P. v. Chester

Filed 9/28/17 P. v. Chester CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
KENDRICK D. CHESTER,
Defendant and Appellant.
B271587
(Los Angeles County
Super. Ct. No. NA100648)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark C. Kim, Judge. Affirmed.
____________________________
Lori Nakaoka, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney
General, Margaret E. Maxwell and Nicholas J. Webster, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________

-- 1 of 19 --

2
Appellant Kendrick D. Chester challenges his convictions
for robbery and possession of a firearm by a felon. He contends
that the trial court violated his constitutional rights by denying
his requests to substitute his retained counsel and to represent
himself, by admitting a tainted in-court identification of him, and
by refusing to sever the charges into separate trials. We affirm.
FACTS AND PROCEEDINGS BELOW
An information charged Chester with two counts—robbery,
in violation of section 211 of the Penal Code (count 1),1 and
possession of a firearm by a felon, in violation of section 29800,
subdivision (a)(1) (count 2)—related to events that occurred in the
very early hours of October 24, 2015. The information also charged
Chester with three additional counts pertaining to separate events
in the weeks prior. These latter charges included: one count of
criminal threats, in violation of section 422, subdivision (a) (count3);
one count of assault with a semi-automatic firearm, in violation
of section 245, subdivision (b) (count 4); and an additional count
of possession of a firearm by a felon, in violation of section 29800,
subdivision (a)(1) (count 5).2
A jury found Chester guilty of counts 1 and 2, for robbery and
possession of a firearm by a felon, respectively. The jury also found
true an allegation pursuant to section 12022.53, subdivision (b),
that Chester personally used a firearm in the robbery. The jury
could not reach a unanimous verdict on the other three counts.
The trial court declared a mistrial on these counts and ultimately
dismissed them on the People’s motion. The court sentenced
1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.
2 The information alleged a sixth count of criminal
threats, but the prosecution dropped this charge prior to trial.

-- 2 of 19 --

3
Chester to a total of 15 years in prison. This consisted of the high
term of five years for robbery, plus an additional 10 years pursuant
to section 12022.53, subdivision (b), for personal use of a handgun.
The court sentenced Chester to three years for possession of a
firearm by a felon in count 2, but stayed the sentence pursuant to
section 654.
Although the jury convicted Chester only of the charges
pertaining to October 24, 2015, the facts regarding the other
three counts are relevant to issues Chester has raised on appeal.
Consequently, the following description of the evidence introduced
at trial includes testimony pertaining to counts that the trial court
ultimately dismissed.
A. The Robbery of D.F.
D.F. was returning to his home in Long Beach at around
12:30 a.m. on October 24, 2015 when he noticed a car blocking the
driveway. He got out of the car to investigate, and noticed a man
riding toward him on a bicycle. The man put a mask over his head,
stopped at the back of D.F.’s car, and asked for money. D.F. noticed
the man was holding a drill with no drill bit.
D.F. felt afraid and got back into his car. The man reached
into the open driver’s side window with a gun and pointed it at
D.F.’s chest. The man again asked D.F. for money, saying that he
knew D.F. must have money because he was driving an expensive
car. D.F. looked in the center console of his car and found two
scratch-off lottery tickets, one worth $15, the other worth a free
lottery ticket. D.F. handed over the tickets, and the man took
them and left. D.F. then called 911. He told the operator that a
Black man, approximately 22 years old, riding a BMX bicycle, and
wearing a dark sweater with a Pittsburgh Penguins hockey logo,
a baseball cap, and a mask, had robbed him of two lottery tickets.

