Filed 6/26/26 P. v. Perez CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A171374
v. (San Francisco City & County
DARVIN RAMIREZ PEREZ, Super. Ct. Nos. 21008191,
Defendant and Appellant. 21008194, 21008277, 23002270)
Defendant Darvin Ramirez Perez (Perez) was tried before a jury on
sixteen counts initially brought against him in four separate cases. Before
the consolidation of these cases, three were the subject of one information
(first information) and one the subject of another (second information). The
trial court granted the prosecution’s consolidation motion, made pursuant to
Penal Code section 954.1
Here on appeal, Perez contends the court abused its discretion because
its reasons for granting consolidation—that none of the cases was
particularly inflammatory and all of the cases involved potentially cross-
admissible evidence—rested on a critical factual error. In granting
1 Statutory references are to the Penal Code unless otherwise stated.
1
consolidation, he points out, the court incorrectly believed that none of the
alleged crimes in the second information involved residential burglaries of
inhabited dwellings, or “hot prowls.”
Perez argues for the first time on appeal that this error resulted in a
gross unfairness so egregious as to violate his right to due process of law.
Contending that there is a reasonable probability he would have obtained a
better result on one of the counts for which he was convicted—the charge that
he had a concealed “dirk or dagger” (a machete) on his person in violation of
section 21310 (concealment count)—Perez seeks reversal of that conviction.
And in a related claim anticipating a forfeiture argument from the Attorney
General, he argues he received ineffective assistance of counsel.
Exercising our discretion to consider asserted error not raised in the
trial court, we conclude that Perez’s abuse of discretion argument is
unpersuasive in light of the record available to the court at the time of its
ruling. Further, even assuming for the sake of argument that the trial court
erred, consolidation did not result in a gross unfairness to Perez because of
the strong evidence supporting the jury’s guilty verdict on the concealment
count. Perez’s ineffective assistance of counsel argument is meritless for the
same reasons.
We affirm.
I. BACKGROUND
In 2023, the San Francisco District Attorney’s Office filed a
consolidated information in case numbers 21008277, 21008194, and
21008191 charging Perez with eight counts. They were second degree
burglary of a vehicle, carrying a dirk or dagger concealed on the person
(which became the concealment count in the subsequent consolidated
information), receiving stolen property, possession of burglary tools (two
2
counts), attempted residential burglary of an inhabited dwelling, vandalism,
and receiving stolen property (a motor vehicle). These counts related to
incidents alleged to have occurred on March 15, 2021 (four counts), August
15, 2021 (two counts), and August 18, 2021 (two counts).
In 2023, the San Francisco District Attorney’s Office filed another
information, in case number 23002270, charging Perez with eight additional
counts. They were attempted first degree residential burglary of an
inhabited dwelling, first degree residential burglary of an inhabited dwelling
(two counts), vandalism (three counts), possession of burglary tools, and
grand theft. These counts related to incidents alleged to have occurred on
February 14, 2023 (four counts), November 20, 2022 (two counts), and
November 27, 2022 (two counts).
Subsequently, the prosecution moved to consolidate all four cases for
trial as of the same class, being related to either theft or burglary. In its
motion, it briefly summarized its factual allegations. As for the three
incidents referred to in the first information, it alleged that in the March 15,
2021 incident (the basis for the concealment count), Perez “was seen breaking
into a locked truck and removing a suitcase. Police stopped [him] a couple of
blocks away with the suitcase and arrested him. An arrest search found a
machete and burglar tools.” In the August 15, 2021 incident, Perez
“attempted to break into an attached garage of victim’s home. . . . Victim was
home and observed someone at their garage door via both surveillance video
and direct observation. [Perez] took off on a scooter . . . .” The August 18,
2021 incident involved police observing Perez exit a stolen vehicle.
As for the three incidents referred to in the second information, the
prosecution alleged that in the November 20, 2022 incident, Perez “entered
victim’s garage and used tools to cut free victim’s bicycle and stole the bicycle.
