1

Filed 3/29/16

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD ADRIAN YBARRA,

Defendant and Appellant.

C072880

(Super. Ct. No. SF118509A)

APPEAL from a judgment of the Superior Court of San Joaquin County, Terrence 

Van Oss, Judge. Affirmed.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen, 

Supervising Deputy Attorney General, Jesse Witt, Deputy Attorney General, for Plaintiff 

and Respondent.

 

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of part II of the Discussion.
2

Defendant Richard Adrian Ybarra appeals from a judgment of conviction 

following a jury trial. Defendant was charged with multiple counts related to two 

incidents -- a group attack on a fellow prison inmate and a separate battery by gassing on 

a correctional officer. A jury found defendant guilty on five of seven counts. Defendant 

was sentenced to state prison for a term of thirteen years.

On appeal, defendant contends that: (1) the trial court erred in denying his motion 

to sever the counts arising from the assault on the inmate from the counts arising from the 

gassing of the correctional officer; and (2) there is insufficient evidence to support the 

verdicts related to the inmate assault because the accomplice testimony was insufficiently 

corroborated.

In the published portion of this opinion, we conclude that the trial court properly 

denied defendant’s severance motion because at the time the motion was made, defendant 

did not demonstrate prejudice and he has failed to demonstrate gross unfairness 

amounting to a due process violation based on anything that transpired during the trial. 

In so concluding, we hold that a defendant cannot show prejudice or gross unfairness 

amounting to a due process violation based on testimony he or she gives later in the trial. 

In the unpublished portion of this opinion, we conclude that there was sufficient 

corroboration of the accomplice testimony.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Charged Offenses and Enhancements

In the first incident, defendant was charged with attempted deliberate and 

premeditated murder (Pen. Code, §§ 664/187, subd. (a) (count one)),

1 assault with a 

deadly weapon (§ 245, subd. (a)(1) (count two)), prisoner in possession of a weapon 

 

1

 Undesignated statutory references are to the Penal Code in effect at the time of the 

charged offenses.
3

(§ 4502 (count three)), assault by a prisoner with a deadly weapon (§ 4501 (count four)), 

and street terrorism (§ 186.22, subd. (a) (count five)). Additionally, defendant was 

charged in counts one and two with personal infliction of great bodily injury (§ 12022.7, 

subd. (a)) and personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)). In 

counts one, two, three, and four, defendant was charged with a gang enhancement 

(§ 186.22, subd. (b)(1)).

In connection with the second incident, defendant was charged with battery by a 

prisoner (§ 4501.5 (count six)), battery by a prisoner by gassing (§ 4501.1 (count seven)),

and street terrorism (§ 186.22, subd. (a)).

The Prosecution’s Trial Evidence

The First Incident - Assault on an Inmate

Sergeant Michael Villanueva testified that on the morning of October 4, 2010, he 

was monitoring the yard at Deuel Vocational Institution (“DVI”) in Tracy, California,

when he received a radio transmission reporting a fight in the yard. He called for 

assistance and instructed the tower to announce over the “P.A. system” that all inmates 

were to lay down on the ground. Sergeant Villanueva then turned toward the exercise 

area in the yard and saw three inmates punching and stabbing another inmate. He 

observed a fourth inmate running away from that area. He observed one of the three 

assailants, unidentified at that time, flee the area before he and the other officers reached 

the victim and arrested two of the assailants, inmates Hugo Amaya and Christopher 

Colon. Additionally, the officers chased and arrested inmate Christopher Henderson and 

defendant’s brother, inmate Michael Ybarra, who were fleeing the area and suspected to 

be involved. He did not identify defendant as one of the people involved in the assault or 

as someone he saw fleeing the immediate area. Sergeant Villanueva testified that the 

area of the yard where the attack occurred was typically used by the Northern Hispanic 

inmates.
4

Correctional Officer Ray Castellon testified that there were approximately 400 

inmates in the yard at the time of the attack. He testified that he responded to the tower’s 

report of a fight in the yard and arrived in time to observe two inmates, Amaya and 

Colon, beating and kicking the victim. Officer Castellon pepper-sprayed the assailants to 

stop the assault. He testified that Amaya and Colon did not have weapons on or near 

them. Officer Castellon explained that based on his experience with Northern Hispanic 

gang assaults, he believed Amaya and Colon were “bombers.” He went on to explain

that the “bombers are the people who direct the incident away from the person who 

actually did the stabbing and cutting,” allowing the prisoners with weapons, called 

“hitters,” to get away while the bombers continue to attack the victim without weapons.

Officer Castellon testified that he did not see defendant in the yard.

Correctional Officer Rudy Martinez testified that he was monitoring the prison 

yard on the day of the attack when he saw inmates running from the exercise area. He 

then saw three inmates striking the victim with their fists. One of them walked away and 

handed an object to inmate Henderson, who threw it over the fence. Officer Martinez

testified that he then pursued and detained Henderson and the inmate who had handed off 

the object. Martinez testified that he recorded the last name of the person who handed 

the object to Henderson as Ybarra.

2

Correctional Officer Jamie Silk testified that at the time of the attack, he was 

assigned to the Investigative Services Unit. He testified that he responded to the scene of 

the attack and began searching the area for weapons. He found a “white state-issued 

towel, torn into a piece, and a plastic cellophane sheath on it with feces.” He explained 

 

2

 Officer Martinez could not positively identify defendant as the Ybarra he detained. He 

testified that he recorded only the last name of that individual and did not note the first 

name or first name initial. He testified that later on in the holding tank, defendant 

insisted that Officer Martinez chased his brother, Michael Ybarra.
5

that the sheath appeared to be designed to “protect the sharpened point of an inmatemanufactured weapon,” particularly when such a weapon is hidden in an inmate’s 

rectum. He opined that the towel was used to wipe off the item after it was removed 

from the rectum. Officer Silk further testified that there were three weapons found in the 

yard -- two slashing weapons and one stabbing weapon.

Correctional Officer Johnny Rey testified that he arrived to the yard after the fight. 

He began searching the immediate area and did not find any weapons near Amaya and 

Colon. He testified that after broadening his search area, he found two inmatemanufactured razor blade “tomahawk” weapons “[j]ust inside the fence line behind the 

exercise area.” He further testified that he found another object outside the fence -- an 

inmate-manufactured “pieza,” a stabbing weapon, with blood on it. Officer Rey testified 

that the following day, he attempted to interview the victim, who was receiving medical 

treatment for his injuries, but he was not cooperative.

San Joaquin County Sheriff’s Office Correctional Officer Marco Mendoza 

interviewed defendant in the San Joaquin County Jail for classification purposes in May 

of 2012. Defendant told Officer Mendoza that he is an active Norteño from Yuba City. 

