P. v. Mejia

Filed 5/26/10 P. v. Mejia CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from judgments of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed.

Alan Stern, under appointment by Court of Appeal, for Defendant and Appellant Johnny Mejia.

Athena Shudde, under appointment by Court of Appeal, for Defendant and Appellant Kevin Mejia.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

A jury convicted Johnny and Kevin Mejia each of one count of attempted murder. On appeal, Johnny contends: (1) there was insufficient evidence for the jury to conclude he aided and abetted the attempted murder; (2) the trial court erred in failing to sever the attempted murder charge from a first degree murder charge alleged against only a co-defendant, Edwin Cruz; and (3) the court erred in denying Johnnys motion for a new trial. Kevin contends the trial court violated his constitutional rights by failing to allow him to reopen the defense case to testify; he also joins the appellate arguments of his co-defendants. We affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

We consider the appeal of appellants co-defendant, Edwin Cruz, in a separate opinion (B209375), but much of the background is the same. We review the evidence in accordance with the usual rules on appeal. (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)

Prosecution Evidence

Victor T. was the Peoples primary witness and the victim on count 2, which involved appellants. Victor was a member of the Pomona 12th Street gang. Appellants and co-defendant Cruz were also members of the gang. In May 2007, Victors mother was ill and he had not been hanging out with the gang for around one month as a result. Because he had not been putting in work for the gang, some gang members, including Cruz, picked him up on a few occasions, took him to the hood, or gang territory, and beat him up. Despite the beatings, Victor did not start going to the gangs territory or engaging in more gang activities, which displeased the gang.

One day in May 2007, Victor was hanging around outside of his house. Johnny Mejia^[1]approached and asked Victor to go with him to the hood because another gang member had been shot. Victor declined. Johnny was displeased and left. Around 15 minutes later an older gang memberSportystopped by. Sporty asked if Victor had seen appellants and Cruz, then mentioned that the three were up to something. A short time later, Victor saw a burgundy Lincoln cruise by his house. Victor did not see the occupants of the car, but it made him nervous; he thought one of his enemies might be in the car. The burgundy Lincoln passed by two more times. Victor was standing outside while acting as a lookout for a friend who was breaking into a car nearby. Some time later, Cruz walked up to Victor and asked him to go to the hood because one of their fellow gang members had died. Victor asked a question to clarify Cruzs statement, but Cruz only responded: Come, on, lets go to the hood. Victor agreed. Victor did not know Johnny very well, but he trusted Cruz; the two grew up together and went to the same school. Victor followed Cruz to an alley near his house where the burgundy Lincoln was parked. Johnny and Kevin were inside. Johnny was in the drivers seat.

Kevin asked Victor why he had not been to the hood. Kevins tone of voice suggested he would do something about Victors lack of participation in gang activities. Victor answered that his mother was sick. Victor was high, as he had earlier smoked marijuana, and marijuana combined with crack cocaine. He knew that every time the gang members picked him up it was for a reason, which previously had been to administer a beating. The group drove to the middle of 12th Street gang territory. Kevin said they were looking for members of Cherryville Pomona, a rival gang. Victor found the comment strange because Cherryvilles territory was on a different side of town. Victor did not see if anyone in the car had a gun, however it would have been common for the group to have a weapon to retaliate against rival gangs. While looking out of the car window, Victor saw graffiti in which someone wrote the 12th Street gang name, then crossed it out. This was a sign of disrespect that a rival gang might make, but Victor thought the handwriting resembled that of Cruz. When Victor commented on the resemblance, Cruz laughed and said: You really think Id do that?

