P. v. Limbrick

Filed 2/5/10 P. v. Limbrick CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from judgments of the Superior Court of San Diego County, Browder A. Willis, III, Judge. Affirmed.

A jury convicted Adam Limbrick and R'mon Howard Anderson of first degree murder (Pen. Code,[1]  187, subd. (a)), attempted premeditated murder ( 664/187, subd. (a)), and two counts of robbery ( 211). With respect to each of these counts, the jury found Limbrick personally used a firearm ( 12022.5, subd. (a)) and personally discharged a firearm ( 12022.53, subds. (c), (d)), and Anderson was vicariously armed with a firearm ( 12022, subd. (a) (1)). Limbrick also was convicted of shooting at an inhabited dwelling ( 246). As to both Limbrick and Anderson, the jury found to be true the special circumstance allegation the murder was committed in the commission of robbery ( 190.2, subd. (a)(17)(A)). In a bifurcated proceeding, the trial court found that Anderson had a prior serious felony conviction ( 667, subd. (a)(1)) and a prior serious/violent or strike conviction ( 667, subds. (b)-(i)).

The court sentenced Limbrick to state prison for life without the possibility of parole, a consecutive term of life with the possibility of parole, a consecutive enhancement of 25 years to life, and a consecutive 48-year determinate term.

The court sentenced Anderson to state prison for life without the possibility of parole, a consecutive term of life with the possibility of parole, and a consecutive determinate sentence of 28 years.

In his appeal, Limbrick contends (1) he was denied his constitutional right to a speedy trial, (2) his trial should have been severed from Anderson's trial, (3) it was prejudicial error to admit evidence of his gang association while denying evidence of Anderson's gang association, (4) the punishment of life imprisonment without the possibility of parole for a killing during a robbery is unconstitutional, and (5) the cumulative effect of the errors deprived him of a fair trial.

In his appeal, Anderson contends (1) he was deprived of a representative and impartial jury when the court erroneously granted the prosecutor's challenge for cause against prospective juror R.; (2) the robbery special circumstance enhancement as to him was not supported by sufficient evidence; (3) the prosecutor committed misconduct in her closing argument by misstating the law with respect to the special circumstance; (4) the court erred by admitting evidence of his involvement in an unrelated drive-by shooting under Evidence Code section 1101, subdivision (b); (5) the court erred by admitting evidence of bullet holes in his truck; (6) the court abused its discretion by admitting a photo of the murder victim with his young son; (7) the court should have conducted individual interviews with jurors about the inadvertent receipt of information in the jury room instead of questioning the jury in a group setting; (8) the court erred by denying his request for a continuance to prepare a motion for a new trial; (9) the cumulative effect of the errors deprived him of a fair trial; and (10) the parole revocation fine must be stricken.[2]

FACTS

Anderson was a marijuana dealer, and his main supplier was Richie Gonzalez. Usually, Anderson bought from five to 10 pounds of marijuana from Gonzales at a time and occasionally as much as 20 pounds.

On the morning of May 20, 2004, Anderson phoned Gonzalez and asked to buy 30 pounds of marijuana. Anderson and Gonzalez spoke throughout the day about Gonzalez's progress in coming up with 30 pounds.[3] At one point, Gonzalez told Anderson that he would not be able to get that much marijuana, but he later called Anderson and said he had been able to gather the 30 pounds. Gonzalez and Anderson agreed to meet at a Blockbuster store, even though Gonzalez usually conducted his drug transactions at his girlfriend's residence or the residence of his friend, Daniell Vasquez. Vasquez often would act as Gonzalez's bodyguard.

That night, however, Vasquez did not accompany Gonzalez. Rather, Gonzalez met his friend, David Diaz, at the Blockbuster parking lot before the drug transaction. Gonzalez asked Diaz to go with him while he met some friends, and Diaz agreed. Diaz was an addict, having used methamphetamine twice daily since 1992, and on that day had ingested his second dose about eight hours earlier. Diaz was the prosecution's primary witness at trial. At the time of trial, Diaz was in custody on a drug possession charge. Diaz, who used a fake name to avoid paying child support, also had a prior conviction for possessing drugs for sale and was to be deported at some point.

At approximately 8:30 p.m., Anderson arrived at the parking lot and signaled Gonzalez to follow him in his truck. As Gonzalez began to follow Anderson's vehicle, he told Diaz that he was going to sell marijuana. Gonzalez followed Anderson for about 15 minutes; neither Gonzalez nor Diaz knew where they were being led. Anderson stopped near the corner of Appian Drive and Casey Street in San Diego, and Gonzalez parked behind him.

Anderson got out of his truck as did his passengers─Limbrick and a third man wearing glasses, whom police believe was John Harris.[4] Anderson approached the driver's side of Gonzalez's truck while Limbrick and Harris approached the passenger side, where Diaz was sitting. Harris then walked toward a grassy area; Diaz initially thought Harris was looking for a place to urinate. But Harris did not urinate and, unbeknownst to Diaz, was probably serving as a lookout.

Gonzalez told Anderson that he had the marijuana, which was in a box on the back seat of Gonzalez's truck. Anderson took the box of marijuana and placed it in his truck before returning to Gonzalez's truck. When Anderson returned to Gonzalez's truck, he leaned into the driver's side window and removed the keys from the ignition. At that point, Limbrick put a gun to Diaz's neck and told him, "Don't move motherfucker." Harris, who had returned from the grassy area, told Diaz the situation "was serious" and Diaz "was going to die anyway."

