On appeal from a conviction for selling cocaine, appellant Rodney Jerome Conerly contends the trial court abused its discretion in denying his motion to sever his trial from that of his codefendant. He also challenges the sufficiency of the evidence supporting his conviction. We reject these challenges to the conviction but shall modify the judgment to strike certain sentence enhancements the trial court stayed following their imposition.
Factual and Procedural Background
During the evening of February 2, 2007, a team of Oakland police officers was conducting a series of narcotic “buy-bust” operations in which certain officers would arrest drug dealers after undercover officers bought narcotics on the street. Two of the undercover officers, Francisco Martinez and Eric Barangan, were working together in the same car.
As Officer Martinez was driving in an area known for drug dealing, he saw four men standing in front of a liquor store. Officer Barangan had seen only two men in the vicinity of the liquor store, although he acknowledged it was possible there were additional people going in and out of the store during the buy-bust operation. Officer Martinez made eye contact with one of the men and waved at him. The man maintained eye contact, nodded his head up and down, and waved to the officer to come over. In court, Officer Martinez identified the man as appellant.
Officer Martinez pulled his car over to the side of the road, about 20 to 30 feet away from where appellant was standing. He exited the vehicle and approached appellant, who asked, “What do you want?” The officer replied that he wanted a “solid,” which is a common street term for a $20 or $25 piece of rock cocaine.
Appellant then pointed to a man standing nearby, whom Officer Martinez identified at trial as Rakim Washington, also known as Jerry Palms. Appellant told Officer Martinez to follow Palms around the comer. Officer Martinez followed Palms around the comer and once they stopped, Palms told Officer Martinez to hold out his hand, then sprinkled small pieces and crumbs of an off-white, rocklike substance into the officer’s hand. Officer Martinez gave Palms a single $20 of “controlled currency,” which is money that has been photocopied for identification purposes. The substance was later determined to be .34 grams of cocaine base. Officer Martinez gave an “arrest signal” to Officer Barangan as he was walking back to the car.
The Alameda County District Attorney filed an information charging appellant and Palms with the sale of cocaine. (Health & Saf. Code, § 11352, subd. (a).) The district attorney also alleged that appellant had seven prior felony convictions. The first prior conviction was alleged as a prior narcotics conviction under Health and Safety Code section 11370, subdivisions (a) and (c). The second prior conviction was likewise alleged as a prior narcotics conviction (Health & Saf. Code, § 11352, subd. (a)), and was further alleged to come within the purview of Penal Code section 1203.07, subdivision (a)(ll), and Health and Safety Code section 11370.2, subdivision (a). The third prior conviction was alleged under Penal Code section 4532, subdivision (a)(1), as an escape from custody while misdemeanor charges were pending. The last four prior conviction allegations were made under Penal Code section 667.5, subdivision (b), as one-year enhancements for separate prior prison terms served for a felony conviction. In addition, the fifth prior conviction was alleged as a strike. (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The information also contained four prior conviction allegations against Palms.
Appellant and Palms were jointly tried before a jury. At trial, Officers Barangan and Martinez each made an in-court identification of appellant as the person whom Officer Martinez first contacted during the drug sales transaction. Officer Martinez identified appellant with 100 percent certainty.
An expert witness testified that some drug transactions involve two players. One player, identified as the “director,” initially interacts with the prospective customer and directs him to the other player, who actually sells the drugs. When the expert witness was given a hypothetical based on Officer Martinez’s testimony describing the interaction with appellant and Palms, he stated that he would consider the person asking, “what do you want,” to be a director.
The jury found appellant guilty of selling cocaine. The court dismissed the first and third prior conviction allegations on the prosecutor’s motion. The court found true the allegations of the remaining prior prison term and prior conviction allegations, including the allegation that appellant had suffered a prior strike.
Discussion
I. Motion to Sever
Appellant contends the court erred in denying his motion to sever his case from that of his codefendant, Palms. He asserts that Palms would have testified in his favor had such a motion been granted, assuming that the trial of Palms were conducted first. For the reasons that follow, we conclude there was no abuse of discretion in denying appellant’s request to sever.
A. Facts
Before trial, the prosecutor had offered that both appellant and Palms could plead guilty and each receive a three-year sentence. The offer was a “package deal” that had to be accepted by both defendants. Palms was willing to accept the offer but appellant rejected it.
During jury selection, appellant’s attorney complained that Palms was being prevented from pleading guilty because the prosecutor’s offer was valid only if both defendants accepted it. The court interrupted counsel and informed Palms that he had the right to plead guilty and admit the priors but that the plea would be “open,” thus exposing Palms to the maximum sentence of 17 years. 1 Palms answered that he understood.