3
Victim was home asleep during the incident.” In the November 27, 2022
incident, Perez allegedly “used several tools and took about 45 minutes to cut
into victim’s door and gain entry into his home. [Perez] entered the home,
leaving shortly thereafter when an alarm was triggered. Victim and his
children were at home and asleep during the incident.” In the February 14,
2023 incident, Perez “broke a garage window at victim’s home and tried to
gain entry into the garage. After that failed, [Perez] tried to break through
victim’s front door. Victim saw [Perez] through their front door security
camera and used the intercom to tell [Perez] the police had been called.
[Perez] fled . . . .”
Perez did not file a written opposition to the motion. At the hearing on
the motion, his counsel requested that the court delay ruling until the trial
judge could consider the motion, which the court declined to do. Before
inviting argument, the court said the charges appeared to be “clearly the
same class of crime” and that two of them, while charged as first degree
residential burglaries, were not “hot prowls” because “no witnesses were
home.” It added, “There’s nothing about those crimes that would be
prejudicial or inflammatory compared to the attempt to steal a vehicle and
personal property. And all cases seem to be of equal strength.”
Perez’s counsel responded that arguably the charges were of the same
class. But, he said, consolidation would not in fact save time because there
were no overlapping witnesses and jury selection would only take half a day
to a day.
The court noted that it takes some time to select a jury, that evidence of
the crimes could be cross-admissible under Evidence Code section 1101,
subdivision (b) to show intent, and that there was nothing prejudicial in
consolidating the cases, since a weak case was not being consolidated with a
4
strong case and none of the cases were particularly inflammatory. It granted
the motion.
The prosecution then filed a consolidated information containing the 16
counts against Perez (and additional allegations).
After the presentation of evidence and closing arguments, the jury
began deliberating on the afternoon of Friday, July 19, 2024, and then
continued deliberations on the following Monday, July 22. The next morning,
Tuesday, July 23, the jury asked the court if finding Perez not guilty had to
be a unanimous decision, giving as an example that the jury was divided 10
to 2 on the concealment count. Later that morning, after the court responded
that their decisions had to be unanimous, the jury told the court it had
agreed on 13 counts but was unable to reach a unanimous verdict on three,
including the concealment count. The foreperson indicated the jury had been
split 10 to 2 on the concealment count for two and a half days (approximately
the length of all the jury’s deliberations), and opined that further
deliberations would not result in a verdict. Most of the jurors thought they
were hopelessly deadlocked on the concealment count but two said the jury
“maybe” could reach a verdict after further deliberation. The court asked the
jury to continue deliberating.
The jury returned the next morning with a guilty verdict on the
concealment count; it was deadlocked on the other two counts (for attempted
first degree residential burglary and vandalism, both unrelated to the
concealment count). The court declared a mistrial on those two counts.
Perez was found guilty of all counts decided by the jury except that he
was acquitted of receiving a stolen motor vehicle and one count of vandalism
(both also unrelated to the concealment count). The court sentenced Perez to
5
a total sentence of six years and eight months in state prison. It imposed a
two-year concurrent sentence for the concealment count.
Perez filed a timely notice of appeal.
II. DISCUSSION
A. The Court Did Not Prejudicially Err by Granting the
Prosecution’s Motion To Consolidate
Perez first argues that the court abused its discretion by granting the
prosecution’s motion to consolidate because its conclusions that no case was
particularly inflammatory and that the cases involved possibly cross-
admissible evidence to show intent were based on a critical factual error.
That is, Perez contends, although the prosecution in its motion argued that
people were home during the residential burglaries alleged in the second
information (which did not contain the concealment count), the court said at
the motion hearing that there were no “hot prowls,” apparently meaning
residential burglaries of homes in which victims were present. Perez further
contends the court’s error resulted in gross unfairness to his chances of
avoiding conviction on the concealment count, requiring reversal of that
conviction.2
1. Legal Standards
Under our Penal Code, “[a]n accusatory pleading may charge . . . two or
more different offenses of the same class of crimes or offenses, under separate
counts, and if two or more accusatory pleadings are filed in such cases in the
same court, the court may order them to be consolidated.” (§ 954.)
2 Perez did not make these arguments below, but the People do not
assert forfeiture and Perez also claims he received ineffective assistance of
counsel, which we discuss post. Thus, we exercise our discretion to consider
these arguments.
6
In People v. Soper (2009) 45 Cal.4th 759 (Soper), our Supreme Court
comprehensively outlined the considerations governing joinder of charges
offenses that are of the same class, which Perez concedes is the case here.