-- 3 of 19 --

4
Within a minute or two, Tom Diaz, a police officer with
the Long Beach Police Department, responded to a dispatch
call regarding the robbery. Near a donut shop on Pacific Coast
Highway, a few blocks away from where the robbery had taken
place, Diaz saw Chester, who is Black, and who was wearing dark
clothing and sitting on a BMX-style bike. Diaz pulled into a nearby
driveway and ordered Chester to hold his hands up. Chester rode
away on his bicycle and Diaz pursued, eventually catching Chester
when Chester crashed his bicycle in the parking lot of a nearby
liquor store. During the pursuit, Diaz heard a heavy object fall to
the ground near Chester, but he could not see what it was.
Diaz subdued Chester with a carotid restraint, or choke-hold,
and rolled him over, discovering a semi-automatic handgun near
Chester’s waist. Diaz went back to search for the object that had
fallen during the chase and found a black cordless drill nearby.
Another Long Beach police officer, Kevin Skeen, who was also
on the scene and assisted Diaz in subduing Chester, noticed the
handgun on the ground after Diaz handcuffed Chester. Skeen also
found a baseball cap with a black cotton cloth stuffed inside it on
the ground underneath Chester. The cloth had eye-holes cut out
of it so that it could be worn as a mask. Skeen searched Chester’s
pockets and discovered two scratch-off lottery tickets, one worth
$15, and the other good for a free ticket.
Approximately 30 minutes after the robbery, officers
transported D.F. to the liquor store to identify Chester. D.F.
saw Chester from the rear seat of the patrol car at a distance
of approximately 30 feet. Because D.F. had seen his assailant
only with a mask on, he was uncertain whether Chester was the
person who robbed him. D.F. thought, however, that Chester
had the same height and complexion as his attacker. The police
officers put the hat and cloth mask on Chester, and at that
point, D.F. was positive Chester was his assailant. In court, D.F.

-- 4 of 19 --

5
identified Chester, along with the hat, mask, bicycle, gun, and
sweater Chester wore. D.F. also confirmed that the lottery tickets
the police recovered were the same tickets stolen in the robbery.
D.F. acknowledged that Chester appeared to be in his 30’s or
early 40’s, not approximately 22 years old as he stated to the 911
operator.
Chester testified on his own behalf. He claimed that he
never interacted with D.F., and did not rob him. According to
Chester, he was in the parking lot of the liquor store with friends
when four or five police cars drove up. His friends scattered, and
an officer pointed his gun at Chester and ordered him to put his
hands up. Other officers grabbed his arms, and when Chester
resisted, they choked him until he passed out. Chester denied that
he possessed the lottery tickets, the drill, the handgun, the baseball
cap, the do-rag, and the bicycle that the police officers testified they
found in his possession or near him.
B. Donut Shop Incident
S.K., the owner of a Long Beach donut shop, testified that
Chester was a regular at his store. According to S.K., a few days
before the robbery, Chester entered the store, demanded that S.K.
sell him donuts at a lower price, and asked other customers for
money. S.K. argued with Chester, and Chester told him that if he
ever saw S.K. outside the store, he would kill him. Chester told
S.K. that he had a gun and was not joking. S.K. called the police,
but the police never arrived, and eventually Chester left. Another
employee of the donut shop, S.S., testified that a Black man who
she could not identify came into the store and threatened S.K., and
that S.K. called the police. S.S. saw the man put a sock on the
counter of the shop, and it appeared that there was a gun inside the
sock.

-- 5 of 19 --

6
Defense counsel played for the jury surveillance video footage
of Chester in the store on the day in question. Chester also testified
about the events. He said that on the day in question, he was
10 cents short of the price of a donut and asked S.K. to let him pay
the difference in price later. S.K. refused, so Chester asked another
customer for a dime. S.K. became angry and told Chester to stop
bothering his customers. According to Chester, S.K. told him to get
out of the shop and threatened to shoot him.
C. Football Game Assault
C.B. testified that he was a referee of a youth football game
on October 4, 2015, about three weeks before Chester’s arrest. At
halftime, after the referees had made some controversial calls in the
game, Chester approached C.B. and another referee and said, “You
all refs better call this game right. That’s on Crip.” After the game,
Chester again approached C.B. Chester reached into the front
pocket of his hoodie and pulled out a gun wrapped in a plastic bag.
Chester pointed the gun at C.B.’s torso and said, “What’s up now,
ref? This is my neighborhood.” According to C.B., the gun was a
semi-automatic pistol, and Chester pointed it at C.B.’s stomach
from about five feet away. C.B. went back to the field and told the
athletic director, who called the police. C.B. later identified Chester
from a six-pack lineup as the man who had threatened him, and
Chester also identified a picture of the gun recovered from Chester’s
arrest as the gun used to threaten him.
The coach of the football team for which Chester’s son
played testified that he witnessed Chester confronting C.B. both at
halftime and after the game. According to the coach, Chester pulled
out an iPad, rather than a gun.
Chester denied that he brought a gun to the football game
and that he threatened C.B. According to Chester, after the game,
he told C.B. that it had been a good game even though C.B. had