Harris removed Diaz from the truck and took his wallet and cell phone while Limbrick held the gun to Diaz's neck. While Limbrick ran to the back of Anderson's truck, Harris grabbed Diaz by his belt and dragged him to the same location. Diaz then saw Limbrick leaning with his left hand on the front of Gonzalez's truck while he pointed a gun toward the ground, where Gonzalez was lying.

Diaz was ordered to throw himself down on the ground next to Gonzalez. Diaz pretended to comply with the order, but ran away. Limbrick fired several shots at Diaz before shooting Gonzalez in the head and killing him. Gonzalez was lying face down in the street in a pool of blood. The cause of death was a gunshot wound near Gonzalez's left eye socket, with the bullet injuring both hemispheres of the brain, the brain stem and the cerebellum. Diaz left the murder scene without calling the police because he was in the country illegally and did not want to be arrested. Police contacted Diaz several months later after finding his phone number on Gonzalez's cell phone.

Two bullets, apparently meant for Diaz, entered the residence of the Munoz family through different windows. One bullet was found lodged in a computer, which the 13-year-old Munoz son had been using. The other bullet was found lodged in the children's bedroom closet.

Nearby residents heard the gunshots and called the police. Police responding to the scene found eight .45-caliber cartridge casings and two bullet fragments in the street near Gonzalez. All the cartridge casings came from a Glock firearm. Based on the trajectories and the placement of the casings and bullet strikes, a police detective opined the shots were fired from someone standing near Gonzalez's truck. The door to Gonzalez's truck was open; no keys were found in or near the truck. Limbrick's left palm print was found on the front hood of Gonzalez's truck with the fingers pointing toward the windshield.

At about 10 p.m., Anderson phoned Lionel Johnson, who also was a customer of Gonzalez and who had introduced Anderson to Gonzalez. Anderson told Johnson, "Don't call Richie."

The following day Anderson told Johnson: "We licked him [Gonzalez]." Johnson assumed that Anderson and others had stolen marijuana from Gonzalez. Later that day, Johnson accompanied Anderson to a garage in Encanto, where Anderson split the marijuana with Harris and Limbrick. Johnson knew Limbrick by his moniker, "Grim Reaper." Limbrick also went by the moniker "Brim Reaper" and was a documented member of the 5/9 Brim, a Blood gang in southeast San Diego.

When Johnson was in custody on another matter in September 2004, he learned from police that Gonzalez was dead. Johnson subsequently informed Anderson that Gonzales was dead and police might be looking for him. Johnson suggested that Anderson get rid of his truck and leave the area for a while.

The prosecution also presented evidence that in 2001 Anderson was driving a Nissan Sentra when the passenger fired a gun at a Toyota Camry or Corolla, which was ahead of the Sentra. A police officer witnessed this incident and pulled over the Sentra. Anderson remained in the car, but the shooter fled. Anderson told police that earlier he had fought with three Skyline Piru gang members. Anderson then picked up the shooter, a Lincoln Park gang member he knew. Anderson claimed that someone in the Toyota had fired a gun at them three times before the shooter fired in the air. At first, Anderson said he thought the gun was a starter pistol, but later admitted it was a real gun.

Testifying in his own defense, Anderson denied planning a drug rip-off or robbery and knowing Gonzalez was going to be shot. Anderson testified that when he placed the box of marijuana into his truck, he was going to return to Gonzalez's truck and pay him for the marijuana. Instead, as Anderson was exiting his truck for the second time, he heard a shot and jumped back in the truck. As more shots were fired, Anderson did not know what was happening and drove off without Harris and Limbrick. When Anderson yielded to make a right turn, Harris first and then Limbrick caught up with him and jumped into Anderson's truck. When Anderson asked Limbrick what had happened, Limbrick replied: "He moved."

Anderson testified that Limbrick had nothing to do with his planned drug purchase; he was in Anderson's truck because before Gonzalez had indicated that he had the 30 pounds of marijuana to sell, Anderson and others had made plans to go to an Indian casino that night and a mutual friend did not have room in his vehicle for Limbrick. Anderson did not know Limbrick had a firearm until they were on the way to Appian Drive and Casey Street. When Anderson looked in his rear view mirror or looked backwards at his blind spot, he saw the gun in Limbrick's lap.

Anderson testified he did not see what Limbrick or Harris were doing at the time of the shooting. Anderson denied seeing Gonzalez on the ground and going back to Gonzalez's truck and removing Gonzalez's keys from the ignition.

DISCUSSION

I. LIMBRICK'S APPEAL

A. Right to Speedy Trial

Limbrick contends he was denied his right to a speedy trial under the United States and California constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I,  15, cl.1.) The contention is without merit.

1. Background

Limbrick and Anderson were arraigned on November 24, 2004, on the felony complaint. After the preliminary hearing, the information was filed on April 22, 2005, but arraignment on the information was not held until June 28, 2005, because the district attorney had not yet decided whether to seek the death penalty.

On July 28, 2005, Limbrick waived time for trial until September 15, 2005. On August 3, Limbrick waived time for trial until November 8, 2005.(CT 466, 468)!

On September 15, 2005, Allen Bloom substituted in as retained counsel for codefendant Anderson and requested the motions scheduled for that day be continued to September 29, 2005.

On September 29, 2005, Bloom moved to continue the trial date to March 3, 2006, with motions to be heard on January 30, 2006. Limbrick opposed the continuance motion, refused to grant a time waiver, moved to proceed based on his rights to a speedy trial, and asked that his case be severed from Anderson's case. At that point, Limbrick had been in custody for more than 11 months, counsel noted. The trial court granted the continuance motion, finding there was good cause to continue the trial date based on Anderson's right to adequate representation by retained counsel and set January 30, 2006, as the trial date. Motions were set for January 4, 2006.

