People v. Mayes CA2/3
B332068
Cal. Ct. App.Jan 8, 2026Check TreatmentFiled 1/8/26 P. v. Mayes CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B332068
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA112863)
v.
CARL MAYES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James Otto, Judge. Affirmed.
Kelly C. Martin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
A jury found Carl Mayes guilty of the second degree
murder of his wife and of possession of a firearm by a felon.
Mayes contends the trial court committed error by denying his
motion to sever trial of these counts, admitting a hearsay
statement from the murder victim, and excluding evidence of his
reaction to news of his wife’s death. He further contends the
court erred by denying his request for a continuance to prepare a
motion for a new trial after granting his motion under Faretta v.
California (1975) 422 U.S. 806. We find no reversible error and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Murder of Tyquesha Myers
On the morning of July 15, 2006, Tyquesha Myers’s body
was found on the side of the 710 freeway. She had a gunshot
wound to her right temple. There was no blood under or around
her body, but there was dry blood on her clothes.
The cause of death was a single gunshot wound to the right
side of the head, fired within a range of five inches. The bullet
was a .22-caliber. It was estimated that Myers died 24 to 30
hours before she was found.
Testimony of Myers’s mother
Mayes and Myers married a few months before July 2006.
During their relationship, Myers’s mother, Vanessa Garland,
observed facial bruises and a black eye on Myers on separate
occasions.1 Once, when Mayes and Myers were arguing, Garland
____________________
1 Garland confronted Mayes about Myers’s injuries. Once at
Mayes’s barbershop, Garland told Mayes “to keep his hands off
2
observed that Mayes had a gun. Although Mayes and Myers had
previously lived together at Mayes’s barbershop in Gardena, the
couple had a “rocky” relationship and were living apart when
Myers was killed.
On the evening of Thursday, July 13, 2006, Garland picked
Myers up and they stopped at the barbershop. Myers went inside
while Garland remained in the car. When Myers left the
barbershop, she was upset because Mayes had something that
belonged to her. Garland dropped Myers back at the barbershop
in the early morning of Friday, July 14 because Myers wanted to
collect her things.
Garland saw Mayes’s car when she parked outside the
barbershop. Myers went into the barbershop and returned
approximately 10 minutes later. They agreed that Myers would
call Garland later so that Garland could pick her up. Myers said
she would leave with Garland after getting her things.
Garland received a call from Myers while driving home.
Myers told Garland to call her back when Garland made it home
safely. The call ended abruptly. Garland heard a “scuffle” and
movement before the call ended. Garland continued driving
because Mayes often ended calls between Myers and Garland.
Garland knew that Mayes did not want Myers talking to her.
Garland later had a missed call from Myers. She
repeatedly tried to call Myers back throughout the day but got no
____________________
[her] motherfucking child” and if “he ke[pt] putting his hands on
her, [she] would f-ing kill him.” Garland had also spoken to
Mayes on the phone about his abuse of Myers before the pair
married. She told him that “he should leave [Myers] alone and
keep his hands off of her because one day he was going to kill
her.”
3
answer. The calls went directly to voicemail. The morning of
Saturday, July 15, 2006, Garland received a call from Mayes.
This was unusual because Mayes did not like her. Mayes said
Myers was missing and asked if Garland had seen her. Later
that morning, Garland learned from the Los Angeles County
Sheriff’s Department that Myers was dead.
Testimony of Hasheem Solomon
In 2006, Hasheem Solomon had known Mayes for
approximately one year. He worked at Mayes’s barbershop and
sometimes stayed after hours to socialize with customers and
Mayes. Solomon saw Myers “briefly” at the barbershop. The
times he saw her, Mayes and Myers were “[a]lways angry, always
fighting,” both verbally and physically. He had observed Mayes
and Myers “grabbing, tussling.”
In the evening of July 13 or early morning of July 14, after
the barbershop had closed, Mayes received a phone call. Solomon
heard arguing. About 20 to 30 minutes later, Solomon saw Myers
get dropped off. He saw her enter the barbershop and walk to the
back. Mayes followed her. Solomon heard Mayes and Myers
arguing. Myers said she was leaving and Mayes “kept saying sit
down, sit down.” Solomon also heard a sound “like a book
slamming against the floor” or “a pop-like sound.” After that, he
heard Mayes continuing to talk.
Solomon returned to work at 8:00 or 9:00 a.m. Mayes was
acting “nervously.” Mayes called Solomon into the back room of
the shop. Mayes was drinking, which was unusual given the
time of day. Mayes told Solomon he had shot his wife. Mayes
had put the gun to her head and “was just trying to scare her and
it went off.” He said the gun was a “deuce-deuce.” Solomon had
seen the gun at the barbershop before. Mayes said he had
4
wrapped his wife’s body in a rug or blanket and put it in the
trunk of his gray Jaguar. Mayes told Solomon to say that Myers
“went walking off in the middle of the night” if anyone asked.
Mayes planned to “dismember her, like to try to dump her
somewhere.” Mayes left the shop by himself at some point that
day. He later told Solomon that he had dumped his wife’s body
on the side of the 710 freeway.
The next day, July 15, 2006, police officers came to the
barbershop. Solomon did not tell the police what he knew
because he was an active gang member at the time and did not
want to snitch. He also felt a sense of loyalty to Mayes.
Solomon spoke with detectives about Myers’s murder in
2010, when he was in jail for attempted murder. He was
“possibly” hoping that speaking to them would benefit him.
