Opinion
F079264
01-18-2022
THE PEOPLE, Plaintiff and Respondent, v. HECTOR GONZALEZ, Defendant and Appellant.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF308620 Gary L. Paden, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PEÑA, J.
INTRODUCTION
The People charged Hector Gonzalez (defendant) with various sex offenses committed against a minor (the minor) and the subsequent murder of the minor's mother and defendant's former girlfriend, K.E.
Proceedings for these crimes arose separately. The People initially charged defendant with 27 counts of sex offenses against the minor in Tulare Superior Court case No. VCF308620 (Sex Offense Case). Roughly 14 months later, police found K.E.'s body in defendant's apartment complex. The People subsequently charged defendant with her murder in Tulare Superior Court case No. VCF329290 (Murder Case).
Ultimately, the trial court consolidated the Sex Offense Case and the Murder Case pursuant to Penal Code section 954 over defendant's objection. (Undesignated statutory references are to the Penal Code.) Thereafter, a jury found defendant guilty on all counts.
This appeal concerns the trial court's election to consolidate the Sex Offense Case and the Murder Case. Defendant claims that decision produced prejudicial error and justifies reversal of his conviction.
We disagree and affirm.
FACTUALBACKGROUND
Introductory Facts
Defendant began dating K.E. when the minor was five or six years old. They subsequently all lived together in a home in Tulare County. The household included the minor, her sister, and her half sister (defendant's minor daughter). The minor and her sister share the same parents. Defendant's minor daughter is the sole biological child of defendant and K.E.
Defendant's Sexual Abuse of the Minor
Defendant first abused the minor when she was 10 years old. In this instance, defendant took the minor into her mother's bedroom and asked her if she missed him. When the minor stated she did, defendant removed her clothes and touched her body with his hand. He kissed the minor on her mouth and her breast and then touched her vagina. Defendant stopped when the minor's sister knocked on the door.
Defendant's abuse of the minor increased in severity and frequency and occurred on a near-weekly basis until she was 14. For example, defendant complained of back pain and would ask the minor to rub Bengay on his back. At trial, the minor's sister testified she recalled seeing the minor put on gloves and go with defendant to a room attached to their garage-called the studio-to put medicine on defendant's back. The minor testified defendant would take her into the studio, undress her, and abuse her. Sometimes, defendant placed either his hand or his mouth on the minor's vagina. Other times, defendant placed his penis near the minor's vagina and pushed a little, and the minor would back away. Most commonly, however, defendant sodomized the minor. He used lotion to assist with this act. The abuse sometimes occurred early in the mornings after K.E. left for work and before the minor went to school. When defendant entered the room to wake the minor, he also woke her sister. The minor's sister testified she saw defendant wake the minor up early in the morning and take her to the studio. She also recalled trying to open the studio door once and it was locked; the minor emerged after a few minutes later and she was taking off gloves.
In the fall of 2014, the minor disclosed the abuse in a letter she gave to K.E. before going to school. At school, the minor became emotional and also told her friend, but they decided not to tell anyone. One of the minor's teachers observed she was visibly upset that day.
K.E. did not believe what the minor told her regarding defendant's abuse. Consequently, the minor began self-harming. During this time, her teacher also noticed a change in her academics and participation in class.
At the end of October 2014, the minor disclosed defendant's abuse to a teacher after her friend demanded that she do so. Police subsequently arrived at the minor's school and she met with law enforcement. She underwent a sexual assault examination and the results came back normal.
That evening, police arrived at the family residence to investigate. A search uncovered (among other items) Gold Bond lotion, a tube of Bengay, and the letter the minor wrote to her mother. Law enforcement arrested defendant and booked him into the Tulare County jail.
The Tulare County District Attorney subsequently charged defendant with: (1) sex/sodomy with a child 10 years or younger (§ 288.7, subd. (a); counts 1 & 2), (2) lewd acts upon a child at 10 years old (§ 288, subd. (a); counts 3 & 4), (3) lewd acts upon a child (§ 288, subd. (a); counts 5-24), and (4) lewd acts upon a child (§ 288, subd. (c)(1); (counts 26 & 27). The trial court set defendant's bail at $250,000.