“The purpose underlying [section 954] is clear: joint trial ‘ordinarily
avoids the increased expenditure of funds and judicial resources which may
result if the charges were to be tried in two or more separate trials.’
[Citation.] ‘A unitary trial requires a single courtroom, judge, and court
attach[és]. Only one group of jurors need serve, and the expenditure of time
for jury voir dire and trial is greatly reduced over that required were the
cases separately tried. In addition, the public is served by the reduced delay
on disposition of criminal charges both in trial and through the appellate
process.’ [Citations.] . . . For these and related reasons, consolidation or
joinder of charged offenses ‘is the course of action preferred by the law.’ ”
(Soper, supra, 45 Cal.4th at p. 772.)
“ ‘[T]he prosecution is entitled to join offenses under the circumstances
specified in section 954. The burden is on the party seeking severance to
clearly establish that there is a substantial danger of prejudice requiring that
the charges be separately tried. [Citations.] When the offenses are [properly]
joined for trial the defendant’s guilt of all the offenses is at issue and the
problem of confusing the jury with collateral matters does not arise. The
other-crimes evidence does not relate to [an] offense for which the defendant
may have escaped punishment. That the evidence would otherwise be
inadmissible [under Evidence Code section 352] may be considered as a factor
suggesting possible prejudice, but countervailing considerations [of efficiency
and judicial economy] that are not present when evidence of uncharged
offenses is offered must be weighed in ruling on a . . . motion [to sever
properly joined charges]. The burden is on the defendant therefore to
7
persuade the court that these countervailing considerations are outweighed by
a substantial danger of undue prejudice.’ ” (Soper, supra, 45 Cal.4th at
p. 773, original italics.)
“A defendant, to establish error in a trial court’s ruling declining to
sever properly joined charges, must make a ‘ “clear showing of prejudice to
establish that the trial court abused its discretion . . . .” ’ [Citation.] A trial
court’s 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.] We have observed that ‘in the context of
properly joined offenses, “a party seeking severance must make a stronger
showing of potential prejudice than would be necessary to exclude other-
crimes evidence in a severed trial.” ’ [Citations.]
[¶] . . . [¶]
“In determining whether a trial court abused its discretion under
section 954 in declining to sever properly joined charges, ‘we consider the
record before the trial court when it made its ruling.’ [Citation.] Although
our assessment ‘is necessarily dependent on the particular circumstances of
each individual case, . . . certain criteria have emerged to provide guidance in
ruling upon and reviewing a motion to sever trial.’ [Citation.]
“First, we consider the cross-admissibility of the evidence in
hypothetical separate trials. [Citation.] If the evidence underlying the
charges in question would be cross-admissible, that factor alone is normally
sufficient to dispel any suggestion of prejudice and to justify a trial court’s
refusal to sever properly joined charges. [Citation.] Moreover, even if the
evidence underlying these charges would not be cross-admissible in
hypothetical separate trials, that determination would not itself establish
8
prejudice or an abuse of discretion by the trial court in declining to sever
properly joined charges. . . .
“If we determine that evidence underlying properly joined charges
would not be cross-admissible, we proceed to consider ‘whether the benefits of
joinder were sufficiently substantial to outweigh the possible “spill-over”
effect of the “other-crimes” evidence on the jury in its consideration of the
evidence of defendant’s guilt of each set of offenses.’ [Citations.] In making
that assessment, we consider three additional factors, any of which—
combined with our earlier determination of absence of cross-admissibility—
might establish an abuse of the trial court’s discretion: (1) whether some of
the charges are particularly likely to inflame the jury against the defendant;
(2) whether a weak case has been joined with a strong case or another weak
case so that the totality of the evidence may alter the outcome as to some or
all of the charges; or (3) whether one of the charges (but not another) is a
capital offense, or the joinder of the charges converts the matter into a capital
case. [Citations.] We then balance the potential for prejudice to the
defendant from a joint trial against the countervailing benefits to the state.”
(Soper, supra¸ 45 Cal.4th at pp. 774–775, fn. omitted, original italics.)