However, he told the truth and did not get a deal. Detectives
spoke to Solomon again in 2017 and he again told them the truth.
Solomon said he did not expect a deal at that time because he had
already been sentenced. His mindset was “doing the right thing.”
At the time of his trial testimony, Solomon was still in custody for
attempted murder and was serving additional time for later
charges. He did not have his sentence reduced for assistance he
provided in this or any other case.
Testimony of Mayes’s Former Private Investigator
When he was appointed, Mayes’s private investigator told
Mayes he would not convey personal messages.
On August 12, 2020, the investigator visited Mayes at the
Los Angeles County Jail. Mayes asked the investigator to deliver
a letter to Mayes’s mother. A deputy informed Mayes he could
not give the letter to the investigator. Mayes turned his back to
the deputy and put the letter in between other paperwork he was
5
providing to the investigator. The investigator notified the
deputy and handed over the envelope. The investigator later
provided the letter to the trial court and asked to be taken off the
case. The trial court granted his request.
Mayes’s letter asked his mother to call someone named
“Zay,” whom Mayes wanted his private investigator to interview
regarding the night of July 13, 2006. The letter laid out what
Mayes wanted “Zay” to tell the investigator: that “Zay” came to
the barbershop between 5:30 and 6:00 p.m., when Mayes and
Solomon were the only people working; “Zay” asked Solomon to
give him a tattoo while Mayes was cutting hair; “Raheem”
showed up and the group drank together; Solomon finished the
tattoo around 10:00 or 10:30 p.m.; “Raheem,” “Zay,” and Solomon
left at around 11:10 to 11:15 p.m. and Mayes went to sleep.
Physical Evidence
In September 2006, the Long Beach Police Department and
members of the Los Angeles Sheriff’s Department Forensic Team
executed a search warrant at Mayes’s barbershop. The Forensic
Team located a blanket in the back of the barbershop with blood
stains that were later determined to match Myers’s DNA.
The 2006 search of the shop also uncovered nine-millimeter
cartridges and various drugs. Mayes’s Jaguar was never
recovered.
Possession of Firearm by Felon
In 2019, the Long Beach Police Department conducted
surveillance on Mayes at the direction of homicide detectives.
Officers observed Mayes going in and out of an RV. Mayes used a
key to unlock the door and was by himself. Officers arrested
6
Mayes and searched the RV. They found Mayes’s barber’s license
and a backpack containing a loaded .45-caliber pistol.
Mayes was identified as one of four contributors to DNA
taken from the .45-caliber gun. Mayes’s probable percentage of
contribution of DNA was 10 percent for a swab taken from the
pistol grip, trigger, slide grip, and levers of the gun. Another
individual was identified as a “major contributor” of DNA, with a
probable percent of contribution of 97 percent for one swab and
72 percent for another.
Charges, Conviction, and Sentencing
In July 2022, the People charged Mayes with murder (Pen.
Code, § 187, subd. (a); count 1) and possession of a firearm by a
felon (id., § 29800, subd. (a)(1); count 2).2 With respect to count 1,
the information also alleged firearm enhancements pursuant to
section 12022.53, subdivisions (b) through (d).
A jury found Mayes guilty of second degree murder and
found that he personally and intentionally discharged a firearm,
causing great bodily injury and death in the commission of the
murder. It also found him guilty of possession of a firearm by a
felon. The court sentenced Mayes to an aggregate sentence of 40
years to life on count 1, consisting of 15 years to life on the
murder count, plus 25 years pursuant to section 12022.53,
subdivision (d). The court sentenced Mayes to the low term of 16
months on count 2.
Mayes timely appealed.
____________________
2 All undesignated statutory references are to the Penal
Code.
7
DISCUSSION
I. The Trial Court’s Denial of the Request To Sever
Counts 1 and 2 Was Not Prejudicial
Mayes argues that the trial court erred in denying his
motion to sever the murder and possession of a firearm by a felon
counts because the requirements for joinder under section 954
were not met, and the error was prejudicial under any standard.
We conclude any error was harmless.
A. Background
Mayes moved to sever the possession of a firearm by a felon
count from the murder count. He argued that the gun law
enforcement officers located in the RV in 2019 was not the
murder weapon and it had no relevance to the murder charge.
He further argued that by trying the counts together, the People
would be able to introduce the fact that Mayes is a convicted felon
during the case in chief.
The People argued the evidence that Mayes possessed guns
at other times was relevant to the murder charge because “the
fact that he possesses guns shows that he does have access to a
murder weapon.”
The court concluded count 2 “ha[d] potentially some
relevance to this case” and denied the motion.
B. Legal standards
Section 954 “provides in relevant part: ‘An accusatory
pleading may 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, and if two or more
accusatory pleadings are filed in such cases in the same court,
the court may order them to be consolidated.’ [Citation.] The
8
statute also provides that ‘the court in which a case is triable, 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.’
[Citation.]” (People v. Soper (2009) 45 Cal.4th 759, 769, fn.
omitted (Soper).)
“ ‘Offenses of the same class are offenses which possess
common characteristics or attributes.’ [Citations.]” (People v.