On January 4, 2006, Limbrick moved to dismiss the charges against him for speedy trial violation. The court denied the motion. Bloom moved for a continuance of the trial to March 7, 2006, on the basis of the voluminous discovery. The court found good cause to continue the trial but only until February 27, with motions set for February 2. Limbrick did not waive time for trial.

On February 17, 2006, Bloom made a motion to continue the trial until May based in part on the proposed testimony of a jailhouse informant. (See pt. II G, post.) Limbrick refused to waive time. Over the objections of Limbrick and the prosecution, the court found good cause to continue based on Bloom's need to investigate and prepare, and set the trial date as May 22, 2006. The trial court also told Limbrick that his trial would start May 22, with or without Anderson. The court denied Limbrick's request for bail to be set.

On May 12, 2006, Limbrick renewed his speedy trial motion to dismiss; the court denied the motion.

On May 19, 2006, Bloom moved for a 45- to 60-day continuance, which was opposed by Limbrick and the prosecution. Bloom said he had read an article about the effects of the drug Ecstasy and wanted to investigate this as a possible mental defense. Limbrick renewed his motion to sever the trials based on the trial court's earlier statement that his trial would start on May 22 with or without Anderson. The prosecutor opposed severance on the basis of section 1050.1. When the court indicated that it was going to sever the cases, the prosecutor immediately asked for an ex parte hearing with only Bloom and the court, excluding Limbrick's counsel.[5] At the conclusion of the ex parte hearing, the court denied the motion to sever and granted Bloom's request for a continuance, finding good cause. The court set the new trial date for June 12, 2006. Limbrick did not waive time.

On June 9, 2006, the court found good cause to continue the trial to June 20 because of a medical emergency requiring surgery for Limbrick's trial counsel. Limbrick waived time.

On June 15, 2006, the court, over Limbrick's objection, found good cause to continue the trial date to September 18 because Limbrick's counsel was taking longer than expected to recover from surgery. Limbrick personally refused to waive time.

On September 18, 2006, the trial was trailed to October 2 because of scheduling conflicts with the court calendar.

On October 2, 2006, the trial was trailed to October 10 as to Limbrick and October 16 as to Anderson. Limbrick renewed his motions to dismiss for speedy trial violations and to sever his case from Anderson's.

On October 10, 2006, after the prosecution withdrew its request for dual juries, the court continued the trial to October 16.

On October 16, 2006, the parties began selecting a jury and the trial started.

According to Limbrick, his trial was delayed more than 11 months (343 days) beyond the date he last waived time, with 74 days attributed to his counsel's injury, surgery and recovery. According to the Attorney General, the trial was delayed nine months.

2. Analysis

The Sixth Amendment to the United States Constitution and article 1, section 15 of the California Constitution guarantee a criminal defendant the right to a speedy trial in part to protect the defendant's interest in a fair trial by preventing unwarranted delays that compromise his or her defense through the dulling of memories or the loss of witnesses or evidence. (People v. Martinez (2000) 22 Cal.4th 750, 767-768.)

The two chief differences between the federal and the state right to a speedy trial are (1) the point when the right to a speedy trial attaches,[6] and (2) the showing a defendant must make to obtain a dismissal for a violation of the speedy trial right. (People v. Martinez, supra, 22 Cal.4th at pp. 754-755.) Only the second distinction is relevant in a post-accusation case such as this one.

Under our state Constitution, prejudice is not presumed, and the defendant must affirmatively show prejudice to secure a dismissal for denial of the right to a speedy trial. (People v. Martinez, supra, 22 Cal.4th at p. 755.) In contrast, under the federal constitution, "delay that is 'uncommonly long' triggers a presumption of prejudice[; hence], a defendant can establish a speedy trial claim under the Sixth Amendment without making an affirmative demonstration that the government's want of diligence prejudiced the defendant's ability to defend against the charge." (Ibid.) The presumption of prejudice under the federal right to a speedy trial arises when the delay exceeds "customary promptness" and prompts a four-part balancing test. (Doggett v. United States (1992) 505 U.S. 647, 651-652).

In Barker v. Wingo (1972) 407 U.S. 514, 530 (Barker), the United States Supreme Court set forth the following four-part balancing test: The length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and the prejudice to the defendant. No one of the four factors constitutes a "necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." (Id. at p. 533.) "Rather, they are related factors and must be considered together with such other circumstances as may be relevant." (Ibid.)

"The term . . . 'presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry [into the remaining relevant factors]." (Doggett v. United States, supra, 505 U.S. at p. 652, fn. 1.) Or, as the Barker court explained: "The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." (Barker, supra, 407 U.S. at p. 530.) "[L]ower courts have generally found postaccusation delay 'presumptively prejudicial' at least as it approaches one year." (Doggett v. United States, supra, at p. 652, fn. 1.) However, courts have often found delays exceeding one year are not. (See, e.g., United States v. Colombo (1st Cir. 1988) 852 F.2d 19, 26 [24 months]; United States v. Davenport (11th Cir. 1991) 935 F.2d 1223, 1240 [22 months]; United States v. Molina (1st Cir. 2005) 407 F.3d 511, 533 [18 months].) Limbrick contends, and we assume, without deciding, that the delay of 11 months as calculated by Limbrick─or even the nine months as calculated by the Attorney General─is presumptively prejudicial.

