Filed 12/6/19 P. v. Mendez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

OSCAR A. MENDEZ,

Defendant and Appellant.

A154488

(San Francisco County

Super. Ct. No. SCN227068-01)

Defendant Oscar Mendez (defendant) and his codefendant Lizette Cauich (Cauich) were involved in two violent incidents, one in which they both stabbed a man who suffered grievous injuries but survived, another in which Cauich fatally stabbed a woman and defendant was an accessory to the murder after the fact. Defendant moved to sever trial of the counts against him from those against Cauich. After the trial court denied his motion, the case proceeded to a joint jury trial, and defendant was found guilty of being an accessory after the fact to murder, possession of a concealed dirk or dagger, assault with a deadly weapon, and battery with serious bodily injury. He was sentenced to seven years eight months in state prison. He appeals, asserting the following three errors: (1) the trial court abused its discretion and violated his right to a fair trial by denying his motion to sever his trial from Cauich’s; (2) defense counsel provided ineffective assistance by failing to move for acquittal on two charges; and (3) cumulative and prejudicial error requires reversal. Defendant’s arguments lack merit, and we affirm.

BACKGROUND

Evidence at Trial

The May 29, 2016 Assault on Amar Dahmi (Counts 3, 7, 8 & 9)

On May 29, 2016, Amar Dahmi was working as a valet parking attendant at a parking lot in the Tenderloin neighborhood of San Francisco. He was sitting at the kiosk when Cauich walked up and asked to use a port-a-potty. Dahmi responded that he was sorry but it was not for public use. Cauich became very angry, swearing at him and motioning with her hands. He told her to leave, but instead she pulled out two knives and said she would “fuck [him] up.” When Dahmi said he was going to call 911, Cauich began to move towards him with the knives drawn. She continued to approach, so he picked up a plastic garbage can and used it to keep her at a distance. She attacked him, attempting to strike him with both knives. He deflected the blows with the garbage can and then pushed her in the chest with it, knocking her down and causing her to drop the knives. He again told her to leave, and this time she gathered her knives and other belongings and left, yelling “Help, help, help” as she did.

Dahmi called his manager to report what had happened and asked another attendant who had witnessed the incident why he had not called 911. Dahmi was picking up trash that had fallen out of the garbage can when Cauich returned, still carrying the two knives in her hands. She was accompanied by two Latino men, one smaller than the other, both of whom were also carrying knives. The smaller man—who Dahmi subsequently identified as defendant—was wearing a baseball hat and carrying a

five-inch hunting knife.

Cauich pointed at Dahmi and spoke to defendant in Spanish. The three assailants then approached Dahmi, and defendant swung a knife at him. Dahmi began running, and the attackers gave chase. As he was running, a third man jumped out from behind a car and stabbed him with a large knife. They both fell to the ground. As Dahmi attempted to get back up, he saw the other three assailants behind him. Before he could get up, he was stabbed a second time. At trial, Dahmi testified that when he looked back, he saw that defendant was the person who stabbed him the second time.

Dahmi was still trying to get up when he was stabbed two more times, this time by Cauich. She said to him something like “Die now,” and he also heard someone say something like “He’s done, he’s done.” The assault then finally stopped.

Dahmi was able to run to a nearby hotel to get help, and from there he was taken by ambulance to a hospital. His injuries included four stab wounds and significant blood loss and required a four-night hospitalization. His recovery was lengthy, he was still taking pain medication 19 months after the assault, and he was diagnosed with posttraumatic stress disorder (PTSD).

A few days after Dahmi got out of the hospital, he saw a newscast about a stabbing death in San Francisco. Two “big” photos of defendant and Cauich were shown during the newscast, along with video of them being arrested, and “right away” Dahmi recognized them as two of the people who stabbed him. From the video, he could see that defendant was the same size as the man who assaulted him.

A day or two after he saw the newscast, Dahmi informed the district attorney’s office that defendant and Cauich were two of the people who stabbed him.

On June 11, the police showed Dahmi a photo lineup containing photographs of six women. He identified a photo of Cauich as the female assailant. He was also shown photographs of six men, and he thought two of them looked similar to the smaller Latino man who stabbed him; neither was a photograph of defendant. As to the remaining four, including the photograph of defendant, Dahmi wrote, “No.” The photos were shuffled, and Dahmi against wrote, “No” by the photograph of defendant.

At trial, Dahmi confirmed that at defendant’s preliminary hearing, he had identified defendant as the man who stabbed him. Specifically, at the beginning of the hearing, a deputy brought defendant, who was dressed in orange jail clothes, out of a holding cell and into the courtroom, and at that moment, Dahmi became “200 percent” certain defendant was the man who stabbed him. When Dahmi then testified at the hearing, the prosecutor asked him, “Did you see who inflicted the additional stab wounds?” He answered, “The last one to my back, I know who did that. He is in this courtroom.” Dahmi testified at trial that at the preliminary hearing defendant had been “very, very close” to him so he got a good look and was “100 percent” certain he was the assailant. He further testified that his identification of defendant at the preliminary hearing was not influenced by the fact that defendant was wearing an orange jail suit or that Dahmi knew he was the defendant in the case.

