Opinion
In this matter, the prosecution moved under Penal Code section 790, subdivision (b) (section 790(b)),
I
Petitioner Rodney James Alcala was tried and sentenced to death in Orange County for the June 1979 kidnapping and murder of 12-year-old Robin Samsoe. This court reversed that judgment in People v. Alcala (1984)
Petitioner again was returned to Orange County for retrial on the charges relating to Robin Samsoe. In the meantime, an Orange County grand jury issued an indictment against petitioner on four additional counts alleging the murders of young women in Los Angeles County occurring between November 1977 and June 1979. The prosecution, relying upon section 790(b), moved to consolidate the Orange County (Robin Samsoe) case with the four murder charges arising from Los Angeles County. The trial court granted that motion and refused defendant’s request to sever the five murder charges. Petitioner sought relief in the Court of Appeal by way of an alternative writ of mandate or prohibition. The appellate court denied relief in part and granted in part; it concluded that joinder of all five murder charges was proper under the statute, but that retrial of the Robin Samsoe case in Orange County could proceed together with only two of the four Los Angeles County murder charges, and that the other two Los Angeles County murder charges would have to be tried separately. As noted above, we conclude that all five murder charges may be tried jointly in Orange County.
II
A. The Robin Samsoe case
The Court of Appeal provided a factual recitation, which in turn was based largely upon our recitation in Alcala II, supra,
A few minutes later, Robin and Bridget returned to Bridget’s home, where Robin borrowed Bridget’s bicycle to ride to her ballet class. Robin was not seen alive again. (Alcala II, supra, 4 Cal.4th at pp. 755-756.)
Dana Crappa was a seasonal worker for the United States Forestry Service stationed at Chantry Flats, an area near Sierra Madre in Los Angeles County. Later on the day Robin disappeared, Crappa, while driving in that mountainous area, came upon a Datsun F10 automobile parked at a turnout. Crappa saw a dark-haired man pushing or “ ‘forcefully steering’ ” (Alcala II, supra, 4 Cal.4th at p. 758) a blond-haired girl toward a dry stream bed. Although Crappa considered the scene strange, she took no action. The next day, as Crappa was returning to her barracks and passing the same area, she saw the same car parked near the original site and noticed what seemed to be the same dark-haired man leaning against a nearby rock. He appeared to have dirt or stains on the front of his T-shirt. Crappa believed there was something wrong with this scenario, but again took no action and told no one. (Id., at pp. 758-759; Alcala I, supra,
Five days after the original sighting, Crappa again returned to the scene. She discovered the mutilated and unclothed body of a young girl missing part of her head and whose hands and feet had been severed. She did not report this finding, nor did she reveal it to anyone, because she felt guilty about not having informed authorities what she had seen five days earlier. Four days later, Crappa returned to the scene and noticed a tennis shoe, shorts, and
In the interim, Robin’s companion, Bridget Wilvert, assisted a police composite artist in drawing a sketch of the man who took the girls’ photographs. That composite sketch was distributed by the media on or about June 22. Petitioner’s parole officer saw the sketch and believed it matched petitioner, particularly in light of matters known to the officer—such as petitioner’s aberrant sexual interest in young girls and his familiarity with the area in which the remains were found. (Alcala II, supra,
When petitioner visited his girlfriend, Elizabeth Kelleher, in Long Beach on June 22, his hair was long and curly. On June 23, the composite sketch was distributed throughout the area; on that same day, petitioner straightened his hair with the aid of a chemical product. On June 26, he cut his hair. On July 8, he told Kelleher he had decided to leave Southern California for Dallas, Texas, where he planned to establish a photography business. Kelleher accompanied defendant to the Monterey Park residence he shared with his mother to help him pack for the trip.
On July 11, defendant rented a storage locker in Seattle, Washington. When he returned to California three days later, he did not mention to anyone that he had been to Seattle, and instead told Kelleher he had been to Dallas. On July 23, defendant told Kelleher he would leave for Dallas on the following day—and he told another acquaintance he would leave for Chicago. (Alcala II, supra, 4 Cal.4th at p. 760.)