K.E.'s Murder
K.E. posted bail for defendant. She did so with assistance from defendant's ex-girlfriend, Maria Saldana, and defendant's friend, Bill Slack. K.E. asked Saldana to put the bond in her name because she did not want anyone to know she assisted defendant's release from jail.
Defendant subsequently moved into an apartment because his minor daughter he shared with K.E. could not exit foster care until he left the family residence. He maintained supervised visits with his minor daughter. Saldana supervised these visits and stayed at defendant's apartment overnight on these occasions.
Then K.E. began a romantic relationship with G.S. K.E. stopped paying for defendant's cell phone service and stopped making monthly payments on his bail bond.
Defendant became aware of K.E.'s new relationship-even contacting her family regarding it. K.E. reported to other people that defendant was threatening her. For example, on December 11, 2015, she texted a colleague stating, "My ex is threatening me and going crazy with jealousy."
G.S. moved to California on December 18, 2015. On the day of his arrival, defendant entered K.E.'s home. Defendant told G.S. to "get out" and began yelling and pushing K.E. G.S. intervened and defendant relented. Defendant then entered the bedroom, gathered some items in a pillowcase, and left. K.E. changed the locks to the family house following this incident.
On January 1, 2016, at 9:15 a.m., K.E. went to defendant's apartment to pick up their daughter. Saldana, who was supervising the child's stay with defendant, observed defendant leave the apartment four or five times that morning and perceived him acting restlessly. She had known defendant for over 20 years and noticed he was behaving differently that day; he was very quiet and had a "totally different look," "like he wasn't there."
K.E. did not return home immediately, so G.S. began texting her. When she did not reply to the text messages, G.S. called her phone several times, but it went straight to voicemail. Ultimately, G.S. reached K.E.'s family and they contacted the police.
G.S. met with and informed police officers that K.E. went to pick up defendant's minor daughter from defendant's house. He mentioned defendant's prior threats to K.E.
Law enforcement arrived at defendant's apartment complex that evening. In the parking lot, officers observed a light blue Dodge Stratus covered in a tarp. They removed the tarp and noticed K.E. in the driver's seat, slumped over, with multiple stab wounds.
Officers searched defendant's complex for him and arrived at his door. When they announced their presence, defendant responded his name was Richard and that he would not open the door. Officers kicked down the door and arrested defendant.
An autopsy performed days later indicated K.E. died from exsanguination-blood loss arising from multiple sharp force trauma injuries. A blood stain on defendant's shoe revealed K.E. to be a major contributor to the DNA found in the specimen. In addition, scrapings extracted from K.E.'s fingernails showed defendant to be a minor contributor (in addition to G.S.).
Conviction of the Sex Offenses and Murder in a Consolidated Proceeding
The Tulare County District Attorney charged defendant with K.E.'s murder. The information included a special allegation that defendant committed the offense while released from custody on bail for the sex offenses.
The prosecution then moved to consolidate the Sex Offense Case and the Murder Case. The prosecution's motion argued both cases presented "the same general class of crime that are [sic] assaultive in nature, involve the same witnesses [and] contain cross-admissible evidence …." Defendant opposed the prosecution's motion. After a hearing on October 5, 2018, the trial court granted the motion.
A jury trial commenced on March 12, 2019. During the proceedings, one alternate juror asked to be excused after hearing portions of the minor's testimony. After six days of trial, the jury found defendant guilty on all counts and found all allegations to be true.
On May 3, 2019, the trial court sentenced defendant to (among other penalties) consecutive indeterminate terms of 25 years to life on the sodomy charge (count 1) and the murder charge (count 27), respectively. The court also sentenced defendant to 15 years to life for the oral copulation charge (count 2), consecutive to count 1.
Defendant timely filed a notice of appeal on May 9, 2019.
DISCUSSION
Consolidation of the Sex Offense Case and the Murder Case
We affirm the judgment because we see no error in the trial court's decision to consolidate the Sex Offense Case and the Murder Case. Taken together, both crimes meet the statutory predicate for consolidation under section 954. Defendant fails to make a clear showing of prejudice under the factors we examine where, as here, consolidation is challenged. We also cannot conclude the consolidation resulted in "gross unfairness" to defendant.