At trial, Dahmi recognized the photograph of defendant in the photo lineup. He explained he did not recognize that photo on June 11 because the photo of defendant’s face was small, defendant was squinting in the photo, and there appeared to be something on his ear, unlike the assailant. Additionally, at the time of the assault, defendant was wearing a hat. Asked for any other reasons he did not recognize defendant in the photo lineup, Dahmi said the photo “looks different . . . .”

Several surveillance cameras in the area captured video recordings of the assault. At trial, shown a video of the three people in the parking lot where the assault occurred, Dahmi identified the Latino man as wearing clothing and carrying a backpack consistent with how he remembered defendant on the day of the attack.

The June 10, 2016 Murder of Mitzi Campbell (Counts 1, 2, 4, 5 & 6)

On the morning of June 10, 2016, nearly two weeks after the Dahmi assault, Mitzi Campbell was working as a flagger in charge of traffic control at a South of Market construction site in San Francisco. Chad Doyle and Zachary Hallquist were also working there that morning. At some point, Cauich attempted to enter the construction site to use a port-a-potty. Hallquist told her she could not use it because it was for employees only, and she instantly became agitated. Campbell, who needed to direct a truck through the area, approached them, telling Cauich she could not use the bathroom and had to leave. Cauich responded that she wanted to use the bathroom. When she did not move, Campbell put her hand on Cauich’s shoulder to move her off down the street. As the two women were moving, with Cauich pushing a bicycle she had with her, they began arguing. When the arguing escalated to yelling and then a physical scuffle, Doyle and Hallquist began walking towards them to help Campbell. They lost sight of the two women for a few seconds when a building obscured their view; when they regained sight of them, Campbell was on the ground on her stomach. Cauich rolled her over and began digging through her pockets. A bloodstain was visible on Campbell’s chest, and she died from multiple stab wounds.

Cesar Lujan and Mohammed Malik also witnessed part of the incident. Lujan, a construction worker, was walking nearby when he saw the two women fighting. He saw Cauich push Campbell to the ground with both hands and then attempt to flee. Malik was working at a nearby liquor store when he heard some yelling outside. He walked over to the door and saw Campbell and Cauich in a physical altercation, with Campbell trying to get away from Cauich. Because this was a common occurrence, he went back inside. He then heard a loud thump and walked back over to the door. This time he saw Campbell lying face down on the ground and Cauich bent over her, yelling. Cauich then turned Campbell over and searched her upper body. Malik could see Campbell was bleeding so he called 911.

As Malik called 911, Hallquist and Doyle confronted Cauich. Hallquist shouted, “You just stabbed her. You can’t rob her now too,” and said he was calling the police. Cauich responded, “She was pulling my hair.” She began to push her bicycle away, so Doyle grabbed its back wheel to prevent her from fleeing. As Doyle and Cauich struggled over the bicycle, she yelled for help from defendant, who was about a block away. Defendant approached on a bicycle and told Cauich, “Forget the bicycle. Let’s get out of here.” Hallquist told defendant Cauich had just stabbed his employee and the police were on their way.

Defendant continued to encourage Cauich to leave the construction site, and the two began walking away. Cauich was still pushing her bicycle, but when a police siren became audible, she dropped it and began running. Defendant crouched down behind a parked car and appeared to hide something inside a wheel well before walking off down the street with Cauich. The police intercepted the two a short distance away and arrested them. They both had two knives in their pockets, and the police found a large, hunting-type knife on top of the parked car’s tire.

Videotape recordings captured much of the incident, including defendant approaching on his bicycle and telling Cauich to forget her bicycle and get out of there.

Two days after their arrest, defendant and Cauich were placed alone together in an interview room. During their conversation, defendant told Cauich not to say anything about his involvement in an unspecified prior incident.

Defendant’s Case

Defendant’s defense was one of misidentification as to the Dahmi assault. In support, his sole witness was psychologist Geoffrey Loftus, an expert in the field of eyewitness memory and perception. Loftus gave the following testimony:

A witness’s memory of an event can consist of both the conscious experience of an event and “post-event information,” which a witness may unconsciously use to supplement his or her memory of the actual event. Once a singular memory is formed, the individual cannot differentiate the two sources. The post-event information can cause an individual to possess a memory that is strong, complete, and confidently expressed but may in fact be false in part because it is unwittingly based on post-event information, rather than the actual experience. The post-event information could cause a witness to honestly—but inaccurately—testify to the identity of a perpetrator. Studies have shown that in an incident involving a weapon, people tend to focus their attention on the weapon, rather than on the person holding it. Under high stress circumstances, a person’s mental functioning is diminished compared to normal or moderate stress circumstances. This could include a loss of the capacity to accurately memorize an attacker’s appearance.

When asked about the likely effect on a witness of viewing a news story similar to an actual event in which the witness was stabbed, Loftus testified the witness would likely have a strong memory of the two people he saw on TV as the people who stabbed him. The televised images would fill his memory, leading him to honestly believe they were his attackers. The witness’s subsequent viewing of the suspect at a preliminary hearing wearing jail clothing could reinforce the post-event information, making identification of the suspect more certain but not more accurate.

