Opinion
F072155
01-10-2018
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL VILLEGAS, Defendant and Appellant.
Marcus A. Torigian for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF294661C)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Marcus A. Torigian for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
This matter involves three defendants, appellant Miguel Angel Villegas, Gustavo Jesus Mendoza, and Joel Serrato (collectively the Codefendants). A jury convicted appellant of attempted robbery (Pen. Code, §§ 664/211; count 1) and conspiracy to commit robbery (§§ 182/211; count 2). The jury found true firearm and criminal street gang enhancements. Appellant received an aggregate prison sentence of 12 years.
All future statutory references are to the Penal Code unless otherwise noted.
In companion appeals F071822 and F072054, we resolve issues raised by Mendoza and Serrato, respectively, for their involvement in this attempted robbery. In the present matter, appellant claims the evidence is insufficient to support his convictions in counts 1 and 2. He also contends that the trial court committed various prejudicial errors regarding jury instructions, a failure to bifurcate the gang enhancement allegations, a failure to grant a new trial, and a failure to unseal a juror's contact information. We affirm.
BACKGROUND
I. The Undercover Drug Purchase.
In January 2014, law enforcement planned an undercover operation to purchase OxyContin illegally from a seller, Ronald Ditlevson, Jr. Shawn Riley, an agent from the Drug Enforcement Administration (DEA), had purchased OxyContin illegally from Ditlevson on three previous occasions starting in October 2013. Riley had paid Ditlevson in cash during the three prior transactions. In setting up a fourth purchase, Riley hoped to learn the identity of Ditlevson's supplier. Prior to this fourth purchase, nothing indicated that Ditlevson had any connection with a criminal street gang.
Ditlevson was charged with crimes under federal law for his actions. As of the time of appellant's trial, he had entered a plea agreement and was serving time in federal prison.
A. The negotiations for the fourth drug purchase.
Riley began negotiating with Ditlevson for a fourth purchase of OxyContin. In a series of communications, Ditlevson said he was having trouble obtaining the drug. They eventually agreed on a sale date of January 30, 2014. Riley agreed to pay $2,600 for the pills.
At around 3:15 p.m. on the day of the planned purchase, Ditlevson texted Riley, indicating he did not yet have the pills and he asked for the money up front. When Riley refused, Ditlevson asked for half of the money, noting he needed to meet his source to obtain the pills. After Riley again refused, Ditlevson agreed to go ahead with the sale that day. At about 3:19 p.m., Riley suggested that Ditlevson's supplier should meet them at the sale. Ditlevson agreed that would happen.
B. Ditlevson contacts appellant.
Shortly after confirming the sale with Riley, Ditlevson called appellant's cellular telephone. The call occurred at 3:28 p.m. and it lasted one minute and 56 seconds. At 3:38 p.m., appellant texted Ditlevson, "Can you pick me N [sic] my boy up and well [sic] do [everything]. We just need a ride." Four additional outgoing calls were placed from Ditlevson's phone to appellant's phone at 3:41 p.m., again at 3:41 p.m., 3:56 p.m., and finally at 4:02 p.m.
C. Police officers spot appellant and codefendant Mendoza at the location of the planned drug sale.
Later that same day, at approximately 4:45 p.m., Riley and local officers from the Visalia Police Department took up positions at the prearranged sale location, a hotel parking lot. It was close to sundown. Two of the previous illegal drug purchases with Ditlevson had occurred in this same parking lot. Riley used the same vehicle that he had used in his three previous drug purchases with Ditlevson. While Riley waited in his vehicle in the parking lot, the police officers set up as surveillance and security teams. Riley notified Ditlevson that he was at the location.
While they waited for Ditlevson to show up, a police officer observed two males walking together in the parking lot; these males were later identified as appellant and codefendant Mendoza. They passed near an unmarked police vehicle that was providing surveillance of the anticipated drug purchase. Appellant and Mendoza made eye contact with one of the undercover officers. They walked away and then they returned about a minute or two later. The officer did not see either of them carrying a gun. Based on their body language, the officer believed that appellant and Mendoza had realized that undercover officers were in the area.
D. Ditlevson moves the location of the planned drug sale.
At approximately 5:03 p.m. that same day, Ditlevson texted Riley that "his source of supply" had told him that police "train in that area[.]" Ditlevson wanted to move the sale location to a nearby park. Riley tried to get Ditlevson to come to his location, indicating no police were present, but Ditlevson remained adamant that he wanted to change locations. Riley, after consulting with his teams, agreed to switch the location for the drug purchase. Riley never saw Ditlevson at the hotel parking lot and nobody approached Riley while he was there.
At trial, the jury learned that no police were training in this area that day.