Mendoza documented defendant’s tattoos. Defendant had four dots on the left side of his 

face, which Mendoza testified represents Norteño, and he had “ ‘SK’ ” on his right arm, 

which defendant told Mendoza stood for “ ‘scrap killa.’ ” Defendant was housed in the 

jail with other Norteños without incident.

Correctional Sergeant Corey Johnson testified that he investigated the attack. 

Sergeant Johnson was also the supervisor for the Institutional Gang Investigators (IGI) 

unit at the time of the attack and testified as an expert witness on criminal street gangs 

and their activities. He testified that in his experience, the attack was consistent with how 

Northern Hispanics, including Norteños, perform a “removal” of one of their members 
6

that they deem “no good.”3 He further testified that the Norteños are a criminal street 

gang within the meaning of section 186.22, subdivision (f), a fact that is not in dispute 

here. He opined that based on defendant’s tattoos and his own admission, as well as his 

criminal history, defendant was an active Norteño at the time of the attack. He also 

testified that he learned from a disassociating Norteño member that defendant held the 

position of tier security for the Norteños while in California State Prison, Solano. 

Sergeant Johnson opined that the attack was done at the direction of, “at the association 

of,” and for the benefit of the gang.

Sergeant Johnson further testified that he was familiar with both defendant and his 

cellmate, Carlos Leal, prior to the attack. Although he did not know defendant’s name, 

Sergeant Johnson had seen defendant between 10 and 20 times before the attack. 

Sergeant Johnson testified that based on his review of security video recording of the 

attack, he could identify defendant as the first hitter and Leal as the second hitter. He 

also identified defendant’s brother, Michael Ybarra, as being in the area of the attack. 

Also from his review of the video, he identified Amaya and Colon as the bombers and 

Henderson as the person who disposed of the weapons. Sergeant Johnson explained that 

he identified defendant as the first hitter in the video based on the way defendant carries 

himself and his walk, his high, broad shoulders, as well as his size, height, and baldness.

Sheltri Gresham, a senior criminalist for the California Department of Justice, 

testified that she conducted DNA analysis involving seven known reference samples.

4

 

3

 Sergeant Johnson explained the hierarchy of Northern Hispanic gangs in state prison, 

which includes Norteños, Northern Structure, and Nuestra Familia, the latter of which is 

also known as NF. After the NF members were sent to special housing units (SHU), they 

formed the Northern Structure who work under the guidance of the NF. The NF are the 

leaders and the Northern Structure and Norteños are under them.

4

 The reference samples came from Amaya, Colon, Henderson, Leal, Michael Ybarra, 

defendant, and the victim.
7

She explained that the process includes looking at 15 “target regions” or “loci” of DNA 

and assigning “all of those pieces a numerical value,” the total of which represents a 

DNA profile.

Gresham testified that DNA samples from each of the slashing weapons matched 

the victim as a major contributor. There was also DNA from a minor contributor on the 

handle of the slashing weapons that was inconclusive because there was insufficient 

DNA to reflect an entire profile. However, Gresham could not exclude Leal as being the 

minor contributor of the DNA on the “sharpened end area” of one of the slashing 

weapons because the portion of the DNA profile that was present was consistent with 

Leal’s DNA.

Gresham testified that a swab from the handle of the stabbing weapon had a 

mixture of DNA with at least two major and two minor contributors. While there was 

insufficient DNA for conclusive results as to the minor contributors, Gresham was able to 

include both defendant and Leal as “possible” major contributors of the DNA. She 

testified that the victim was a major contributor to DNA on the sharpened end of the 

weapon.

Gresham explained her characterization of “possible” major contributor. She 

testified that when there is a mixture of major contributors, there are multiple 

combinations of the numbers. She explained that the numbers are listed in pairs, because 

a person gets one number from their father and another from their mother. Because she 

detected two major contributors, there were at least three or four major contributor 

numbers at each loci of the DNA and it is not possible to identify which ones are 

necessarily paired together. Consequently, she took account of all possible combinations 

at each location of the DNA. One of those combinations matched defendant at each 

location and another combination at each location matched Leal. In other words, 

comparing their individual profiles to this mixture reveals that one of those combinations 

at each location would match the profiles of Leal and defendant. None of the other five 
8

people for which Gresham had reference samples (see fn. 4, ante) could be included as 

major contributors to the DNA on the handle of the stabbing weapon. Using a software 

program, Gresham determined that “[t]he combination of genetic types for all possible 

individuals who could not be excluded as major contributors in this mixture is estimated 

to occur at random among unrelated individuals in approximately 1 in 660 million 

African-Americans; 1 in 110 million Caucasians; and 1 in 86 million Hispanics.”

When asked on cross-examination if it was possible that defendant was not a 

major contributor to the DNA found on the stabbing weapon, Gresham said that it was, 

but then explained that if one was “to take a random sampling of 86 million people,” only 

“one of those people would have one of [the] possible combinations at each location.” 

She also stated on cross-examination that it is possible that DNA could be left on an 

object by picking it up, brushing by it, or rubbing a shirt on the object.

Henderson pleaded guilty to section 245 and “being involved in a gang-related

crime.” Testifying as a prosecution witness, Henderson said that he and the victim were 

both Norteños and that the victim was a “big homey” within the gang. A “big homey” is 

a “shot caller.” Henderson testified that shortly before he was up for parole, he received 

a written communication that said there was going to be a removal of the victim in which 

he was instructed to dispose of the weapon. Henderson testified that Amaya said he 

would be a bomber in the attack. Henderson further testified that on the day of the attack, 

he spoke with Leal and found out that Leal would be one of the hitters and would pass 

Henderson a weapon after the first phase of the attack.

Henderson testified that at the time of the attack, he was in the exercise area in the 

Northern Hispanic part of the yard when he saw defendant reach around the victim and 

slice his face. Henderson then saw the victim try to run away with blood dripping down 

his neck and saw Amaya and Colon chase him. Henderson testified that Amaya and 

Colon began hitting the victim with their fists and then Leal came up and stabbed the 

victim. Then Leal ran away and passed Henderson a weapon while the bombers 
9

continued to beat the victim. Henderson testified that he then threw the weapon over the 

fence.

Henderson testified that he initially lied to Sergeant Johnson in his first interview 

after the assault but later told him who was involved and that he was willing to testify. 

He identified defendant, Leal, Amaya, and Colon out of photo line-ups as the individuals 

who participated in the attack as hitters and bombers. He said defendant’s brother, 

Michael Ybarra, was not part of the attack.