Landry (2016) 2 Cal.5th 52, 76; accord, People v. Koontz (2002)27 Cal.4th 1041, 1075
.) Offenses are connected in their commission for purposes of section 954 “ ‘ “if there is a common element of substantial importance in their commission, for the joinder prevents repetition of evidence and saves time and expense to the state as well as to the defendant.” ’ [Citations.]” (Alcala v. Superior Court (2008)43 Cal.4th 1205, 1218
(Alcala), italics
omitted.) The requirement “may be satisfied even though ‘the
offenses charged “do not relate to the same transaction and were
committed at different times and places . . . against different
victims.” ’ [Citations.]” (Ibid., italics omitted.)
“ ‘When . . . the statutory requirements for joinder are met,
a defendant must make a clear showing of prejudice to establish
that the trial court abused its discretion in denying the
defendant’s severance motion.’ [Citation.] ‘In determining
whether a trial court’s refusal to sever charges amounts to an
abuse of discretion, we consider four factors: (1) whether evidence
of the crimes to be jointly tried is cross-admissible; (2) whether
some charges are unusually likely to inflame the jury against the
defendant; (3) whether a weak case has been joined with a
stronger case so that the spillover effect of aggregate evidence
9
might alter the outcome of some or all of the charges; and
(4) whether any charge carries the death penalty or the joinder of
charges converts the matter into a capital case.’ [Citation.]”
(People v. Anderson (2018) 5 Cal.5th 372, 388–389.)
When the statutory requirements for joinder are not met,
but charges are nonetheless tried together, prejudice is measured
under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. McLain (1988)46 Cal.3d 97
, 105–106 (McLain); accord, People v. Saldana (1965)233 Cal.App.2d 24
, 30–31 [erroneous consolidation of cases will not result in reversal “unless there is such a miscarriage of justice as would violate article VI, section 4 1/2 of the California Constitution,” now art. VI, § 13].) “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, at p. 836.) The test is “based upon reasonable probabilities rather than upon mere possibilities.” (Id. at p. 837.)3 ____________________ 3 Mayes contends that the harmless beyond a reasonable doubt standard under Chapman v. California (1967)386 U.S. 18
applies. The portion of People v. Schuller (2023)15 Cal.5th 237
he relies upon concerns the failure to instruct a jury on an element of a charged offense, not improper joinder. (Seeid.
at pp. 260–261.) We further note that federal courts review misjoinder claims using the less strict “ ‘substantial and injurious effect or influence’ ” test under Kotteakos v. U.S. (1946)328 U.S. 750, 776
, not the Chapman test. (U.S. v. Lane (1986)474 U.S. 438, 449
.)
10
C. Analysis
The murder and possession of a firearm by a felon counts
did not satisfy the statutory requirements for joinder, as they
were not offenses of the same class and were not connected in
their commission. (See Walker v. Superior Court (1974) 37
Cal.App.3d 938, 940–941 [armed robbery and felon in possession
charges were not same class of crimes or connected in commission
where the weapon used in each crime was different and crimes
were separated by over three months].) Indeed, on appeal, the
People do not contend the offenses were properly joined under
section 954.
However, the failure to sever the counts did not result in a
miscarriage of justice. Even when offenses are improperly joined,
the factors that courts consider in determining whether a trial
court has abused its discretion in failing to sever the charges
remain instructive to assess whether it is reasonably probable
the defendant would have obtained a more favorable result in the
absence of joinder.4
____________________
4 “In determining whether a trial court abused its discretion
under section 954 in declining to sever properly joined charges,
‘we consider the record before the trial court when it made its
ruling.’ [Citation.]” (Soper, supra, 45 Cal.4th at p. 774.) However, we are not limited to evidence presented at the preliminary hearing when deciding whether improper joinder resulted in a miscarriage of justice. (McLain, supra,46 Cal.3d at p. 106
[“in view of the evidence adduced at trial,” it was not
reasonably probable the jury would not have found defendant
guilty of both charges had they been severed]; cf. Soper, at p. 784
[“[c]onsidering the proceedings as a whole” when deciding
whether joinder resulted in gross unfairness to defendant].)
11
First, it is undisputed that the evidence of the counts was
not cross-admissible in this case. Yet “even the complete absence
of cross-admissibility does not, by itself, demonstrate prejudice
from a failure to order a requested severance.” (Alcala, supra, 43
Cal.4th at p. 1221.)
With respect to the second factor, our Supreme Court has
cautioned that it is improper for the prosecution to use a lesser
but inflammatory crime to bolster its case on another more
serious crime. (See People v. Simon (2016) 1 Cal.5th 98, 124.) Here, the lesser crime of possession of a firearm by a felon was not inflammatory. Although the jury learned that Mayes was a felon, the nature of the prior felony was not disclosed. When instructing the jury on count 2, the court told the jury not to consider the fact of Mayes’s prior felony conviction for any other purpose and not to discuss or speculate as to the nature of the conviction. “ ‘We presume the jury followed these instructions.’ [Citation.]” (People v. Chhoun (2021)11 Cal.5th 1, 30
.)
In addition, the evidence that Mayes possessed a gun in
2019 was insignificant as a demonstration that he had access to
firearms, considering the jury heard evidence establishing that
Mayes had access to guns around the time of Myers’s murder.
There was testimony that law enforcement officers found nine-
millimeter cartridges at the barbershop during the September
2006 search; Garland testified that she had seen Mayes with a
gun before Myers’s death; and there was evidence that Mayes
accidentally shot himself at his barbershop in 2005.
