to cumulate. (See People v. Myles (2012) 53 Cal.4th 1181, 1225.) DISPOSITION The judgments are modified to stay appellants' sentences for active participation in a criminal street gang (count 5) pursuant to section 654. The trial court is directed to amend the abstracts of judgment to reflect the stays and to forward copies of the amended abstracts to the California Department of Corrections and Rehabilitation. As so modified, the judgments are affirmed. NOT TO BE PUBLISHED. PERREN, J. We concur: GILBERT, P. J. YEGAN, J. Clifford R. Anderson, Judge Superior Court County of Santa Barbara ______________________________ Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant Richard Manuel Nava, Jr. Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant Ruben Nicolas Mize. Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant Bryan S. Medinilla. Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant Raul Junior Diaz. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent. 1 All further undesignated statutory references are to the Penal Code. 2 Appellants were juveniles when the crimes were committed and were charged as adults pursuant to section 707, subdivision (d) of the Welfare and Institutions Code. 3 At the parties' request, the court also recalled Nava's sentence in an unrelated case and resentenced him to 19 years in state prison. 4 Although these contentions are not raised and briefed by every appellant, they join in each others' arguments to the extent they can benefit from them. (Cal. Rules of Court, rule 8.200(a)(5).) Appellants have not, however, offered specific arguments as to how the issues raised by the other parties affected their unique circumstances and the facts surrounding their own convictions. "Joinder may be broadly permitted [citation], but each appellant has the burden of demonstrating error and prejudice [citations]." (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11 (Nero).) "Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice. [Citations.]" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) Appellants make no particularized prejudice arguments. In any event, we conclude (with the exception of the section 654 claim) that all of appellants' claims are without merit. 5 Aside from appellants, all parties who have the same last name as another party are referred to by their first names. Carlos, who is not related to Diaz, was charged with murder and pled guilty to being an accessory after the fact (§ 32). As part of his plea deal, he promised to testify truthfully in this case. Uribe was never charged in connection with the case and was granted immunity for her testimony. 6 Mora was also charged with murder in this case. He pled guilty to the attempted murders of Noe Carachure and Rogelio Hernandez and admitted gang enhancement allegations in exchange for a state prison sentence of 19 years 8 months. As a condition of his plea agreement, he also agreed to testify truthfully in this case. 7 "Traviesos," "Eastside Familia," and the "Krazies" are the three Eastside cliques. 8 Mora testified that he was with Mize and Medinilla, but stayed in the car while they disposed of the knives. Although Martinez did not recall Mora being with them, he could not say for certain who was there because he had smoked marijuana and may have also smoked methamphetamine. 9 Herrera was arrested in an unrelated case for committing a robbery with another Eastsider. As part of his plea agreement, he agreed to testify truthfully in the instant case and several others. In addition to recounting Mize's admission, Herrera testified that Mize had called on the night of the murder and asked if Herrera could take him "gang banging" with a "couple of homies." Herrera told Mize he could not do so. 10 Christopher had previously acted as a police informant and had participated in controlled drug buys. After arrests were made in this case, Christopher left town because he feared his informant activities would be discovered and he would be killed. He signed an informant agreement with the Department of Alcohol, Tobacco and Firearms (ATF), and he and his family were placed in the witness relocation program. Records reflected that Christopher received $278,827.27 from ATF in fiscal year 2009-2010, although he claimed it was less than that. He also received $54,777.48 for medical expenses, but claimed he did not know that ATF was paying for those expenses. He left the witness protection program of his own accord prior to trial and testified voluntarily. 11 Nava asserts that any error in admitting Detective Siegel's testimony is subject to the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California (1967) 386 U.S. 18, 24, because "the hypothetical cut to the heart of [Nava's] defense and denied him due process under the United States Constitution . . . ." Aside from the lack of support for this proposition, the overwhelming nature of the evidence would also render any error harmless under Chapman. 12 Appellants brought severance motions in both trials, yet concede that the motion brought in the first trial was untimely. Accordingly, appellants' claim does not apply to their convictions for active gang participation. 13 Nava erroneously frames the issue as whether the court abused its discretion in admitting evidence of Mize's prior bad acts under Evidence Code section 1101, subdivision (b). The only evidence challenged on this ground was Mize's rap lyrics, and Mize was the only defendant who objected. As we shall explain (infra, pp. 26-29), the court did not err in admitting that evidence. To the extent appellants contend that other evidence of Mize's prior bad acts was cumulative or otherwise inadmissible under Evidence Code section 352, the claim was not raised below and is thus forfeited. 14 The jury was instructed: "I instructed you during the trial that certain evidence was admitted only against certain defendants. You must not consider that evidence against any other defendant." (CALCRIM No. 304.) The jury was also instructed pursuant to CALCRIM No. 375 as follows: "The People presented evidence that defendant Ruben Mize committed other offenses that were not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that Ruben Mize in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant Ruben Mize committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] A. The defendant acted with the intent to willfully, deliberately, and with premeditation to commit murder in this case, or [¶] B. The defendant had a motive to commit the offenses alleged in this case, or [¶] C. The defendant's alleged actions were the result of mistake or accident, or [¶] D. The defendant had a plan or scheme to commit the offense alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and act and the charged offense. [¶] Do not consider this evidence for any other purpose." 15 Nava claims that "while most of the testimony about Mize was preceded by a limiting instruction, it often is not clear from the record that the jury was told when the instruction no longer applied." Assuming this claim is accurate, any such confusion on the jury's part logically would have enured to the benefit of Nava, Medinilla, and Diaz. 16 In arguing that the denial of his severance motion amounts to an abuse of discretion, Nava relies on the stricken testimony that led Nava, Medinilla, and Diaz to move for a mistrial. This evidence (which we address infra, at pages 20 through 22) is irrelevant to our evaluation of the court's severance ruling, which is "judged on the facts as they appeared at the time of the ruling." (Coffman, supra, 34 Cal.4th at p. 41.) 17 The prosecutor in the first trial declined the option of dismissing the first degree murder charges and allowing the jury to consider the lesser offense of second degree murder. (See People v. Bordeaux (1990) 224 Cal.App.3d 573, 576; see also People v. Fields (1996) 13 Cal.4th 289, 311.) 18 In arguing that the denial of his severance motion was prejudicial, Nava asserts that the closeness of the case is reflected in the jury's finding "that [Nava] did not use a knife as [Herrera, Neri, and Marin] testified he told them." According to Nava, this demonstrates that the jury "did not believe those witnesses who testified he said he had a knife." Aside from ignoring the possibility that the jury found it was Nava who lied about his level of involvement in an attempt to bolster his reputation, Nava also fails to appreciate that the jury made no finding that Nava did not use a knife, either expressly or implicitly. The charges did not include any allegation that Nava had used a weapon in committing the crime. 19 The instruction at issue in Nero was a former version of CALJIC No. 3.00, which was substantially identical to CALCRIM No. 400. Both instructions were amended in 2010 to make the "equally guilty" language optional. 20 As we have noted, Mize was the only defendant who objected to the evidence, which was admitted solely against him. On appeal, Nava contends the evidence was erroneously admitted in the context of his assertion that the court abused its discretion in declining to sever Mize's trial. Although Nava, Medinilla, and Diaz have joined in each other's arguments to the extent they can benefit from them, they have forfeited the right to challenge the evidence by failing to object below. |