-- 6 of 19 --

7
made a bad call. C.B. then challenged Chester to fight. Chester
pulled an iPad from his waistband, and C.B. ran away, shouting
that Chester had a gun.
DISCUSSION
Chester raises several contentions on appeal. He contends
that the trial court violated his Sixth Amendment rights by
denying his requests to substitute counsel and to represent himself.
Next, Chester contends that the trial court violated his Fourteenth
Amendment right to a fair trial by admitting an in-court
identification that was tainted by a suggestive and unreliable
out-of-court identification procedure. Finally, Chester contends
that the trial court violated his Fourteenth Amendment right to a
fair trial by denying his motion to sever the counts pertaining to the
donut shop and football game from those pertaining to the robbery.
I. Denial of Chester’s Request to Substitute
Counsel or to Represent Himself
Chester contends that the trial court violated his
constitutional rights by denying his requests, made on the eve
of trial, to substitute his retained counsel with another attorney
who had agreed to represent him, or to represent himself. We
disagree. The trial court did not err by applying an incorrect
standard or by finding that Chester’s requests were untimely.
A. Relevant Proceedings
On two consecutive days just before trial, Chester requested
to replace his attorney with new retained counsel or to represent
himself. The first request occurred just before jury selection began,
and the second took place after jury selection had already started.
The trial court denied these requests.

-- 7 of 19 --

8
1. September 16 Proceedings
Just before jury selection began, Chester spoke out in open
court, just after the trial court had called the courtroom to order:
“Are you saying that the trust that you’re now administering is
the Kendrick Chester trust?” The court admonished Chester
not to disrupt the proceedings, but Chester continued, saying,
“I’m not a fictitious entity. I’m a living human being with a
soul. [My attorney] failed to fully disclose to me that he and the
prosecutor are involved.” At this point, the court said, “Looks
like there’s a Marsden motion,” and asked the prosecutor to leave
the courtroom during the hearing.3 (Italics added.)
In the hearing, Chester alleged that his attorney was
colluding with the prosecutor and denied that he was Kendrick
Chester or that the court had jurisdiction over him. His attorney
explained that he had encouraged Chester to accept the prosecutor’s
offer of a 15-year prison term, which was set to expire that day.
The trial court then stated, “Marsden motion is denied.” (Italics
added.) Chester complained that his attorney had refused to file
certain motions on his behalf, and reiterated that he did not want
his attorney to represent him. The court asked, “Do you have
anyone to try this case besides him? Who do you have?” Chester
answered, “Myself.” The court ended the Marsden hearing and
invited the prosecutor to return to the courtroom.
Chester then explained that he was not ready to try the case
himself, but needed additional time to file motions. He stated that
he expected his attorney to have already filed a Pitchess4 motion
and to have subpoenaed certain surveillance footage, and only
found out that day that his attorney had not done so. The court told
3 People v. Marsden (1970) 2 Cal.3d 118.
4 Pitchess v. Superior Court (1974) 11 Cal.3d 531.