With respect to the third factor, we consider whether “ ‘a
weak case has been joined with a stronger case so that the
spillover effect of aggregate evidence might alter the outcome of
some or all of the charges.’ ” (People v. Holmes, McClain and
12
Newborn (2022) 12 Cal.5th 719, 746.) Mayes argues that the
evidence of both crimes was weak. We disagree. With respect to
the possession charge, the gun had Mayes’s DNA on it and was
recovered from an RV, which Mayes accessed with a key. Mayes
was the only person to enter the RV during officers’ surveillance.
They found his barber license inside. That another person’s DNA
was also on the gun did not significantly undermine the
conclusion that the gun was in Mayes’s possession. As the court
instructed the jury, “two or more people may possess something
at the same time” and “it is enough that the person has control
over it or have the right to control it.”
While there was limited physical evidence presented in
support of the murder charge, the People proffered other
significantly incriminating evidence. Mayes confessed to
Solomon that he killed Myers hours after it happened. Solomon
had also heard Mayes and Myers arguing earlier and he
described hearing a loud sound from the back of the barbershop.
He saw Mayes leave the barbershop and, upon Mayes’s return,
Mayes disclosed that he had disposed of Myers’s body on the side
of the 710 freeway. This was where Myers’s body was later
found. While Mayes’s counsel vigorously attacked Solomon’s
credibility, his testimony was not the only evidence inculpating
Mayes. Garland’s testimony established that Mayes and Myers
had a tumultuous relationship involving physical abuse and that
Myers was with Mayes shortly before her death. Law
enforcement also found a blanket in the barbershop after the
murder with stains from Myers’s blood. This was not weak
evidence.
Further, there was little risk here of the cases “becom[ing],
in the jurors’ minds, one case which would be considerably
13
stronger than either viewed separately.” (Williams v. Superior
Court (1984) 36 Cal.3d 441, 454, superseded by statute on another ground, as stated inAlcala, supra,
43 Cal.4th at p. 1229, fn. 19
.) The court instructed the jury to consider each count
separately. More importantly, the nature of the two crimes was
entirely different, as was the evidence the People presented on
each crime. They took place 13 years apart and involved
different guns. As Mayes concedes, the prosecutor did not argue
to the jury that evidence that Mayes possessed a gun in 2019
suggested that he killed Myers in 2006, or vice versa.
It is not reasonably likely that Mayes would have obtained
a more favorable result in the absence of the trial court’s denial of
his motion to sever.
II. Any Error in Admitting Myers’s Statement
Concerning the Cause of Her Black Eye Was
Harmless
Mayes contends the trial court erroneously admitted
Myers’s out-of-court statement about the cause of her black eye.
We conclude any error in admitting Myers’s statement was
harmless under any standard.
A. Background
During her examination of Garland, the prosecutor asked
Garland about the time she saw Myers with a black eye. Garland
had questioned Myers about the injury and Myers was “upset,”
spoke in a “high-pitched voice,” and was crying. Garland stated
that Myers’s bruise “had gone down” but Garland could see “blood
clogging her eye.” The prosecutor asked whether Myers told her
the cause of the injury. Garland responded, “Her and [Mayes]
was [sic] fighting.” Mayes’s counsel objected on hearsay grounds.
The trial court initially sustained the objection. The prosecutor
14
replied, “1270,” presumably referring to the Evidence Code. The
court told the jury to disregard its instruction to strike the
answer and that the answer would remain. It denied Mayes’s
counsel’s request to be heard.
The prosecutor then questioned Garland about a time she
saw bruises elsewhere on Myers’s face. When Garland asked
Myers about the bruises, Myers’s demeanor was “upset” but she
was not speaking “at the top of her lungs or high pitched.” Myers
had been crying. The prosecutor asked what Myers told Garland
about the bruises. Mayes’s counsel again objected. The trial
court noted “it’s [Evidence Code section] 1240, not 1270,” and
noted it seemed that time had passed between the event Myers
described and the conversation Garland was recounting. The
court permitted the prosecutor to lay a foundation.
Garland did not know how long before the conversation
Myers had been injured but testified that the bruises seemed
fresh. The prosecutor asked whether Myers described how she
had been bruised. Garland replied, “It’s always fighting.” The
court sustained an objection from Mayes’s attorney. The
prosecutor instructed Garland to provide a “yes” or “no” answer.
Garland said, “Yes.” She stated that Myers continued to be upset
and emotional when she explained how it happened. The
prosecutor then asked Garland what Myers had told her. The
trial court sustained a defense objection.
The court later instructed the jury that the People
presented evidence of domestic violence that was not charged and
they could consider this evidence only if the People had proved by
a preponderance of the evidence that Mayes committed domestic
violence. If the jury concluded that Mayes had committed
domestic violence, it could, but was not required to, conclude that
15
he was inclined to commit domestic violence and was likely to
commit murder. The court instructed that the uncharged
domestic violence was only one factor to consider and was not
sufficient on its own to prove that Mayes was guilty of murder.
B. Analysis
“Evidence of a statement is not made inadmissible by the
hearsay rule if the statement: [¶] (a) Purports to narrate,
describe, or explain an act, condition, or event perceived by the
declarant; and [¶] (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such
perception.” (Evid. Code, § 1240.)