Riley and the police teams relocated to the nearby park. The other police officers took positions to provide security and surveillance. Everyone was ready at about 5:30 p.m. Riley parked his vehicle near the park's exit.
E. Appellant and Mendoza approach Riley at the new location.
Less than a minute after Riley parked at the new location, appellant and Mendoza began walking together in tandem across a grassy area towards Riley. They were initially spotted about 30 yards from Riley's position. As they came closer, they both made eye contact with Riley. Appellant had a beanie or a bandanna on his head. Mendoza had his face covered up to the bridge of his nose with some type of white cloth. Mendoza wore a long-sleeved sweatshirt, or something similar, and he walked with his right hand tucked underneath his opposite armpit, making it appear that he carried a weapon.
Riley had never seen appellant and Mendoza before. Although Riley did not see a gun, he became nervous and feared for his safety. Appellant and Mendoza came within about 10 to 15 yards of Riley. Riley believed they were armed and they were approaching to rob him. Riley drove away.
At trial, Riley agreed that he would have waited at the park had appellant and Mendoza not approached him and made him feel uneasy.
Neither appellant nor Mendoza said anything to Riley, and neither pointed a weapon at him. As Riley drove away, neither appellant nor Mendoza yelled anything towards him, they did not run towards his vehicle, and they did not try to stop him. Neither appellant nor Mendoza chased after Riley, but they did stop and watch him leave the park.
After Riley drove away, an officer providing surveillance saw that Mendoza had a shiny metal object in his hand underneath his left arm near his "armpit area." Upon closer inspection, the officer saw "no more than an inch" of a gun's barrel there. The officer determined that Mendoza had a firearm. Appellant and Mendoza walked to Ditlevson's parked vehicle, entered it and drove away. At trial, Riley confirmed that he never spotted Ditlevson's vehicle after the proposed sale was relocated to the park.
F. Law enforcement detain four suspects.
Undercover officers followed Ditlevson's vehicle as it drove away from the park. It left the City of Visalia and entered the City of Exeter. Police took four occupants into custody: Ditlevson had been driving; codefendant Serrato was the front passenger; appellant and Mendoza were rear passengers. No illegal narcotics were located. Police located and seized a loaded .45-caliber handgun inside the vehicle. The gun had been lying behind the back seat on the floor under a towel or T-shirt. Officers recovered two rounds of .45-caliber ammunition in the vehicle's center console between the driver's seat and the passenger's seat.
At trial, one of the police officers testified that the barrel of the recovered handgun had a "consistent shape" with the barrel of the handgun seen on Mendoza after Riley fled.
G. Mendoza and Serrato make statements to the police.
Police interviewed Serrato, who stated he had been at Mendoza's house. He also said he had been with Ditlevson in Visalia on January 30, 2014. He claimed to have been meeting a female, but he did not know her name. He indicated that he had gone near the hotel. Serrato admitted that he was an active gang member and he had observed a handgun in Ditlevson's vehicle.
Police interviewed Mendoza, who said Ditlevson picked him up sometime in the evening of January 30, 2014. Mendoza, however, denied that he went to the hotel. During his police interview, Riley walked into the room and Mendoza's shoulders dropped, and his head bowed. Mendoza denied that he had a gun.
II. The Relevant Gang Evidence.
The parties stipulated that the Norteños are a criminal street gang within the meaning of section 186.22. Additionally, Serrato and Mendoza both stipulated that they are active Norteño gang members, and they both stipulated that they are prohibited from owning or possessing a firearm.
The prosecution's gang expert provided background about the Norteño gang, its rivals, its structure, and how it pays taxes within its hierarchy. The expert reviewed photographs taken from appellant's cellular telephone that showed appellant in various poses and attire that the expert attributed to the Norteño gang. Appellant had a photograph of Mendoza, and he had different photographs of himself with Mendoza and Serrato. The expert explained how law enforcement classifies someone as a gang member. The expert opined that appellant was a Norteño gang member.
The gang expert confirmed that Ditlevson was not a "northern" gang member. The expert noted that Norteños do not usually commit crimes with people not associated with the gang. In such a situation, the gang members would leave a "watchdog" to ensure that the non-member did not leave while the crime was underway. The expert also believed a second gang member would accompany the primary robber to provide protection and to vouch for the crime. The gang members would all work together in different roles.
The gang expert opined that gang members who get money as a result of committing a crime owe a portion of the proceeds to the gang. The expert opined that the Norteño gang tries to control the sale of drugs in Visalia. The gang might allow a non-Norteño to sell drugs in Visalia if the gang was paid. The expert admitted, however, that there was no evidence that Ditlevson was paying anyone. He also admitted that there was no evidence that the Codefendants had orders from the gang to commit this crime.