Moreover, “even if a trial court’s ruling on a motion to sever is correct
at the time it was made, a reviewing court still must determine whether, in
the end, the joinder of counts or defendants for trial resulted in gross
unfairness depriving the defendant of due process of law.” (Soper, supra,
45 Cal.4th at p. 783.) “Whether joinder worked a gross unfairness turns upon
assessing whether it was ‘reasonably probable that the jury was influenced
by the joinder in its verdict of guilt.’ ” (People v. Vargas (2020) 9 Cal.5th 793,
819.)
9
A court’s grant of a motion to consolidate is reviewed for abuse of
discretion in light of the record before the court when it made its ruling.
(Soper, supra, 45 Cal.4th at p. 774.) Under this standard, “[t]he trial court’s
findings of fact are reviewed for substantial evidence, its conclusions of law
are reviewed de novo, and its application of the law to the facts is reversible
only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008)
43 Cal.4th 706, 711–712, fns. omitted.) “A trial court abuses its discretion
when the factual findings critical to its decision find no support in the
evidence.” (People v. Cluff (2001) 87 Cal.App.4th 991, 998.)
2. Perez Fails To Show the Court Abused Its Discretion in
Consolidating All of the Cases
Perez argues the trial court’s order granting the prosecution’s
consolidation motion was unsupported by evidence and an abuse of discretion
because it was based on the court’s mistaken impression that none of the
counts in the second information (which did not contain the concealment
count) involved “hot prowls.”
Perez is correct that the court erred in stating at the motion hearing
that the second information did not include any alleged “hot prowls”—
meaning residential burglaries of homes with victims present. Specifically,
the prosecution alleged that in the November 27, 2022 incident, Perez
entered a home while the victim and his children were sleeping inside, Perez
leaving when an alarm was triggered.3 Relying on People v. Harris, supra,
3 At the time of its ruling, the court also had before it the prosecution’s
allegation that on November 20, 2022, Perez entered a garage while the
victim was at home sleeping. This allegation did not identify the location of
the garage in relationship to the victim’s home, a critical matter in
determining whether it was a part of the “inhabited dwelling.” (See People v.
Rodriguez (2000) 77 Cal.App.4th 1101, 1107 [To determine “whether a
structure is part of an inhabited dwelling, the essential inquiry is whether
the structure is ‘functionally interconnected with and immediately contiguous
10
224 Cal.App.4th at page 91, Perez argues that the court’s error was the basis
for its improper conclusions that the cases involved potentially cross-
admissible evidence and none of the counts involved incidents that were
particularly inflammatory.
The People respond that the information containing the concealment
count includes a count alleging that Perez attempted a residential burglary of
an attached garage of an inhabited dwelling (the August 15, 2021 incident)
and that, therefore, the cases were of the same class, no one case was more
inflammatory than another, and there was potentially cross-admissible
evidence.
Perez counters that, for example, a burglary committed while one or
more people are present is a violent felony, whereas an attempted burglary
under identical circumstances is not. (People v. Bedolla (2018) 28
Cal.App.5th 535, 540–541.) He argues that actual entry into an occupied
home is qualitatively different than an attempted entry and a more
inflammatory crime. “[I]n an attempted burglary,” he writes, “the would-be-
intruder . . . has not entered any dwelling from which he must escape or from
which an occupant may try to forcibly expel him; the occupant remains safe
unless and until the suspect gains entry.”
We conclude that, despite the court’s factual error, Perez has failed to
show it abused its discretion because he has not clearly shown undue
prejudice flowed from the court’s error.
to other portions of the house.”]; People v. Harris (2014) 224 Cal.App.4th 86,
91 [“A garage sharing a roof and a wall with a residence is part of an
inhabited dwelling even though there is no interior access” (italics added)].)
Perez therefore fails to meet his burden as appellant of establishing that the
court erred in concluding this incident did not involve a hot prowl. But even
if this incident did involve a hot prowl, we would reach the same conclusions,
for the same reasons.
11
We review the trial court’s ruling, not its reasoning. “ ‘ ‘No rule of
decision is better or more firmly established by authority, nor one resting
upon a sounder basis of reason and propriety, than that a ruling or decision,
itself correct in law, will not be disturbed on appeal merely because given for
a wrong reason. If right upon any theory of the law applicable to the case, it
must be sustained regardless of the considerations which may have moved
the trial court to its conclusion.” [Citation.]’ (D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 19.)” (People v. Zapien (1993) 4 Cal.4th 929,
976.) In short, “[o]ur task is to review the trial court’s ruling, not its
reasoning.” (People v. Turner (2020) 10 Cal.5th 786, 807.)
