P. v. Contreras CA1/2

Filed 7/29/13 P. v. Contreras CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A135198 v. ISMAEL GONZALEZ CONTRERAS, (Alameda County Super. Ct. No. CH44529B) Defendant and Appellant.

Defendant Ismael Contreras and Ronnie Padilla were jointly charged in the second amended information with attempted premeditated murder and assault with a deadly weapon. Each count had allegations that each defendant personally inflicted great bodily harm and committed the offense to promote a criminal street gang. Padilla alone was charged with eleven additional gun- and gang-related crimes. A jury convicted defendant—and Padilla—on the two jointly-charged counts, for which defendant was sentenced to an aggregate term of 18 years to life. (Padilla was convicted as charged on 11 of the charges against him, acquitted on one, and found guilty of a lesser included offense on the last.) After the first consolidated information was filed, which had the two joint charges and only ten separate charges against Padilla, defendant moved to sever trial on the joint charges. The obvious ground for the motion was that the two jointly-charged offenses were alleged to have occurred on October 3, 2006, but the remaining counts against Padilla involved offenses for November 12, 2005, December 31, 2005, and March 26, 2008. Immediately after granting the prosecution‟s motion to amend the information

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with the final charge against Padilla, the trial court denied defendant‟s severance motion, as follows: “The motion to sever will be denied. The basis of that is the cross-admissibility of evidence. Also there‟s nothing distinctive about Counts Three through Thirteen that are inflammatory. Gang evidence is part of the facts that have to be elicited by the prosecution to prove the 186.22 allegations. There‟s no danger that Mr. Contreras will be convicted on Counts One and Two simply by the jury hearing evidence produced by Counts Three through Thirteen. The only carryover will be the evidence relating to the pattern of on-going criminal activity. [¶] Further, the limiting instruction pursuant to CALCRIM 1403 and CALJIC 17.24.3 will protect Mr. Contreras from the jury using that evidence for any other purpose than that for which they are instructed.” Defendant‟s sole contention is that severance ought to have been granted. California has a preference for joint trials. “When two or more defendants are jointly charged with any public offense . . . they must be tried jointly” (Pen. Code, § 1098). However, “the court in which a case is triable, in the interest of justice and for good cause shown, may, in its discretion order that the different offenses of counts set forth in the accusatory pleading be tried separately” (Pen. Code, § 954). “ „We review a trial court‟s denial of a severance motion for abuse of discretion based upon the facts as they appeared when the court ruled on the motion.‟ [Citations.] „If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable the defendant would have obtained a more favorable result at a separate trial.‟ [Citations.] „If the court‟s joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder “ „resulted in “gross unfairness” amounting to a denial of due process.‟ ” ‟ [Citation.]” (People v. Souza (2012) 54 Cal.4th 90, 109.) “A trial court‟s denial of a motion for severance of charged offenses amounts to a prejudicial abuse of discretion if the „ “trial court‟s ruling „ “falls outside the bounds of reason.” ‟ ” ‟ [Citation.] . . . „The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are