A. Relevant Factual Background
The prosecution's motion to consolidate argued the facts underlying the Sex Offense Case were admissible to prove motive in the Murder Case. The motion further argued "[n]othing is inherently inflammatory with regards to the charges brought forth upon the defendant" and that the "People are … not consolidating a 'weak' case with a 'strong' case."
Defendant's opposition conceded "the child molest and murder are of the same class given that they are both assaultive in nature." But, he countered, the matters were distinct without cross-admissible evidence. Defendant argued joining the proceedings would inflame the jury against him. Defendant also contended both cases were weak and combining the two would necessarily strengthen each.
At the hearing on the motion, the court summarized the competing arguments, stating:
"It's [the People's] position that the [Sex Offense Case] provided the motive for the [Murder Case] and, therefore, much of the evidence would be cross-admissible as to both cases. [¶] The defense has filed an opposition basically citing the prejudice of joining a child molest case with a murder case. Certainly, the charges don't get much more serious than that or more inflammatory with a jury, [and] the court recognizes that."
Defense counsel challenged the theory the Sex Offense Case provided a motive for defendant to murder K.E. After acknowledging "an argument there's crossover," defense counsel maintained the cases were distinct with no overlap. Defense counsel restated the position that the prosecution desired consolidation to strengthen two weak cases:
"So here we have these two cases, each of which have serious questions, let's stack 'em, let's pile 'em up as if we're gonna make it stronger than what these cases really are, and that's the only attempt here."
In response, the prosecution focused on the importance of K.E. as the main corroborating witness in the Sex Offense Case, whether or not she believed there was merit to her daughter's allegations. The prosecution summarized the issue as follows:
"[W]hether we do the [Murder Case] first or the [Sex Offense Case] first, there's going to be an issue when that-when the child molest case is presented to the jury because they're going to have to know that [K.E.] was murdered … and the defendant was accused because it is improper to let the jury wonder what happened to her."
The trial court agreed, stating if the Sex Offense Case proceeded first, the "jury's gonna wonder where is the victim's mother" and "it's going to come out that she was murdered and the defendant's charged with that offense." Defense counsel questioned why, in that instance, such evidence would have to come in, noting there was no obligation to call the victim's mother and there is a jury instruction directing the jury not to speculate why a certain witness was not called. The court responded, "No, I understand that." The trial court further noted, however, that if the Murder Case proceeded first and defendant was acquitted, the court would "probably still let it in that he was charged with murder, went to trial." The court concluded, "In any event, motion's granted."
B. Applicable Law and Standard of Review
Section 954 governs consolidation and authorizes the "joinder of 'two or more different offenses of the same class of crimes or offenses.'" (People. v. Trujeque (2015) 61 Cal.4th 227, 258.) The statute states, in relevant 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, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated." (§ 954).
Accordingly, "'[o]ffenses falling within this description, but charged in separate pleadings, may be consolidated for trial in order to promote judicial efficiency.'" (People v. Maury (2003) 30 Cal.4th 342, 391.) The law prefers this approach. (People v. Merriman (2014) 60 Cal.4th 1, 37 (Merriman).)
We review a trial court's decision to consolidate (or sever) charges for abuse of discretion. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220; People v. Soper (2009) 45 Cal.4th 759, 774 (Soper).) "'The burden of demonstrating that consolidation or denial of severance was a prejudicial abuse of discretion is upon [the party] who asserts it ….'" (People v. Ruiz (1988) 44 Cal.3d 589, 605.) The appellant must make a "'clear showing of prejudice'" when the statutory requirements for joinder are met. (People v. Simon (2016) 1 Cal.5th 98, 122-123 (Simon).)
We examine the record before the trial court at the time it made its ruling to determine whether it abused its discretion. (Soper, supra, 45 Cal.4th at p. 774.) "A court abuses its discretion when its rulings fall 'outside the bounds of reason.'" (People v. Ochoa (1998) 19 Cal.4th 353, 508.) We consider four factors to evaluate whether the defendant has made the requisite clear showing of prejudice: (1) whether the 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 converts that matter into a capital case. (People v. O'Malley (2016) 62 Cal.4th 944, 968; Simon, supra, 1 Cal.5th at p. 123.)