DISCUSSION
I. Sufficient Evidence Supports The Convictions.
Appellant argues that insufficient evidence supports his convictions for attempted robbery (count 1) and conspiracy to commit robbery (count 2). Despite claiming insufficient evidence as a matter of law, he seeks a new trial.
A. Standard of review.
For an appeal challenging the sufficiency of evidence, we review the entire record in the light most favorable to the judgment to determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt based on " ' "evidence that is reasonable, credible, and of solid value ...." ' " (People v. Jones (2013) 57 Cal.4th 899, 960.) In doing this review, we are not required to ask whether we believe the trial evidence established guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Rather, the issue is whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence favorably for the prosecution. (Id. at p. 576.) We are to presume the existence of any fact the jury could have reasonably deduced from the evidence in support of the judgment. (Ibid.) It is not our role on appellate review to reweigh evidence or judge witness credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
The standard of review is the same in which a conviction is based primarily on circumstantial evidence. (People v. Clark (2016) 63 Cal.4th 522, 625.) "In a case built solely on circumstantial evidence, none of the individual pieces of evidence 'alone' is sufficient to convict. The sufficiency of the individual components, however, is not the test on appeal." (People v. Daya (1994) 29 Cal.App.4th 697, 708.) Rather, when reviewing the sufficiency of circumstantial evidence, we must consider such evidence cumulatively and determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. (Id. at p. 709.)
B. Analysis.
As an initial matter, a reviewing court may treat as waived any claim that is not supported with citation of authorities on the points made. (People v. Stanley (1995) 10 Cal.4th 764, 793; see also Cal. Rules of Court, rule 8.204(a)(1)(B).) "This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence." (People v. Stanley, supra, 10 Cal.4th at p. 793.)
Respondent contends that we should not review appellant's claim that insufficient evidence supports the conspiracy conviction in count 2. Respondent asserts that appellant failed to support this claim with analysis or citations to authority. We agree.
Appellant provided only a cursory argument devoid of legal citations in support of his claim that his conviction for conspiracy should be reversed for insufficient evidence. As such, we deem that this argument was waived on appeal. In any event, even if this claim is not deemed waived, it still fails on the merits; the circumstantial evidence supports the convictions both for attempted robbery and conspiracy. We address first the claim involving the conviction for conspiracy before turning to the attempted robbery.
1. Sufficient evidence supports the conviction for conspiracy.
Criminal conspiracy is an inchoate crime distinct from, and not requiring, the actual commission of the substantive criminal offense that is the object of the conspiracy. (People v. Morante (1999) 20 Cal.4th 403, 416.) To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show that: (1) the defendant and another person had (a) the specific intent to agree or conspire to commit an offense and (b) the specific intent to commit the elements of that offense; and (2) proof must exist that one or more parties to the agreement committed an overt act in furtherance of the conspiracy. (People v. Jurado (2006) 38 Cal.4th 72, 120.)
Circumstantial evidence may be used to establish the elements of conspiracy. (People v. Bogan (2007) 152 Cal.App.4th 1070, 1074.) This may be based on the activities of the alleged conspirators before and during the alleged conspiracy, including their conduct, relationships and interests. (Ibid.)
Here, Ditlevson agreed to meet Riley to sell him OxyContin. Shortly after confirming the sale with Riley, Ditlevson called appellant's cellular telephone. The call occurred at 3:28 p.m. and it lasted one minute and 56 seconds. At 3:38 p.m., appellant texted Ditlevson, "Can you pick me N [sic] my boy up and well [sic] do [everything]. We just need a ride." Four additional outgoing calls were placed from Ditlevson's phone to appellant's phone at 3:41 p.m., again at 3:41 p.m., 3:56 p.m., and finally at 4:02 p.m.
Ditlevson drove the Codefendants to the hotel parking lot where an undercover officer observed appellant and Mendoza. The officer became concerned that these suspects spotted at least one undercover officer while they walked through the hotel parking lot. Ditlevson then asked Riley to change the location of the sale to the park.
Almost immediately after Riley relocated to the park, appellant and Mendoza were spotted walking towards him. Riley had never seen these individuals before. Appellant and Mendoza, however, knew Riley's location.
As they walked towards Riley, Mendoza covered his face and was reaching under his left armpit at an area where another surveilling officer eventually spotted a gun. Appellant and Mendoza made eye contact with Riley, and they came within about 10 or 15 yards of his location before Riley fled. When detained, neither Ditlevson nor the Codefendants possessed drugs. The totality of this evidence strongly suggests an intent to rob Riley.
Based on this record, the cumulative circumstantial evidence supports an inference favorable to the prosecution that appellant agreed to rob Riley, and he, along with at least one other person, had a specific intent to commit that crime. The suspects committed an overt act in furtherance of the conspiracy when they drove to where they expected to find Riley and his $2,600 in cash.