Mayes contends the trial court erred in admitting Myers’s
out-of-court statement explaining her black eye because there
was no indication the statement “[w]as made spontaneously
while the declarant was under the stress of excitement caused by
such perception,” under the factors set forth by our Supreme
Court. (Evid. Code, § 1240, subd. (b).) We need not decide
whether the statement satisfied the Evidence Code section 1240
admissibility requirements because, even if admitted improperly,
any error was harmless.
Myers’s statement was cumulative of other evidence the
court properly admitted. Garland testified that Myers and Mayes
had a “rocky” relationship, she had witnessed them arguing, and
she had twice confronted Mayes about injuries she saw on Myers.
Indeed, Garland testified that she told Mayes “to keep his hands
off [her] motherfucking child”; she would kill him if he did not
stop “putting his hands on [Myers]”; and “one day he was going to
kill [Myers].” This testimony was more provocative than Myers’s
statement that she had a black eye because she and Mayes had
fought. Moreover, although Solomon saw Myers only “briefly” at
16
the barbershop, he testified that Mayes and Myers were “[a]lways
angry, always fighting” and “grabbing, tussling” during those
times.
Mayes contends the error deprived him of due process
because “the evidence was subject to a much lower standard of
proof than proof beyond a reasonable doubt,” citing the
instruction on uncharged domestic violence. However, even
without Myers’s statement concerning the cause of her bruise,
there was ample evidence to support a jury finding that it was
more likely than not that Mayes had intentionally caused bodily
injury to Myers for purposes of the uncharged domestic violence
instruction.
III. The Trial Court Did Not Err in Excluding the
Recording of Mayes’s Reaction To News of Myers’s
Death
Mayes contends the trial court erroneously excluded a
recorded interview in which a detective told him Myers was dead
and Mayes said, “you’re lying,” then broke down crying. He
argues any statement made in the video was not hearsay and the
exclusion of the video, which showed consciousness of innocence
or remorse, deprived him of due process. The People concede that
the trial court erred in concluding the evidence was irrelevant
but argue that it was properly excluded under Evidence Code
section 352. We conclude the trial court did not err in excluding
the recording.
A. Background
Before trial, defense counsel informed the court that the
defense sought to admit a recorded interview of Mayes. The
video captured the moment a detective informed Mayes of
Myers’s death. Defense counsel explained the video showed that
17
Mayes’s “reaction was immediate and rather emotional.” Counsel
sought to admit it “not for the truth of [Mayes’s] statements” but
“to show [Mayes’s] reaction.” The prosecutor objected.
The trial court asked why the statement would not be
hearsay. Mayes’s counsel argued that it was an excited
utterance. He stated that the video showed the detective “start to
talk to [Mayes] about the death of his wife, and his response was
something to the effect of you’re joking, right? . . . [A]nd then all
of a sudden he breaks down in an emotional throe of tears . . . .”
Defense counsel played the video for the court. He
represented that Mayes was “whispering in the background,
you’re lying, you’re lying, you’re lying,” and argued the reaction
negated specific intent. The court requested the transcript and
video.
The trial court later ruled the video would not be admitted
because it was not relevant. The court indicated that it was
possible the “People may open the door or [it] may see the
relevance,” but excluded it for the time being. The matter was
not raised again.
B. Applicable law
“We review a trial court’s ruling excluding evidence on
grounds of irrelevance (Evid. Code, § 350) for abuse of discretion.”
(People v. Thornton (2007) 41 Cal.4th 391, 444.) “ ‘ “[W]e review the ruling, not the court’s reasoning and, if the ruling was correct on any ground, we affirm.” ’ [Citation.]” (People v. Brooks (2017)3 Cal.5th 1, 39
[affirming evidentiary ruling on different ground
than trial court relied on].)
Evidence Code section 350 provides that “[n]o evidence is
admissible except relevant evidence.” Under Evidence Code
section 352, “The court in its discretion may exclude evidence if
18
its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.”
Our Supreme Court discussed the admissibility of
consciousness of innocence evidence at length in People v. Cowan
(2010) 50 Cal.4th 401 (Cowan). In that case, the defendant
sought to admit evidence that he offered to “ ‘come down right
now’ ” and speak with a detective about a murder case, which he
argued showed a lack of consciousness of guilt. (Id. at p. 472.)
Our Supreme Court concluded the trial court did not abuse its
discretion in excluding this evidence. (Ibid.) In a long line of
cases, our high court had “held that evidence that the defendant
did not flee from a crime scene is inadmissible to show
consciousness of innocence, even though such evidence has ‘some
“tendency in reason” to prove this fact.’ [Citations.]” (Ibid.) “By
parity of reasoning, other consciousness of innocence evidence . . .
although relevant, properly may be excluded on the ground that
its slight probative value is outweighed by the risk of confusing
the issues.” (Id. at p. 473.) The court explained that “there are
numerous plausible reasons why a guilty person might offer to
talk to the police,” including a “desire to appear innocent, or . . .
to lie to the police to deflect suspicion from himself or to present a
false alibi.” (Ibid.) “Against such slight probative value, the risk
of confusing the issues or of delaying the trial is strong, since if
the evidence were admitted, the prosecution would have to be
given the opportunity to explain the circumstances surrounding
the defendant’s offer and to present evidence negating an
inference of innocence.” (Ibid.)
19
Our Supreme Court also rejected the defendant’s
contention that the exclusion of this evidence violated his federal
constitutional right to present a defense. (Cowan, supra, 50
Cal.4th at p. 473.) The trial court had “ ‘merely rejected certain
evidence concerning the defense’ ” and “defendant was not
otherwise precluded from presenting his defense through
admissible testimony and evidence.” (Id. at pp. 473–474.)