Petitioner was arrested on July 24, however, and a search warrant was served on the home he shared with his mother. The police impounded a Datsun F10 parked at the residence and registered to petitioner, inside of which the officers found camera equipment and a briefcase containing a set of keys. Inside the home, officers seized sets of Kane Kut kitchen knives and observed a receipt for a storage locker located in Seattle, Washington. One of
The Seattle storage locker was searched pursuant to a warrant. Police opened the locker’s two locks with keys found inside petitioner’s briefcase. Inside the locker, the officers discovered (1) a box of photographs, including photographic slides taken of Lorraine Werts (see ante, fn. 2) at the beach on the same day Robin disappeared; and (2) a cloth pouch containing several items of jewelry, including gold earrings that, according to the testimony of Robin Samsoe’s mother, often were worn by Robin and that she identified as her own. Samsoe’s mother based her identification of the earrings on a modification she had made by using her nail clippers to “trim” the earrings. The striations found on the earrings were consistent with marks made by the same nail clippers in a test. (Alcala II, supra, 4 Cal.4th at p. 761.)
Petitioner did not testify, but presented an alibi defense.
B. The four Los Angeles County charges
The relevant facts concerning the killings of four young women in Los Angeles County were set forth by the Court of Appeal below, and we adopt
In November 1977, the body of Jill Barcomb was found on a remote dirt road in the Hollywood Hills, essentially nude.
Barcomb stood no more than five feet tall and weighed about 95 pounds. Swabs of fluid taken from her genital area were preserved. Subsequently, the development of DNA typing techniques led to a comparison being made between the DNA in the sperm found in the swabs and that of petitioner. The samples matched, with a random correspondence occurring only once in 100 billion.
In December 1977, Georgia Wixted resided alone and was employed as a nurse. In the early morning hours she gave her girlfriend, Barbara Gale, a ride home from a bar. Gale expected to see Wixted at work the next day. After she failed to appear, law enforcement officers who went to her Malibu apartment found her dead on the floor of her bedroom. She was naked, lying on her back, with a bedspread partly under her; a nylon stocking was wrapped around her neck several times and so tightly knotted that a furrow was carved into the cartilage. She had died of strangulation and massive head injuries: Her skull had been bashed, probably with a hammer lying nearby. Her face also had been struck, and her genitals were mutilated. The contents of her purse were strewn around the bathroom; the cabinet drawers throughout the apartment were open and their contents in disarray, and there was evidence of forced entry.
Swabs of fluids were taken from the victim’s anus, and a palm print was lifted from the bed’s brass railing. DNA analysis of fluids from the swabs matched petitioner’s DNA, with a random correspondence occurring only once in one trillion. The palm print later was compared with petitioner’s, and likewise matched.
In June 1979, a few days before Robin Samsoe’s disappearance, Jill Parenteau left her place of employment early to attend a baseball game. She failed to appear for work the next day. When the police went to her Burbank apartment, they discovered evidence of a forced entry and her body on the floor of the bedroom. She had been beaten about the face and head. Parenteau had deep wounds to her vaginal and rectal areas, and fingernail scratches on her breast. She had been strangled and had suffered severe hemorrhaging throughout the area of her thyroid, voice box, and epiglottis. Her legs were spread apart; her body, completely nude, appeared to be posed with pillows propped up under the shoulders.
Swabs of fluids were taken from her genitals and her mouth. Only the oral swab revealed any seminal fluid, and the only testing undertaken was to define the serological characteristics of the contributor. That test revealed that petitioner could not be excluded from having deposited the fluid, and that the combination of serological factors was rare—it would be present in only 3.5 percent of the population.
One of Parenteau’s friends, Katharine Bryant, testified she recognized petitioner. Bryant and Parenteau had gone “clubbing” one evening less than one month prior to Parenteau’s death, and had encountered petitioner. They had seen him and socialized with him at a club on more than one occasion.
All of the DNA and related testing concerning the Los Angeles County charges was performed between 2001 and 2003. A further test was conducted on pieces of jewelry found in the cloth pouch retrieved from petitioner’s storage locker in Seattle. One pierced earring—other than the gold earrings recognized by Robin’s mother—was in the shape of a rose. DNA testing was performed on this earring, revealing that fluids from Lamb (matching with a random correspondence occurring less than once in 100 billion) remained present on the earring, even after the passage of more than 20 years.
Section 790, subdivision (a), long has provided that jurisdiction for a criminal action for murder lies “in the county where the fatal injury was inflicted or in the county in which the injured party died or in the county in which his or her body was found.”