Eventually the car stopped in an alley. Kevin said there were members of the Cherryville gang on the corner and told Victor to get out of the car to check. Cruz also got out of the car. Victor did not think the group of people Kevin pointed out looked like gang bangers. Victor and Cruz walked a few steps together, then Cruz turned around and ran back to the car. Kevin got out of the car and walked up to Victor. Johnny and Cruz drove away. Kevin said Johnny would cut the rival gang group off in the car, and Kevin would run toward them and shoot them. Kevin told Victor to get close to him and urged him to hurry. The two walked, then Kevin, who was walking a few steps ahead, turned into an alley. Victor did not follow. Kevin ran out of the alley and shot at Victor, hitting him in the ribs, upper arm, buttock, and stomach. Kevin told Victor he was not from 12th Street. He then put his gun to Victors head and pulled the trigger, but the gun did not fire. Kevin ran away.

Victor initially told the police several different versions of the incident because he did not want to snitch on his own gang members. At the scene of the shooting, Victor told police he did not know who shot him and he could only identify the shooter as a Hispanic male. At the hospital, Victor told two detectives that members of the Cherryville gang shot him. However, when two other detectives entered Victors hospital roomgang detectives with whom Victor was familiarVictor was in tears and scared. Victor told the gang detectives members of his own gang shot him, and he identified appellants and Cruz as the assailants.

Whittaker Murder

Victor also had information about another shooting. Victor testified that Cruz told him he and another gang member, Osvaldo Ramos, killed Mychael Whittaker, an older African American man who sold drugs in the neighborhood. At trial, the prosecution introduced forensic evidence corroborating Victors account of the Whittaker murder as he learned it from Cruz.

Gang Expert Testimony

Gang Detective Greg Freeman testified as a gang expert at trial. Detective Freeman was present when Victor explained that appellants and Cruz were responsible for the shooting. Detective Freeman opined that Johnny and Kevin were members of the 12th Street gang based on his personal contacts with them, their contacts with other police officers, and the places they were seen hanging out. Kevin had been contacted in the company of Sporty, who was an older, respected gang member. Detective Freeman explained that one would not be with Sporty unless that person was an actual gang member or a family member.

According to Detective Freeman, the 12th Street gangs primary activities were graffiti, narcotics sales, car thefts, assaults, carjackings, kidnappings, rapes, attempted murders, murders, and murders of police officers. When presented with hypotheticals mirroring the facts of each shooting, Detective Freeman opined the crimes in both scenarios were carried out for the benefit of, at the direction of, or in association with a criminal street gang. He explained that in the shooting of Victor, [w]hen a gang has members that arent putting in work, they are considered weak and a liability to that gang. Because these members that dont put in work, they cant trust them because . . . when the police come asking what happened, this person might be weak enough to snitch on the gang itself. According to Detective Freeman, a weak member would make the entire gang look weak to other gangs, and the solution would be to execute the weak member. Additionally, Detective Freeman explained the gang would carry out the execution in its own territory to show others what would happen if they did not put in work. Moreover, people in the area would be unlikely to call the police because the community was already intimidated by the gang. A gang member who carried out the execution would also improve his own stature within the gang.

Detective Freeman further opined that several gang members would have a role in the incident. One person would provide transportation. Another would offer support and confirm the deed was done. Someone else might get the weak gang member to a location where he may be attacked. Having several members participate would also provide strength in numbers.

Detective Freeman further offered the opinion that the Whittaker murder as presented in the hypothetical would also benefit the gang.

Defense Evidence

Of the defendants, only Cruz testified at trial. According to Cruz, on the evening of May 28, 2007, he was leaving a barbecue with Kevin and Johnny. Victor approached and said that Cherryville gang members had been around, and Johnny said a fellow gang member had almost been shot. Victor asked for a ride. Johnny drove and Kevin was in the passengers seat. Victor appeared to be under the influence and was talking gibberish. Cruz did not hear Kevin say anything about a gun and had never known Kevin to own a gun.

At Victors requested destination he got out of the car. Cruz and Kevin also got out of the car, and the three began walking. Cruz testified he did not know where they were going, but he did not ask. He did not see anyone standing on the corner near the alley. Cruz suddenly realized he left his cell phone in Johnnys car, so, without saying anything to Kevin and Victor, Cruz turned and ran back in the direction of the car. As he was running, he heard gunshots and he continued running away because he was scared. Cruz denied there was any plan to set up Victor to be shot. He did not speak with Victor again after the shooting.