Regarding the second factor, the Barker court noted:

"Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." (Barker, supra, 407 U.S. at p. 531, fn. omitted.)

Our review of the record shows most of the delay in this case was caused by the need of Anderson's counsel to familiarize himself with the case after he substituted in shortly before the trial was to start. Anderson's counsel successively asked for continuances to adequately investigate and prepare, often citing the large amount of discovery to be studied. In ruling on the continuance requests by Anderson's counsel, the trial court was presented with two competing and conflicting constitutional interests. In addition to providing the right to a speedy trial, the Sixth Amendment provides a criminal defendant's with the right "to have the Assistance of Counsel for his defence." (U.S. Const., 6th amend.; Gideon v. Wainwright (1963) 372 U.S. 335, 339.) "It has long been recognized that the right to counsel is the right to the effective assistance of counsel." (McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14.) The trial court was aware of the nature of these conflicting rights and, although it granted Anderson's continuance requests, it did so with continuances of a shorter duration than Anderson sought.

Under federal law, the unavailability of counsel for a codefendant is a valid reason for delay. Recognizing that joint trials serve the public interest, federal courts have held that delays due to the legitimate needs of codefendants and their counsel in a joint trial militate against a defendant's speedy trial claim. (United States v. Vega Molina, supra, 407 F.3d at pp. 532-533 ["busy trial schedules" of codefendants' counsel in protracted, complex joint trial constituted "excellent reasons for delaying the trial"]; United States v. Davenport, supra, 935 F.2d at pp.1239-1240 [problems facing codefendants' counsel, "such as unavailability, inadequate time to prepare, and conflicts of interest," were "at worst, neutral reasons" for delay].)

Limbrick would have had the trial court solve the conflict between his Sixth Amendment right to a speedy trial and Anderson's Sixth Amendment right to effective assistance of counsel by severing their trials. However, under federal law the government's decision to conduct joint trials does not weigh against the government. (United States v. Davenport, supra, 935 F.2d at p. 1240.) Generally, "defendants who are jointly indicted should be tried together." (Ibid.)

Under the circumstances and considering the federal preference for joint trials, continuing the trial to accommodate Anderson's Sixth Amendment right to effective assistance of counsel was reasonable. The second Barker factor─the reasons for the delay─do not favor a finding of a violation of Limbrick's Sixth Amendment right to a speedy trial.

It is not disputed that Limbrick repeatedly objected to continuing his trial and asserted his right to a speedy trial. In considering the significance of a defendant's assertion of his speedy trial right under the Barker analysis, a court may "weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection." (Barker, supra, 407 U.S. at p. 529, italics omitted.) Limbrick's objections were by no means pro forma. The third Barker factor─the defendant's assertions of his right to a speedy trial─weighs in Limbrick's favor.

The fourth Barker factor is prejudice. Prejudice for purposes of the Barker analysis is assessed "in the light of the interests of defendants which the speedy trial right was designed to protect." (Barker, supra, 407 U.S. at p. 532.) These interests are: (1) preventing oppressive incarceration of the defendant while awaiting trial, (2) minimizing the defendant's anxiety and concern due to the continuing pendency of unresolved criminal charges, and (3) limiting the possibility that the defense will be impaired. (Ibid.) "Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past." (Ibid.)

Limbrick contends the delay prejudiced his defense because (1) the gun used in the shooting was not linked to the case until after the trial was started and (2) Anderson's ability to maximize Limbrick's culpability while minimizing his own seemingly improved from the time of Anderson's postarrest statements to police and his trial testimony. The evidence against Limbrick was overwhelming. At most, the discovery of the gun had a de minimis impact on the trial. Limbrick's suggestion that the delay was responsible for Anderson's testimony being harmful to him is speculative at best. In any event, we need only look at the guilty verdicts the jury rendered against Anderson to see that the jury did not find Anderson's testimony credible. We conclude the delay had minimal, if any, effect on Limbrick's ability to present his defense.

Although Limbrick has shown the length of the delay was presumptively prejudicial and he consistently asserted his right to a speedy trial, the delay was for a valid reason (so that codefendant's counsel could adequately prepare for trial), and there was no actual prejudice. After balancing all four Barker factors, we conclude there was no violation of Limbrick's Sixth Amendment speedy trial right.

The California Constitution guarantees a criminal defendant's right to a "speedy public trial." (Cal. Const., art. 1, 15.) Section 1382 interprets the state constitutional right to a speedy trial. (People v. Johnson (1980) 26 Cal.3d 557, 561 (Johnson); People v. Martinez, supra, 22 Cal.4th at p. 766 [the statutory speedy trial rights are "'supplementary to and a construction of the state constitutional speedy trial guarantee'"].) Section 1382 provides that absent a showing of good cause, waiver or consent, a defendant accused of a felony is entitled to a dismissal of charges if the matter is not brought to trial within 60 days of arraignment. ( 1382; Johnson, at p. 563.) What constitutes good cause to continue a trial depends on the circumstances of each case, and the issue is reviewed on appeal under an abuse of discretion standard. (Johnson, at p. 570; Hollis v. Superior Court (1985) 165 Cal.App.3d 642, 645.)