Cauich’s Case

Cauich admitted her involvement in the Dahmi assault and the Campbell murder but claimed she acted in the heat of passion, self-defense, or imperfect defense. She testified on her own behalf, describing a difficult upbringing that included having been physically and sexually abused by her mother’s boyfriends when she was very young, time spent in foster care, an abusive relationship from when she was 13 to 19 years old, significant time spent living on the streets, and substantial substance abuse. As to the Dahmi assault and the Campbell murder, she testified as follows:

Cauich was in her early 20s and living in Los Angeles when she met defendant, who was 20 years her senior. In April 2016, after they had been dating for a few months, she left Los Angeles to get away from him because he “put hands on” her. In May, she agreed to meet him in San Francisco so they could start a new life. Once they met up in San Francisco, they stayed in a variety of shelters.

On May 29, Cauich, who was then 23 years old, was with defendant and another man they had met at a shelter. They were waiting to get lunch when Cauich decided to use a port-a-potty. She asked a man in a parking lot a few times if she could use the bathroom, but he told her it was for employees. She insisted, and he responded, “ ‘No, bitch.’ ” She was telling him to have some respect when he bashed her with a trashcan “so many times.” After she had had enough, she pulled out two knives. She left the parking lot and crossed the street, where she told defendant someone had attacked her. She followed defendant back to the parking lot, and they began chasing the man who attacked her. When they rounded a corner, they saw him fall. He got up and then tripped again, and then defendant and Cauich both tripped so all three of them were on the ground. While on the ground, Cauich stabbed the man. He eventually stood up and walked away. She did not see defendant stab him. Shown a video recording from the time and area of the Dahmi assault, Cauich identified defendant as one of the individuals in the recording.

When Cauich spoke to the police on June 12, she admitted stabbing Dahmi, but she told them defendant had been across the street buying burritos and was not involved in the attack. She testified at trial she said this to protect him and because it was “somewhat the truth.”

As to the murder of Mitzi Campbell, Cauich testified she tried to use a port-a-potty but was stopped by a construction worker who told her it was for employees only. She understood and was walking away when she heard someone behind her screaming at her to leave. She turned and saw a woman yelling at her to get off her street and saying she had seen her “robbing” all morning. Offended and confused because she is “not a robber,” Cauich stopped and asked the woman, “Who am I robbing?” and “What did I rob?” Cauich called the woman a liar, and the woman became aggressive, calling Cauich a “skinny bitch” and telling her, “I’m going to kick your ass. I’m going to stab you in the neck. I’m going to break you into pieces.” This led Cauich to believe the woman had a weapon. The woman then swung at her and pulled her hair so hard she believed she was going to be pulled to the ground. Cauich “flashed” and “snapped,” pulling out her knife and stabbing the woman multiple times. The woman fell face-first to the ground, and Cauich turned her over and went through her pockets because she thought she had a weapon or a syringe. She was not trying to steal from the woman and was instead thinking that if she could find the weapon, she could give it to the police.

Asked on cross-examination if defendant was abusive to her or whether they “just ha[d] a couple of fights,” Cauich testified they “had a couple of fights” and she did not know if he was abusive to her. She also testified that during their fights, she got physical with him, and sometimes she would get angry and put her hands on him. Asked about her memories of specific abuse by defendant, Cauich answered, “Just relationship fights, you know, a girl barks at her man and a man barks at his girl, and you know, they start pushing, yeah.”

Cauich also presented testimony from the following expert witnesses:

Bernadette O’Leary, a clinical psychologist who specializes in domestic violence and child sexual abuse, was Cauich’s therapist for a year when she was 15 years old. At that time, she diagnosed Cauich as suffering from PTSD, with a secondary diagnosis of sexual abuse as a child. Cauich did not complete her treatment when she was 15 years old, given which O’Leary would expect the PTSD symptoms to have worsened.

Karen Froming, a doctor of clinical psychology, testified as an expert in psychology and neuropsychology. She assessed Cauich and diagnosed her as suffering from PTSD with several disorders related to memory and decisional capacity.

Jennifer Friedenbach, an expert on homelessness in the Bay Area, testified that homeless individuals often take measures to protect themselves from assault, such as carrying a knife, because incidents of violence against them are very common, and homeless women are particularly vulnerable to sexual assault, including by intimate partners.

Two character witnesses testified on Cauich’s behalf, as did her uncle and aunt. Her uncle described having seen two fights between defendant and Cauich, both times defendant throwing “her bicycle on her.” He had seen her with black eyes and when she told him what happened, she was worried and was making plans to leave. Her aunt described arguments she witnessed between defendant and Cauich and injuries Cauich had on her face.

Cauich also presented testimony from two witnesses who testified about Campbell’s purported character for aggression. The prosecution introduced rebuttal evidence on this issue, and also elicited testimony from Cauich and her character witnesses about Cauich’s racial animus towards Black people, which the prosecutor theorized fueled her assault on Campbell, who was Black.

Procedural Background

An information filed on October 19, 2017 alleged nine counts arising out of the Dahmi assault and the Campbell murder:

Counts 1 through 3 charged Cauich with: (1) the June 10, 2016 murder of Mitzi Campbell, (2) the attempted second degree robbery of Campbell, and (3) the May 29, 2016 assault on Amar Dahmi with a deadly weapon, with a personal use of a deadly weapon allegation as to counts 1 and 3.

Counts 4 through 6 charged defendant with three crimes that occurred on the date of Campbell’s murder: (4) accessory after the fact to murder, (5) carrying a concealed dirk or dagger, and (6) receiving stolen property.