Cruz further denied that he ever spoke to Victor about the Whittaker murder and he denied that he was a member of the 12th Street gang.

Johnny also offered the testimony of police officer Andrew Bebon. Officer Bebon testified that Victor made a few different statements about the shooting. He told Officer Bebon he thought the shooter may have been a Cherryville gang member. Only after Victor spoke with two detectives, including Detective Freeman, did Victor report that appellants and Cruz were behind the shooting.

Jury Verdicts

The jury found appellants guilty of the attempted murder of Victor (Pen. Code,  664/ 187, subd. (a); count 2).^[2] The jury also found true the following special allegations: the attempted murder was willful, deliberate, and premeditated ( 664, subd. (a)); a gang enhancement under section 186.22, subdivision (b)(1)(C); a principal personally and intentionally discharged a firearm which proximately caused Victor great bodily injury ( 12022.53, subds. (d), (e)(1)); a principal personally and intentionally discharged a firearm ( 12022.53, subds. (c), (e)(1)); and a principal personally used a firearm ( 12022.53, subds. (b), (e)(1)).

DISCUSSION

I. Johnnys Appeal

A. Substantial Evidence Supported the Conviction of Johnny as an Aider

and Abettor

Johnny contends there was insufficient evidence that he aided and abetted the attempted murder of Victor. We disagree.

When an appellant challenges the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether a reasonable jury could have found the essential elements of the crime beyond a reasonable doubt. (Zamudio, supra, 43 Cal.4th at p. 357.) We do not reweigh the evidence or resolve evidentiary conflicts. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support  the jurys verdict. [Citation.] (Ibid.)

A person aids and abets the commission of a crime when he acts with knowledge of the unlawful purpose of the perpetrator and the intent or purpose of encouraging or facilitating the commission of the crime, and his act or advice in some manner aids, promotes, encourages or instigates the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.) To be guilty of attempted murder as an aider and abettor, the defendant must give aid or encouragement with knowledge of the direct perpetrators intent to kill and with the purpose of facilitating the direct perpetrators accomplishment of the intended killing which means that the person guilty of attempted murder as an aider and abettor must intend to kill. [Citation.] (People v. Lee (2003) 31 Cal.4th 613, 624.)

Substantial evidence supported the jurys conclusion that Johnny acted with knowledge of the plan to kill Victor and that his actions aided the commission of the attempted murder. There was substantial evidence that appellants and Cruz planned in advance to take Victor into the 12th Street gang territory where they would shoot him. Johnny was the first person to approach Victor in an effort to get him to go the hood. When Victor refused to go, Johnny was upset. Sporty later suggested that Cruz, Kevin, and Johnny were all up to something. When Cruz subsequently convinced Victor to go into gang territory, Johnny was also there and was driving the car. Although the four men did not speak while in the car, Johnny drove to a specific spotnot at the direction of Cruz or Kevin. When Kevin said the group was looking for members of the Cherryville gang, Johnny said nothing, even though Kevins statement was untrue and seemed strange even to Victor since the Cherryville territory was on another side of town.

The evidence of Johnnys involvement allowed the jury to reasonably conclude that he was involved in the plan to kill Victor from the outset. He tried to get Victor to go into gang territory with him, but failed. He then provided transportation for Kevin and Cruz once they had successfully convinced Victor to join them. Although he did not fire a gun at Victor, Johnnys actions in trying to lure Victor to a place where he could be shot, and in driving the group into the gang territory where Victor would be shot, promoted and aided in the commission of the attempted murder. Indeed, his attempt to set the plan in motion by asking Victor to go into gang territory was evidence he was deliberately facilitating the intended killing.

Substantial evidence supported the jurys conclusion that Johnny acted as an aider and abettor in the attempted murder of Victor.