Henderson testified that in his opinion, the attackers did not intend to kill the 

victim but instead they intended to mark him as a “no good” Norteño. The attack was 

gang-related.

Henderson did not receive a plea deal in exchange for his cooperation. He 

explained that he wanted to testify because he “felt what happened was wrong and [he] 

was used.” He explained that he had dropped out of the gang.

Amaya pleaded guilty to section 245, “committing . . . great bodily injury,” and 

“being a part of a gang-related crime,” and was sentenced to five years. He testified for 

the prosecution in exchange for a shorter sentence. Amaya testified that he was an 

associate of the Norteños. He explained that prior to the attack, he received a written 

message on a small piece of paper, referred to as a “kite,” asking him to stab someone. 

He wrote back that he was not comfortable with using a weapon because his sentence 

was almost up, but he would be willing to participate as a bomber if needed. Amaya was 

then instructed to be a bomber in the removal and received another kite with the “order of 

operation” and a visual breakdown of the removal. According to the plan, a “slasher” 

was supposed to get behind the victim and slash his face and neck area, then a hitter 

would stab him, and then the bombers were supposed to hit the victim to divert attention 

and “[take] the rap.” Amaya testified that he spoke with defendant, Leal, and Henderson 

on the day of the attack in preparation. Amaya testified that he asked defendant, the 
10

slasher, not to cut any major arteries because Amaya did not want to take the rap for 

murder. Defendant responded, “ ‘Don’t trip.’ ”

Amaya testified that the participants all gave a nod to each other to signal they 

were ready when the victim went to the exercise bars. Defendant then came up behind 

the victim and cut him in the face as planned. Amaya testified that Leal was supposed to 

stab the victim at this point but took too long and the victim began to run. He and Colon 

caught up to the victim and began hitting him. Then Leal came in late and stabbed the 

victim four or five times and handed off his weapon to Henderson.

Amaya testified that the attack was gang related and directed. He said Michael 

Ybarra was not involved but he was mistakenly arrested in the initial confusion about 

who was involved.

The Second Incident - Gassing of a Correctional Officer

Sergeant Fernando Navarro, a transportation sergeant for DVI, testified that he 

transported defendant and other inmates to the San Joaquin County Superior Court. 

Defendant was placed in a holding cell on the third floor of the courthouse designated for 

DVI inmates. Sergeant Navarro noticed defendant and Officer Olivas having an 

exchange that escalated. Defendant refused to comply with Officer Olivas’s instructions 

to sit down in the holding cell. Sergeant Navarro directed Officers Olivas, Hutchinson,

Prum, and Casillas to physically force defendant to sit down and restrain him. Sergeant 

Navarro then saw defendant stand up again. He testified that defendant then said,

“[F]uck you, bitch,” to Officer Casillas and spit at him. Navarro saw the spit contact 

Officer Casillas’s face. Officer Hutchinson forced defendant to sit down again and 

Officer Casillas placed a spit mask and hood on defendant. Sergeant Navarro testified 

that he was aware that defendant was a Norteño and discovered after the incident that the

inmate sitting next to defendant was associated with the Southern Hispanics, a rival gang 

of the Norteños. However, defendant never voiced any complaints or safety concerns 
11

about sitting next to this inmate. Sergeant Navarro testified that defendant’s complaint 

was that he did not want to be chained between his legs.

Correctional Officer Anthony Casillas testified that he observed Officer Olivas 

instruct defendant to sit down in the holding cell and defendant refused. Defendant said, 

“ ‘You ain’t chaining me to the bench.’ ” Officer Casillas testified that Sergeant Navarro 

then instructed him and two other officers to help secure defendant to the bench. After 

defendant repeatedly refused to sit down, Officer Casillas grabbed him by his shirt to 

force him down while two other officers helped push him down. Officer Casillas 

testified that while he was holding onto defendant’s shirt, defendant grabbed his right 

hand. As a result, Casillas received a cut to that hand. Once Officer Olivas secured 

defendant to the bench with a waist restraint, the officers all backed off of defendant. 

Officer Casillas testified that while he was backing off, defendant stood up and said,

“ ‘Fuck you, bitch,’ ” and from a distance of about two feet, spit in Officer Casillas’s 

face. Officer Casillas left the room to clean his face. He then returned to the holding cell 

and put a spit mask on defendant. Officer Casillas denied striking defendant at any time 

during this incident.5

Defendant’s Trial Evidence

Michael Ybarra testified for the defense. He testified that at the time of the inmate 

assault, he was standing in the exercise area and saw a man run past him, who was 

bleeding. He then looked for his brother as the officers called “ ‘yard down,’ ” and saw

defendant on the track, approximately 100 yards from the exercise area, where the attack 

occurred. He also testified that after the attack, Henderson seemed “scared” and that 

Henderson indicated “he was willing to do anything to get out of it.” Michael also 

 

5

 Similarly, Sergeant Navarro and another witness, Officer Sam Prum, both testified that 

they did not see anyone hit defendant.
12

testified that Sergeant Johnson told him to tell his mother that defendant was never 

coming home.

Defendant also testified. As to the first incident, defendant testified that during the 

attack, he was walking around the track with another inmate. He readily admitted his 

affiliation with the Norteños but claimed he was never “tier security” for the gang.

As to the second incident, defendant claimed he was upset because he saw that 

another inmate was shackled from the sides rather than between his legs, and he 

requested to be shackled that way to allow for greater freedom of movement. Defendant 

also testified that he was concerned for his safety, although he did not explain the basis 

for this concern. He further testified that he asked to move to another holding room. 

When these requests were denied, defendant refused to sit down. Defendant initially 

testified that when the correctional officers were attempting to force him to sit down and 

he was resisting, Officer Olivas was choking his neck. Later in his testimony, defendant 

claimed it was Officer Casillas who grabbed his neck, and he further testified that one of 

the officers hit him. Defendant admitted that he spit on Officer Casillas. He testified that 

he was angry because he believed it was Officer Casillas who had hit him.

Verdicts and Sentencing

On September 19, 2012, the jury found defendant guilty on all counts except count 

one, attempted deliberate and premeditated murder, and count three, prisoner in 

possession of a weapon.

6

 Additionally, the jury found all alleged enhancements on 

counts two and four to be true.