Examples of good cause include delay caused by the defendant's conduct, delay for the defendant's benefit, delay arising from unforeseen circumstances, including the unavailability of a witness, of a codefendant, of a judge or of defense counsel. (See Johnson, supra, 26 Cal.3d at p. 570 & fns. 13-15; Townsend v. Superior Court (1975) 15 Cal.3d 774, 783-784.) Among other things, courts also have found good cause under section 1382 for delay in bringing a criminal case to trial because the defendant is on trial for murder in another city (People v. Gates (1987) 43 Cal.3d 1168, 1190-1192) and for delay attributable to a codefendant's need for a continuance to adequately prepare for trial. (Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, 492, 500-501..) Good cause does not include delay attributable to the prosecution or lack of judicial resources. (Johnson, supra, at p. 571; People v. Wilson (1963) 60 Cal.2d 139, 145; Sanchez v. Superior Court (1982) 131 Cal.App.3d 884, 887; Batey v. Superior Court (1977) 71 Cal.App.3d 952, 956-957.)

The issue becomes more complicated in multidefendant cases where the right to a speedy trial for one defendant is in conflict with the statutory mandate for joint trials.[7] Section 1098 provides that 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." Also, following the passage of Proposition 115 in 1990, a second statute─section 1050.1─underscores the law's preference for joint trials. Under section 1050.1, if good cause exists to continue the trial of a codefendant, then good cause exists to continue the trial of the other defendant to maintain joinder. The statute allows the prosecutor to move for a continuance of all defendants if a continuance for good cause is granted to any of the defendants so as to maintain the joinder. ( 1050.1.) The only exception for granting severance in such a case would be if "it appears to the court . . . that it will be impossible for all defendants to be available and prepared within a reasonable period of time." (Ibid.)

Even before the enactment of section 1050.1, courts have found the need to maintain joinder can constitute good cause to continue a trial beyond the 60-day period. In Ferenz v. Superior Court (1942) 53 Cal.App.2d 639, the appellate court found good cause to continue the defendant's trial beyond 60 days over his objection. (Id. at p. 643.) The prosecution presented affidavits in support of the continuance showing that nine defendants were jointly charged in a conspiracy to violate sedition laws and it was desirable and necessary to try them together because the trial required 50 witnesses, several from out-of-town, and would take eight to 10 weeks. (Id. at p. 641.) In Hollis v. Superior Court, supra, 165 Cal.App.3d 642, four defendants were charged with murder, and three defendants moved for a continuance because counsel needed more time to prepare for trial. Hollis refused to waive time, demanded trial as originally scheduled and sought to dismiss the information as to him when his trial was continued. (Id. at p. 644.) The appellate court found the trial court did not abuse its discretion in continuing the trial; it properly balanced the competing interests in joint trials and the right to a speedy trial in a substantial and complex case. (Id. at p. 646.) "Where a continuance is granted to a codefendant upon good cause, the rights of other jointly charged defendants are generally deemed not to have been prejudiced." (Ibid.)

Greenberger v. Superior Court, supra, 219 Cal.App.3d 487, was a multidefendant murder trial in which defendant Greenberger refused to waive time, although her codefendants moved to continue trial based on a need for pretrial investigation. Greenberger was ultimately tried six months beyond the statutory time. The Court of Appeal found good cause to continue the trial over her objection to maintaining the joinder. (Id. at p. 501.) The court recognized that the preference for a joint trial "encompasses varied and significant interests. So significant, in fact, that they may serve as counterweights to a defendant's right to confront witnesses [citation], his privilege against self-incrimination [citation], his right to exclude prejudicial character evidence [citation], and others [citations]." (Id. at p. 499.) "[I]f the precipitating cause for trial delay is justifiable, such as codefendants' need to adequately prepare for trial, then the section 1098 joint trial mandate constitutes good cause to delay the trial of an objecting codefendant." (Id. at p. 501, fn. omitted.) The Court of Appeal found that good cause existed based on a consideration of factors including length of delay, seriousness of charges, complexity of the case, prejudice to the defendant, the reason for the delay, witness hardship, and the burden on the courts. (Id. at pp. 502, 505-506.)

Limbrick relies on Sanchez v. Superior Court, supra, 131 Cal.App.3d 884 and Arroyo v. Superior Court (2004) 119 Cal.App.4th 460 for the proposition that a defendant's speedy trial rights trump a prosecution's demand for joinder. The reliance is misplaced. Sanchez v. Superior Court, supra, 131 Cal.App.3d 884, predated Proposition 115 and the enactment of section 1050.1. Arroyo v. Superior Court, supra, 119 Cal.App.4th 460, is inapposite to this case because it did not involve the proper application of section 1050.1. Defendant's trial was continued over his objection beyond 60 days from the date of his arraignment solely to permit a joint trial with a codefendant, who had not been arraigned until the day before defendant's trial date. (Arroyo v. Superior Court, supra, at pp. 462-463.) Since the codefendant's trial was not continued for good cause─it was not continued at all─section 1050.1 was not applicable; it did not provide good cause to continue defendant's trial. (Arroyo v. Superior Court, supra, at p. 464.) Hence, Arroyo v. Superior Court is not controlling here.

Nonetheless, Limbrick contends that all of the continuances granted here were without cause and particularly attacks the continuance granted on May 19, 2006, which came after the court had essentially told Limbrick three months earlier there would be no more continuances that would affect him, and, if necessary, his case would be severed from Anderson's. However, it was at the May 19, 2006 hearing that the prosecutor pointed out that under section 1050.1 the continuance should be granted and joinder maintained. Instead of granting a 45-day to 60-day continuance as requested by Anderson's counsel, the court continued the case for one month, which was "reasonable time" under section 1050.1.