Counts 7 through 9 charged both defendant and Cauich with three offenses arising out of the assault on Dahmi: (7) attempted murder, (8) assault with a deadly weapon, and (9) felony battery with serious bodily injury, each count with personal use of a deadly weapon and personal infliction of great bodily injury allegations.

As will be detailed below, defendant and Cauich both filed motions to sever. The trial court denied their motions, and the case proceeded to a joint jury trial, which resulted in the following verdict: Cauich guilty of the second degree murder of Campbell, attempted robbery of Campbell, and assault on Dahmi with a deadly weapon (counts 1 through 3), with true findings on the enhancement on counts 1 and 3; defendant guilty of being an accessory after the fact to Campbell’s murder (count 4) and carrying a concealed dirk or dagger (count 5); and both guilty of assault on Dahmi with a deadly weapon (count 8) and battery of Dahmi with serious bodily injury (count 9), with true findings on the enhancements on both counts. The jury was unable to reach a verdict on count 7 (attempted murder of Dahmi), and the court dismissed that count, having also previously entered a judgment of acquittal on defense counsel’s motion as to count 6 (receiving stolen property) due to insufficient evidence.

Defendant was sentenced to seven years eight months in state prison, Cauich to 23-years-to-life.

Defendant filed a timely notice of appeal.

DISCUSSION

The Trial Court Did Not Commit Error in Denying Defendant’s Severance Motion

The Severance Motions

Prior to trial, defendant and Cauich both filed motions to sever, defendant seeking to sever his trial from Cauich’s and Cauich seeking to sever her trial from his as well as the counts arising out of her assault on Dahmi from the counts arising out of her murder of Campbell. Defendant argued that a joint trial would violate Penal Code section 1098 and his state and federal constitutional rights, for three reasons. First, according to defendant, Cauich’s severance motion attached “two expert reports, one of which purports to prove [defendant] is a batterer who so abused Cauich that she became paranoid, hypersensitive and quick to react impulsively to external threats. The second is a 4 page letter from a gang expert asserting that [defendant] is a Sureno criminal street gang member who has so dominated Cauich that she is afraid to testify in front of him.” Defendant contended this evidence would prejudice the jury against him and severance was thus “in his best interest . . . .”

Second, he contended severance was warranted because Cauich made a statement to the police that was potentially incriminating of him, namely, that while the Dahmi assault was taking place, he was across the street buying burritos and “his proximity to the crime scene allows one to conclude that he must have participated.” He argued that a joint trial would violate his right to confront the witnesses against him because he would not be able to cross-examine Cauich. Thus, he asserted, the court had to either sever the trials or exclude her statement.

Third, he contended severance was necessary because he and Cauich would “mount conflicting defenses,” representing that an in camera proffer would show additional facts supporting this contention.

The prosecutor filed opposition, first arguing that the codefendants did not have conflicting defenses: “Ms. Cauich will not contest that she was the female who stabbed Mr. Dahmi, but will argue her intent was not to kill and perhaps that she was acting in imperfect self-defense. [Defendant] will claim he was not one of the people who attacked Mr. Dahmi. These defenses are not necessarily inconsistent, and in any case, do not appear to be ‘mutually antagonistic.’ ” He also argued Cauich’s statement to the police was admissible and could be redacted to delete reference to defendant to avoid confrontation clause issues.

The severance motions came on for hearing on November 28, 2017. The prosecutor reiterated his position that defendant and Cauich were not asserting antagonistic defenses, “identification for [defendant] and mental state and other

mental-type defense for Ms. Cauich,” adding that Cauich was a percipient witness and could be called to testify if defendant had a separate trial, so severance would not preclude her testimony from being admitted against defendant. Additionally, he contended the evidence was “extraordinarily cross-admissible” and “[t]hat if there were to be any more than one trial in this case, the Court would hear from virtually the same witnesses in each trial and virtually hear the same evidence in each trial.”

Counsel for Cauich confirmed that he intended to have Cauich testify and that she would put defendant at the scene, arguing that “[s]he will defy his identification defense, and so they are completely antagonistic.” He further argued that Cauich’s case would be “extremely prejudicial to [defendant] both because I believe it is antagonistic when he’s saying identification and because it shows bad character which would not otherwise be coming in.” He also emphasized that Cauich would be afraid to testify in front of defendant, describing letters defendant wrote her that included “admissions of beating her or hitting her, his apologizing for that, knowing her abuse history, and the multiple times she’s been told: Be quiet. Don’t talk. If you get caught, don’t tell the truth. Don’t be a rat. Don’t eat cheese.” The letters, Cauich’s counsel noted, were relied on by her gang, PTSD, and intimate partner battering experts.

Counsel for defendant confirmed that Cauich gave multiple statements to the police, one of which placed defendant across the street from the Dahmi assault. In addition to the antagonistic defenses, counsel argued defendant would be prejudiced by Cauich’s evidence, claiming that if the court denied severance, defendant was “headed into a trial where he has three, perhaps four experts who are going to be giving testimony that could prejudice the jury against him.” He estimated a joint trial would include “at least two weeks on these experts having to do with domestic violence and the alleged gang membership of [defendant].”