The trial court sentenced defendant to an aggregate term of thirteen years in 

prison, calculated as follows: the mid-term of three years on count two, assault with a 

deadly weapon (§ 245, subd. (a)(1)) with five years for the gang enhancement (§ 186.22, 

 

6

 The trial court dismissed count eight, street terrorism, prior to instructing the jury.
13

subd. (b)(1)), three years for the great bodily injury enhancement (§ 12022.7, subd. (a)), 

and one year for the personal use of a weapon enhancement (§ 12022, subd. (b)(1)); the 

mid-term of four years on count four, assault by a prisoner (§ 4501) with five years for 

the gang enhancement (§ 186.22, subd. (b)(1)), stayed pursuant to section 654; the midterm of two years on count five, street terrorism (§ 186.22, subd. (a)), stayed pursuant to 

section 654; the mid-term of three years concurrent on count six, battery by a prisoner 

(§ 4501.5); and one consecutive year (one-third the mid-term) on count seven, battery by 

a prisoner by gassing (§ 4501.1).

DISCUSSION

I. Motion to Sever

A. Additional Background and Defendant’s Contentions

In a pretrial motion in limine, defendant asked the trial court to sever the gassing

counts from the inmate assault counts. Defendant argued that the counts pertaining to the 

gassing incident were unrelated to the counts pertaining to the inmate assault and “[t]he 

piling on of unrelated charges work to defendant’s prejudice by acting as ‘bad character’ 

evidence. The evidence for the gassing case is strong and is against an authority figure, 

and will be inappropriately used to bolster the weak evidence on the attempted murder 

case.” Defendant provided no factual or further legal analysis as to prejudice.

At the hearing on the motion, defense counsel argued that while both incidents

involved assaults by an inmate, “on the one hand we have what the D.A. is going to argue 

is a gang-related assault on an inmate at the institution, here we have a battery that 

occurred up in the third floor of the courthouse. I would argue that they are two distinct 

and basically we are bootstrapping charges on to my client.” No further prejudice 

analysis was provided by the defense. The trial court noted that there were likely 

different motives for the assault on the inmate and the assault on the correctional officer. 

The prosecutor responded that there was evidence at the preliminary hearing that both 

assaults were motivated by defendant’s gang affiliation. The court then noted that these 
14

are the types of crimes that are typically joined for judicial economy and asked defense 

counsel if he could provide any specific authorities to show why the counts in this case 

should not be joined. Defense counsel then responded that he was not aware of any such 

specific authority. The trial court denied the motion to sever.

Defendant contends the trial court abused its discretion in denying his motion to 

sever the counts relating to second incident, the gassing of a correctional officer (counts 

six, seven, and eight), from the counts relating to the first incident, the attack on the 

inmate (counts one through five). He argues that although the statutory requirements for 

joinder are met, the joinder was clearly prejudicial. He contends that the evidence was 

not cross-admissible in separate trials based solely on an alleged gang-related motive 

underlying both incidents. He further contends that the joinder allowed the prosecutor to 

emphasize defendant’s “admission he was a gang member and his admission he assaulted 

the officer in the holding cell to portray [defendant] as a person of bad character, thereby 

increasing the likelihood he would be convicted on all the charges regardless of the weak 

identity evidence on the [inmate assault] counts.”

B. Analysis

1. Applicable Legal Principles

When two or more offenses of the same class of crimes are charged, the trial court, 

“in the interests of justice and for good cause shown, may in its discretion order that the 

different offenses or counts set forth in the accusatory pleading be tried separately or 

divided into two or more groups and each of said groups tried separately.” (§ 954.) “The 

purpose underlying this statute 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.’ ” (People v. Soper (2009) 45 Cal.4th 759, 772 

(Soper).) Thus, “[b]ecause consolidation ordinarily promotes efficiency, the law prefers 

it.” (People v. Ochoa (1998) 19 Cal.4th 353, 409.) The burden is on the defendant to 
15

establish that the countervailing considerations of efficiency and judicial economy are 

outweighed by a substantial danger of undue prejudice. (Soper, at p. 773.)

In this case, because both incidents involved assaultive crimes and thus involved 

offenses of the same class of crimes, the statutory requirements for joinder were satisfied. 

Defendant does not contend otherwise. Given that the counts were properly joined, 

defendant can show the trial court erred in denying the motion to sever only upon a clear 

showing of prejudice, and we review the trial court’s ruling for abuse of discretion. 

(Soper, supra, 45 Cal.4th at p. 774; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 

1220 (Alcala).) 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.’ ” ’ ” ’ ” (Soper, at p. 774.)

In reviewing for abuse of discretion, we do not consider evidence that later came 

out during the trial. Rather, a reviewing court’s determination of whether a trial court has 

abused its discretion in denying severance must be based upon the facts before the court

at the time of the ruling. (People v. Merriman (2014) 60 Cal.4th 1, 37 (Merriman);

People v. Mendoza (2000) 24 Cal.4th 130, 161 (Mendoza); People v. Musselwhite (1998) 

17 Cal.4th 1216, 1244.) “Refusal to sever on a defendant’s motion might be an abuse of 

discretion where ‘(1) evidence on the crimes to be jointly tried would not be crossadmissible in separate trials; (2) certain of the charges are unusually likely to inflame the 

jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or 

with another “weak” case, so that the “spillover” effect of aggregate evidence on several 

charges might well alter the outcome of some or all; and (4) any one of the charges 

carries the death penalty.’[7

]

[Citations.] [¶] . . . ‘The burden of demonstrating that . . .

denial of severance was a prejudicial abuse of discretion is upon him who asserts it . . . .’ 

 

7

 Because this is not a capital case, the death penalty factor does not apply here.
16

[Citation.] A party seeking severance must ‘clearly establish that there is a substantial 

danger of prejudice requiring that the charges be separately tried.’ ” (People v. Davis

(1995) 10 Cal.4th 463, 508.) And the potential prejudice must outweigh the state’s 

strong interest in the efficiency of a joint trial. (Merriman, at p. 37.) 

The determination that a trial court did not abuse its discretion does not end the 

analysis. Where a trial court’s severance ruling is correct at the time it was made, a 

reviewing court will reverse the judgment if the defendant shows that joinder resulted in 

“gross unfairness” amounting to a denial of due process. (Merriman, supra, 60 Cal.4th at 

p. 46; Soper, supra, 45 Cal.4th at p. 783; Mendoza, supra, 24 Cal.4th at p. 162.) In 

determining whether there was such gross unfairness, we view the case as it was tried, 

including a review of the evidence actually introduced in the trial. (People v. Thomas

(2012) 53 Cal.4th 771, 800-801 (Thomas).)

Thus, there are two steps to our analysis: (1) we look to the evidence before the 

trial court at the time of the ruling to determine whether the defendant made a clear 

showing of a substantial danger of prejudice, and weigh the potential prejudice against 

the state’s strong interest in the efficiency of a joint trial to determine whether the trial 

court abused its discretion; and (2) if the trial court did not abuse its discretion based 

upon the evidence before it at the time of the ruling, we look to whether the defendant has 

demonstrated that the joinder resulted in “gross unfairness” amounting to a due process 

violation based on the trial evidence and other trial related matters, such as the 

prosecutor’s closing argument.