Finally, the Supreme Court concluded that if the trial court had
erred, it was harmless under any standard. “The proffered
evidence, although relevant to consciousness of innocence, was
‘less than compelling . . . since, if [defendant] had been involved
in [the] murder, it can be assumed he would have lied to a police
detective questioning him about it.’ [Citation.] The ambiguous
nature of the evidence thus counsels against any finding that its
exclusion affected the verdicts.” (Id. at p. 474.)
C. Analysis
The record indicates that, upon being told by a detective
that Myers was dead, Mayes responded “you’re lying” and began
to cry. We agree that Mayes’s statement was not hearsay
because it was offered for the nonhearsay purpose of showing
Mayes’s reaction to news of Myers’s death. According to Mayes,
this reaction showed consciousness of innocence and suggested he
was not responsible for Myers’s murder.
Nevertheless, for the reasons set forth in Cowan, evidence
of Mayes’s reaction was properly subject to exclusion under
Evidence Code section 352. There are many plausible reasons
why a person involved in the killing of a spouse would express
disbelief and cry upon being told he or she is dead, including a
desire to deflect suspicion and appear innocent. The inferences
arising from the evidence were ambiguous, and any minimal
20
probative value was outweighed by the risk of confusing the jury
or causing an undue consumption of time, as the prosecution
would have the opportunity to submit additional evidence
negating the inference of innocence.
Even if the court erred in excluding the evidence, any error
was harmless. We disagree with Mayes’s contention that the
evidence here was far more compelling proof of innocence than
the evidence in Cowan. As in Cowan, it can be assumed that
Mayes would have feigned shock and either feigned or
experienced strong emotions at being confronted with Myers’s
death, even if he was involved. Thus, it is unlikely that the
exclusion of this ambiguous evidence affected the verdicts.
Moreover, its exclusion did not deprive Mayes of the ability to
present a defense, as he was not otherwise precluded from
presenting his defense through admissible testimony and
evidence.
Mayes alternatively contends that his reaction to the news
that Myers was dead is evidence of remorse. He contends the
Supreme Court’s statement that “ ‘[u]nless a defendant opens the
door to the matter in his or her case-in-chief [citation], his or her
remorse is irrelevant at the guilt phase’ ” means that a defendant
may always introduce evidence of remorse in his or her case-in-
chief. (People v. Dykes (2009) 46 Cal.4th 731, 768 (Dykes).) We
disagree.
The issue before the court in Dykes was not whether
evidence of remorse is always admissible or even whether it was
properly admitted in that case, but whether the prosecutor
committed misconduct by eliciting inadmissible testimony about
the defendant’s absence of remorse from an officer who had
questioned the defendant. (Dykes, supra, 46 Cal.4th at p. 767.)
21
Thus, it does not support the proposition for which Mayes cites it.
(In re Chavez (2003) 30 Cal.4th 643, 656 [“[A] case is authority
only for a proposition actually considered and decided therein.”].)
Whether offered to show consciousness of innocence or remorse,
the evidence here was highly ambiguous and, under the
reasoning of Cowan, could reasonably be excluded.
IV. There Was No Cumulative Error Requiring Reversal
Mayes contends the cumulative effect of the alleged errors
deprived him of his federal due process right to a fair trial. “ ‘[A]
series of trial errors, though independently harmless, may in
some circumstances rise by accretion to the level of reversible and
prejudicial error.’ ” (People v. Cunningham (2001) 25 Cal.4th
926, 1009.) “The ‘litmus test’ for cumulative error ‘is whether defendant received due process and a fair trial.’ [Citation.]” (People v. Cuccia (2002)97 Cal.App.4th 785, 795
.) A judgment will not be reversed “absent a clear showing of a miscarriage of justice.” (People v. Hill (1998)17 Cal.4th 800, 844
.)
We have found no substantial error in any respect and
therefore reject Mayes’s claim of cumulative prejudicial error.
(People v. Butler (2009) 46 Cal.4th 847, 885; People v. Bradford (1997)14 Cal.4th 1005, 1057
[defendant is entitled to a fair trial,
not a perfect one].)
V. The Trial Court Did Not Abuse its Discretion in
Denying Mayes’s Request for a Continuance
Finally, Mayes contends the court erred in denying his
request for a continuance to prepare a motion for a new trial after
it granted his Faretta motion. We find no abuse of discretion.
A. Background
Mayes represented himself from at least early 2020 to
January 6, 2021, when he requested that the court appoint an
22
attorney to represent him. During that time, Mayes had access
to private investigators and the court granted him funds for a
DNA expert, who conducted testing on the blanket law
enforcement found in the barbershop.
The record indicates that Tina Montalvo discovered Myers’s
body in 2006 and, when interviewed in 2017 or 2019, she made
statements that may have assisted Mayes’s defense.5 On
January 6, 2021, Montalvo appeared to testify at Mayes’s
preliminary hearing, but the hearing was continued at Mayes’s
request. Subsequently, neither the People nor Mayes’s attorney
were able to locate her. In the middle of trial, defense counsel
made an oral motion under Serna v. Superior Court (1985) 40
Cal.3d 239, on the ground, among others, that he had been
unable to locate Montalvo despite “ma[king] every earnest effort
to find her,” and the loss of this potentially exculpatory witness
was because the case was “substantially old” by the time the
People brought it to trial. Defense counsel later filed a motion to
dismiss for denial of a speedy trial. Counsel argued that he and
his investigator had been unsuccessful in their efforts to locate
Montalvo because of the People’s delay. The trial court denied
the motion.