Argument concluded with the prosecutor’s contention that “[t]he People have a right to have a joint trial where the defendants are properly joined. The incidents are similar. The nature of the crimes are similar. And that’s what we have here, and the Court has that right too.” He continued that the evidence was cross-admissible such that “all these things are going to come out either way in each trial. And there is not only the People and the Court that’s affected by that, but the witnesses will have to testify twice, the victims in the case—all these things where there’s such cross-admissible evidence—it affects in a very real way, not just the prejudice in terms of harmful evidence, which is not legal undue prejudice, but a very real way the participants of this trial. [¶] And finally if the Court really thinks through, as I tried to have it do in my written papers, the fact that if [defendant] is tried separately, we still have to prove the murder. We still have to prove, in order to prove that he is an accessory to a murder, that a felony occurred.”

Following this, the court issued this succinct denial of the motions: “The Court is satisfied that each defendant can receive a fair trial at a joint trial. The motion to sever defendants and the motion to sever counts is respectfully denied.”

Analysis

California has long recognized a preference for joint trials, codified in section 1098, which provides in pertinent part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” “Joint trials are favored because they ‘promote [economy and] efficiency’ and ‘ “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” ’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman).) As our Supreme Court has recognized, joint trials are the rule, separate trials the exception. (In re Samano (1995) 31 Cal.App.4th 984, 991.)

We review the trial court’s denial of a severance motion for an abuse of discretion based upon on the facts as they appeared at the time of the ruling. (Coffman, supra, 34 Cal.4th at p. 41; People v. Souza (2012) 54 Cal.4th 90, 109.) Even if a trial court abused its discretion in failing to grant severance, however, “reversal is required only upon a showing [of] a reasonable probability the defendant would have received a more favorable result in a separate trial.” (Coffman, at p. 41; accord, People v. Burney (2009) 47 Cal.4th 203, 237; People v. Alvarado (1967) 255 Cal.App.2d 285, 289.) If the court’s joinder ruling was proper when it was made, reversal may still be warranted if joinder resulted in “gross unfairness” amounting to a denial of due process. (People v. Cleveland (2004) 32 Cal.4th 704, 726; accord People v. Montes (2014) 58 Cal.4th 809, 834; People v. Souza, supra, at p. 110.) Defendant contends the trial court’s denial of his severance motion was an abuse of discretion, and even if it was not, the joint trial nevertheless deprived him of due process. He has demonstrated neither an abuse of discretion nor a violation of his due process rights.

Although not entirely clear, defendant first appears to suggest that his and Cauich’s cases were not properly joined under section 1098 to begin with. This is so, he seemingly reasons, because he and Cauich were jointly charged in only three of the nine counts and those joint counts arose only out of the Dahmi assault, with no joint charges arising out of the Campbell murder, a murder so “gruesome” and “shocking” that joinder of the separate charges against defendant only served to prejudice him and give the prosecution an unfair advantage. In making this claim, he seeks to distance himself from the murder, asserting that he was “gratuitously” charged with “two very minor charges occurring soon after and on the same day as the murder as a means of forcing [him] to joint trial with the concurrent murder prosecution for which he bore no responsibility.” Elsewhere he disregards the accessory-after-the-fact charge altogether, inaccurately stating: “He was not charged with and played no role in the murder. He was charged only with an unrelated knife assault initiated by his codefendant two weeks earlier on a parking lot attendant.”

The fact is that defendant and Cauich were charged with the same three counts arising out of the assault on Dahmi, with an additional assault charge for Cauich, plus additional separate charges relating to the Campbell murder—murder and attempted robbery for Cauich, accessory to the murder after the fact for defendant. It is not a requirement of a joint trial that codefendants be jointly charged in all offenses. (§ 1098; see, e.g., People v. Ortiz (1978) 22 Cal.3d 38, 43 (Ortiz) [joint trial proper where “at least one count of the accusatory pleading charges all the defendants with a single crime”]; People v. Mackey (2015) 233 Cal.App.4th 32, 42, 97–105 [no error in denying severance where codefendants were charged jointly with three murders and one defendant was additionally charged with shooting at an unoccupied vehicle in a separate incident that predated the murders]; People v. Alvarado, supra, 255 Cal.App.2d at p. 288 [“Where there is an underlying set of common facts or common evidence, the consolidation of separate charges against multiple defendants charged jointly with at least one offense, is proper”].) Under section 1098, it is enough that they are “jointly charged with any public offense . . . .” That was the situation here, and the cases were properly joined.

Alternatively, defendant contends that if the joint trial was not “a technical violation” of section 1098, the trial court should have exercised its discretion to order separate trials. The California Supreme Court long ago provided guidance as to when severance may be warranted: “[T]he court should separate the trials of codefendants in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (People v. Massie (1967) 66 Cal.2d 899, 916–917 (Massie) fns. omitted; accord, People v. Tafoya (2007) 42 Cal.4th 147, 162.) Additional circumstances may bear on a trial court’s discretionary decision to grant a severance request, including where “(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges . . . .” (People v. Sandoval (1992) 4 Cal.4th 155, 172–173; accord, People v. Carter (2005) 36 Cal.4th 1114, 1153.) In essence, severance may be warranted “when ‘there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ ” (Coffman, supra, 34 Cal.4th at p. 40, quoting Zafiro v. United States (1993) 506 U.S. 534, 539.) Defendant asserts that many of these circumstances existed here, including mutually antagonistic defenses, undue prejudice resulting from Cauich’s evidence of his violent nature, evidence that was not cross-admissible, and prejudicial association. We are unpersuaded that any of these circumstances compelled the trial court to sever defendant’s trial from Cauich’s.