In response to the People’s assertion of the black-letter D’Amico rule,
Perez suggests we are dealing here with a factual finding unsupported by
evidence (People v. Cluff, supra, 87 Cal.App.4th at p. 998), not a legal ruling
that may be supported on appeal on any correct ground regardless of the trial
court’s reasoning. But as Zapien illustrates, the rule of D’Amico still applies
where some immaterial factual misunderstanding may have played a part in
the court’s legal reasoning. (See People v. Zapien, supra, 4 Cal.4th at p. 976
[trial court’s incorrect side comment about admissibility of preliminary
hearing transcript even if motive to cross-examine had been “ ‘entirely
different’ ” was collateral to its ultimate legal conclusion that motive to cross-
examine at preliminary hearing was “sufficiently similar” to motive at trial].)
The critical factual finding here is not the court’s erroneous statement about
hot prowls, but its determination that no case was particularly inflammatory,
which was the basis for the two conclusions that Perez challenges on appeal.
Substantial evidence supports that finding, whether or not it was cited
specifically by the trial court.
12
Two aspects of the prosecution’s factual assertions are particularly
relevant. First, the prosecution indicated that, both when Perez attempted to
enter a home via a residential burglary, one of the charges in the first
information (as well as in the second), or completed entry into a home via a
residential burglary (one of the charges in the second information), victims
were present. Specifically, regarding the attempted residential burglary
count contained in the first information, the prosecution asserted that Perez
was observed by the victim via surveillance video and direct observation
attempting to break into an attached garage of the victim’s home. Regarding
the residential burglary count contained in the second information, the
prosecution asserted that Perez “took about 45 minutes to cut into victim’s
door and gain entry into his home[,] . . . leaving shortly thereafter when an
alarm was triggered. Victim and his children were at home and asleep
during the incident.” Second, the prosecution did not assert that Perez took
any actions intended to harm any of his victims.
Given the prosecution’s factual contentions, we do not see how the
completed residential burglary count was particularly more inflammatory
than the attempted burglary count. As we have indicated, Perez points to
distinctions in the law regarding a completed residential burglary and an
attempted one to argue the former is far more potentially dangerous and,
therefore, more inflammatory. But his arguments are not particularly
relevant to whether a jury would be so inflamed by the completed burglary as
to cause it to unfairly find Perez guilty of a matter unrelated to either
charge—such as the concealment count.
In our view, both the attempted and completed residential burglaries
as described by the prosecution presented significant danger because of the
presence of victims in both cases. One might argue that a burglar who has
13
gained entry into a home increases that danger because the burglar might
lash out violently if confronted by the homeowner in an enclosed space, but
one cannot discount the possibility that a burglar attempting to break into
the home might also be confronted by the homeowner and that the burglar
might respond with violence. Moreover, the jury could hardly be particularly
more inflamed by a defendant’s successful entry into a home when in the
other instance the defendant was seeking to do just that but failed for some
reason unrelated to his intent.
Perez’s unpersuasive contention that the completed residential
burglary is much more inflammatory than the attempted residential burglary
is the basis for his claim that the court erred in concluding that evidence in
the cases was potentially cross-admissible to show intent and that no one
case was particularly inflammatory. We therefore reject his claim that the
trial court abused its discretion in granting the prosecution’s consolidation
motion.
3. Any Court Error Did Not Result in Gross Unfairness to Perez
Even assuming for the sake of argument that the court abused its
discretion by relying on a mistaken factual premise, Perez must still show the
error resulted in gross unfairness to him in order to win reversal of the
concealment count, i.e., that it is reasonably probable that he would have
fared better regarding that count but for the court’s error. (Soper, supra,
45 Cal.4th at p. 783; People v. Vargas, supra, 9 Cal.5th at p. 819.) He does
not do so.
Section 21310, the legal basis for the concealment count, provides that,
subject to certain exemptions inapplicable here, “any person in this state who
carries concealed upon the person any dirk or dagger is punishable by
imprisonment in a county jail not exceeding one year or imprisonment
14
pursuant to subdivision (h) of Section 1170.” Perez does not contest that a
machete qualifies as a dirk or dagger.