Senate Bill No. 469 (1997-1998 Reg. Sess.) (Senate Bill No. 469) was enacted in 1998 to address these problems by adding section 790(b), the statute at issue in the present case. (Stats. 1998, ch. 549, § l.)
We begin with the language of the statute, affording the words their ordinary and usual meaning and viewing them in their statutory context. (People v. Watson (2007)
The People read section 790(b) as allowing a single joint trial of inter-county murder charges accompanied by a multiple-murder special-circumstance allegation so long as one substantive condition is met: “the charged murders are ‘connected together in their commission,’ as that phrase is used in Section 954.” Petitioner, however, divines in section 790(b) another, and preliminary, substantive condition. Focusing on the phrase “and for any crimes properly joinable with that murder,” (italics added) he asserts the statute should be read to require not only that joined murder charges be “ ‘connected together in their commission,’ as that phrase is used in Section 954,” but also that the murders each be “part of a common plan or scheme.” (Italics added.)
For the reasons that follow, we agree with the People’s construction of the statute. By its terms, section 790(b) specifies that jurisdiction for the trial of any charged murder shall lie in any county that has jurisdiction “pursuant to subdivision (a) [of section 790] for one or more of the murders charged in a single complaint or indictment as long as the charged murders are ‘connected together in their commission,’ as that phrase is used in Section 954.” (Italics added.) As explained below, we reject petitioner’s competing interpretation, because we find it more reasonable to construe the statute’s “properly joinable” language as merely providing that, with respect to the charged murders, any other crimes (such as rape, kidnapping, etc.) that are “properly joinable” with a given murder charge also may be charged and tried along with that murder. We do not read the statute as imposing any substantive requirement other than that the charged murders be “ ‘connected together in their commission,’ as that phrase is used in Section 954.” (§ 790(b).)
Although petitioner cites no decision supporting his view that the statute also requires that the joined murders be “part of a common plan or scheme,”
As amended a few months after its introduction in February 1997, Senate Bill No. 469 would have conditioned joinder of intercounty murder charges upon a finding of cross-admissibility; the amended bill provided for joinder “if evidence of one or more of the charged murders would be admissible in separate trials of the other charged murders pursuant to subdivision (b) of Section 1101 of the Evidence Code.”
In rejecting a requirement that one or more of the charged murders be cross-admissible, in favor of the “connected together in their commission” language in section 790(b), the Legislature embraced a broad test that had been applied in numerous cases construing section 954.
This history, culminating in the Legislature’s adoption in section 790(b) of the broad and long-construed “connected together in their commission” test from section 954, provides no support for petitioner’s argument that we should read section 790(b) as requiring, in addition, that the charged murders be “properly joinable” with each other in some manner beyond the requirement that they be connected together in their commission. Nor do we
We proceed to address the question whether, applying the “connected together in their commission” test to the five murders charged, there exists a “common element of substantial importance in their commission.” (Scott, supra,
Moreover, in addition-to the common evidence described above, as the Court of Appeal observed, the intent or motivation to brutally kill young females also ties all of the crimes together. As we held in Mendoza, supra,
Petitioner asserts intent or motivation cannot constitute a “common element of substantial importance,” and, instead, only physical or objectively measurable factors, such as use of a specific individual weapon, can suffice. As shown by Mendoza, supra,
IV
As we often have observed, because consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by the law. (People v. Geier (2007)
A trial court’s denial of a motion for severance of charged offenses amounts to a prejudicial abuse of discretion if the “ ‘trial court’s ruling “ ‘falls outside the bounds of reason.’ ” ’ ” (People v. Ramirez (2006)
A. Cross-admissibility of the evidence in separate trials
We frequently have observed that if evidence underlying the offenses in question would be “cross-admissible” in separate trials of other charges, that circumstance normally is sufficient, standing alone, to dispel any prejudice and justify a trial court’s refusal to sever the charged offenses. (Carter, supra,
As explained in People v. Ewoldt (1994)
Petitioner asserts in his opening brief that only identity, and not intent, is at issue in these proceedings. Certainly, identity is one of the matters in dispute, but it is not the only one. As the People observe, at petitioner’s first trial he argued that the evidence was insufficient to support a finding of deliberate and premeditated first degree murder. (Alcala I, supra,
As we noted in Ewoldt, supra,