B. The Trial Court Did Not Err in Granting the Motion to Consolidate

the Two Counts

Johnny contends the trial court abused its discretion by joining the two counts. Kevin joins in this argument. We disagree.

Background

In November 2007, the People moved to join the two counts involving the Whittaker murder and the attempted murder of Victor. Cruz and Ramos were jointly charged with the murder of Whittaker, while Cruz and appellants were jointly charged with the attempted murder of Victor. The People argued the two crimes were of the same class, both cases involved the same gang evidence, and both would require Victor to testify as a primary witness. The defendants all opposed the motion, arguing the two cases were entirely unrelated and would prejudicially link weak and strong cases. In January 2008, the trial court granted the motion to consolidate the charges. Although Ramoss case was eventually severed due to his counsels involvement in a lengthy capital trial, the trial court denied two subsequent motions for reconsideration of the order granting consolidation as to the other defendants.^[3]

Discussion

Under Section 954, an accusatory pleading may charge two or more different offenses of the same class of crimes or offenses under separate counts. The trial court, in the interests of justice and for good cause shown, may in its discretion order that different offenses . . . be tried separately. ( 954.) However, the strong preference is for joinder of charged offenses. (People v. Soper (2009) 45 Cal.4th 759, 772, 782 (Soper).)

We review a trial courts decision not to sever for abuse of discretion based on the record when the motion is heard. [Citations.] A pretrial ruling denying severance that is not an abuse of discretion can be reversed on appeal only if joinder is so grossly unfair as to deny the defendant due process. [Citation.] [] Factors to be considered in assessing the propriety of joinder include: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citation.] When, as here, crimes of the same class are charged together, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together. . . . ( 954.1.) (People v. Cook (2006) 39 Cal.4th 566, 581, citing People v. Mendoza (2000) 24 Cal.4th 130, 161 (Mendoza); Soper, supra, 45 Cal.4th at p. 775; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 [accord] (Alcala); Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 939 [applying factors regarding severance where issue was grant of prosecutions motion to consolidate].)

Although much of the evidence at trial was not cross-admissible for both crimes charged, appellants concede that at least the gang evidence was cross-admissible. However, the absence of cross-admissibility of evidence does not, by itself, demonstrate prejudice when consolidation of charges is ordered. (Soper, supra, 45 Cal.4th at pp. 779-780; Alcala, supra, 43 Cal.4th at p. 1221.) Further, appellants contend the gang evidence was itself prejudicial when presented in the joined charges. Thus, we consider the other factors mentioned above.

Evidence of the Whittaker murder was not likely to inflame the jury against appellants. It was apparent throughout the trial that appellants were not involved in the Whittaker murder. They were never linked to the crime in any way and the trial court instructed the jury that each count charged a distinct crime and would have to be decided separately. Further, the facts of the crimes were equally serious. Whittakers murder involved some gruesome details and the use of a racial epithet by Cruz. However, Whittaker was also identified as a drug dealer and former member of a different gang. In contrast, the attempted murder of Victor involved a young victim known to appellants and Cruz. When Victor stopped participating in gang activities because of his mothers illness, the gang retaliated. The details of how appellants lured Victor into gang territory and set him up to be shot at close range by a fellow gang member were as troubling as the details of the Whittaker murder.

In addition, appellants were not prejudiced by the joining of a weaker case with a stronger one. We do not agree that there was a significant difference between the strength of the two cases. As described above, the evidence of Johnnys involvement in the attempted murder of Victor as an aider and abettor was substantial. Both cases relied on Victors testimony. On count 2, Victors testimony was bolstered by the fact that he was an eyewitness, he knew appellants and Cruz personally before the event, and he recounted in detail the events of the evening. On count 1, Victor testified about what Cruz told him, and that testimony was supported by forensic evidence. The case against Johnny was not significantly weaker than the case against Cruz in the Whittaker murder. The case against Kevin was even stronger in that Victor saw him firing a gun at him at close range, and heard him even explain the reason for the attack.