Perez argues that the proof of his guilt on the concealment count was
not strong because Dorantes, the testifying officer at trial, did not see Smith,
the officer who detained and conducted a pat down search of Perez, remove
the machete from a concealed location on Perez’s person. We disagree.
There was strong circumstantial evidence of Perez’s guilt on the
concealment count, most of which Perez ignores. A witness testified that
around noon on March 15, 2021, he was walking along a sidewalk when he
heard the sound of glass shattering. When he looked in the direction of the
sound, he saw from 25 to 30 feet away the back of a person pulling a purple
suitcase out of a vehicle window. The person also had a backpack on their
back.
The witness contacted the police and gave a description of what he saw.
Shortly thereafter, police brought him to where a person was being detained.
The witness recognized the person from his apparel and the backpack and
suitcase that were also there. At trial, he identified the person as Perez.
San Francisco Police Department Sergeant David Dorantes testified
that at around 12:25 p.m. on March 15, 2021, he was on patrol in a police
vehicle with two other officers when they responded to a call about “an auto
boost” that had occurred a couple of blocks away. As they drove, they located
a person fitting the description of the suspect provided in the call. He was
next to a purple suitcase, one of the items reported to have been stolen.
The police having passed by the suspect, one officer exited the vehicle
to keep an eye on him as the other two circled the block. Upon returning,
they saw the suspect continuing to walk. Dorantes stayed in the vehicle as
the other officer, Sergeant Smith, got out and detained him a short distance
15
away. Dorantes kept his eye on Smith as Smith initiated a “pat down” search
of the still uncuffed suspect, which is a “search of the outer clothing,
essentially,” without going into their pockets.
Within a minute, Smith handed Dorantes a machete, after Dorantes
exited his vehicle and approached Smith while Smith was conducting the pat
down search. Because Smith’s back was turned to Dorantes during the
search, Dorantes did not actually see Smith find the machete and take it
from the suspect. However, Dorantes also did not see Smith interact with
anyone else during that minute, and Smith’s ready approach of Perez and pat
down of him indicates that Perez was not visibly carrying a machete when he
was stopped. At trial, Dorantes identified Perez as the suspect they detained.
Finally, Perez himself testified at trial that the machete was
“something they took from me that day.” He further testified, “I don’t know
how it got into my possession, but I had it with me,” but that he did not know
“where they took it off from me.”
In our view, a rational juror could only conclude from this evidence that
Perez was guilty beyond a reasonable doubt on the concealment count.
Although Perez contends the evidence is not strong because Dorantes did not
see Smith actually remove the concealed machete from Perez’s person, he
offers no other explanation for where Smith could have possibly obtained it.
Nor does he provide any authority suggesting that circumstantial evidence by
its nature should not be considered strong evidence; indeed, courts have
repeatedly found to the contrary (see, e.g., People v. Landry (2016) 2 Cal.5th
52, 79 [noting, in rejecting a challenge to a court’s joinder of charges, that
“the discovery of a prison-made weapon in a cell solely occupied by defendant
constituted strong circumstantial evidence that he possessed that weapon”];
People v. Poggi (1988) 45 Cal.3d 306, 322 [noting, in rejecting an abuse of
16
discretion challenge to a trial court’s denial of a motion to sever, that the
evidence that defendant was seen walking from the victim’s home to his own,
wet and bloody, about the time of the attack was “[s]trong circumstantial
evidence” that he had attacked her].)4
In his opening brief, Perez argues that the jury’s initial inability to
reach a verdict on the concealment count “demonstrates that the evidence
was close and that reasonable doubt existed during deliberations,” making it
reasonably probable the jury was unfairly influenced by the “emotionally
charged evidence” of Perez’s completed residential burglary. We disagree
with this assessment as well. As we have discussed, after about two and a
half days of deliberation, the jury told the court it could not reach verdicts on
three counts, including the concealment count, for which the jury had voted
10 to 2.