A rational jury could have found appellant guilty beyond a reasonable doubt of conspiracy. The evidence of such a conspiracy in this record is reasonable, credible and of solid value. Accordingly, substantial evidence supports the conviction in count 2 and this claim fails.
2. Sufficient evidence supports the conviction for attempted robbery.
Appellant argues that Riley "got nervous" and fled "based upon his suspicions and speculation." He contends that the evidence used to convict in count 1 was based on mere suspicion, conjecture, speculation and/or guesswork. We disagree.
Robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) An attempt to commit a robbery is its own crime, which is punished under section 213, subdivision (b). In order to constitute such an attempt, the prosecution is required to prove (1) the specific intent to commit robbery and (2) a " 'direct but ineffectual act done toward its commission.' " (People v. Watkins (2012) 55 Cal.4th 999, 1018, quoting § 21a.) The act required must be more than mere preparation, and it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime. (People v. Kipp (1998) 18 Cal.4th 349, 376.) "Where the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown. [Citation.]" (People v. Bonner (2000) 80 Cal.App.4th 759, 764 (Bonner).)
Our Supreme Court has acknowledged "that the line between mere preparation and conduct satisfying the act element of attempt often is difficult to determine; the problem 'is a question of degree and depends upon the facts and circumstances of a particular case.' [Citation.] The act that goes 'beyond mere preparation' need not constitute an element of the target crime [citation], and it ' "need not be the ultimate step toward the consummation of the design." ' [Citation.] Instead, ' "it is sufficient if [the conduct] is the first or some subsequent act directed towards that end after the preparations are made." ' [Citation.] In other words, we have explained, the act must represent ' "some appreciable fragment of the crime." ' [Citations.]" (People v. Watkins, supra, 55 Cal.4th at p. 1021.)
We find instructive three opinions: (1) People v. Vizcarra (1980) 110 Cal.App.3d 858 (Vizcarra); (2) Bonner, supra, 80 Cal.App.4th 759; and (3) People v. Sánchez (2016) 63 Cal.4th 411 (Sánchez).
a. Vizcarra , supra , 110 Cal.App.3d 858.
In Vizcarra, the defendant was observed wearing a poncho and standing on a walkway just outside a liquor store late at night. A customer walked past and the defendant immediately turned his face to the wall so that his nose was against the wall. The customer observed the butt of a rifle protruding from the defendant's poncho. The defendant walked across the street to his car. Later, he again drove past the liquor store. (Vizcarra, supra, 110 Cal.App.3d at pp. 861-862.) The Court of Appeal found sufficient evidence of attempted robbery of the liquor store. "Approaching the liquor store with a rifle and attempting to hide on the pathway immediately adjacent to the liquor store when observed by a customer, is in the opinion of this court a sufficient direct act toward the accomplishment of the robbery." (Id. at p. 862.) "It is true that an element of force or fear must be proved in order to establish a conviction for robbery under ... section 211. It is not necessary, however, for this element to be reflected in the overt act of an attempted robbery if the crime has not progressed to that point." (Ibid.)
Our Supreme Court summarized and cited Vizcarra with approval in both People v. Watkins, supra, 55 Cal.4th at p. 1022 and recently in Sánchez, supra, 63 Cal.4th at p. 470.
b. Bonner , supra , 80 Cal.App.4th 759.
In Bonner, the defendant admitted he went into a hotel to commit a robbery. Once inside the laundry room, however, he changed his mind and decided not to commit the crime. However, he was discovered. (Bonner, supra, 80 Cal.App.4th at pp. 762-763.) On appeal, the defendant noted that he "was never in close proximity to either victim and made no demand on either for money." (Id. at p. 763.) The appellate court, however, determined that the defendant "went armed to the scene, placed a mask over his face, [and] waited in hiding moments before his victim's approach," at which point he was discovered. (Id. at p. 764, fn. 3.) The appellate court found this sufficient evidence to uphold the defendant's conviction for attempted robbery. (Ibid.)
Our Supreme Court recently cited and summarized Bonner with approval in Sánchez, supra, 63 Cal.4th at p. 470.
c. Sánchez , supra , 63 Cal.4th 411.
In Sánchez, supra, 63 Cal.4th 411, five men, including the defendant, arrived at a coffee shop armed. They positioned a car to make a quick getaway. The men entered the coffee shop and then went outside. They lingered outside until the owner called the police. (Id. at p. 470.) On appeal, our Supreme Court held this was sufficient evidence to uphold a conviction for attempted robbery because a jury could have found the necessary act beyond mere preparation. (Ibid.)