Further, the joinder of the two counts did not result in a capital offense.

To establish error in the trial courts ruling granting the motion for consolidation or denying his subsequent motion to sever the charges, appellants were required to make a clear showing of prejudice to establish that the trial court abused its discretion . . . . [Citation.] A trial courts denial of a motion to sever properly joined charged offenses amounts to a prejudicial abuse of discretion only if that ruling falls outside the bounds of reason. [Citation.] (Soper, supra, 45 Cal.4th at p. 774, italics omitted.) Appellants did not meet that burden here.

Likewise, the trial courts denial of severance did not result in actual unfairness so great that it denied appellants due process or deprived them of their right to a fair trial. (Soper, supra, 45 Cal.4th at p. 783; Cook, supra, 39 Cal.4th at p. 583.) [T]he consolidated offenses were factually separable. Thus, there was a minimal risk of confusing the jury or of having the jury consider the commission of one of the joined crimes as evidence of defendants commission of another of the joined crimes. (Mendoza, supra, 24 Cal.4th at p. 163; Soper, supra, 45 Cal.4th at p. 784.) The prosecution did not suggest that evidence from one incident could be used to prove or strengthen the other incident. (Cf. People v. Grant (2003) 113 Cal.App.4th 579, 589-590.)The trial court instructed the jury that evidence admitted as to each count could be considered only for that count, and the jury was told not to consider the evidence for any other purpose. The jury was also instructed that they had to decide separately whether each of the defendants was guilty or not guilty. The court further instructed: Each count charges a distinct crime, and you must decide each count separately. Moreover, the court explicitly told the jury which counts and instructions applied only to Cruz, and which applied to all of the defendants. The joint trial of both charges did not deprive appellants of a fair trial.

C. Any Error in Denying Johnnys Motion for New Trial Was Harmless

Background

After the People rested, Kevin Mejia indicated he had not yet made a decision about whether he would testify. His counsel requested that the defense be allowed to start their case the following day so that he and Kevin could make a final decision. The next day, Kevins counsel informed the court his client would not testify, but he reserved the right to testify depending on Cruzs testimony. The defense called a police witness, then Cruz. After Cruz testified, Kevin requested a recess to confer with his counsel. Following the recess, counsel informed the court Kevin did not wish to testify. The court confirmed that Kevin understood he had a right to testify, that he had a chance to talk with counsel about the benefits and downsides of testifying, and that he understood what his counsel said to him. Kevin repeated to the court that he did not wish to testify. Kevins counsel represented that he discussed testifying with Kevin on two or three occasions, and Kevin had appeared to think about counsels advice. The defense rested.

However, after the Peoples rebuttal case, but before the jury was instructed and before closing arguments began, Kevin moved to reopen the defense case so that he could testify. Cruz joined in the motion, but Johnny did not. Kevin, through counsel, offered that he would testify that he was at that location that evening, that he did get out of the car with [Victor], that they were walking in an alley, but that [Victor] was extremely loaded, and that he was banging, which in his words means throwing gang signs, and that an unknown figure in the alley started shooting at both of them, and that they both ran. [] And he would explain to the jury why he ran, how close they were, how the shooting took place, why they went to that location. That [Victor] was interested in making a connection, which is a dope connection.

The trial court evaluated several factors, then concluded the defense had not exercised diligence in seeking to introduce the testimony, allowing the defense to reopen would place undue emphasis on Kevins testimony because it would be the only testimony offered that day, and much of the proffered testimony had been covered by other witnesses. The court further expressed a concern that Kevin was seeking to delay the proceedings, noting that he had waived his right to testify in open court, and he seemed adamant at the time. The court denied the motion.