Finally, we note that Limbrick has not shown prejudice from the delay, which is a requisite under state law. A defendant who has been tried and convicted and is asserting a state speedy trial claim must show that the delay caused prejudice. (People v. Martinez, supra, 22 Cal.4th at p. 769; see also Cal. Const., art. VI,  13.) As discussed ante, Limbrick cannot do this.

B. Ex Parte Hearing

Limbrick contends his rights to counsel and to be present at court proceedings were violated when the court held an ex parte meeting with the prosecutor and Anderson's counsel. We agree.

1. Background

On May 19, 2006, Anderson's counsel requested a continuance of 45 to 60 days to investigate a mental defense based on his client's drug use. Counsel acknowledged he should have thought of this potential defense earlier. The deputy district attorney indicated there was "one issue that [she did] want to put on the record and [she] believe[d] it need[ed] to be outside of the presence of [Limbrick's counsel] and Mr. Limbrick." The deputy district attorney noted that the matter could wait, and the court said he would hear it after argument on Anderson's motion for a continuance. Legal arguments in favor of and against the continuance motion resumed. When the court indicated it would grant the continuance, the deputy district attorney interrupted and urged the court not to do so. The deputy district attorney cited section 1050.1 and argued that when good cause supported the continuance motion of a defendant the court should not sever his trial from that of the codefendant. The prosecutor also argued the continuance motion was a ploy to obtain separate trials, and she renewed her request to put something on the record outside the presence of Limbrick and his counsel. However, in asking for the in camera hearing , she offered no reason for the hearing other than the court "need[ed] to know another fact" before it made its decision on severance. The court immediately granted the prosecution's request for an in camera hearing without Limbrick and his attorney.

During the ex parte conference, the prosecutor revealed that Anderson's counsel had offered to have his client plead guilty to second degree murder with a 15-year-to-life sentence in exchange for testifying against Limbrick, but the offer had been rejected. The prosecutor argued, among other things, that it was only after the rejection of the offer that Anderson's counsel proposed a 45- to 60-day continuance to explore the new defense. The prosecutor characterized the continuance motion as an attempt to force a severance. The prosecutor also emphasized the mandatory language of section 1050.1. After Anderson's attorney denied the prosecutor's insinuations, the court declared it was not going to sever the trial and would continue the trial. At that point, Limbrick's counsel was brought into the conference. The court explained that it was not severing the trial and was granting the continuance to protect Anderson's right to an adequate defense, but for a shorter time than requested. Back in the courtroom, the court said:

"I have to publicly reverse myself from what I was intending initially based on some added conversation in chambers. Ms. Daly [the prosecutor] persuaded the court that my view of the situation related to the nature in which this case would unfold was incorrect and that the actual benefit would be to maintain the [joint trial] and not sever this matter."

Limbrick's counsel objected and argued that his client had been denied his constitutional right to be present and to be represented by counsel. Counsel asked that the ex parte conference be transcribed and made part of the appellate record. Counsel also moved for a new trial based in part on the basis of Limbrick's right to a public trial.

2. Analysis

Generally, proceedings held in chambers and outside the presence of a party are disfavored. (People v. Ayala (2000) 24 Cal.4th 243, 262.) "'Two basic defects are typical of ex parte proceedings. The first is a shortage of factual and legal contentions. Not only are facts and law from the defendant lacking, but the moving party's own presentation is often abbreviated because no challenge from the defendant is anticipated at this point in the proceeding. The deficiency is frequently crucial, as reasonably adequate factual and legal contentions from diverse perspectives can be essential to the court's initial decision . . . .'" (Ibid. )

In criminal cases, when a party is excluded from an in camera hearing, serious constitutional problems can arise, including a criminal defendant's right to counsel under both the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15; Gideon v. Wainwright (1963) 372 U.S. 335, 339-345; People v. Koontz (2002) 27 Cal.4th 1041, 1069.)

"The right of a criminal defendant to an adversary proceeding is fundamental to our system of justice. [Citations.] This includes the right to be personally present and to be represented by counsel at critical stages during the course of the prosecution. [Citation.] This is not mere idle formalism. Our system is grounded on the notion that truth will most likely be served if the decisionmaker─judge or jury─has the benefit of forceful argument by both sides. . . .

"There are, to be sure, occasional departures from this norm. The district judge makes an ex parte review of the prosecution's evidence to determine whether it falls within the rule of Brady v. Maryland [(1963), 373 U.S. 83, 87]. [Citations.] Also, the district judge normally considers on an ex parte basis whether to reveal to the defense the identity of a government informant. [Citation.] But, as these examples illustrate, situations where the court acts with the benefit of only one side's presentation are uneasy compromises with some overriding necessity, such as the need to act quickly or to keep sensitive information from the opposing party. Absent such compelling justification, ex parte proceedings are anathema in our system of justice and . . . may amount to a denial of due process." (U.S. v. Thompson (9th Cir. 1987) 827 F.2d 1254, 1258-1259, fn. omitted.)

Although the trial court has broad discretionary power to control the proceedings in the courtroom; it must, in exercising its discretion, be impartial and must assure that the defendant is afforded a fair trial. (People v. Cline (1998) 60 Cal.App.4th 1327, 1334.) Thus, in the criminal justice system, adversary proceedings " 'are the norm,' " and " 'ex parte proceedings [are] the disfavored exception.' " (People v. Ayala, supra, 24 Cal.4th at p. 263, quoting U.S. v. Thompson, supra, 827 F.2d at p. 1257.)