Defendant first contends that the anticipated defenses regarding the Dahmi assault were antagonistic because he would deny any involvement while Cauich “would likely identify [him] in her defense case as her accomplice.” “ ‘[T]o obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’ [Citations.] Stated another way, ‘ “mutual antagonism” only exists where the acceptance of one party’s defense will preclude the acquittal of the other.’ ” (People v. Hardy (1992) 2 Cal.4th 86, 168 (Hardy); accord, People v. Homick (2012) 55 Cal.4th 816, 850.) Defendant’s mutual antagonism claim relies on a mischaracterization of the information that was before the trial court when it heard argument on the severance motions. While defendant claims it was known that Cauich was going to identify him as her accomplice, what was actually before the trial court was that she had previously told the police defendant was across the street buying a burrito at the time of the attack, she was going to testify at trial, and her testimony would, according to her counsel, “put [defendant] at the scene.” This is a significant distinction: defendant could have been “at the scene” and not been one of the assailants who stabbed Dahmi. As such, Cauich’s anticipated testimony would not have precluded the jury from acquitting defendant, and the defenses were thus not mutually antagonistic.

Defendant’s antagonistic defense argument is further undermined by the likelihood that Cauich would have testified against defendant in a separate trial. Defendant labels as “questionable as best” the prosecutor’s representation that he could call Cauich as a witness in defendant’s separate trial, but he fails to demonstrate why this is so. While he speculates that she would not voluntarily testify against him in a separate trial “and the worst consequence she would face for refusing to testify for the prosecution was a short stint in custody on contempt charges that would end at the end of [defendant’s] 3 or 4 day trial,” one could just as easily speculate that she would willingly testify against him to ensure his incarceration to protect herself from an abusive relationship. His claim that she was afraid to testify against him was belied by the fact that she intended to—and ultimately did—take the stand at their joint trial. He also claims he could potentially assert a spousal privilege to prevent her from testifying, but not only does he concede this theory was not before the trial court at the time it considered the severance motions, it is directly contradicted by Cauich’s trial testimony that defendant was her boyfriend.

Moreover, even if the trial court had before it information that the codefendants intended to present actually antagonistic defenses, severance would not have been compulsory. (See Hardy, supra, 2 Cal.4th at p. 168 [“ ‘Antagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other’ ”]; Zafiro v. United States, supra, 506 U.S. at pp. 538, 540 [antagonistic defenses are not prejudicial per se and “defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials”].) “ ‘ “If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials ‘would appear to be mandatory in almost every case.’ ” ’ ” (People v. Winbush (2017) 2 Cal.5th 402, 456.) As was the case here, when “there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.” (Coffman, supra, 34 Cal.4th at p. 41; accord People v. Homick, supra, 55 Cal.4th at p. 854 [“Whatever degree of conflict existed between these defenses, the strength of the independent evidence against defendant belies his claim that conflict alone compelled severance”].)

Defendant also contends severance was warranted because Cauich was going to introduce evidence that was unduly prejudicial to him, namely, “extensive damaging evidence to prove that [defendant] had a bad and violent character,” and evidence that defendant’s “violent and repeated assaults on her” in large part caused her violent attacks on Dahmi and Campbell. This is a dramatic exaggeration of the evidence that was before the court. While the evidence of defendant’s abusive nature may have portrayed him in an unflattering light and would likely have been inadmissible in a separate trial, we do not agree that it was so inflammatory as to be unduly prejudicial. (See Coffman, supra, 34 Cal.4th at p. 42 [no abuse of discretion in denying severance even though female defendant’s defense centered on an effort to depict male codefendant as a vicious and violent man and some evidence in the joint trial could have been inadmissible against the male codefendant].)

Defendant’s prejudicial association argument fares no better. He protests that he “was not charged in the shocking and brutal murder of Campbell on June 10th, a horrifying crime that was very likely to inflame the jury against [him] due simply to his prejudicial association with Cauich.” But he was charged as an accessory after the fact to that murder, and in order to prove that charge, the prosecution was required to prove Cauich committed a murder, defendant knew she committed the murder, and he aided her with the intent that she avoid or escape arrest, trial, conviction, or punishment for the murder. (§ 32; CALCRIM No. 440.) Thus, much of the evidence concerning the events leading up to and culminating in Campbell’s death was admissible against defendant to prove the elements of the accessory charge.

Defendant also claims that while much of Cauich’s evidence would have been inadmissible in a separate trial, a separate trial for him “would have been quite brief.” This argument minimizes the evidence the prosecution had to present to prove the charges against him. The evidence pertaining to the Dahmi assault would essentially be the same as in a joint trial, forcing Dahmi to twice relive the traumatic assault if the trials were severed. And, as noted above, evidence proving that Cauich murdered Campbell was relevant to prove the accessory after the fact charge as to defendant. Thus, despite defendant’s analysis of how much of the trial was spent proving the murder charge against Cauich versus proving all of the remaining charges, and despite his claim that video recordings plus brief testimony was all that was needed to prove the charges against him, a separate trial of defendant would have entailed more evidence and time consumption than he would have us believe.