Appellant’s attorney stated that while no promise had been made that if Palms pleaded guilty he would be sentenced to three years, “there was discussion that if this case goes to trial, he intend[ed] to plead prior to the deliberations, thus allowing him to get the three years and enabling the DA to prevent him from testifying on his own behalf and on behalf of [appellant].” He added that Palms was “willing to explain to the Court and to the jury that [appellant] was not present that evening, had nothing to do with this, and he
In response, Palms’s attorney acknowledged that “apparently” Palms had been telling appellant “in the holding tank that he’s going to exonerate [appellant] out at trial.” He mentioned Palms had been injured in the freeway collapse during the Loma Prieta earthquake and still apparently suffered mental effects from the injuries he incurred. He then stated; “I just do not feel comfortable in letting him get up on the stand and testify. I’m not—I have to take control of this situation on behalf of him and help him through this as best I can. He does not wish to testify. He does not wish to subject himself to a 17-year prison sentence. So I will leave it at that.” (Italics added.)
Appellant’s counsel orally moved to sever the cases on the basis that a joint trial would result in an inability to present Palms as an exculpatory witness. Palms’s attorney expressed no objection to the motion. When the court inquired whether Palms would be willing to testify on appellant’s behalf, Palms’s attorney responded, “Well, which trial would go first?” The court answered that appellant’s case would go first because he was the “A” defendant. Although Palms’s counsel stated his client indicated he wanted to testify on behalf of appellant, the attorney also made clear the offer to testify was conditioned on Palms receiving a three-year sentence, stating: “I have no problem with Mr. Palms testifying on behalf of [appellant], as long as Mr. Palms is not punished, or, you know, I don’t want to lose that three years. That’s the big reason why I don’t want to let him get on the witness stand and testify. So if that three-years sentence is going to be in jeopardy because he has testified for [appellant], then no, I’m not going to go along with it. But there is a way to go around it. You could probably try Mr. Palms—well, try Mr. Palms first and sentence him, and then have [appellant’s] trial.” Appellant’s counsel agreed that Palms should be tried first.
After further discussion, the court stated: “We’re at the same position we were before, which is there’s an offer. If they don’t take the offer, which is a package deal, they have to plead open, [¶] . . . [¶] Nothing’s changed. That’s the situation. Both plead or plead open.” The court returned to its original question, which it posed to counsel for Palms, “Is he going to testify for [appellant]?” After the court confirmed there was no assurance Palms would receive a three-year sentence, Palms’s counsel responded, “In that case, I am not going to let Mr. Palms testify at [appellant’s] trial.” The court denied the oral motion to sever.
Palms’s attorney then stated that he had never authorized appellant’s counsel to speak to Palms and that “Mr. Palms should not be held accountable for any statement that he makes in a holding cell. That conversation should not have been taking place.” He then stated that Palms would not testify unless he was assured of receiving a three-year sentence. The court noted that “[o]nce an offer is not accepted prior to trial, I will not accept any offer except pleading open.”
Appellant’s counsel stated that Palms had said “in open court” that he would testify if he could get a three-year sentence. 2 Appellant’s counsel then asked the court to inquire directly of Palms whether he would testify on behalf of appellant if the cases were severed. The court rejected the suggestion, indicating it would not be proper to invade the attorney-client relationship over the objection of Palms’s counsel, who had already made a representation about what his client was willing to do. The court then denied the renewed motion to sever.
While the jury was deliberating, Palms pleaded no contest to a violation of section 11352 and admitted his four prior convictions. The plea was “open” in that there were no promises made to Palms in exchange for his plea. Palms indicated that he understood he could face up to 17 years in prison as a result of his plea.
Appellant’s counsel then moved for a mistrial, contending he was denied the opportunity to call the witnesses he would have liked to have called. Although the court did not expressly deny the motion, it stated, “I think your record is clear. In renewing, it will make it very clear for appellate purposes your position.” Shortly thereafter, the jury returned a verdict finding appellant guilty of selling cocaine.
Subsequently, appellant moved for a new trial on the basis that the court had erred in failing to allow him to submit the testimony of Palms. Accompanying the motion was a notarized declaration from Palms in which he stated he would testify that he did not know appellant before the arrest, and that he had made a statement to that effect in open court before trial started. 3 The declaration further indicated that Palms was willing to testify on appellant’s behalf “[n]ow that the trial has concluded.”
In denying the motion, the trial court characterized what appellant was trying to do as “manipulating the system” by engineering a situation in which Palms would testify only after he had already been sentenced and there was no further penal consequence associated with his admission of guilt and exoneration of appellant. The court rejected appellant’s contention there was a tacit understanding that Palms would receive three years if he entered a plea before the verdict was returned.
B. Propriety of “Package Deal”
Appellant contends “[t]he court abused its discretion by endorsing the prosecution’s manipulation of the package offer and in not granting appellant’s motion for severance.” The implication is that the package offer was somehow improper or amounted to prosecutorial misconduct. Appellant’s attack on the package plea offer lacks merit.
To show misconduct, appellant must demonstrate that the prosecutor did something entirely unnecessary to the proper performance of her duties to transform a willing witness into an unwilling one. (See
People v. Lucas
(1995)
In cases where multiple defendants are charged with a crime, it is often the case that the evidence more strongly implicates the involvement of one of the individual defendants. When the evidence against a particular defendant is strong, that individual will have a powerful incentive to accept a plea offer. Following sentencing, that individual has nothing to lose by testifying on behalf of the other codefendants and taking sole responsibility for the crime, free of further penal consequences. A package plea offer that must be accepted by all codefendants serves to prevent such a manipulation of the system by codefendants. There is nothing improper about a package offer motivated by such concerns.