Here, in light of Sánchez, Bonner, and Vizcarra, sufficient evidence supports the conviction for attempted robbery. Although Riley was supposed to meet Ditlevson for the planned drug sale, Ditlevson first contacted appellant, who agreed that he and his associate (his "boy") would do everything, but they needed a ride. It was appellant and Mendoza who walked towards Riley about one minute after Riley parked at the second location. Riley had never seen these individuals before. Appellant and Mendoza, however, knew Riley's location.
As they walked towards Riley, Mendoza covered his face and was holding a gun under his left armpit. The suspects made eye contact with Riley, and they came within about 10 or 15 yards of his location before Riley, fearing for his safety, drove away. When detained, neither Ditlevson nor the Codefendants possessed drugs. A loaded handgun was found in Ditlevson's vehicle. The totality of this evidence suggests an intent to rob Riley.
Similar to Sánchez, Bonner, and Vizcarra, appellant and Mendoza's actions established that they had put their plan into motion. Appellant and Mendoza went beyond "mere preparation" as they began walking towards Riley with a weapon, and they came within 10 or 15 yards of Riley's location while Mendoza concealed his face.
It is immaterial that Riley fled and prevented appellant and Mendoza from carrying out their plan. Once it is established that a defendant intended to commit a specific crime and put his or her plan into action, the crime of attempt is complete even if the underlying crime was prevented by some collateral reason. (People v. Toledo (2001) 26 Cal.4th 221, 230.) "The crime of attempted robbery requires neither the commission of an element of robbery nor the completion of a theft or assault." (People v. Lindberg, supra, 45 Cal.4th at p. 28.)
Based on a review of the entire record in the light most favorable to the judgment, a rational jury could have found appellant guilty beyond a reasonable doubt of attempted robbery. The cumulative circumstantial evidence established both appellant's intent to rob Riley and the beginning of the plan to execute a robbery. This evidence was reasonable, credible and of solid value. Accordingly, sufficient evidence supports the conviction in count 1 and this claim fails.
We note that the jury was instructed on the general principles of aiding and abetting pursuant to CALCRIM No. 400, and the jurors were instructed on how that principle applies to intended crimes pursuant to CALCRIM No. 401. --------
II. The Trial Court Properly Instructed The Jury.
During this trial, the jury received instruction regarding attempted robbery and conspiracy. Appellant contends that the trial court committed prejudicial error in providing these instructions, again raising a claim of insufficient evidence.
As discussed in section I above, however, substantial evidence supports appellant's convictions in counts 1 and 2. As such, the trial court did not err in instructing the jury regarding these charges. (See People v. Cavitt (2004) 33 Cal.4th 187, 204 [trial court must instruct the jury on legal principles closely and openly connected with the facts of the case].) Accordingly, we summarily reject this claim.
III. The Trial Court Did Not Abuse Its Discretion In Failing To Bifurcate The Gang Enhancement Allegations.
Prior to trial, Mendoza filed a motion to bifurcate the gang enhancement allegations from the underlying charges. Appellant joined that motion, which the trial court denied. Appellant claims that the trial court abused its discretion in denying the motion. He further argues that, even if bifurcation was not required at the beginning of the trial, it should have been ordered once Mendoza's and Serrato's stipulations regarding their gang membership were presented to the jury. He contends he was denied due process and a fair trial.
A. Standard of review.
An abuse of discretion standard is used to review a trial court's denial of a motion to bifurcate. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Under this standard, we will not disturb the trial court's decision on appeal unless " 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
B. Analysis.
As an initial matter, to establish an abuse of discretion, appellant suggests that the four factors involved in ruling on a motion for severance should apply here. Those factors are: "(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130, 161.) We reject appellant's position.
Unlike bifurcation, severance requires selection of separate juries and the severed charges are tried separately. (Hernandez, supra, 33 Cal.4th at p. 1050.) The possibility of increased expenditure of funds and judicial resources factors against severing charged offenses. (Ibid.) In contrast to severance "a bifurcated trial is held before the same jury, and the gang enhancement would have to be tried only if the jury found the defendant guilty." (Ibid.) A trial court has broader discretion to deny bifurcation of a charged gang enhancement than to admit gang evidence when no gang enhancement is charged. (Ibid.)
Appellant cites no authority, and we have found none, applying the factors for severance to a motion for bifurcation of a gang enhancement allegation. We decline appellant's invitation to analyze this issue in such a manner. Instead, our Supreme Court has provided guidance regarding how to analyze whether abuse occurred in this situation.