The evidence underlying the Orange County and Los Angeles County charges supports a conclusion, by a preponderance of the evidence, that petitioner was the perpetrator in each,
As the People observe, we addressed a similar situation in Kraft, supra,
Our accommodating analysis in Kraft, concerning the similarity required in order to prove the existence of a common scheme or plan, applies all the more to the use, in the present case, of other charged crimes in order to prove intent—which, as noted, requires an even lesser degree of similarity among the offenses. We conclude that the evidence linking petitioner to all five charges—and underlying each of those charges—satisfies the standard we articulated in Ewoldt, supra,
B. Whether some of the charges are likely to unusually inflame the jury against defendant
The sexual assaults and murders at issue in the Los Angeles County cases certainly are aggravated charges—but we conclude they are not “unusually likely to inflame” a jury that, in any event, properly will hear testimony concerning the abduction and brutal murder of Robin Samsoe, a vulnerable 12-year-old girl whose unclothed body was found with her face smashed in. The evidence underlying each of the five charges is “similar in nature and equally gruesome.” (Carter, supra,
C. Whether a weak case has been joined with a strong case or with another weak case so that the total evidence unfairly may alter the outcome of some or all of the charges
The evidence underlying the four Los Angeles County murder charges— supported in three cases by DNA evidence, and in the fourth by serological evidence and eyewitness testimony connecting petitioner to victim Jill Parenteau less than one month prior to her murder (a crime that, as noted, occurred only a few days before Robin Samsoe disappeared)—clearly is strong. On the other hand, we doubt that the evidence in the Orange County case, even as it existed at the time of the first two trials, ever properly could be described as weak. (See Alcala II, supra, 4 Cal.4th 742, 755-764.) But
As the People observe, throughout the Samsoe proceedings there has been a recurring dispute concerning whether earrings found in a jewelry pouch in petitioner’s Seattle storage locker belonged to Robin’s mother, had been “trimmed” by her, and were worn by Robin at the time of her disappearance. Petitioner has claimed those earrings as his own, but the prosecution’s expert testified that they exhibited a pattern of striations similar to those produced by nail clippers belonging to Robin’s mother. This evidence, although disputed by a defense expert, supports an inference that petitioner took the earrings from Robin Samsoe and kept them as a trophy from her killing. More recently, pending retrial of the Orange County case, it was discovered that another earring in the same pouch contains DNA matching that of Los Angeles County victim Charlotte Lamb. The People assert: “This newly discovered fact makes the Lamb murder especially probative in the Samsoe case, insofar as it tends to show that the jewelry pouch was indeed a trophy” container, and hence further identifies petitioner as the person who killed Robin. The People continue: “The evidence is even more compelling [because] it shows that [petitioner] lied when he testified, and wrote in his book,[
We agree that the Lamb earring evidence, which appears to significantly undermine petitioner’s prior claims that the “Samsoe earrings” are his own and never belonged to Samsoe, is clearly relevant—and also appears to be cross-admissible for the same purpose at a separate trial on the Samsoe charges. (See ante, fn. 17.) Accordingly, it appears that the evidence of petitioner’s guilt of the Samsoe charges is quite strong—and hence that a joint trial of all five changes would not unfairly merge weak and strong cases.
D. Whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case
The People argue that because the Samsoe case carries its own death-qualifying special-circumstance allegation (murder during the commission of kidnapping) and each of the four Los Angeles County charges also alleges several special circumstances, this case does not present a situation in which
As we observed in Arias, supra,
V
The Court of Appeal concluded that trial should proceed on the Orange County charges, joined with two of the Los Angeles County charges (Lamb and Parenteau), but that the other two Los Angeles charges (Wixted and Barcomb) must be severed. In so concluding, the appellate court found that the latter two cases possess fewer “marks of similarity” compared with the three other charges, and it accepted petitioner’s assertion that a single trial of all five murder charges, at which he would face the DNA and serological evidence described above, would be “potentially unfair.”
We agree with the People that the appellate court’s conclusion in this respect fails to accord proper deference to the exercise of discretion by the trial court and cannot be squared with the requirement that a petitioner challenging a trial court’s refusal to sever properly joined charges has the burden of making a clear showing of prejudice resulting from the joinder. (See People v. Balderas (1985)
The judgment of the Court of Appeal is reversed. A single trial on all five murder charges may proceed in Orange County.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
On June 18, 2008, the opinion was modified to read as printed above.