When a court invokes its power to exclude a party from an in camera hearing, there should be "a compelling showing of necessity." (People v. Sahagun (1979) 89 Cal.App.3d 1, 25.) In agreeing to hold such an in camera hearing, the court must recognize its exercise of discretion "virtually obliterates as to one party all of the basic and fundamental rights [incorporated] in our concept of a fair trial[,]" including the right to be present during all important stages of the proceedings and the right to be heard in meaningful argument. (Ibid.)

At no point did the deputy district attorney provide a legitimate reason for the ex parte hearing. Initially, the deputy district attorney indicated there was "one issue that [she did] want to put on the record and [she] believe[d] it need[ed] to be outside of the presence of [Limbrick's counsel] and Mr. Limbrick." Later, when she believed the court would grant the requested continuance and sever the trials, the deputy district attorney again asked for an in camera hearing without Limbrick and his counsel. Her only explanation was the court "need[ed] to know another fact" before it made its decision on severance. Neither the request nor the deputy district attorney's unforthcoming remark was sufficient. The deputy district attorney was required to go further and explain why it was necessary to hold an in camera hearing in which one of the parties was excluded.[8] It would have then been up to the court to decide if an in camera hearing excluding one defendant and his counsel was proper. Since the prosecutor did not offer an explanation, the court should have requested one or an offer of proof. But the court did not do that. Without exercising any discretion at all, the court granted the in camera hearing. This was error.

As it turned out, there was no legitimate need for the in camera hearing. The deputy district attorney's disclosure of Anderson's unsuccessful plea negotiations to the court was not only irrelevant, but inappropriate as well. When a judge is informed about plea negotiations, it can detract from the judge's ability to remain detached and neutral as the proceedings continue. We are not saying that the disclosure had that effect here; nothing in the record so indicates. We "must assume that the trial court was not influenced by irrelevant matters." (People v. Warren (1959) 175 Cal.App.2d 233, 247; In re Contreras (1975) 45 Cal.App.3d 549, 555.)

A denial of counsel at a critical stage of the proceedings when the denial may have affected the substantial rights of the accused gives rise to a presumption that the trial was unfair. (United States v. Cronic (1984) 466 U.S. 648, 659.) "Only the most compelling showing to the contrary will overcome the presumption." (People v. Knighten (1980) 105 Cal.App.3d 128, 133.) Because any such error implicates a fundamental federal constitutional right, a reviewing court must reverse unless the error is harmless beyond a reasonable doubt. (Ibid.)

Despite the error in excluding Limbrick and his counsel from the in camera hearing, we are convinced beyond a reasonable doubt that he would have been in no better position had the ex parte hearing not taken place. Regardless of whether Limbrick's trial would have been severed from Anderson's trial, the evidence of Limbrick's guilt was devastating. Diaz placed Limbrick at the scene and identified him as the shooter. Diaz's testimony was corroborated by Limbrick's left handprint being found on the hood of Gonzalez's truck where Diaz testified he saw him place his hand─near the center of the front of the hood with the fingers pointed toward the windshield. Lionel Johnson identified Limbrick and Harris as the two individuals who split Gonzalez's marijuana with Anderson the day after the shooting. Anderson's testimony that Limbrick was the shooter was superfluous, and we are convinced its absence in a separate trial would not have garnered Limbrick a better result. With or without Anderson's testimony, the prosecution had overwhelming evidence to convince a jury beyond a reasonable doubt that Limbrick was guilty. We conclude that the erroneous ex parte hearing from which Limbrick and his counsel were excluded was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

C. Motions To Sever Trial

Limbrick contends the trial court erred by denying his repeated motions to sever his trial from Anderson's trial.[9] Limbrick argues severance was required because he and Anderson had conflicting, antagonistic defenses, and Anderson's testimony and statements to police precluded Limbrick's acquittal. The contention is without merit.

As our Supreme Court recently observed:

"The Legislature has expressed a preference for joint trials. [Citation.] Section 1098 states that multiple defendants jointly charged with a felony offense 'must be tried jointly, unless the court order[s] separate trials.' This rule applies to defendants charged with ' "common crimes involving common events and victims." ' " (People v. Carasi (2008) 44 Cal.4th 1263, 1296.)

Limbrick's and Anderson's case was "a '"classic case"' for a joint trial" because they were charged with " 'common crimes involving common events and victims.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.)

Our standard of review for denial of a severance motion is abuse of discretion─"a deferential standard based on the facts as they appeared when the ruling was made. [Citation.] A ruling that was correct when made will stand unless joinder causes such ' " 'gross unfairness' " ' as to violate defendant's due process rights." (People v. Carasi, supra, 44 Cal.4th at p. 1296.) "Even if the court abused its discretion in refusing to sever, reversal is unwarranted unless, to a reasonable probability, defendant would have received a more favorable result in a separate trial." (People v. Avila (2006) 38 Cal.4th 491, 575.)

Severance may be proper when there is "an incriminating confession, prejudicial association with codefendants, likely confusion 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, 917, fns. omitted.) Put another way, severance may be appropriate if " '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.' " (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40.)

Codefendants have antagonistic defenses when the acceptance of one codefendant's defense "precludes the other['s] acquittal." (People v. Carasi, supra, 44 Cal.4th at p. 1296.) "[S]eparate trials may be ordered in the face of antagonistic defenses." (Ibid., italics omitted.) However, a "joint trial is not unfair simply because the codefendants 'have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to prosecution.' " (People v. Keenan (1988) 46 Cal.3d 478, 500; see also People v. Tafoya (2007) 42 Cal.4th 147, 162 ["antagonistic defenses do not per se require severance even if codefendants are hostile or attempt to cast the blame on each other"].) "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. Hardy (1992) 2 Cal.4th 86, 168, italics omitted.) Severance is proper on the ground of antagonistic or conflicting defenses, if it is " '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.' " (Ibid.) However, severance is not required "[w]hen . . . there exists sufficient independent evidence against the moving defendant, [and] it is not the conflict alone that demonstrates his or her guilt . . . ." (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.)