In short, we cannot agree defendant has demonstrated there was “ ‘a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ ” (Coffman, supra, 34 Cal.4th at p. 40.) Rather, the circumstances presented the “classic case” for a joint trial: Cauich and defendant violently stabbed Dahmi after he denied Cauich access to a port-a-potty, leading to the joint charges; twelve days later, and a mere five and a half blocks away, Cauich brutally stabbed Campbell when Campbell denied Cauich access to a port-a-potty, and defendant attempted to aid Cauich in evading arrest for the murder. (See People v. Tafoya, supra, 42 Cal.4th at p. 162 [“Defendants ‘charged with common crimes involving common events and victims’ present a ‘ “classic case” ’ for a joint trial”]; Hardy, supra, 2 Cal.4th at p. 168 [same].) In light of these circumstances, we conclude the trial court did not abuse its discretion in denying defendant’s motion for severance, nor did the joint trial violate defendant’s right to due process. (See People v. Skelton (1980) 109 Cal.App.3d 691, 708, quoting Witkin, Cal. Criminal Procedure (1st ed. 1963) Trial, § 295, p. 288 [“ ‘Where the consolidation meets the test of joinder,’ as it does here, ‘the difficulty of showing prejudice from denial of severance is so great that the courts almost invariably reject the claim of abuse of discretion’ ”].)

Even if we were to conclude otherwise, however, reversal would not be warranted since defendant must also demonstrate that it is reasonably probable he would have received a more favorable result had severance been granted. (Massie, supra, 66

Cal.2d at pp. 922–923; accord, People v. Burney, supra, 47 Cal.4th at p. 237; Coffman, supra, 34 Cal.4th at p. 41; People v. Alvarado, supra, 255 Cal.App.2d at p. 289.) This, he has not done.

Massie, supra, 66 Cal.2d at p. 921 identified two factors to be considered when evaluating whether a more favorable result was reasonably probable: whether a separate trial would have been significantly less prejudicial to defendant than the joint trial, and whether there was clear evidence of defendant’s guilt. (Ibid.; accord, Ortiz, supra, 22 Cal.3d at p. 46, citing Massie at p. 921.) As to the first factor, defendant protests that the improper joint trial prejudicially subjected him to “a daunting mass of evidence impugning his character and prejudicially associating him with Cauich,” evidence that a separate, “untainted” jury would not have heard. We disagree with defendant’s assessment of the evidence, as much of the supposed “evidence impugning his character” did not even come to pass. For example, there was no gang expert who testified about defendant’s gang membership. While there was evidence of violence in the relationship between defendant and Cauich, it is a gross exaggeration to claim, as defendant does, that the evidence “portrayed him as a violent domestic abuser who drove a fear-filled Cauich to a disturbed mental state that directly caused her to act out violently . . . .” To the contrary, Cauich testified that defendant did not regularly beat and threaten her. Asked by the prosecutor if defendant was abusive to her or whether they “just ha[d] a couple of fights,” Cauich testified, “We had a couple of fights,” during which fights she got physical with him, and sometimes she would get angry and put her hands on him, including pushing him before he got physical with her. Asked about her memories of specific abuse by defendant, Cauich answered, “Just relationship fights, you know, a girl barks at her man and a man barks back at her girl, and, you know, they start pushing, yeah.” While we in no way intend to minimize any abuse Cauich suffered at the hands of defendant, we cannot agree that the evidence she introduced on this issue was so prejudicial as to render it reasonably likely defendant would have obtained a more favorable result in the absence of such evidence.

As to the second Massie factor, defendant contends the evidence as to his role in the Dahmi assault was “far short of overwhelming.” More specifically, he claims the identification evidence was “ ‘so weak as to constitute practically no evidence at all,’ ” given the allegedly “[e]xtensive, devastating impeachment” of Dahmi’s identification of him as the perpetrator. Again, we disagree with defendant’s assessment of the evidence. While Dahmi did not identify defendant in a photo lineup approximately two weeks after the assault, he identified him on three other occasions: first, around the time of the photo lineup when he saw the newscast about Campbell’s murder and reported to the district attorney’s office that the suspects in the Campbell incident were two of the people who stabbed him; second, at the preliminary hearing when he saw defendant in person for the first time since the stabbing; and third, at trial. As defendant would apparently have it, those three identifications should have borne no weight because Dahmi was unable to identify him in the photo lineups, but he is wrong, for at least three reasons. First, that is not the law. (See, e.g., People v. Prado (1982) 130 Cal.App.3d 669, 673 [in-court identification sufficient evidence of identification even though victim did not identify defendant in earlier photo lineup].) Second, Dahmi offered reasonable explanations for the discrepancy: defendant’s photo in the lineup was small, he was squinting, and he was not wearing a hat, which he had been at the time of the assault; when he saw the video of Cauich and defendant being arrested following the Campbell murder, he was able to get a good view of defendant and recognized him from both that and the large photographs shown on the newscast; and at the preliminary hearing and trial, he was able to get a good view of defendant. And third, Loftus’s testimony was not as decisive as defendant would have us believe, as he testified that post-event information may have an impact on a witness’s memory and could cause the witness to inaccurately identify the perpetrator—not that it necessarily does.