If we conclude the trial court did not abuse its discretion, "we must further inquire whether events after the court's ruling demonstrate that joinder resulted in 'gross unfairness' amounting to a denial of defendant's constitutional right to [a] fair trial or due process of law." (Merriman, supra, 60 Cal.4th at p. 46.)
C. Analysis
As a threshold matter, we note section 954 permitted consolidation in this case. The statute allows joinder where the charged offenses are (1) connected together in their commission, or (2) of the same class. (Soper, supra, 45 Cal.4th at p. 771.)
Here, the People charged defendant with various sex offenses-including sodomy, oral copulation, and lewd acts-and murder. These crimes are "of the same class" for purposes of consolidation. (Merriman, supra, 60 Cal.4th at p. 37 [holding sexual assault charges and murder charge were properly joined]; People v. Maury, supra, 30 Cal.4th at p. 395 ["Murder and rape are … 'offenses of the same class of crimes' within the meaning of section 954 and [are] properly joinable"]; see Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 135 [holding lewd acts on child and murder are crimes within the same class pursuant to § 954].) Indeed, in his opposition to the motion to consolidate below, defendant conceded the two cases could be considered the same class because they were both assaultive in nature. Thus, the statute permitted the trial court to consolidate the proceedings. Consequently, defendant must make a clear showing of prejudice to prevail on appeal. (Simon, supra, 1 Cal.5th at pp. 122-123.) Defendant fails to meet this burden. We examine the four factors below.
1. Cross-admissibility
Arguing against cross-admissibility, defendant contends "the sex offenses had nothing to do with the homicide under the evidence presented or under the prosecution's theory of the case." He further claims no evidence overlapped between the two cases, signifying the lack of cross-admissible evidence. We disagree.
This element requires us to "consider the cross-admissibility of the evidence in hypothetical separate trials." (Soper, supra, 45 Cal.4th at p. 774; see People v. Capistrano (2014) 59 Cal.4th 830, 849 ["'issue of cross-admissibility "is not cross-admissibility of the charged offenses but rather the admissibility of relevant evidence" that tends to prove a disputed fact'"], overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.) The Supreme Court instructs "'complete … cross-admissibility is not required. [I]t may be sufficient, for example, if evidence underlying charge "B" is admissible in the trial of charge "A"-even though evidence of charge "A" may not be similarly admissible in the trial of charge "B."'" (People v. Hartsch (2010) 49 Cal.4th 472, 493.) If evidence is cross-admissible, that is normally sufficient to dispel any notion of prejudice. (Ibid.) Conversely, the absence of cross-admissible evidence does not necessarily mean the trial court abused its discretion. (Simon, supra, 1 Cal.5th at pp. 123-124.)
We conclude it is not "outside the bounds of reason" that facts underlying the Sex Offense Case would be cross-admissible in the Murder Case to prove motive under Evidence Code section 1101, subdivision (b). (See People v. Zambrano (2007) 41 Cal.4th 1082, 1129 ["[W]e have frequently held that evidence of other offenses is cross- admissible to prove motive"], disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Price (1991) 1 Cal.4th 324, 389 [evidence of one murder admissible to help "establish the motives" for a separate murder].) The Supreme Court has held, "'"'[b]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.'"'" (People v. Duong (2020) 10 Cal.5th 36, 64.)
Facts from the Sex Offense Case provide a barometer for how the relationship between defendant and K.E. deteriorated, which, in turn, helped explain defendant's motive to murder her. K.E. was the first person to whom the minor disclosed the abuse. However, the minor testified K.E. did not believe her when she disclosed defendant's actions. There was also evidence K.E. bailed defendant out of jail when he was incarcerated for the molest allegations. Saldana testified K.E. asked her to put the bail bond in Saldana's name to hide the fact K.E. assisted defendant's release from custody. However, the evidence also reflected K.E. eventually stopped paying defendant's monthly bail amounts, providing a possible motive for him to murder her. Taken as a whole, these facts create a sufficient nexus between the Sex Offense Case and the Murder Case to support a finding of cross-admissibility. (People v. Fayed (2020) 9 Cal.5th 147, 191 ["'[T]he probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus'"].)