-- 8 of 19 --

9
Chester that in order to proceed on a pro. per. basis, he would need
to sign a document waiving his right to counsel. Chester refused
to sign a waiver and refused to speak with the court about it. The
court stated, “[B]ecause defendant is unwilling to even follow the
basic, basic rules of procedure and courtroom protocol so the court
can fairly evaluate the status to go pro[.] per[.], pro[.] per[.] is
denied.”
When court was back in session at 1:30 that afternoon,
Chester’s attorney informed the court that Chester had obtained
new counsel to represent him. The court stated, “[I]f the attorney
shows up we’ll deal with it at that point.” Chester decided not to
attend further proceedings in the absence of his new attorney, and
jury selection proceeded in his absence.
At 2:50 p.m., a new attorney appeared in court and requested
to substitute in as Chester’s counsel. The court asked the new
attorney to come back the next morning to inform the court
whether he was ready to substitute in and begin the trial. For the
remainder of the afternoon, Chester’s original attorney continued
to represent him in jury selection. At the end of the day, the court
instructed the new attorney to return the following morning and
explain whether he had been retained as counsel and was ready to
proceed. The court continued, “[I]f you say yes, I have no problem
allowing you to sub in.”
2. September 17 Proceedings
The next morning, Chester’s proposed substitute attorney
appeared and informed the court that he was prepared to take
the case through trial on a pro bono basis. He stated that he was
not ready to proceed with trial immediately, however, because
Chester’s first attorney had not obtained a 911 tape or resolved
other discovery issues. After an in-camera hearing, the trial court
then found that Chester’s refusal to communicate was a stalling

-- 9 of 19 --

10
tactic, and that no genuine conflict existed. The court denied the
new attorney’s request to substitute in as counsel as untimely.
Shortly thereafter, Chester’s attorney informed the court that
Chester wanted another Marsden hearing. The court answered,
“He is not entitled to [a] Marsden motion, because [his attorney is]
privately retained.” (Italics added.) Chester then said, “I would
like to go pro[.] per[.] for lack of . . . communication between me
and my so-called lawyer.” This time, Chester filled out the pro. per.
waiver form. When the trial court asked Chester why he had
waited so long to request to represent himself, Chester began to
describe his conflicts with his attorney. At this point, the court
paused the proceedings and excused the prosecutor from the
courtroom. The court explained, “[Y]ou are not entitled to a
Marsden motion, which is basically a request for [a] new attorney,
because [your existing attorney] was privately retained by you.
But I don’t want [the prosecutor] to hear what you have to say
because I don’t want him to know potential strategy . . . about your
case.” (Italics added.)
Chester reiterated that he no longer wanted his attorney to
represent him because his attorney had failed to file motions that
Chester believed were necessary to his defense. Furthermore,
Chester complained that his attorney had visited him in jail only
once and did not know the details of his case. Chester’s attorney
responded that he had made a tactical decision not to file a
Pitchess motion, and that he had investigated but could not find
any additional relevant surveillance footage. The attorney also
denied that he lacked familiarity with the case, that he failed to
communicate sufficiently with Chester, or that he was colluding
with the prosecutor.
The trial court then explained that it was willing to grant
Chester’s request to represent himself, but only if he could be ready
to proceed with the case within four days. Chester was unwilling to

-- 10 of 19 --

11
proceed with the case without a longer continuance, and the court
then told him that it would continue with jury selection, and that
he could make a final decision at the end of the day. Later in
the afternoon, the court asked Chester for a final decision, and
Chester replied that he would need at least 30 days to obtain
evidence. The court then denied the request, finding that under
the circumstances, the request was untimely.
B. The Denial of the Requests for
Substitute Counsel
The standards for responding to a criminal defendant’s
request to replace his attorney depend on whether he is represented
by retained or appointed counsel. Although the Sixth Amendment
guarantees criminal defendants who cannot afford to hire an
attorney the right to representation by appointed counsel, this
“does not include the right to demand appointment of more than
one counsel.” (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1
(Ortiz).) When a defendant requests to replace his appointed
attorney, the trial court must hold a Marsden hearing to determine
if the defendant has “show[n] good cause for replacing appointed
counsel.” (People v. Lara (2001) 86 Cal.App.4th 139, 151 (Lara).)
The court should consider whether the defendant has shown that
his “ ‘right to the assistance of counsel would be substantially
impaired if his request [to substitute counsel] was denied.’ ” (Ibid.)
When a defendant retains his own counsel, he has greater
freedom to replace his attorney. “In contrast to situations
involving appointed counsel, a defendant may discharge his
retained counsel of choice at any time with or without cause.”
(Lara, supra, 86 Cal.App.4th at p. 152.) The right to discharge
retained counsel is not absolute, however. “The trial court, in
its discretion, may deny such a motion if discharge will result in
‘significant prejudice’ to the defendant [citation], or if it is not