(Liang v. Superior Court, supra,
C. Severance
The Legislature has expressed a preference for joint trials when defendants are charged with the same offense. Penal Code section 1098 provides in pertinent part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” Under this section, “a trial court
must
order a joint trial as the ‘rule’ and
may
order separate trials only as an ‘exception.’ [Citation.]”
(People v. Alvarez
(1996)
A court has the discretion to order separate trials when it appears that one codefendant may give exonerating testimony with respect to another codefendant. (See
People v. Massie
(1967)
There appears to be no dispute that appellant satisfied the first three requirements contained in Isenor. Appellant clearly desired Palms’s testimony, which was both exculpatory and highly relevant to the contested issues in the case, if the assertions of appellant’s counsel were to be believed. Our analysis turns on the latter three areas of inquiry identified in Isenor.
We first address whether the testimony was bona fide. Because the proposed testimony was uncorroborated, the court had good reason to question whether it was legitimate. Initially, appellant’s counsel offered little more than a bare assertion that Palms had told his client he would provide exculpatory testimony. Palms’s counsel did not corroborate the substance of the proposed testimony but instead merely indicated that Palms wanted to testify on behalf of appellant if he could be assured of a three-year sentence. Later, when the court revisited the matter, Palms’s attorney insisted he was the only one who could speak for Palms and asserted that Palms’s conversation with appellant’s attorney should not have taken place. Palms’s attorney did not confirm the representations made by appellant’s attorney other than to
The court in
Isenor
did not set out a fixed rule for determining when the moving party’s showing is adequate. However, the court recognized that in cases in which an appellate court has held that severance should have been granted, the codefendant exculpated the defendant in an affidavit, in open court or in statements to the police, or there was an otherwise reliable indication the codefendant would testify in a way that actually exonerates the defendant. (See
Isenor, supra,
17 Cal.App.3d at pp. 332-334.) Absence of corroboration weighs against severance. (See
U.S. v. Davis
(3d Cir. 2005)
With regard to the likelihood that Palms would testify if severance were granted, that factor, too, weighed against severance. Palms offered to testify only upon conditions acceptable to him. If appellant’s trial went first, as the trial court contemplated, Palms would not have testified because he had no assurance of receiving a three-year sentence. Palms’s willingness to testify was contingent on his case being tried first. However, appellant and Palms had no right to dictate the scheduling of trials to their advantage. The federal appellate courts have recognized that if an offer to testify is conditioned on the order of trials, the trial court has the discretion to deny the motion. (See
U.S. v. Ford
(D.C. Cir. 1989) 276 U.S. App.D.C. 315 [
In
U.S. v. Reavis, supra,
Because Palms’s offer to testify was conditioned upon his case being tried first, it was not an abuse of discretion to deny the motion to sever. Further, even if the court had severed the trials and granted the request to try Palms first, there was still no guarantee Palms would offer exculpatory testimony at appellant’s trial. If Palms’s trial were conducted first, Palms still would have faced the options of either pleading open or going to trial. In light of the representations made by Palms’s counsel, the trial court could have reasonably concluded Palms would have elected to go to trial in the absence of assurances he would receive a three-year sentence. However, if he had gone to trial and been convicted, his privilege against self-incrimination would have continued until his conviction became final. (See
Mitchell v. United States
(1999)
Finally, concerns about judicial efficiency weighed against severing the trials. Appellant claims that, because Palms’s criminal liability resulted from a simple hand-to-hand sale, a separate trial of Palms would not have required an expert on multiple-person drug transactions, thus limiting the evidentiary overlap between the two cases. It may be true, as appellant contends, that some of the evidence required to convict appellant would have been unnecessary at a separate trial of Palms. The fact remains, however, that the evidence against Palms and appellant was largely the same. It was more efficient to conduct a single trial instead of presenting the same evidence in two trials before separate jury panels. While the concern for judicial efficiency, by itself, does not outweigh a defendant’s right to a fundamentally fair trial, it is nonetheless a proper factor for a court to consider in weighing the severance decision.
Another unique aspect of the
Echeles
case is that a joint trial permitted a jury to hear admissions of the codefendant taken from the transcript of the prior trial and tending to incriminate Echeles, whereas the testimony from the codefendant at the prior trial tending to exculpate Echeles was excluded.
(Echeles, supra,
Under the circumstances presented here, we conclude it was not an abuse of discretion for the trial court to deny appellant’s motion to sever.
II., III. *
The sentence is modified to strike the four prior prison term sentence enhancements imposed under' Penal Code section 667.5, subdivision (b). The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections and Rehabilitation. Except as so modified, the judgment is affirmed.
Siggins, J., and Jenkins, J.,. concurred.
Notes
An open plea is “a plea unconditioned upon receipt of a particular sentence or other exercise of the court’s powers.”
(People
v.
Hoffard
(1995)
Appellant has not cited to any such statement by Palms—as opposed to his counsel—and we have not found such a statement in the record.
As noted earlier, there is no evidence of any such statement in the record on appeal.
See footnote, ante, page 240.