Following the verdict, Kevin filed a motion for a new trial which Johnny joined. Johnny argued he had no control over Kevins decision to testify and could not be faulted for any lack of diligence, but that he was harmed because the jury was not allowed to hear Kevins testimony. Johnny further argued Kevin would have been a more credible witness than Cruz, since Cruz was implicated in two crimes. Kevin argued it was grossly unfair for the court to deny him the opportunity to testify on his own behalf. Kevin further contended he had not unduly delayed in seeking to reopen the defense case, the evidence was significant, and there was no reason to believe the jury would have unduly emphasized his testimony. The trial court denied the motion.^[4]

Discussion

Johnny asserts his motion for a new trial based on newly discovered evidence should have been granted. Assuming without deciding the trial court abused its discretion in denying the motion for new trial, we find any error harmless. (People v. Watson (1956) 46 Cal.2d 818, 834.)

Kevins testimony would not have rendered a different result probable on retrial. There was no indication that Kevins testimony would do more to exonerate Johnny than Cruzs testimony had, in that Cruz claimed there was no plan to kill Victor and Johnny drove away before Cruz even had a chance to run back to the car. Kevin could only additionally testify that Victor was shot by an unknown assailant. The jury was unlikely to believe this testimony over that of Victor. Victor knew Kevin before the incident and he saw Kevin running towards him. He saw Kevin at close range as Kevin fired his weapon and when he attempted to shoot Victor in the head. Victor also heard Kevin explain that Victor was not a true gang member. It is not probable the jury would find Kevins testimony more credible than Victors. This is especially true given that the jury verdict indicated it disbelieved Cruzs version of events surrounding Victors murder in lieu of Victors account of what happened that day. (People v. Delgado, supra, 5 Cal.4th at p. 329 [trial court may consider credibility as well as materiality of evidence in determining whether the introduction of evidence in a new trial would render a different result reasonably probable].) If the jury did not believe Kevin, his testimony would not help Johnnys case.

Any error was thus harmless.

D. No Cumulative Error

We have concluded the court did not err in its rulings. Thus, we reject Johnnys contention that cumulative error mandates reversal. (People v. Burney (2009) 47 Cal.4th 203, 256.)

II. Kevins Appeal

A. Even Assuming the Trial Courts Denial of Kevins Motion to Reopen

Was Error, it Does Not Mandate Reversal

Kevin contends the trial court violated his constitutional rights by denying his motion to reopen the defense case so that he might testify. We disagree.

It is well established that a defendant has a fundamental right to testify at trial. (People v. Carter (2005) 36 Cal.4th 1114, 1198.) Here, Kevin had that right, which he voluntarily waived after repeated discussions with his counsel and after questioning from the court. He did not attempt to testify until after the defense had rested and all of the evidence was in. Thus, this case is not about the denial of a fundamental right. Kevin did not have a fundamental right to have the defense case reopened. Indeed, in the only case Kevin cites in which the defendant sought to reopen the defense case to introduce his own testimony, People v. Earley (2004) 122 Cal.App.4th 542, the court analyzed the case solely as one of a motion to reopen.

But even were we to analyze the trial courts denial of Kevins motion to reopen as a decision denying Kevin the right to testify, we would conclude any error would not require reversal. Every defendant has a right to testify during trial on his own behalf. (Rock v. Arkansas (1987) 483 U.S. 44, 51-52 (Rock).) That right is protected by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. (Ibid; see also People v. Johnson (1998) 62 Cal.App.4th 608, 617-618 (Johnson).) However, when a defendant is denied the right to testify on his own behalf in error, the error is not reversible per se.^[5] Instead, a reviewing court must subject the exclusion to the harmless error analysis of Chapman v. California (1967) 386 U.S. 18, 24: reversal is not required if the error was harmless beyond a reasonable doubt. (People v. Allen (2008) 44 Cal.4th 843, 871-872 (Allen); Johnson, supra, 62 Cal.App.4th at pp. 635-636.) [I]t is only the most extraordinary of trials in which a denial of the defendants right to testify can be said to be harmless beyond a reasonable doubt. [Citation.] [Citation.] Nonetheless, if the facts to which a defendant offered to testify would not have affected the verdict, the exclusion of his or her testimony was harmless. (Allen, supra, 44 Cal.4th at p. 872.)