A trial court has discretion to bifurcate the trial in a case with gang enhancement allegations to avoid the danger of the jury being improperly influenced by the gang evidence when it decides defendant's guilt of the charged crime. (Hernandez, supra, 33 Cal.4th at pp. 1048-1049.) Predicate offenses and other gang evidence "may be so extraordinarily prejudicial, and of so little relevance to guilt, that [they threaten] to sway the jury to convict regardless of the defendant's actual guilt." (Id. at p. 1049.)
Despite these considerations, "less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation." (Hernandez, supra, 33 Cal.4th at p. 1048.) This is because "[a] prior conviction allegation relates to the defendant's status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense." (Ibid.) Further, because there are efficiencies to be gained by conducting a single trial, some evidence that would be inadmissible (under Evid. Code, § 352, for instance) at a trial of the underlying crime alone can be admitted in a trial of an offense with a gang enhancement. (Hernandez, supra, at p. 1050.) The burden is on the defendant to show that the considerations favoring a single trial are substantially outweighed by a danger of undue prejudice. (Ibid.) The danger of undue prejudice must be clearly established by the defendant. (Id. at p. 1051.)
"While gang membership evidence does create a risk the jury will impermissibly infer a defendant has a criminal disposition and is therefore guilty of the offense charged [citation], 'nothing bars evidence of gang affiliation that is directly relevant to a material issue.' [Citation.]" (People v. Montes (2014) 58 Cal.4th 809, 859.) A trial court acts within its discretion when it denies a bifurcation motion if the gang evidence will be admissible to prove the charged offenses. "Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
Here, a criminal street gang enhancement was attached to the charged offenses and was, by definition, inextricably intertwined with those offenses. There were efficiencies to be gained by conducting a single trial. Moreover, the gang evidence tended to bolster guilt issues. The prosecution's gang expert explained why a Norteño gang member, such as Serrato, might remain with Ditlevson, a non-Norteño gang member, while other gang members initiated the robbery attempt. The expert explained why someone such as appellant would accompany Mendoza. The gang evidence tended to provide context regarding appellant's role (along with Mendoza's and Serrato's) in the charged crimes, and it tended to dispel any suggestion that Serrato was a mere passenger who had no motive or intent to participate in the criminal enterprise. As such, the gang evidence had probative value and "[e]ven if some of the expert testimony would not have been admitted at a trial limited to guilt, the countervailing considerations that apply when the enhancement is charged permitted a unitary trial." (Hernandez, supra, 33 Cal.4th at p. 1051.)
Finally, the trial court properly instructed the jury that evidence of gang activity could be considered solely for the limited purpose of deciding whether appellant acted with the intent, purpose, and knowledge necessary to prove the gang-related crimes and gang allegations, or that appellant had a motive to commit the charged offenses. We presume that the jury followed these limiting instructions, and there is nothing in this record to rebut that presumption. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Based on this record, the trial court did not abuse its discretion in denying bifurcation of the gang enhancement allegation. Appellant has not met his burden to establish that a substantial danger of prejudice existed requiring the gang enhancements to be tried separately. Accordingly, this claim fails.
IV. The Trial Court Did Not Abuse Its Discretion In Denying A New Trial.
After the jury rendered its verdicts in this matter, appellant filed a motion for new trial based on various alleged errors. The trial court denied the motion, which appellant contends was an abuse of discretion.
A. Standard of review.
"A motion for new trial is addressed to the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. [Citations.] Since it is the trial court's function in the first instance to assess witness credibility and resolve conflicts in the evidence, the appellate court should give great deference to the trial court's factual determinations [citation] when deciding whether there has been an abuse of discretion. However, questions of law are decided de novo by this court. [Citation.]" (People v. Hinks (1997) 58 Cal.App.4th 1157, 1160.)
B. Analysis.
Appellant raises three issues to establish that the trial court abused its discretion in not granting a new trial. First, he contends the trial evidence was insufficient as a matter of law to sustain the verdict for attempted robbery. Second, he argues he received ineffective assistance of counsel during trial. Finally, he asserts juror misconduct occurred during trial. We reject these arguments.
1. The sufficiency of the evidence.
First, in denying the motion for new trial, the trial court found "more than sufficient evidence." We have already determined that substantial evidence supports the verdicts in counts 1 and 2. As such, no abuse of discretion appears in this record for appellant's first issue. (See § 1181, subd. (6) [a trial court may grant a new trial when the verdict is contrary to law or evidence].)
2. The alleged juror misconduct.
On January 20, 2015, (the third day of trial), the trial court and the parties learned that a juror (the Juror) had made contact with the prosecutor's investigating officer. The officer informed the court and parties that he had been walking out to the parking lot with DEA agent Riley when the Juror "pulled up in his truck" and asked if they knew a particular person who used to work at the DEA. They said they did not. The conversation ended at that point, lasting about 30 seconds.