2. Abuse of Discretion Contention

a. Cross-admissibility

On appeal, defendant argues that the evidence of his involvement in the attack on 

the inmate was weak and that evidence of the gassing incident would not have been 

admissible in a separate trial of the counts related to the attack of the inmate. As noted, 

the prosecutor contended in the trial court that there was common motive because both 
17

assaults were gang related, impliedly contending there was cross-admissibility. 

However, on appeal, the People concede that there was no cross-admissibility.8 

Notwithstanding this concession, cross-admissibility is only one factor in our analysis. 

Indeed, section 954.1 provides that in cases in which two or more different offenses of 

the same class of crimes have been 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 before the same trier of fact.” This provision 

“signifies that ‘notwithstanding section 954, a trial court may not grant severance, where 

the statutory requirements for joinder are met, solely on the ground that evidence in the 

joined cases is not cross-admissible.’ ”

9

 (Alcala, supra, 43 Cal.4th at p. 1217, fn. 10.) 

 

8

 We note that the only indication in the record that defendant’s motive for the gassing 

may have been gang related was Sergeant Navarro’s testimony that he discovered after 

the incident that the inmate seated next to defendant was in a rival gang. However, 

Sergeant Navarro did not opine that this was the basis for defendant’s refusal to sit down. 

Moreover, no witness to the gassing incident testified that defendant complained about 

being seated next to this inmate. Rather, Sergeant Navarro, Officer Casillas, Officer 

Prum, and defendant all testified that defendant would not sit down because he did not 

want to be shackled to the bench in a particular manner.

9

 Defendant relies heavily on Williams v. Superior Court (1984) 36 Cal.3d 441 and 

asserts that Williams stands for the proposition that cross-admissibility under Evidence 

Code section 1101, subdivision (b), is the “first and most important step of the prejudice 

analysis.” (Italics added.) Under Williams, the initial step in a severance motion was to 

determine whether evidence in one case would be admissible in the other. (Id. at p. 448.) 

Subsequently, in 1990 as part of Proposition 115, the voters added section 30, 

subdivision (a), to article 1 of the California Constitution, which provides, “This 

Constitution shall not be construed by the courts to prohibit the joining of criminal cases 

as prescribed by the Legislature or by the people through the initiative process.” In 

addition to the constitutional provision, the voters added section 954.1. Following the 

electorate’s enactment of section 954.1, much of the cross-admissibility analysis in 

Williams carries diminished persuasiveness. Proposition 115 “specifically limit[ed] the 

treatment of cross-admissibility of evidence as a primary factor for determining prejudice 

as set forth in Williams.” (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1286 

(Belton).)
18

Accordingly, “even if cross-admissibility did not support consolidation of the cases, the 

absence of cross-admissibility alone would not be sufficient to establish prejudice where 

(1) the offenses were properly joinable under section 954, and (2) no other factor relevant 

to the assessment of prejudice demonstrates an abuse of discretion.” (People v. Geier

(2007) 41 Cal.4th 555, 577, overruled on other grounds in Melendez-Diaz v. 

Massachusetts (2009) 557 U.S. 305 [174 L.Ed.2d 314].) While the evidence would not 

have been cross-admissible in separate trials here, we are not persuaded that any other 

factor supports defendant’s contention that the trial court abused its discretion.

b. Likelihood of Inflaming the Jury

As noted, one prejudice consideration is whether some of the charges were likely 

to inflame the jury against the defendant. (Soper, supra, 45 Cal.4th at p. 775.) We do not 

consider the gassing charges likely, or more likely than the inmate assault charges, to 

inflame the jury against him. The gassing incident evidence paled in comparison to the 

evidence of the inmate attack, which was gang orchestrated, callous, bloody, and inflicted 

serious and potentially grave injuries. Thus, there was little likelihood that the joinder of 

the gassing incident charges would inflame the jury in its decision on the inmate assault 

charges.

Defendant contends that the prosecutor used defendant’s testimonial admissions 

that he was a gang member and that he spit at the correctional officer to inflame the jury,

asserting that comments made by the prosecutor during closing argument were “intended 

to be highly prejudicial and inflammatory.”10 In other words, the prosecutor’s comments 

 

10

 Defendant complains about the following comments made by the prosecutor: 

“Testimony of the defendant. Admits he’s a Yuba City Norteño. Admits he assaulted and 

spit on Officer Casillas merely and solely because he got upset because the correctional 

officers wouldn’t do what he wanted them to do. That’s it regarding that. According to 

him, shame on them for making him mad. Even he points out that when they were done 

and shackled him, they all stepped back and walked away. At which point he told Officer 

Casillas and the others, ‘Fuck you, bitches,’ and he spit on them.” The prosecutor further 
19

about the gassing incident inflamed the jury and he would not have been able to make 

these comments in a separate trial involving the assault on the inmate. According to 

defendant, a jury exposed to these comments was much more likely to convict defendant 

of the charges related to the inmate assault regardless of the evidence.

Defendant’s argument fails to recognize that our review for abuse of discretion is 

limited to the facts before the court at the time of the ruling. (Merriman, supra, 60 

Cal.4th at p. 46; Soper, supra, 45 Cal.4th at p. 783; Mendoza, supra, 24 Cal.4th at 

p. 161.) We do not factor into that analysis what the defendant said during his testimony. 

A defendant cannot create an abuse of discretion for refusal to sever charges at the 

beginning of the trial based on testimony the defendant gives later in the trial. Nor do we 

consider what the prosecutor said during his closing argument at the end of the trial in 

deciding whether the trial court abused its discretion at the beginning of the trial by 

denying defendant’s severance motion.

c. Joining a Purportedly Weak Case with a Strong Case

We next consider whether a weak case was joined with a strong case so that the 

totality of the evidence could have altered the outcome as to some or all of the charges. 

(Soper, supra, 45 Cal.4th at p. 775.) In order to demonstrate the potential for a 

prejudicial spill-over effect, defendant must show an “extreme disparity” in the strength 

or inflammatory character of the evidence. (Belton, supra, 19 Cal.App.4th at p. 1284.)

Again, defendant relies on evidence that came out during the trial in contending 

the trial court abused its discretion. He argues that because he admitted gassing the 

correctional officer in his trial testimony but did not admit to the assault on the inmate, 

the evidence of the gassing was stronger because his identity was at issue in the inmate 

 

argued, “The defendant admits he’s guilty of being a gang member, admits he’s guilty of 

the assault on Officer Casillas. Admits he’s guilty to the gassing on Officer Casillas. 