Notes
All further statutory references are to this code unless otherwise indicated.
Several other young girls at the beach were approached by petitioner, who sought to photograph them. In each instance, someone was able to identify petitioner as the man taking pictures of young girls in bikinis. Petitioner also was identified by Richard Sillett, a survey party chief for the Huntington Beach recreational area. He recalled observing petitioner carrying a 35-millimeter camera with a telephoto lens, an item of particular interest to Sillett. One young woman, Lorraine Werts, was on a beach adjacent to that occupied by Samsoe and Wilvert on the same day Samsoe disappeared. Petitioner took several pictures of Werts in her bikini. (Alcala II, supra, 4 Cal.4th 742, 757.) As explained post, after petitioner’s arrest the police discovered, in a storage locker rented by him in Seattle, Washington, various items of evidence—including slide photographs of Werts.
Petitioner’s sister spoke with him by telephone following his arrest, after which she went to the home, retrieved the receipt, and gave it to petitioner’s mother. The receipt could not be found thereafter. (Alcala II, supra, 4 Cal.4th at p. 761, fn. 7.)
Although petitioner did not testify at the guilt phase of the second trial, he testified at the penalty phase concerning his alibi. (Alcala II, supra, 4 Cal.4th at p. 766.) He admitted molesting a child in 1972—and serving time in prison for that offense—and assaulting Tali S., one of three child molestation victims the prosecution presented at the penalty phase to prove he committed other, uncharged crimes. Petitioner likewise admitted possessing child pornography, which resulted in his serving additional time in custody for a parole violation. He further admitted raping and beating another 15-year-old girl, Monique H. Nonetheless, petitioner appealed to the jury to send him to prison for life, arguing that in prison he would be “ ‘absolutely harmless’ ” and not “ ‘a threat to children.’ ” (Id., at pp. 766-767.)
The only clothing on her body was a sweater and top that were pulled up around her shoulders. The rest of her body was entirely exposed.
The statute continues: “However, if the defendant is indicted in the county in which the fatal injury was inflicted, at any time before his or her trial in another county, the sheriff of the other county shall, if the defendant is in custody, deliver the defendant upon demand to the sheriff of the county in which the fatal injury was inflicted. When the fatal injury was inflicted and the injured person died or his or her body was found within five hundred yards of the boundary of two or more counties, jurisdiction is in either county.” (§ 790, subd. (a).)
A June 23, 1998, report by the Assembly Committee on Public Safety sets forth the purpose of the bill: “According to the author, ‘Serial killers who go on bmtal killing rampages do so without consideration of county lines. However, under current law, if a serial killer commits murder in more than one county, he must be tried separately in each jurisdiction. This results in astronomical and unnecessary costs for both prosecutors and defendants. In addition to the waste of public resources, it is unfair to victims’ families who must testify repeatedly about the same crime in different trials. []Q Senate Bill 469 would allow for the consolidation of murder charges into a single trial for serial killers who are charged with murder in more than one county as long as the murders are connected in their commission. This bill would alleviate the fiscal burden of redundant trials and lessen the emotional strain on victims, [f] Recent multiple-county murder defendants include “The Freeway Killer” (William Bonin), “The Night Stalker” (Richard Ramirez), and “The Trailside Killer" (David Carpenter).’ ” (Assem. Com. on Public Safety, Rep. on Sen. Bill No. 469 (1997-1998 Reg. Sess.) as amended June 17, 1998, pp. 1-2.)
The statute continues: “If the charged murders are not joined or consolidated, the murder that was charged outside of the county that has jurisdiction pursuant to subdivision (a) shall be returned to that county.” (§ 790(b).)
Evidence Code section 1101 is quoted post, footnote 12.
Section 954 provides in full: “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. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, 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. An acquittal of one or more counts shall not be deemed an acquittal of any other count.”