Additionally, Dahmi’s identification was corroborated by other evidence. He described defendant’s knife as a large hunting knife, which matched the knife defendant attempted to hide 12 days later at the scene of the Campbell murder. He could tell from the interaction between defendant and Cauich that they knew each other, and he described defendant as Cauich’s boyfriend when he spoke with the police at the photo lineup. After their arrests, defendant and Cauich were given an opportunity to talk, and defendant told her not to say anything about his involvement in a prior incident, the reasonable inference being that he was referring to Dahmi’s stabbing 12 days earlier. Finally, and obviously most damning, at trial Cauich did more than “put [defendant] at the scene”—she confirmed he was involved in the Dahmi assault and identified him in a video recording of the parking lot immediately prior to Dahmi’s stabbing. As noted above, defendant has not demonstrated that the prosecutor could not elicit the same testimony in a separate trial.

In arguing he was prejudiced by the erroneous denial of his severance motion, defendant analogizes his case to Massie, supra, 66 Cal.2d 899 and Ortiz, supra, 22 Cal.3d 38, contending Massie “mirrors the record in the instant case,” Ortiz is “strikingly similar” to his situation, and both compel reversal here. Neither case is persuasive. In both cases, defendant obtained reversal of an erroneous denial of a severance request, the appellate court concluding there was a reasonable probability of a more favorable result had defendant been tried separately. (Massie, at p. 922; Ortiz at p. 48.) The courts both cited the absence of a compelling case against defendant (Massie, at p. 923; Ortiz at pp. 47–48), which was not the case here. And the courts cited numerous circumstances not present here in concluding a separate trial would have been significantly less prejudicial to defendant than the joint trial. (Massie, at pp. 923–924 [e.g., judge in bench trial could not easily exclude from his consciousness knowledge that codefendant implicated defendant in a confession that was inadmissible as to defendant; codefendant may have provided exonerating evidence in defendant’s separate trial; defendant may not have waived right to jury trial in a separate trial]; Ortiz at pp. 46–47 [e.g., dramatic and extensive evidence of codefendants’ illicit narcotics activity; codefendants all took the stand while defendant did not; court instructed the jury that defendants had elected to testify and adverse inference could be drawn from their failure to deny or explain certain facts].)

Defendant Has Not Demonstrated That His Counsel Provided Ineffective Assistance by Failing to Move for Judgment of Acquittal on Counts 8 and 9

Defendant next contends that his counsel provided prejudicially ineffective assistance by failing to move for acquittal on counts 8 and 9 (the charges of assault and battery on Dahmi) at the close of the prosecutor’s case-in-chief, a case resting on Dahmi’s highly impeached identification of him as the male assailant. This, according to defendant, “deprived him of a potentially meritorious claim on appeal by expanding the evidentiary record beyond the prosecution’s case-in-chief.” To prevail on a claim of ineffective assistance of counsel, defendant must establish that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; accord, People v. Ledesma (2006) 39 Cal.4th 641, 746.) Defendant has not demonstrated that his counsel’s conduct fell below an objective standard of reasonableness because a motion for acquittal on counts 8 and 9 would have been meritless. (People v. Thompson (2010) 49 Cal.4th 79, 122 [counsel is not ineffective for failing to make frivolous or futile motion]; People v. Cudjo (1993) 6 Cal.4th 585, 616 [where there is no sound legal basis for objection, counsel’s failure to object cannot establish ineffective assistance].)

In reviewing a trial court’s ruling on a section 1118.1 motion for judgment of acquittal, the standard applied by the trial court is the same as the standard applied by an appellate court reviewing the sufficiency of the evidence to support a conviction. (People v. Stevens (2007) 41 Cal.4th 182, 200.) That is: “ ‘ “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.” ’ . . . The question ‘is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.’ [Citation.] The sufficiency of the evidence is tested at the point the motion is made.” (Ibid.) Thus, the question for us is, as defendant phrases it, “Would [defendant] have prevailed, either in the trial court or here before this Court, on a claim of insufficient evidence of identification at the close of the prosecution’s

case-in-chief?” While he submits the answer is “yes,” we readily conclude it is “no.”

We need not recite all of the identification evidence, as we have already detailed it above. It suffices to say that the prosecutor’s case-in-chief included Dahmi identifying defendant as the assailant on three separate occasions, his explanations for why he did not identify defendant in the photo lineup, and certain corroborating evidence. While defendant believes a motion for acquittal would have been well taken because Dahmi’s identification of him was tainted by “a highly and impermissibly suggestive identification procedure, one accompanied by no procedural safeguards at all,” defendant’s argument is fatally flawed for one very simple reason: defendant’s identification expert Loftus testified as part of defendant’s case, yet his ineffective assistance of counsel claim asserts that his counsel should have moved for acquittal at the close of the prosecutor’s

case—when Loftus had not yet testified and before the purported “extensive impeachment [of Dahmi’s identification] here rendered it ‘so weak as to constitute practically no evidence at all.’ ” As noted above, in ruling on a motion for judgment of acquittal, the trial court would have considered “ ‘ “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.” ’ ” (People v. Stevens, supra, 41 Cal.4th at p. 200.) At the close of the prosecutor’s case-in-chief, there most definitely was, and such a motion would thus have been meritless. Defense counsel was therefore not ineffective for failing to make such a motion.

DISPOSITION

The judgment of conviction is affirmed.

 

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Richman, J.

We concur:

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Kline, P.J.

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Stewart, J.

People v. Mendez (A154488)