He’s also guilty of recruiting his own brother, little brother into a violent, vicious gang. 

It’s not on the charging document, but that’s just morally disgusting . . . .”
20

assault. Further, he claims that the evidence related to the attack on the inmate was weak 

because it relied on the testimony of accomplices and he discounts the corroborating 

DNA evidence as well as Sergeant Johnson’s identification from the surveillance video of 

the attack. We are not persuaded.

At the time of the severance motion, defendant had pleaded not guilty to the 

gassing charges and it was not clear that he would admit that he spit on Officer Casillas. 

Indeed, in making the severance motion, the defense never referenced any specific 

testimony it expected would be introduced, either in his written motion or in the oral 

argument at the hearing on the motion. As we have already noted, we review for abuse 

of discretion based on the facts before the court at the time of the ruling.

Moreover, as in Soper, “the salient point” in our weighing the relevant strength 

and weaknesses of the evidence here “is that the proffered evidence was sufficiently 

strong in both cases.” (Soper, supra, 45 Cal.4th at p. 781.) It is “always . . . possible to 

point to individual aspects of one case and argue that one is stronger than the other.” 

(Ibid.) “A mere imbalance in the evidence, however, will not indicate a risk of 

prejudicial ‘spillover effect,’ militating against the benefits of joinder and warranting 

severance of properly joined charges.” (Ibid.) “Furthermore, the benefits of joinder are 

not outweighed—and severance is not required—merely because properly joined charges 

might make it more difficult for a defendant to avoid conviction compared with his or her 

chances were the charges to be separately tried.” (Ibid.) There must be an “extreme 

disparity” in the strength of the evidence. (Belton, supra, 19 Cal.App.4th at p. 1284.) 

Here, we conclude that the strength of the evidence as to each incident was relatively 

balanced.

In arguing that the evidence in the inmate assault case is weak, defendant 

discounts the DNA evidence and the eyewitness identification evidence. He says the 

DNA evidence did not establish his guilt beyond a reasonable doubt because it was Leal

who used the stabbing weapon on which defendant’s DNA was found and the presence of 
21

defendant’s DNA on that weapon could be explained by the fact that defendant and Leal 

shared a cell. Although the DNA evidence alone did not establish defendant’s guilt 

beyond a reasonable doubt, it nevertheless strengthened the prosecution’s case.

Defendant derides the eyewitness identifications because they were made by 

accomplices and Sergeant Johnson, who defendant claims was biased. But the fact of the 

matter is that defendant was identified as the initial hitter by three different people, 

including Sergeant Johnson, defendant was a possible contributor of DNA on the handle 

of the weapon used by his cellmate in the assault, he and his cellmate were Norteño gang 

members, and the assault on the inmate had the earmarks of a Norteño removal hit. We 

detect no real imbalance in the strength of the evidence, but if there was any, it certainly 

does not indicate a risk of prejudicial spillover effect. Moreover, the evidence related to 

the gassing charges and the evidence related to the inmate assault charges were 

sufficiently distinct “as to render the likelihood of prejudice minimal.” (Mendoza, supra,

24 Cal.4th at p. 162.) In light of these factors, there was little likelihood that the jury 

would be improperly influenced by evidence of one incident in determining defendant’s 

guilt as to the other.

d. The State’s Interest in a Joint Trial

The state’s interests in a joint trial include efficiencies in both the trial court and 

appellate court. (Soper, supra, 45 Cal.4th at pp. 781-782.) We need not discuss those 

interests in detail here or engage in a balancing of those interests, because we conclude 

defendant has failed to show any prejudice to balance against those interests.

e. Conclusion - Abuse of Discretion

After considering the above facts, we conclude that defendant has failed to carry 

his burden of making the “ ‘clear showing of prejudice’ ” required to establish that the 

trial court abused its discretion in denying his severance motion. (Soper, supra, 45 

Cal.4th at p. 783; Alcala, supra, 43 Cal.4th at p. 1229.)
22

3. Due Process Contention

As noted earlier, our analysis does not end with the question of whether the trial 

court abused its discretion in denying the severance motion. Where a trial court’s 

severance ruling is correct at the time it was made, a reviewing court “ ‘still must 

determine whether, in the end, the joinder of counts . . . for trial resulted in gross 

unfairness depriving the defendant of due process of law.’ ” (Soper, supra, 45 Cal.4th at 

p. 783.) Defendant has the burden to establish gross unfairness, a burden our Supreme 

Court has characterized as a “high burden.” (Ibid.) To establish gross unfairness 

amounting to a due process violation, a defendant must demonstrate a “reasonable 

probability” that the joinder affected the jury’s verdicts. (Merriman, supra, 60 Cal.4th at 

p. 49; People v. Grant (2003) 113 Cal.App.4th 579, 588 (Grant).)

As we have mentioned, defendant complained that his identity was in issue in the

inmate assault, and he was prejudiced by the evidence concerning the gassing of the 

correctional officer because he admitted in his testimony that he was a gang member and 

that he spit in the correctional officer’s face. In connection with our abuse of discretion 

analysis, we have already noted that defendant cannot create reversible error by his 

testimony. In a due process analysis, we consider what transpired during the trial, after 

the trial court’s ruling on the severance motion, to determine whether a defendant has 

shown “gross unfairness.” (Thomas, supra, 53 Cal.4th at pp. 800-801.) However, we 

hold that a defendant cannot create a due process violation from a trial court’s refusal to 

sever before trial based on testimony he gives later during trial -- at least where the 

defendant provided no information to the trial court about his prospective testimony prior 

to the court’s ruling. To hold otherwise would allow defendants to cause a due process 

error with their own testimony and then cry foul on appeal. Case law concluding joinder 

resulted in “gross unfairness” demonstrates that something else is required to show a due 

process error in this context.
23

For example, in Grant, supra, 113 Cal.App.4th 579, the court found that the 

convergence of multiple factors resulted in a denial of due process: the evidence was not 

otherwise cross-admissible, the evidence on one count was particularly weak, the 

evidence on both counts was similar rather than distinct (but not similar enough for Evid.

Code, § 1101, subd. (b)), the court denied defendant’s motion for an instruction on the 

non-cross-admissibility of the evidence, and the prosecutor exploited these factors by 

expressly “urg[ing] the jury to draw the impermissible inference that, because defendant 

possessed stolen computer equipment (count 2), he burgled the school for computer 

equipment (count 1).” (Grant, at p. 588.)