Appellant's trial counsel noted that the Juror should be asked the nature of the Juror's relationship with that person, and whether it would influence his ability to be fair and impartial. The prosecutor noted that two male jurors (which presumably included the Juror) had said during voir dire that they had friends in law enforcement. The following occurred:
"THE COURT: Yeah, that was—I felt that that was covered with the questions asked of the jury off the board. Do you have friends or relatives in law enforcement? Most of 'em said they did.
"I don't—I don't think there's any need to go any further on this. It's not like the conversation indicated anything other than he knew a DEA agent. So it's not like hey, oh, he was a good friend of mine or he was my cousin or something else, just said I knew him.
"I don't see it requires anything further, but I'll defer to counsel.
"[THE PROSECUTOR]: And I would note that I believe the response from the agent and the officers were they didn't know who it was.
"THE COURT: Yeah. Okay. That issue is put to rest. We'll move on."
Appellant argues that this exchange established juror misconduct and he contends that the trial court abused its discretion in denying the motion for new trial based on this concern. We disagree.
Pursuant to section 1181, subdivision 3, a trial court may grant a new trial for juror misconduct when "a fair and due consideration of the case has been prevented[.]" It is generally misconduct for a juror to communicate with anyone associated with the case. (See § 1122; accord People v. Jones (1998) 17 Cal.4th 279, 310.) However, our Supreme Court has held that a verdict should not be disturbed on appeal when any "trifling" misconduct occurred and the fairness of the trial could not have been affected. (People v. Stewart (2004) 33 Cal.4th 425, 510; accord People v. Miranda (1987) 44 Cal.3d 57, 118 (Miranda), abrogated on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) Miranda, supra, 44 Cal.3d 57, is instructive.
In Miranda, a juror approached the defendant's girlfriend (who attended the trial as a spectator) and thereafter, while the trial continued, engaged in extensive conversations with her, displaying an obvious romantic interest. The superior court denied a motion for new trial, which the Supreme Court affirmed. (Miranda, supra, 44 Cal.3d at pp. 116-117.) The high court determined that the juror's conduct involved a young man who was "flattered to receive attention from a young woman." (Id. at p. 117.) Miranda determined that the defendant failed to establish that any harm occurred from the juror's contact with the girlfriend. The Supreme Court found no abuse of discretion. (Id. at p. 118.)
Here, the Juror had a very brief interaction with the agent and the investigating officer regarding whether they knew a particular person. Once the agent and the investigating officer denied knowing this person, the conversation ended. This record does not demonstrate a degree of misconduct that was found at issue in Miranda, and the present facts do not appear to have involved anything of substance concerning the merits of the case. There is no evidence that the Juror discussed issues related to appellant's criminal matter. There is no evidence indicating that the Juror held a bias against appellant or any of the Codefendants. There is no evidence that the Juror prejudged the question of appellant's guilt. There is no evidence that the Juror's conduct is likely to have influenced the verdict inappropriately. Similar to Miranda, appellant has not pointed to any conduct which could have possibly harmed his case.
Based on this record, the Juror's misconduct was at most "trifling" and the fairness of the trial could not have been affected. The trial court's decision to deny appellant's motion for new trial was neither arbitrary, capricious nor patently absurd. Accordingly, the trial court did not abuse its discretion and this claim fails.
3. The alleged ineffective assistance of counsel.
Appellant contends that he was deprived of a fair trial because his trial counsel rendered ineffective assistance. He raises seven specific arguments:
(1) Defense counsel failed to request an evidentiary hearing to have the court inquire into the alleged juror misconduct when it was disclosed on the third day of trial;
(2) Defense counsel failed to request that an alternate juror be seated;
(3) Defense counsel failed to object to an (unspecified) "improper instruction" given to the jury;
(4) Defense counsel failed to object to the instruction on attempted robbery;
(5) Defense counsel failed to object to the instruction on conspiracy to commit robbery;
(6) Defense counsel failed to seek bifurcation of the gang enhancement; and
(7) Defense counsel failed to seek severance of his case from Mendoza and Serrato. We reject these contentions.
As an initial matter, we agree with respondent that four of appellant's arguments, numbers 3-5 and 7, are limited to a single conclusory sentence that are devoid of factual support, citation to the record, argument and citations to legal authorities. These contentions, therefore, are deemed waived on appeal. (See People v. Stanley, supra, 10 Cal.4th at p. 793 [a reviewing court may treat as waived any claim that is not supported with citation of authorities on the points made]; see also Cal. Rules of Court, rule 8.204(a)(1)(B).) In any event, all of appellant's claims fail on the merits.