But Perez ignores that over those two and a half days, the jury
deliberated over sixteen counts, reaching verdicts on 13, including two not
guilty verdicts. During this time also, the jury requested a readback
unrelated to the concealment count, suggesting they were particularly
struggling over a different count. Further, not all jurors believed they were
4 It might be argued that Smith could have found the machete in
Perez’s backpack. However, Dorantes’s description of Smith’s pat down
search did not include a search of the backpack. In any event, our Supreme
Court has indicated that a person found in possession of an item contained in
a backpack that the person is carrying is guilty of possession of that item on
their person. (See People v. Wade (2016) 63 Cal.4th 137, 140, 143–146
[construing under another statute that carrying a loaded firearm “on the
person” included carrying of the firearm in a backpack worn on the body,
distinguishing People v. Pellecer (2013) 215 Cal.App.4th 508, 511 (defendant
merely leaning on a closed backpack containing knives found not to have the
knives on his person under a previous version of section 21310)].) The only
logical conclusion from Dorantes’s testimony is that Perez was carrying his
backpack when he was stopped, as Perez was walking at the time.
17
hopelessly deadlocked on the concealment count, and they reached a verdict
on that count (and not the other two) the morning after the court asked them
to deliberate further. These circumstances do not especially indicate the jury
found the concealment count to be a particularly close call after considered
deliberation on the matter. In light of the evidence and circumstances we
have discussed, we think it more likely that the concealment count simply
required some more discussion after two and a half days of deliberating over
sixteen counts charging crimes in six different incidents, with a number of
those crimes being of a more substantial nature than the concealment count.
Perez cites a couple of cases for the first time in his reply brief, thereby
unfairly depriving the People of the opportunity to address them, in which
courts viewed jury deadlocks, among other things, as indications the jury was
particularly challenged to reach a verdict. The cases he relies on are
distinguishable as involving a good deal more than announced deadlocks
indicating the jury was having difficulty reaching a verdict. (See People v.
Diaz (2014) 227 Cal.App.4th 362, 384–385 [jury asked for multiple readbacks
and asked two questions, and reported itself deadlocked more than once];
People v. West (1983) 139 Cal.App.3d 606, 610 [jury asked for rereading of a
substantial portion of testimony and of some instructions, along with
reporting itself deadlocked at one point].) The circumstances in these cases
suggested prejudice much more strongly than what we have here—a question
of clarification on the unanimity requirement and one indication after a
relatively modest period of deliberation on many counts that it could not
reach a verdict on the concealment count, with two jurors even then stating it
remained possible that the jury could reach a verdict.
Furthermore, as we have already discussed, there was nothing
particularly inflammatory about the residential burglary alleged to have
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occurred in the second information, as compared to the crimes alleged in the
first information, which contained the concealment count. Perez does not
point to any evidence presented at trial that causes us to alter this
conclusion. The lack of a particularly inflammatory case also causes us to
conclude that, to the extent the jury did consider the concealment count to be
a close call, it is highly unlikely its consideration on the concealment count
was affected in any way by the court’s consolidation of the four cases.
In short, we conclude it was not reasonably probable that, but for the
court’s purported error, Perez would have received a more favorable outcome
on the concealment count. This is a second, independent reason why we shall
not reverse his conviction on this count.
B. Perez Did Not Receive Ineffective Assistance of Counsel
Finally, Perez argues that he received ineffective assistance of counsel
because his trial counsel failed to object to consolidation under Soper on the
ground that the second information contained particularly inflammatory
charges.
Ineffective assistance of counsel results when counsel’s performance is
both deficient and prejudicial. (Strickland v. Washington (1984) 466 U.S.
668, 687.) Deficient performance results when counsel’s “representation fell
below an objective standard of reasonableness . . . under prevailing
professional norms.” (Id. at pp. 687–688; People v. Ledesma (1987) 43 Cal.3d
171, 216–218.) Prejudice exists where there is “a reasonable probability” that
without counsel’s errors, “the result of the proceeding would have been
different.” (Strickland, at p. 694.)
As we have already discussed in section A of this discussion section,
ante, Perez fails to show the court below abused its discretion in granting the
prosecution’s consolidation motion or that he was prejudiced by any
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purported court error. For these same reasons, we reject his ineffective
assistance of counsel claim.
III. DISPOSITION
The judgment is affirmed.
STREETER, J.
WE CONCUR:
BROWN, P. J.
SWEET, J.*
* Judge of the Marin Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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