Similarly, in another case involving a “gross unfairness” analysis, People v. Earle

(2009) 172 Cal.App.4th 372, 409-411 (Earle), the court held that the joinder of an 

indecent exposure charge with a sexual assault charge resulted in a due process violation. 

The identity evidence was far less compelling in the sexual assault case. Moreover, the 

prosecutor relied heavily on the indecent exposure evidence to encourage the jury to infer 

that if defendant was guilty of that crime, he was guilty on the sexual assault charge. The 

court observed, “It is no exaggeration to say that [the prosecutor] mentioned the indecent 

exposure at every opportunity, on every conceivable pretext, and for every possible 

purpose.” (Earle, at p. 409.) The defense objected to the prosecutor’s argument, but the 

trial court overruled the objection, saying that the jury could give the prosecutor’s 

argument “ ‘whatever weight they want.’ ” (Id. at pp. 410-411.) The court held that due 

to the prosecutor’s comments and the significantly stronger evidence on the indecent 

exposure charge, the denial of the motion to sever resulted in “gross unfairness.” (Id. at 

p. 411.)

In this case, defendant complains that comments the prosecutor made during 

closing argument about the gassing incident, which he describes as “highly prejudicial,” 

could not have been made to a jury in a separate trial on the inmate assault incident and 

that these comments inflamed the jury. (See fn. 10, ante.) According to defendant, these 
24

comments made the jury more likely to convict defendant on the inmate assault charges 

regardless of the evidence. Yet the record reflects no objection to these supposed 

intentional “highly prejudicial and inflammatory” comments. Moreover, the prosecutor’s 

comments were made during his argument about the gassing incident. Unlike the

impermissible inferences the prosecutors argued in Grant and Earle, the prosecutor in 

this case did not urge the jury to draw an impermissible inference that because defendant 

spit at the correctional officer, he must have assaulted the inmate as well, or that he was 

otherwise predisposed to do so. Indeed, the prosecutor made no connection in his 

argument on the correctional officer gassing to the inmate assault and did not otherwise

seize upon defendant’s testimony confessing to the gassing to bolster his case against 

defendant in the inmate assault. In further contrast with Grant and Earle, as we have 

already discussed, here we are not presented with a situation where a weak case was 

joined with a strong case.

In determining whether there was gross unfairness, we may also look to the 

verdicts here. Because the jury found defendant not guilty of two of the charges related 

to the inmate assault, those verdicts tend to show that the jury considered the evidence 

separately and was not prejudiced by the evidence or argument related to the gassing 

incident.

As for the admission defendant made about being a Norteño gang member during 

his testimony, this circumstance is inconsequential. Evidence that defendant was a 

Norteño gang member came out in the accomplice testimony, the jail classification 

officer’s testimony,11 testimony about defendant’s tattoos, Sergeant Johnson’s testimony, 

and defendant’s own testimony unrelated to the gassing incident. Thus, the jury would 

 

11

 Defendant did not object to the testimony concerning his gang membership 

admissions to the jail classification officer in the trial court; nor did he assert the 

admission of this testimony as a ground for appeal.
25

have heard about his gang membership (a factual matter that could not have been 

seriously disputed) even if the charges related to the gassing had been severed. 

Assuming his admission that he spit at the correctional officer and the fact that he did not 

admit to involvement in the inmate assault incident should be considered in our due 

process analysis, we fail to see how his admission and denial created “gross unfairness” 

and defendant does not explain how it does.

Considering the trial evidence and other pertinent matters related to the trial, 

defendant has failed to show a “reasonable probability that the joinder affected the jury’s 

verdicts.” (Grant, supra, 113 Cal.App.4th at p. 588; Merriman, supra, 60 Cal.4th at 

p. 49.) Thus, we conclude the defendant has failed to show gross unfairness.

4. Conclusion - Severance Contention

Defendant has failed to show that the trial court abused its discretion in denying 

his severance motion. Furthermore, the trial court’s ruling did not result in gross 

unfairness such that defendant was deprived of due process.

II. Corroboration of Accomplice Testimony

A. Additional Background and Defendant’s Contentions

Following the People’s presentation of evidence, defense counsel moved to 

dismiss counts one through four on the ground that there was insufficient evidence to 

corroborate the testimony of the two accomplices, Henderson and Amaya. (3 RT 762) 

The trial court reasoned that, similar to the corroboration in People v. Samaniego (2009) 

172 Cal.App.4th 1148, 1178 (Samaniego), “what we do have here is [Sergeant] Johnson’s 

testimony. And . . . you can attack this for all you want to, the weight of it, but he has 

told us that he was familiar with the defendant’s appearance, the way he carried himself, 

the shape of his shoulders, the way he carried his shoulders, and so forth. His height and 

stature, just as in [Samaniego], and that from the videotape, he’s able to identify him.” 

The court denied the motion, ruling that this witness identification together with the DNA 
26

evidence connecting defendant to one of the weapons was sufficient evidence to 

corroborate the accomplice testimony.

In his new trial motion, defendant again argued that there was insufficient 

evidence to corroborate the testimony of the two accomplices. The trial court noted that 

while Sergeant Johnson’s testimony alone may not have been enough to convict 

defendant, corroborating evidence need only be slight. Accordingly, the court denied 

defendant’s motion for a new trial.

Defendant renews this argument on appeal, asserting that the trial court erred in 

denying his motion for a new trial because there was insufficient evidence to corroborate 

the accomplice testimony and thus, there was evidence to support the verdicts on counts 

two, four, and five. We disagree.

B. Analysis

Section 1111 prohibits a conviction based “upon the testimony of an accomplice 

unless it [is] corroborated by such other evidence as shall tend to connect the defendant 

with the commission of the offense; and the corroboration is not sufficient if it merely 

shows the commission of the offense or the circumstances thereof. An accomplice is . . .

defined as one who is liable to prosecution for the identical offense charged against the 

defendant on trial in the cause in which the testimony of the accomplice is given.” 

(§ 1111, italics added; People v. Hillhouse (2002) 27 Cal.4th 469, 492; People v. 

Rodrigues (1994) 8 Cal.4th 1060, 1128-1130.) “To corroborate the testimony of an 

accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that 

‘tends to connect the defendant with the crime charged’ without aid or assistance from 

the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to 

implicate the defendant and thus relates to some act or fact that is an element of the 

crime. [Citations.] ‘ “[T]he corroborative evidence may be slight and entitled to little 

consideration when standing alone.” ’ ” (People v. Avila (2006) 38 Cal.4th 491, 562-

563, italics added (Avila).) Corroborating evidence “must do more than raise a 
27

conjecture or suspicion of guilt, however grave. [Citations.] On the other hand, unless a 

reviewing court determines that the corroborating evidence should not have been 

admitted or that it could not reasonably tend to connect a defendant with the commission 

of a crime, the finding of the trier of fact on the issue of corroboration may not be 

disturbed on appeal.” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.)