Mayes’s sentencing was originally scheduled for June 6,
2023. On June 6, defense counsel requested a continuance to
____________________
5 Montalvo originally told police at the scene that she had
walked past the location where Myers’s body was found around
midnight on July 15, 2006, and had not seen the body, but
discovered it several hours later in that location. Years later,
Montalvo said she had first seen Myers and a man arguing
outside a red four-door vehicle earlier in the evening, then later
she discovered Myers’s body. Montalvo was known to be
transient and she disclosed that she used drugs.
23
June 21 for sentencing and a hearing on the motion for new trial
that counsel had just filed on Mayes’s behalf. Mayes agreed to
waive time. On June 21, 2023, defense counsel informed the
court that Mayes wanted to resume in propria persona (pro. per.)
status. The court explained the disadvantages of self-
representation. Mayes confirmed that he understood and wished
to represent himself. The court found that Mayes had voluntarily
and knowingly waived his right to counsel and granted him pro.
per. status. Defense counsel provided Mayes with a copy of the
motion for a new trial and asked the court whether he was
relieved. The trial court replied: “Let me find out something from
Mr. Mayes. [¶] Mr. Mayes, are you ready to go forward?” Mayes
replied, “Yes, sir.” The trial court relieved Mayes’s counsel.
Immediately thereafter, Mayes told the court he wanted to
return in 30 days to argue the new trial motion and he intended
to bring a motion on different grounds, including ineffective
assistance of counsel.6 The court told Mayes it would give him
until the following Monday and stated that Mayes’s agreement
that he was ready to proceed was the “only basis on which [it]
granted [him] . . . pro per status.” The court later asked whether
Mayes wanted substitute counsel to be appointed to represent
him on the motion. Mayes confirmed that he wished to represent
himself.
The prosecutor argued that ineffective assistance of counsel
was not a ground for a new trial motion under section 1181. The
____________________
6 Mayes asserted he had “a lot of grounds” for his motion,
including “Fourth and Fourteenth Amendment Gerstein
violation,” “Fourteenth Amendment Napue violation,”
“Fourteenth Amendment Brady violation,” “Trombetta
Youngblood,” and a “Youngblood Brady.”
24
trial court stated it was “not inclined to put this matter over for
months and months and months on grounds that, frankly, aren’t
allowed under the statute.” It further expressed its belief that
Mayes had not “listed one ground that’s not raised in papers and
put in issue already that’s proper under 1181 of the Penal Code.”
It continued the hearing to the following week.
Mayes filed a motion for a further continuance which was
dated June 22 but file stamped on June 26, 2023. He argued that
he needed additional time to prepare his new trial motion
because the motion filed by his former attorney was “not
adequate & does not bring to light the constitutional deprivations
that led to an unfair trial. . . .” Mayes also stated that he was not
currently housed in the pro. per. housing unit and had not been
provided materials or an investigator.
On June 26, the court invited Mayes to argue the new trial
motion. Mayes explained that he had filed a motion to further
continue the hearing. He was seeking 45 days to prepare and file
another new trial motion. Mayes asserted he needed time to
research the law, procure witness affidavits, and add other
evidence to the record. The court asked what Mayes needed to
add to the record. Mayes argued that he needed to get affidavits
from Montalvo and from “Raheem” and “Blacky,” the two
individuals Solomon had testified were also at the barbershop on
the night of Myers’s death. He claimed that his former counsel
failed to elicit all the inconsistencies between Solomon’s
statements to detectives and his trial testimony. Mayes also
asserted that the prosecutor had committed misconduct in her
closing argument because he had phone records contradicting her
statement that he had not attempted to locate Myers.
25
The trial court denied the motion for a further continuance.
The court ruled the motion was not timely filed and, even if it
had been, there was not good cause to continue proceedings. The
court denied the motion for a new trial filed by defense counsel
and Mayes’s oral motion.
B. Applicable legal principles
“The determination of whether a continuance should be
granted rests within the sound discretion of the trial court,
although that discretion may not be exercised so as to deprive the
defendant or his attorney of a reasonable opportunity to prepare.”
(People v. Sakarias (2000) 22 Cal.4th 596, 646.) A trial court should “ ‘ “ ‘consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result . . . and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’ ” [Citation.]’ ” (People v. Panah (2005)35 Cal.4th 395, 423
.) “ ‘There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’ ” (People v. Crovedi (1966)65 Cal.2d 199, 207
, quoting Ungar v. Sarafite (1964)376 U.S. 575, 589
.)
Relying on People v. Hill (1983) 148 Cal.App.3d 744, Mayes
contends that once the trial court granted his Faretta motion, it
was required to also grant his request for a reasonable
continuance. We note that Hill is distinguishable from this case,
as Hill concerned a defendant’s request for a continuance to
prepare for trial after the court granted a Faretta motion on the
eve of trial. Here, Mayes’s request to represent himself came
after trial, and his request for a continuance was for additional
26
time to file a second motion for new trial. Moreover, in People v.