We further note the prosecution mentioned several of these facts in support of its theory when it presented the motion to consolidate to the trial court. The trial court acknowledged this theory at the hearing. As mentioned earlier, our review concerns the record at the time the trial court ordered the two cases consolidated. (Soper, supra, 45 Cal.4th at p. 774.) Said differently, at the time the trial court ruled on the motion, it knew the prosecution's plausible theory regarding cross-admissibility and the facts underlying it. We cannot conclude the trial court abused its discretion on this record.
At the trial court, the prosecution argued the Sex Offense Case was probative on the issue of intent. For "other crimes" evidence to be admissible to prove intent, the "other crime" "'must be sufficiently similar to support the inference that the defendant "'probably harbor[ed] the same intent in each instance.'"'" (Alcala v. Superior Court, supra, 43 Cal.4th at pp. 1222- 1223, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 402.) We do not believe the sex offenses against the minor are sufficiently similar to the murder to support cross-admissibility on the issue of intent.
Defendant counters that K.E.'s romantic relationship with G.S. provided the sole impetus for the murder, and K.E.'s contribution to his bail concerned only custody issues. In so arguing, defendant appears to be challenging the relevancy of the Sex Offense Case on the issue of motive. But, contrary to defendant's assertion, the identity of the murderer was a disputed issue at trial to which evidence of defendant's possible motive(s) was relevant. (Evid. Code, § 210 [evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action"]; accord, People v. Scheer (1998) 68 Cal.App.4th 1009, 1017 ["[m]otive is an intermediate fact which may be probative of such ultimate issues as … identity"]; People v. Beyea (1974) 38 Cal.App.3d 176, 194-195 ["[p]roof of the presence of motive is material as evidence tending to refute or support the presumption of innocence"], disapproved on other grounds in People v. Blacksher (2011) 52 Cal.4th 769, 808; People v. De La Plane (1979) 88 Cal.App.3d 223, 246 ["[w]hen the commission of the criminal act by a defendant is a disputed issue in an action, evidence that tends to prove that the defendant had a motive for committing the criminal act is deemed relevant evidence"], disapproved on another ground in People v. Green (1980) 27 Cal.3d 1, 39, fn. 25.) And here, evidence of the Sex Offense Case could be deemed relevant to defendant's motive in the Murder Case, even if it was also arguable other motivations were at play. (See People v. Duong, supra, 10 Cal.5th at p. 65 [concluding gang evidence was admissible on the issue of motive even if "other motivations could have been at play," holding "the possibility of other motivations did not preclude the prosecution from presenting evidence that gang affiliation was the precipitating factor"].) Therefore, defendant's emphasis on K.E.'s and G.S.'s relationship is unpersuasive.
The same is true regarding defendant's reference to custody issues in relation to K.E.'s contribution to his bond. Her initial assistance securing defendant's release from custody and her subsequent cessation of payment on defendant's bond is circumstantial evidence from which a jury could logically infer a motive to murder K.E. (See People v. Zamudio (2008) 43 Cal.4th 327, 357 ["We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence'"]; see also CALJIC No. 2.00 ["Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn"].) Defendant also did not raise the custody issue in the trial court on this point. Therefore, defendant's passing reference to custody status in his reply brief does not alter our conclusion on the cross-admissibility of evidence from the Sex Offense Case to the Murder Case.
In connection with cross-admissibility, both parties mention defendant's minor daughter reported to police that K.E. desired to replace defendant as her father and that defendant told his minor daughter he "had to deal with something." While the changing dynamic between K.E., defendant, and his minor daughter may be relevant to the Murder Case, it is not relevant to the question of whether evidence from the Sex Offense Case is cross-admissible in the Murder Case.