Under the federal and state constitutions, a criminal defendant is entitled to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The constitutional right is a guarantee to effective assistance. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish two criteria: (1) that counsel's performance fell below an objective standard of reasonable competence and (2) that he was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The defendant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
Here, we have already determined that any juror misconduct was, at worst, trifling and not prejudicial. As such, appellant cannot show that his counsel's performance fell below an objective standard of reasonable competence for (1) an alleged failure to seek an evidentiary hearing regarding the Juror's actions and (2) any alleged failure to seek an alternate juror. (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1024 [a defense attorney is not required to make futile motions or engage in idle acts].)
Likewise, we have already determined that substantial evidence supports appellant's convictions for attempted robbery and conspiracy to commit robbery. As such, appellant cannot show that his counsel's performance fell below an objective standard of reasonable competence for (3) a failure to object to an (unspecified) "improper instruction" given to the jury; (4) a failure to object to the instruction on attempted robbery; or (5) a failure to object to the instruction on conspiracy to commit robbery. (See People v. Scheer, supra, 68 Cal.App.4th at p. 1024.)
Moreover, despite appellant's argument to the contrary, his defense counsel did seek to bifurcate the gang evidence from this trial. We have already determined that the trial court did not abuse its discretion in denying that motion. As such, this record does not support appellant's claim of ineffective assistance of counsel in this regard.
Finally, appellant's motion for a new trial argued, in part, that his defense counsel rendered ineffective assistance because he failed to bring a motion to sever the case from Mendoza and Serrato. The trial court reviewed that motion and denied it. Based on the trial court's ruling, it is reasonable to infer that this argument had no merit. Moreover, even if the trial court would have granted a motion to sever, appellant fails to show how he would have received a more favorable outcome. As such, appellant has failed to demonstrate that his counsel's performance fell below an objective standard of reasonable competence or that he was prejudiced regarding a failure to seek severance.
Based on this record, ineffective assistance of counsel has not been established. The trial court's decision to deny appellant's motion for new trial was neither arbitrary, capricious nor patently absurd. Accordingly, the trial court did not abuse its discretion and this claim fails.
V. The Trial Court Did Not Abuse Its Discretion In Denying Appellant's Petition To Unseal The Juror's Identifying Information But The Minute Order Is Deficient.
After sentencing in this case, appellant filed a petition to unseal the Juror's identifying information, contending that good cause existed based on alleged juror misconduct. The trial court denied the petition, stating it did "not find a compelling reason to release the information ...." The trial court entered an August 12, 2015, minute order reflecting the denied petition, but the order states no reason for the denial.
Appellant now asserts that the trial court prejudicially erred in denying the petition, and he argues that the court failed in its statutory obligation to set forth the reasons for the denial in its minute order. Respondent concedes that the minute order must be amended to reflect the trial court's oral findings. Respondent, however, argues that the trial court properly denied the petition.
A. Standard of review.
An abuse of discretion standard is used to review a trial court's refusal to disclose jurors' contact information. (People v. Jones, supra, 17 Cal.4th at p. 317.) Under this standard, we will not disturb the trial court's decision unless it was arbitrary, capricious or patently absurd. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
B. Analysis.
Under Code of Civil Procedure section 237, in a criminal case, the trial jurors' personal contact information must be sealed after their verdict is recorded. (People v. Johnson (2013) 222 Cal.App.4th 486, 492.) A criminal defendant may petition the court for access to these records; the petition must be supported by a declaration that includes facts sufficient to establish good cause for the release of the jurors' personal identifying information. (Code Civ. Proc., § 237, subd. (b).) "Good cause, in the context of a petition for disclosure to support a motion for a new trial based on juror misconduct, requires 'a sufficient showing to support a reasonable belief that jury misconduct occurred....' " (People v. Cook (2015) 236 Cal.App.4th 341, 345-346.) "Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported." (Id. at p. 346.)
Here, we have already determined that the Juror's brief interaction with the agent and the investigating officer was only, at worst, trifling misconduct that could not have affected the verdict. As such, the trial court's denial of the petition was not arbitrary, capricious or patently absurd. This record does not establish an abuse of discretion.
Finally, appellant complains that the trial court failed to memorialize its ruling in a minute order. In denying the petition, the trial court orally stated that it did "not find a compelling reason to release the information ...." The court's August 12, 2015, minute order denied appellant's petition without stating any reasons. Code of Civil Procedure section 237 provides: "If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure." (Code Civ. Proc., § 237, subd. (b).)
We disagree that reversible error occurred. The court orally stated its reasons on the record. There would be no practical benefit in requiring a minute order repeating the same information. Despite the mandatory nature of the language appearing in Code of Civil Procedure section 237, we decline to elevate form over substance in this case. This record leaves no doubt why the trial court denied appellant's petition.
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
GOMES, J. /s/_________
SMITH, J.