With the adoption of Proposition 115 by initiative in 1990, section 954.1 was added, providing: “In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, 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.” (Italics added.) As we observed in People v. Zambrano (2007)
Decisions such as Ewoldt are relevant to the analysis governing admissibility, but both the burden of proof relating to admissibility and the assessment of prejudice are different in the context of properly joined charged offenses. In the situation of uncharged offenses, the People have the burden of establishing admissibility. (Bean, supra,
Evidence Code section 1101 provides: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. H] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
We contrasted this with the degree of similarity needed to demonstrate two other matters—“common design or plan” and identity: “A greater degree of similarity is required in order to prove the existence of a common design or plan. [When offered for that purpose], evidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ (2 Wigmore, [Evidence] (Chadbourn rev. ed. 1979) § 304, p. 249, italics omitted.) ‘[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity.’ (Id., at pp. 250-251, italics omitted; see also 1 McCormick[ on Evidence (4th ed. 1992)], § 190, p. 805.) [f] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. ... [ID The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. (People v. Miller [(1990)]
As explained in People v. Carpenter (1997)
We observed: “In denying the severance motion, the trial court in this case noted most of the evidence on the various charges would be cross-admissible. Defendant disputes that conclusion. We find his arguments unpersuasive. In a trial on each individual murder count, evidence of the other charged murders generally would have been admissible to show defendant committed the charged murder as part of a common scheme or plan, which was relevant to the element of intent. (Evid. Code, § 1101, subd. (b); Pen. Code, § 187.) The victims shared certain characteristics, all being White males between the ages of 18 and 25, all but one being single, and most being, at the time of the offense, vulnerable by virtue of lack of transportation. The method of obtaining control over the victims was similar in most of the charged offenses: Defendant generally supplied the victims with alcohol and drugs, often diazepam, to the point they could no longer resist, whereupon defendant generally bound their wrists with ligatures, frequently using shoelaces. After gaining control over the victims in such a manner, unless they were already succumbing from the effects of the drugs, defendant killed them, often by ligature strangulation. After the victims’ deaths, defendant disposed of the bodies generally by dumping them from his car, usually on or near a freeway or other roadway. And each murder involved some type of arguably sexual activity or aberration, whether taking the form of sodomy, mutilation or stripping the victim of clothing.” (Kraft, supra, 23 Cal.4th at pp. 1030-1031, italics added.)
In upholding the trial court’s refusal to sever the 16 murder charges from each other, we rejected the defendant’s contention that “the evidence in each charged murder had to be so similar as to establish a distinctive ‘signature’ for cross-admissibility under the common plan theory pursuant to Evidence Code section 1101, subdivision (b).” We reiterated our holding in Ewoldt, supra, 1 Cal.4th 380, 403, that “a lesser degree of similarity is necessary to admit evidence of other offenses to prove a common design or plan than to prove identity.” (Kraft, supra, 23 Cal.4th at pp. 1031-1032.)
At this stage in the proceedings—prior to trial (joint or otherwise)—we cannot determine whether the Los Angeles County charges actually would be admissible at any separate trial on the Samsoe charges. In order to make that determination, a trial court would need to undertake an analysis, informed by evidence adduced or proffered at a separate (and theoretical) new trial of the Samsoe charges, focusing upon probative value versus prejudice under Evidence Code section 352. (See ante, fn. 11.) That form of section 352 analysis, however, cannot be undertaken by an appellate court at the present stage of the proceedings, because we do not know what evidence would be adduced at a separate trial; we can only assume that the evidence would be similar to that presented in the prior Samsoe trials, and to the information concerning the Los Angeles County charges presented to the grand jury. Nevertheless, that limited information is sufficient to allow us to make an assessment concerning cross-admissibility, for purposes of severance analysis. As noted earlier, the party seeking severance of properly joined charges bears the burden of establishing that the trial court abused its discretion in declining to sever charges for trial. Petitioner “must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial.” (Arias, supra,
Finally, the circumstance whether the evidence, if admissible, might be admissible “the other way”—that is, whether the evidence underlying the Orange County charge could be admissible
As observed by the Court of Appeal below, after his retrial, but prior to the DNA testing that linked him to the Lamb homicide, petitioner authored a book in which he “expressed] his ownership of all the jewelry items found in the pouch.” (Italics added.)
Although we suggested in Williams that when “one of the charged crimes is a capital offense, ... the court must analyze the severance issue with a higher degree of scrutiny and care than is normally applied in a noncapital case” (Williams v. Superior Court, supra,