-- 11 of 19 --

12
timely, i.e., if it will result in ‘disruption of the orderly processes
of justice.’ ” (Ortiz, supra, 51 Cal.3d at p. 983.)
Chester contends that the trial court erred by applying the
Marsden standard even though he had retained his own counsel.
Chester also argues that, even if the court did apply the correct
standard, it erred by finding that Chester’s request was untimely.
We are not persuaded by either of these contentions.
Chester is correct that, during the proceedings that took place
on September 16, the trial court erroneously described Chester’s
request to replace his attorney as a “Marsden motion.” (Italics
added.) Marsden motions and hearings are appropriate only when
a defendant is represented by appointed counsel. (See Ortiz, supra,
51 Cal.3d at p. 986.) It is clear from the record, however, that the
court applied the correct standard in deciding Chester’s request.
During proceedings on September 16, the court asked Chester, “Do
you have anyone to try this case besides him? Who do you have?”
This suggested that, if Chester had retained substitute counsel
who was prepared to try the case, the court was prepared to allow
the substitution. This was confirmed when Chester’s proposed
substitute attorney appeared in court during the afternoon of
September 16. The court stated explicitly that it would condition
the substitution only on the new attorney’s preparedness to
proceed, not on a showing of good cause. The court stated that
if the new attorney said that he was ready to proceed with trial,
“I have no problem allowing you to sub in.”
During the proceedings on September 17, the court made it
even more clear that it was not applying the standard applicable
to appointed counsel. On two occasions, the court stated that,
because Chester had retained counsel, he was “not entitled to [a]
Marsden motion.” (Italics added.) Instead, the court conditioned
the substitution of counsel only on the attorney’s preparedness.

-- 12 of 19 --

13
Chester argues that the court erred by holding closed
hearings, in which the prosecutor was excluded from the courtroom,
regarding the substitution of counsel. Although closed hearings are
necessary in Marsden proceedings to allow the defendant to discuss
trial strategy without allowing the prosecution to gain an unfair
advantage (People v. Barnett (1998) 17 Cal.4th 1044, 1094), they
serve no apparent function when a defendant seeks to substitute
retained counsel. We disagree that the use of this procedure
showed that the trial court applied an incorrect standard, however.
The court excluded the prosecutor from the courtroom not because
it intended to apply an incorrect standard, but because it was
clear that Chester intended to discuss his attorney’s trial strategy.
Although it was not a Marsden hearing, excluding the prosecutor
was appropriate to protect Chester’s right to a fair trial.
Regardless of the court’s initial language referring to a
Marsden hearing or motion, the record shows that when the court
made its decision regarding Chester’s representation, it applied the
standard appropriate for substitution of retained counsel.
Nor do we agree with Chester that the court abused its
discretion by denying the motion to substitute counsel on grounds
of timeliness. Chester argues that, although he did not request
substitute counsel until the day of the trial, his request was
nevertheless timely because he only learned that day of his
attorney’s failure to file a Pitchess motion or to seek additional
surveillance. He contends that his case is similar to Lara, supra,
86 Cal.App.4th at pp. 162-163, in which the court held that the
defendant’s motion to substitute counsel on the eve of trial was
timely because the defendant had only learned of his attorney’s
deficiencies on the day of trial.
But there are crucial differences between this case and Lara.
In Lara, the trial court incorrectly applied the Marsden standard
to the defendant’s request to discharge his retained counsel. In