Moreover, contrary to defendant's assertion, evidence overlapped between the two cases. For example, Detective Celestina Sanchez spoke with the minor after she disclosed defendant's abuse. Sanchez searched the family home and arrested defendant for those crimes. Detective Sanchez also responded to the scene of K.E's murder and she participated in canvassing defendant's apartment complex that night. She testified to arresting defendant for K.E.'s murder and subsequently interviewing him. Saldana assisted with bailing defendant out of jail after he was incarcerated for the sexual assault charges against the minor, and she was present in his apartment the morning of the day law enforcement found K.E.'s body in defendant's apartment complex. In addition, evidence of the charges from the Sex Offense Case was relevant to prove the special allegation that defendant murdered K.E. while released on bail for the Sex Offense Case. (People v. Zambrano, supra, 41 Cal.4th at p. 1129 [evidence of attempted murder of witness cross-admissible in separate murder trial, in part, to establish witness-killing special circumstance]; Merriman, supra, 60 Cal.4th at p. 40 [evidence of prior sexual assaults cross-admissible in separate murder trial, in part, to prove special circumstance that murder was committed during commission of rape].) Accordingly, defendant's assertion the cases were entirely distinct does not align with the record.
In addition, the record reflects the trial court suggested evidence underlying the Murder Case would be cross-admissible in the Sex Offense Case. Primarily, the court intimated it would allow the jury to hear evidence defendant was charged with murdering the minor's mother even if the Murder Case proceeded first and a jury acquitted defendant.
It is unclear on what specific evidentiary ground the trial court determined evidence in the Murder Case would be admissible in the Sex Offense Case. Conceivably, evidence defendant murdered K.E.-a key witness-would be admissible to show consciousness of guilt in the Sex Offense Case. (See Merriman, supra, 60 Cal.4th at pp. 44-45 [evidence of witness dissuasion charges would be cross-admissible "to show defendant's consciousness of guilt" on murder and sexual assault charges]; People v. Wilson (2005) 36 Cal.4th 309, 328 [soliciting murder of prosecution witness "'was highly probative of defendant's consciousness of guilt'" under Evid. Code, § 1101].)
Ultimately, we draw no conclusion about the cross-admissibility of the Murder Case to the Sex Offense Case. "Two-way" cross-admissibility is not necessary to support consolidation under section 954. (People v. Hartsch, supra, 49 Cal.4th at p. 493.) Furthermore, even if there were no cross-admissibility between the cases, as discussed further post, the defendant fails to establish the court abused its discretion.
2. Particularly Inflammatory Charges
Defendant next argues "the evidence of the sex offenses was likely to inflame the jury." Defendant also contends the "brutal nature" of K.E.'s killing "added to the inflammatory nature of the homicide case." He concedes both of the cases were "emotionally charged."
On the question of whether a charge is unusually likely to inflame a jury, the Supreme Court states, "[T]he animating concern underlying this factor is not merely whether the evidence from one offense is repulsive, because repulsion does not necessarily engender undue prejudice." (Simon, supra, 1 Cal.5th at p. 124.) "Rather, the issue is 'whether "'strong evidence of a lesser but inflammatory crime might be used to bolster a weak prosecution case' on another crime."'" (Ibid.) "Only when a defendant has made a clear showing of potential prejudice may we find an abuse of discretion in this context." (Id. at p. 127.)
Here, as defendant admits, both cases involved disturbing and graphic facts likely to be upsetting to the average person. The Sex Offense Case featured the highly inflammatory issue of continuous sexual abuse against a minor. (Simon, supra, 1 Cal.5th at p. 124 ["[C]ourts have recognized that sex crimes can be quite inflammatory, especially when they involve young victims"]; see also Coleman v. Superior Court, supra, 116 Cal.App.3d at p. 139 [concluding trial court erred in refusing to sever murder charge from separate charges that defendant performed lewd acts on one child and raped another child].) Indeed, the trial court recognized the charges "don't get much … more inflammatory with a jury …." And as defendant notes, the court excused one alternate juror because of her reaction to the minor's testimony.
The Murder Case featured its own tragic and potentially inflammatory facts. K.E. was the mother of three children and shared a daughter with defendant. Their daughter was in defendant's apartment on the day law enforcement found K.E.'s body and arrested defendant. K.E. was stabbed 21 times, including 17 times in the trunk and neck region.