In this case, the trial court instructed the jury that both Henderson and Amaya 

were accomplices as a matter of law. Accordingly, for the jury to rely on their trial 

testimony about the attack of the inmate, it had to conclude that evidence independent of 

their testimony tended to connect defendant to those crimes. (§ 1111; People v. Davis

(2005) 36 Cal.4th 510, 543 (Davis).) 

The evidence available to corroborate the accomplices’ testimony about

defendant’s involvement in the attack on the inmate was as follows: (1) DNA on one of 

the weapons; (2) Sergeant Johnson’s testimony identifying defendant as the first hitter by 

his appearance and walk; and (3) defendant’s gang membership and association with the 

other people involved in the assault. This evidence sufficiently “ ‘ “tends to connect the 

defendant with the commission of the offense in such a way as reasonably may satisfy a 

jury that the accomplice is telling the truth . . . .” ’ ” (Davis, supra, 36 Cal.4th at p. 543.)

Defendant contends that because the DNA was found on the handle of the 

stabbing weapon rather than the slashing weapon that the accomplices testified defendant 

used, the DNA evidence does not corroborate their testimony. However, corroborating 

evidence need not corroborate an accomplice in every fact to which the accomplice 

testifies. (Davis, supra, 36 Cal.4th at p. 543; Samaniego, supra, 172 Cal.App.4th at 

pp. 1177-1178.) Defendant further contends that because the jury found him not guilty of 

possessing the stabbing weapon as charged in count three, possession of a deadly weapon 
28

by a prisoner, the DNA evidence could not corroborate the two accomplices.12 However, 

“[c]orroborating evidence need not be sufficient to establish the defendant’s guilt.”

(Samaniego, at pp. 1177-1178.)

Defendant suggests that the DNA evidence is weak and inconclusive. To be sure, 

the criminalist did not testify that the DNA found on the handle of the stabbing 

instrument was defendant’s DNA. She testified that defendant was a “possible” major 

contributor of that DNA. She also testified that Leal, defendant’s cellmate, was a 

possible major contributor to DNA found on the handle of that weapon as well, but none 

of the other people who provided samples could be included as contributors. Although 

not conclusive, the DNA evidence nevertheless tended to connect defendant to the assault 

on the inmate. And as we have noted, corroborating evidence is sufficient even if it is

“ ‘ “slight and entitled to little consideration when standing alone.” ’ ” (Avila, supra, 38 

Cal.4th at p. 563.) Thus, contrary to defendant’s view of the DNA evidence, that 

evidence is sufficient to corroborate accomplice testimony.

Additionally, a non-accomplice witness, Sergeant Johnson, identified defendant as 

the first hitter from his review of the video recording. Defendant asserts that Sergeant 

Johnson was biased because he had a motive to corroborate the accomplice witnesses and 

 

12

 There was inconsistency in the charging allegations as to the weapon defendant was 

alleged to have used. The information alleged that the deadly weapon defendant used in 

the personal use enhancement for count one (attempted murder) was “razor blades,” but 

the deadly weapon he used in count two (assault with a deadly weapon) and the 

associated personal use enhancement was a “knife.” However, neither the instructions 

nor the verdict forms for either count or the associated personal use allegation described 

the nature of the deadly weapon. As for count four (assault by a prisoner with a deadly 

weapon), the information, instruction and verdict form did not specify the nature of the 

weapon. As for count three (possession of a deadly weapon by a prisoner), while the 

verdict form did not indicate the nature of the weapon, the information and the instruction 

specifically identified the weapon defendant was alleged to have possessed as a “knife” 

and referenced the requirement that “defendant knew” the object could be used “ ‘as a 

stabbing weapon.’ ”
29

his bias was evidenced in his statement to defendant’s brother that defendant would not 

be coming home. Yet, any evidence of bias goes only to the weight of the testimony and 

as we have noted, the weight need only be slight. Sergeant Johnson identified defendant 

in the video from his observation of defendant’s manner of carrying himself, his walk, his 

high broad shoulders, as well as his size, height, and baldness. Defendant derides this 

identification and asserts it “suffers from the infirmity inherent in all eyewitness 

evidence.”

In our view, this is not the typical eyewitness identification where a person sees a 

suspect during the commission of a crime, perhaps only briefly, and does not have the 

opportunity to play that scene over again. Here, the identification was made from a video 

recording. Moreover, Sergeant Johnson’s testimony was actually stronger than the 

testimony of the non-accomplice witness in Samaniego, which the trial court referenced 

in its ruling. That witness’s testimony was found to be sufficient corroboration even 

though the witness only testified that he “ ‘believed’ ” Samaniego was the third person in 

front of the victim’s apartment at the time the victim was murdered based upon the way 

he stood, his stature, and his body form. (Samaniego, supra, 172 Cal.App.4th at p. 1178.) 

The witness also admitted he was not sure if Samaniego was, in fact, the third person and 

he further said he had no idea who the third person was. The Samaniego court held that 

while this testimony rendered the corroboration slight, that testimony along with gang 

association evidence was sufficient to corroborate the accomplice’s testimony. (Ibid.) 

Here, unlike the equivocal identification in Samaniego, Sergeant Johnson was confident 

of his identification and not only offered reasons why he identified defendant, but said he 

had seen defendant ten to twenty times before.

Also similar to Samaniego, further corroboration exists here in the evidence of 

defendant’s Norteño gang membership and his association with others involved in the 

inmate assault. Those circumstances tended to show that defendant had a motive to 

participate in the inmate assault, as did the other individuals who were involved. (See 
30

Samaniego, supra, 172 Cal.App.4th at p. 1172 [reasoning that “[g]ang membership can 

be a significant factor in corroborating an accomplice’s testimony” because it tends to 

show motive and opportunity]; see also People v. Szeto (1981) 29 Cal.3d 20, 28 [same].) 

Here, there was independent evidence that defendant was an active Norteño based on

Sergeant Johnson’s testimony, defendant’s tattoos, and defendant’s own gang affiliation 

admissions. He shared a cell with the other “hitter” in the assault, an attack that had the 

earmarks of a typical Norteño removal. For these reasons, we conclude that there was 

sufficient corroborating evidence tending to connect defendant with the commission of 

the crime independent of the accomplice testimony. Accordingly, the trial court did not 

err in denying defendant’s motion for a new trial.

DISPOSITION

The judgment is affirmed.

 MURRAY , J.

We concur:

 NICHOLSON , Acting P. J.

 MAURO , J.