-- 13 of 19 --

14
rejecting the defendant’s request under this standard, the trial
court made no finding regarding the timeliness of the request. (See
Lara, supra, 86 Cal.App.4th at p. 162.) Because the trial court did
not apply the correct standard and did not gather and consider all
material facts, the Court of Appeal did not defer to the trial court’s
findings. (See id. at pp. 165-166.) Here, by contrast, the court
applied the correct standard and explicitly found Chester’s request
untimely. We may therefore reverse the trial court only if its
decision was an abuse of discretion. (See People v. Dowdell (2014)
227 Cal.App.4th 1388, 1411.)
In Lara, the court noted that “there is no evidence to suggest
that appellant raised such complaints in an effort to improperly
delay the proceedings.” (Lara, supra, 86 Cal.App.4th at p. 162.)
In this case, however, Chester made a series of bizarre statements
that he was “not a fictitious entity” and that the court lacked
authority to administer his case. Furthermore, his complaints
about his attorney’s performance appeared to be less substantial
than the defendant’s in Lara. Chester believed that his attorney
was scheming with the prosecution apparently on the basis that
he did not like the prosecutor’s offered plea agreement. He was
annoyed that his attorney had failed to obtain surveillance footage
that his attorney stated did not exist. And Chester admitted that
his attorney spoke with him after each pretrial hearing. In light
of this evidence, we cannot conclude that the trial court erred by
finding that Chester requested an attorney for the purpose of
delaying the proceedings.
To grant Chester’s request to replace his attorney would have
required a delay in his trial, at a point when both sides had already
invested a significant amount of time preparing and when jury
selection was about to begin. We do not agree that the trial court
abused its discretion by denying the request on the ground that it

-- 14 of 19 --

15
would “result in ‘disruption of the orderly processes of justice.’ ”
(Ortiz, supra, 51 Cal.3d at p. 983.)
C. Denial of the Requests for
Self-Representation
In Faretta v. California (1975) 422 U.S. 806, 820-821
(Faretta), the United States Supreme Court established that a
criminal defendant has a Sixth Amendment right to represent
himself at trial. “A trial court must grant a defendant’s request
for self-representation if three conditions are met. First, the
defendant must be mentally competent, and must make his request
knowingly and intelligently, having been apprised of the dangers of
self-representation. [Citations.] Second, he must make his request
unequivocally. [Citations.] Third, he must make his request within
a reasonable time before trial.” (People v. Welch (1999) 20 Cal.4th
701, 729.) A violation of this right is reversible per se. (People v.
Valdez (2004) 32 Cal.4th 73, 98.)
In this case, the trial court denied Chester’s requests to
represent himself as untimely. Chester contends that this was
error. We disagree. In People v. Lynch (2010) 50 Cal.4th 693, 724
(Lynch), abrogated on other grounds by People v. McKinnon (2011)
52 Cal.4th 610, 637-638, our Supreme Court held that “timeliness
for purposes of Faretta is based not on a fixed and arbitrary point
in time, but upon consideration of the totality of the circumstances
that exist in the case at the time the self-representation motion is
made. An analysis based on these considerations is in accord with
the purpose of the timeliness requirement, which is ‘to prevent the
defendant from misusing the motion to unjustifiably delay trial or
obstruct the orderly administration of justice.’ ”
Although Chester contends that a Faretta motion may be
timely even if it is filed on the first day of jury selection, our
Supreme Court has “held on numerous occasions that Faretta

-- 15 of 19 --

16
motions made on the eve of trial are untimely.” (Lynch, supra,
50 Cal.4th at p. 722.) Chester argues that, in this case, he was
justified in waiting until the eve of trial to make his motion
because it was only then that he discovered his attorney’s alleged
inadequacy. For the same reasons that we have cited with respect
to Chester’s motion to substitute counsel, however, the trial court
was justified in concluding that Chester’s motion was designed
to delay trial. Thus, the court did not violate Chester’s Sixth
Amendment rights by denying his Faretta motion.
II. Identification Procedure
Chester contends that the trial court violated his
Fourteenth Amendment right to a fair trial by admitting D.F.’s
in-court identification of him, which he claims was tainted by
an unduly suggestive and unreliable out-of-court identification
procedure. “ ‘In order to determine whether the admission
of identification evidence violates a defendant’s right to due
process of law, we consider (1) whether the identification procedure
was unduly suggestive and unnecessary, and, if so, (2) whether
the identification itself was nevertheless reliable under the totality
of the circumstances, taking into account such factors as the
opportunity of the witness to view the suspect at the time of the
offense, the witness’s degree of attention at the time of the offense,
the accuracy of his or her prior description of the suspect, the level
of certainty demonstrated at the time of the identification, and
the lapse of time between the offense and the identification.’ ”
(People v. Virgil (2011) 51 Cal.4th 1210, 1256.)
We need not determine whether the identification procedure
used here violated due process because, even if it did, any error was
harmless under any standard of review. (See People v. Sandoval
(1977) 70 Cal.App.3d 73, 86.) The evidence against Chester at
trial was overwhelming. He was arrested mere minutes after the