However, as the Simon case provides, the overarching concern on this element is whether the prosecution used a strong Sex Offense Case to bolster a weak Murder Case or vice versa; we see nothing in the record compelling that conclusion. The items defendant emphasizes-the excusal of the alternate juror and the "brutal nature" of K.E.'s murder-speak to the repulsive nature of defendant's crimes, but that alone does not establish the trial court abused its discretion.
The bottom line is that neither case was "weak" such that it needed the other to bolster it. With respect to the Murder Case, the jury heard evidence defendant had been threatening K.E. to the point where she changed the locks on her door. Her body was found in defendant's apartment complex. Her blood was found on defendant's shoe and defendant's DNA appeared on extracts from her fingernails. The strength of the Murder Case stands on its own without the need to resort to potentially more inflammatory child sexual abuse charges.
For this reason, we reach a different result than the First Appellate District in Coleman v. Superior Court, supra, 116 Cal.App.3d 129. That case involved sex crimes against two minor victims and a murder against an adult victim. (Id. at p. 139.) The Court of Appeal expressed concern that direct evidence concerning the defendant's sex crimes against children would render it difficult for the jury to remain impartial on the separate, but weaker, murder case. (Id. at p. 138; see Simon, supra, 1 Cal.5th at p. 125 [discussing and distinguishing Coleman].) The same dynamic is not apparent here because of the strong evidence supporting the Murder Case.
The Sex Offense Case was also strong. The minor's testimony-given nearly five years after defendant last abused her-was consistent and aligned with the physical evidence law enforcement seized at the family home following their search in 2014, such as the Gold Bond lotion, a tube of Bengay, rubber gloves, and the minor's letter to K.E. regarding the abuse. There was no evidence the minor possessed some other motivation to lie regarding defendant's abuse. (People v. Johnson (1988) 47 Cal.3d 576, 599 [motive to lie "is a commonly used factor to attack the credibility of a witness"].) Other witnesses corroborated the minor's testimony. The sister recalled one time where she saw defendant take the minor into the studio and locked the door and that the minor exited wearing pink gloves. That sister also described another instance where defendant woke up the minor to take her into the studio-waking up the sister in the process. Furthermore, the minor's teacher testified about how she reported changes in the minor's demeanor to the police during the time period when the minor first disclosed the abuse. The prosecution did not need the Murder Case to bolster the Sex Offense Case.
In sum, defendant fails to meet his burden that either the Sex Offense Case or the Murder Case was unusually likely to inflame the jury against him. (See Simon, supra, 1 Cal.5th at p. 125 [concluding there was "no reason to presume that the potentially inflammatory evidence of sex crimes" was likely to prejudice defendant regarding the other charges given that the "murder was no more serious an offense and was also supported by strong evidence"]; accord, People v. McKinnon (2011) 52 Cal.4th 610, 631 ["This was not a matter in which a weak case was joined with a strong case, or with another weak case, thereby 'causing a spillover effect that might have unfairly altered the outcome of the trial.' … Strong evidence supported both cases"].) Accordingly, he did not make a "clear showing of prejudice" as required on this basis. (See Simon, supra, at pp. 122-123.)
3. Relative Strength of Cases
Defendant does not substantively address the third element of the consolidation analysis. Rather, he generally states, "The third factor is subjective and thus problematic, particularly since different defenses were involved, namely that someone else committed the homicide … and that the sex offenses did not occur." However, we conclude this factor further supports the conclusion the trial court did not abuse its discretion.
On this factor, the "core prejudice concern arising in connection with this issue is that jurors may aggregate evidence and convict on weak charges that might not merit conviction in separate trials." (Simon, supra, 1 Cal.5th at p. 127.) A "mere imbalance" in the strength of joined cases does not automatically trigger the possibility of prejudicial "spillover" of evidence. (People v. Soper, supra, 45 Cal.4th at p. 781.) No abuse of discretion occurs where "the evidence of guilt for each of the joined incidents is sufficiently compelling." (People v. Simon, supra, at p. 127.)
As discussed above, strong evidence supported the Sex Offense Case and the Murder Case without the need for the prosecution to resort to "spillover" evidence. Defendant seemingly acknowledges this and concedes the possibility the jury returned a verdict on all charges in less than two hours reflects "the strength of the evidence." Accordingly, neither case needed the other to improve the likelihood of conviction. This factor also supports consolidation.