In this case, Kevin proposed to testify to several facts, which we consider in turn. First, Kevin sought to testify that he was at the location of the shooting, he got of out of the car with Victor, and they were walking in an alley. These facts were undisputed. Both Victor and Cruz testified to these facts. Second, Kevin sought to testify that Victor was extremely loaded. This too had already come into evidence. Victor admitted that he was high and he had been smoking marijuana and cocaine before he got into the car with appellants and Cruz. Third, Kevin would have testified that Victor was making gang signs. Although no other witness had testified to this fact, it would not have made a difference in the verdict. Even if true, Victors account was that he and Kevin were preparing to confront and attack a rival gang; the throwing of gang signs would have been in line with Victors account.

Kevin additionally sought to testify that an unknown figure in the alley started shooting at Victor and him. This clearly would have been the crux of Kevins testimonya statement that he was not the shooter. However, according to the proffer, Kevins testimony was limited. He was not planning to identify the shooter in any way other than to indicate that it was not him. It was already clear to the jury that this was Kevins defense. And, without any specifics about the shooter, Kevins testimony would have done little to discredit Victors account. Victor knew Kevin, and described Kevin shooting him at close range, thus there was little chance of mistaken identity. Although Victor initially told police someone else shot him, he offered an explanationhe was afraid and did not want to betray other gang members. At trial Victor said he was marked to be killed for testifying against gang members. On cross-examination, Victor admitted that he failed to respond to a subpoena and as a result was in custody and would remain there until he testified in the case.

Moreover, Kevin fled after the shooting, which further suggested his guilt. Kevins mother testified that she took Kevin to Utah in June 2007, ostensibly so that he could find a job. However she admitted that when the police contacted her she did not tell them she had taken Kevin to Utah because she knew they were looking for him because of the shooting.

Kevins testimony would not have affected the verdict. The verdicts reflect that the jury chose to believe Victors version of what happened on the day he was shot instead of the opposing testimony of the gang members who committed the shooting. Thus, even if the trial courts refusal to allow Kevin to reopen the defense case is construed as a denial of Kevins fundamental right to testify, we would find the error harmless.

B. Kevins Remaining Arguments

On appeal, Kevin joins the arguments of his co-appellants regarding the joinder of counts 1 and 2, as well as their arguments on the trial courts denial of his motion to reopen the defense case. For the reasons explained above and in our opinion in Cruzs appeal (B209375), we find the trial court did not err.

DISPOSITION

The trial courts judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, P. J.

We concur:

RUBIN, J.

LICHTMAN, J.^*

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^[1] When referring to appellants individually we will use their first names to avoid confusion.

^[2] All further statutory references are to the Penal Code unless otherwise noted.

^[3] The last motion for reconsideration was presented to the judge who subsequently conducted the trial. The original motion for consolidation and the first motion for reconsideration were presented in a different department.

^[4] The court explained: We certainly dont have any new evidence here. We took a full, complete, detailed waiver of the defendants right to testify. That, as I recall, occurred in the vicinity of midday on Friday. The next time we met was the following Monday after a lot of discussions on jury instructions, et cetera. Monday there was a motion to re-open, as I recall. And we had a lengthy discussion citing, I believe the Jones case, and we went over the factors in the Jones case. [] Frankly, I think theres nothing more than buyers remorse and seeking to delay. I wouldnt necessarily use the phrase cat and mouse, as [the People] did, but its not entirely inappropriate. [] Motion for new trial on each defendant will be denied on those grounds.

^[5] The right to testify is also not without limits. For example, the defendant must make a timely request to testify. (People v. Guillen (1974) 37 Cal.App.3d 976, 985 [defendants request to testify was not timely where he waited until jury had issued a conviction].) In Rock, the high court noted the right to testify may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. [Citation.] But restrictions of a defendants right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. (Rock, supra, 483 U.S. at pp. 55-56, fn. omitted.)

^{*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.}