In this case, antagonistic defenses did not compel severance because there was strong and ample independent evidence against Limbrick apart from Anderson's testimony and statements. Limbrick was placed at the scene and identified as the shooter by Diaz. Limbrick's left handprint was found on the hood of Gonzalez's truck where Diaz testified he saw him place his hand─near the center of the front of the hood with the fingers pointed toward the windshield. Lionel Johnson identified Limbrick and Harris as the two individuals who split Gonzalez's marijuana with Anderson the day after the shooting. Therefore─and notwithstanding Limbrick's attempts to discredit Diaz because of his addiction and criminal history─other evidence, including substantial physical evidence, corroborated Diaz's testimony, which was devastating to Limbrick. No gross unfairness resulted from the joint trial. (See People v. Avila, supra, 38 Cal.4th at pp. 574-576.) Further, given the strong and ample independent evidence against Limbrick, it was clearly not the conflict with Anderson alone that demonstrated his guilt. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.)

This factual background of this case is similar to that presented in People v. Alvarez (1996) 14 Cal.4th 155, 178, 179-180, in which Alvarez asked the codefendant to drive him to a particular location, where he committed an attempted robbery and stabbed the victim to death. The codefendant did not deny her presence or the fact that Alvarez committed the attempted robbery and murder, but claimed she did not know Alvarez's intent and accompanied him out of fear. Notwithstanding the conflicting defenses, our Supreme Court upheld the trial court's rejection of Alvarez's severance motion and found he was not deprived of a fair trial. (Id. at p. 190 & fn. 6.)

We conclude there was no gross unfairness and no denial of a fair trial or due process resulting from the rejection of Limbrick's motions to sever. Even if we were to find an abuse of discretion in the denial of the severance motions that rose to the level of a federal constitutional violation, reversal would not be warranted under Chapman v. California, supra, 386 U.S. at page 24, given the overwhelming independent evidence of Limbrick's guilt.

D. Admission of Evidence of Gang Membership

Limbrick contends the trial court erred by admitting evidence of his gang membership in the 5/9 Brim criminal street gang and his moniker "Grim Reaper" or "Brim Reaper." The contention is without merit.

"[E]vidence of a defendant's criminal disposition is inadmissible to prove he committed a specific criminal act." (People v. Williams (1997) 16 Cal.4th 153, 193; Evid. Code, 1101, subd. (a); People v. Champion (1995) 9 Cal.4th 879, 922, overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 860.) "[A]dmission of evidence of a criminal defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged." (People v. Williams, supra, at p. 193.) However, evidence of gang membership is relevant and admissible if it tends "'logically, naturally, and by reasonable inference'" to, among other things, fortify the testimony of witnesses who have identified the defendant as a participant in the crime. (People v. Champion, supra, at pp. 921-922 [when gang membership evidence is relevant to an issue such as identity, its admission does not amount to proof of guilt by association]; Evid. Code,  201, subd. (b).) "Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative." (People v. Avitia (2005) 127 Cal.App.4th 185, 192.)

Such evidence is subject to a balancing test and should be excluded if its probative value is outweighed by its substantial prejudicial effect. (Evid. Code, 352.) "[T]he decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court." (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225.) The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court's decision exceeds the bounds of reason. (People v. Brown (2003) 31 Cal.4th 518, 547.)

Limbrick's gang membership and moniker were relevant to the issue of identity because Johnson testified that the day following the shooting he observed Anderson dividing the stolen marijuana with "Adam," whom Johnson also knew as the "Grim Reaper" and "JJ." Johnson's "Grim Reaper" testimony established that the "Adam" dividing the stolen marijuana with Anderson and "JJ" was Adam Limbrick. Johnson's testimony corroborated eyewitness Diaz's testimony that Limbrick was at the shooting scene. Limbrick complains that Johnson was not aware of Limbrick's moniker until after the events in 2004, but that fact does not affect the corroborating effect of Johnson's testimony. The prosecution was entitled to prove its case and especially to prove a fact so central to guilt or innocence as Limbrick's identity as the shooter.

Moreover, the court gave a limiting instruction cautioning the jury to consider the Grim Reaper testimony only for the purpose of identification and not for any other purpose. We presume the jury followed the court's instruction (People v. Hovarter (2008) 44 Cal.4th 983, 1005), which dispelled the potential the jury would convict Limbrick based on his gang affiliation rather than on the affirmative admissible evidence of his guilt of the substantive offenses. To the extent that Limbrick now complains the limiting instruction did not go far enough, he should have made a request for amplification or clarification in a timely manner to the trial court. (People v. Medina (1990) 51 Cal.3d 870, 892.)

Limbrick attacks various questionable grounds for admitting the gang evidence, which the trial court stated at times. This need not concern us. "[W]e review the correctness of the trial court's ruling, not the reasons underlying it." (People v. Koontz, supra, 27 Cal.4th at p. 1075, fn. 4.) Inasmuch as the evidence was admissible on the issue of identity and the trial court properly instructed on this use of the evidence, there was no error.

Limbrick also claims it was inequitable to allow admission of his gang affiliation and exclude evidence of Anderson's gang affiliation. We disagree. Limbrick was a documented gang member while A