4. Conversion to a Capital Offense
Consolidation of the cases did not convert them into a capital case. Therefore, the fourth factor of the consolidation analysis is not applicable.
5. Consolidation Did Not Produce Gross Unfairness
Defendant contends consolidation produced prejudicial error and requires reversal of his conviction. In support, he argues the defenses raised in the trial court were "reasonable interpretations of the facts presented at trial …." He also claims the quick verdict the jury returned reflects a "product of emotion" stemming from consolidation. He cites to People v. Watson (1956) 46 Cal.2d 818 and maintains it was reasonably probable he would have obtained a more favorable verdict absent consolidation.
As a preliminary matter, we note our review of a trial court's decision to consolidate requires us to independently "'determine whether, in the end, the joinder of counts … for trial resulted in gross unfairness depriving the defendant of due process of law.'" (Soper, supra, 45 Cal.4th at p. 783.) "[A] judgment will be reversed on this ground only if it is reasonably probable that the jury was influenced by the joinder in its verdict of guilt." (Simon, supra, 1 Cal.5th at pp. 129-130.) Gross unfairness does not arise where there is "strong evidence" supporting the result. (People v. Vargas (2020) 9 Cal.5th 793, 819.)
This is similar to the Watson "harmless error" analysis which requires an appellant to show it is "'"reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."'" (People v. Gonzalez (2018) 5 Cal.5th 186, 195, quoting People v. Watson, supra, 46 Cal.2d at p. 837; see People v. McLain (1988) 46 Cal.3d 97, 105-106 [assuming the trial court erred in denying defendant's motion to sever counts but concluding it was not prejudicial under Watson].) Therefore, we address defendant's Watson claim in conjunction with our independent duty to review for gross unfairness.
We cannot conclude it was reasonably probable defendant would have obtained a more favorable verdict absent consolidation. As discussed, strong evidence supported both cases. The minor provided consistent, detailed testimony regarding the abuse that was corroborated, in part, by her sister. There was no apparent motivation for the minor to lie. Additionally, physical evidence such as the Bengay tube and the minor's letter to K.E. further corroborated the minor's testimony concerning the sexual abuse. With regard to the Murder Case, physical evidence including the blood stain on defendant's shoe that could be traced to K.E. and defendant's DNA under K.E.'s fingernails coupled with evidence of defendant's past threats to K.E. and witness testimony regarding defendant's actions on the day of the murder also supported the guilty verdict. On this basis, we cannot conclude it was reasonably probable defendant would have achieved a more favorable verdict absent consolidation such that consolidation rendered his trial "grossly unfair."
Furthermore, we note the jury received instructions that "[e]ach of the counts charged in this case is a separate crime [and the jury] must consider each count separately and return a separate verdict for each one." Absent some showing to the contrary, we presume the jury followed the court's instructions. (Merriman, supra, 60 Cal.4th at pp. 48-49.) No such showing was made here. (See generally People v. Manriquez (2005) 37 Cal.4th 547, 579 [defendant's concern jury assumed it could consider evidence of charged offenses jointly and based its verdicts on criminal propensity was addressed by instruction similar to CALCRIM No. 3515].)
Finally, defendant also claims consolidation rendered the trial "fundamentally unfair" and so implicates the standard of review in Chapman v. California (1967) 386 U.S. 18. The issue defendant raises does not implicate the Chapman standard. (See Merriman, supra, 60 Cal.4th at p. 49 ["In resolving a claim that joinder resulted in gross unfairness in violation of a defendant's right to a fair trial and due process, we have observed that a judgment will be reversed on this ground only if it is "'reasonably probable that the jury was influenced [by the joinder] in its verdict of guilt'"]; People v. Lucky (1988) 45 Cal.3d 259, 278 [evaluating trial court's decision to consolidate and citing Watson].) Rather, our independent review for gross unfairness requires us to determine whether consolidation deprived defendant of due process or a fair trial. (Soper, supra, 45 Cal.4th at p. 783.) For the reasons stated, we cannot conclude defendant's constitutional rights were violated.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FRANSON, Acting P. J., DE SANTOS, J.