-- 16 of 19 --

17
robbery with several of the items D.F. stated that his attacker had
used, including a BMX bike, a handgun, a drill, and a hat with
a piece of cloth fashioned into a mask. In addition, police
discovered on Chester’s person the same scratch-off lottery tickets
D.F. reported that the robber stole. Chester’s attorney was also
able to limit any potential prejudicial effect of the identification
by cross-examining D.F. regarding the tenuousness of his
identification. (See People v. Sanders (1995) 11 Cal.4th 475, 510.)
D.F. admitted that he did not get a good look at his attacker and
was unable to identify Chester with confidence until the police put
the mask on him. He also acknowledged that Chester was much
older than his initial estimate of 22 years old, and that Chester was
not wearing a sweater with a Penguins logo, as Chester told police.
All these admissions during cross-examination reduced the
possibility of prejudice to Chester.
III. Joinder of the Charges Against Chester
The Penal Code allows for a single pleading to “charge two
or more different offenses connected together in their commission,
or different statements of the same offense or two or more different
offenses of the same class of crimes or offenses, under separate
counts.” (§ 954.) The trial court, however, “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.” (Ibid.)
Our Supreme Court has described the following factors to
consider in evaluating whether the trial court abused its discretion
by refusing to sever charges in a particular case: “(1) would the
evidence of the crimes be cross-admissible in separate trials;
(2) are some of the charges unusually likely to inflame the jury
against the defendant; (3) has a weak case been joined with a strong

-- 17 of 19 --

18
case or another weak case so that the total evidence on the joined
charges may alter the outcome of some or all of the charged
offenses; and (4) is any one of the charges a death penalty offense,
or does joinder of the charges convert the matter into a capital
case.” (People v. Marshall (1997) 15 Cal.4th 1, 27–28.)
Chester contends that the trial court abused its discretion
by refusing to sever the charges pertaining to the robbery
(counts 1-2) from those pertaining to the events at the donut
shop and the children’s football game (counts 3-5). He argues
that because the evidence from the various counts was not
cross-admissible, and there was a spillover effect between stronger
and weaker cases, the charges should have been severed. We are
not persuaded.
Although cross-admissibility of evidence is ordinarily
sufficient to dispel any inference of prejudice and show that the
trial court acted within its discretion by denying severance, “ ‘lack
of cross-admissibility is not dispositive of whether the court abused
its discretion.’ ” (People v. Romero and Self (2015) 62 Cal.4th 1, 30.)
We need not decide whether the evidence would have been
cross-admissible in this case because an examination of the
remaining three factors shows that the trial court did not abuse
its discretion. (See ibid.) The second and fourth factors do not aid
Chester because none of the charges against him were significantly
more inflammatory than the others, and this was not a capital case.
As to the third factor, there was no large disparity between
the strength of the various charges against Chester. Although
the jury was unable to reach a unanimous verdict on counts 3-5,
the evidence against Chester on those counts was strong. With
respect to the incidents at the donut shop and at the football game,
witnesses with no apparent reason for animus against Chester
testified that Chester threatened them. In each case, a witness
testified to seeing Chester with a firearm, and in the case of the

-- 18 of 19 --

19
football game, the witness testified that Chester pointed the
weapon at him. In each instance, a witness identified Chester
as the perpetrator from a photo lineup. At the time the trial court
denied Chester’s motions to sever the charges, the court knew that
the prosecution intended to offer this evidence at trial. (See People
v. Marshall, supra, 15 Cal.4th at p. 27 [court reviews trial court’s
decision on joinder on the basis of the facts known at the time of
the trial court’s ruling].) Thus, the trial court did not abuse its
discretion by denying Chester’s motion to sever counts 3-5.
DISPOSITION
The judgment of the trial court is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
LUI, J.

-- 19 of 19 --