Jenkins (2000) 22 Cal.4th 900, 1039 (Jenkins), the Supreme
Court rejected the argument that if a court grants a motion for
self-representation, it must necessarily grant the defendant a
continuance, in all circumstances. In that case, the court found
the trial court did not deprive the defendant of due process by
denying his request for a continuance after the court granted his
mid-trial Faretta motion. (Ibid.)
The Jenkins court explained that not every denial of a
request for continuance violates due process, “ ‘even if the party
fails to offer evidence or is compelled to defend without
counsel.’ [Citation.]” (Jenkins, supra, 22 Cal.4th at p. 1039.)
“Even in a capital case, if the defendant cannot show he or she
has been diligent in securing the attendance of witnesses, or that
specific witnesses exist who would present material evidence,
‘[g]iven the deference necessarily due a state trial judge in regard
to the denial or granting of continuances,’ the court’s ruling
denying a continuance does not support a claim of error under the
federal Constitution.” (Id. at pp. 1039–1040.) Thus, the
propriety of denying a continuance is a fact-specific inquiry.
(Ibid.)
C. Analysis
Mayes argues that, because he was represented by counsel
and had no right to file his own new trial motion until he was
granted pro. per. status, his diligence can only be measured from
that time. However, in Jenkins, the Supreme Court explained
that the defendant was no more entitled to a continuance for
investigation and further preparation than his attorney, who had
unsuccessfully made such a request. (Jenkins, supra, 22 Cal.4th
at p. 1039.) The court also noted that the defendant “ ‘had a full
27
opportunity to prepare independently for trial even while he was
represented by counsel.’ [Citation.]” (Ibid.) Jenkins establishes
that a court may consider circumstances preceding the order
granting a defendant pro. per. status when deciding whether a
denial of a continuance supports a claim of error under the
federal Constitution.
In assessing Mayes’s diligence in developing the grounds
for a new trial motion, it is significant that Mayes previously
represented himself and had been appointed private investigators
for a period of approximately one year between 2020 and 2021.
Although the exact bases for his new trial motion were not
entirely clear, to the extent they required that Mayes obtain
statements from witnesses, the trial court could reasonably
conclude Mayes did not demonstrate he acted diligently in
obtaining that evidence. The witnesses he identified were known
to him even when he was in control of his own defense.
Further, while Mayes argued he needed a continuance to
attempt to obtain affidavits from Montalvo, “Raheem,” and
“Blacky,” he failed to demonstrate that these witnesses’ affidavits
would provide permissible grounds for a motion for new trial.
These individuals were not newly discovered. And considering
Solomon testified at trial, there is no reason to believe that he
would provide an affidavit contradicting his trial testimony. The
denial of a continuance to allow Mayes to obtain affidavits from
these individuals was not unreasonable and does not support a
claim of error under the federal Constitution.
Similarly, Mayes argues on appeal that he “also wanted to
present claims of lost or destroyed evidence, knowing
presentation of false testimony, and Brady violations.” Yet,
Mayes failed to demonstrate to the trial court that, to the extent
28
these claims were based on information he already had, a 45-day
continuance was reasonably necessary to present a new trial
motion based on them. Indeed, at least one Brady issue was
included in the motion for new trial defense counsel had already
filed. To the extent the claims required the gathering of evidence
Mayes did not possess, Mayes did not show there was specific
material evidence he sought to obtain, or that he had been
diligent in attempting to obtain the evidence. (See Jenkins,
supra, 22 Cal.4th at p. 1038 [continuance properly denied when
defendant did not demonstrate a continuance would be useful in
producing specific relevant evidence within a reasonable time].)
On appeal, Mayes identifies only one specific statutory or
nonstatutory basis for the new trial motion he sought to present,
the ineffective assistance of counsel. Mayes contends the trial
court erred when it denied the motion for a continuance on the
ground that ineffective assistance of counsel was not a proper
basis for the motion for new trial. We disagree.
The decisions of our Supreme Court establish that a trial
court may consider a claim for ineffective assistance of counsel in
a motion for new trial. Because “trial judges are particularly well
suited to observe courtroom performance and to rule on the
adequacy of counsel in criminal cases tried before them,” “in
appropriate circumstances justice will be expedited by avoiding
appellate review, or habeas corpus proceedings, in favor of
presenting the issue of counsel’s effectiveness to the trial court as
the basis of a motion for new trial.” (People v. Fosselman (1983)
33 Cal.3d 572, 582.) However, a trial court is well within its
discretion in declining to consider an ineffective assistance of
counsel claim in a motion for new trial if the claim is based
primarily on the attorney’s conduct outside of the courtroom.
29
(People v. Cornwell (2005) 37 Cal.4th 50, 101(Cornwell), disapproved on another ground by People v. Doolin (2009)45 Cal.4th 390, 421, fn. 22
.)
Mayes’s claim was based on defense counsel’s decision not
to call “Raheem” and “Blacky” as witnesses and his failure to call
out additional inconsistencies between Solomon’s trial testimony
and his interviews with detectives. Mayes asserted the
inconsistencies were apparent from materials that were not part
of the trial record. Mayes’s claim therefore appeared to rest
“primarily upon matters other than what the trial court could
have observed during trial.” (Cornwell, supra, 37 Cal.4th at
p. 101.) As such, the trial court reasonably concluded that
Mayes’s ineffective assistance claim would not be a proper subject
of a motion for new trial and was not good cause for a
continuance.
30
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EGERTON, Acting P. J.
HANASONO, J.
31