Lead Opinion
Opinion
Within approximately four months, two homeless men who camped about three miles apart were killed at night as they slept on their backs. Heavy objects found near their campsites had been dropped on their respective foreheads. Forensic and testimonial evidence tied defendant to both crime scenes and to both victims. Although initially he was charged separately with each murder, the cases subsequently were joined for a single trial. After the trial court rejected defendant’s motion to sever, a jury convicted him of first degree murder in one case and second degree murder in the other. (Pen. Code, § 187.)
We conclude that the Court of Appeal erred in finding that the trial court abused its discretion by failing to sever the charged offenses.
We adopt, with supplementation and stylistic changes, the Court of Appeal’s factual recitation, as follows.
A
George Rigby, who was homeless, camped on a golf course behind a Sav-On dmg store in the City of Oceanside. At approximately 8:00 a.m. on Sunday, May 23, 2004, several golfers found Rigby’s dead body on a piece of cardboard at his campsite.
Oceanside Police Officer Roy Monge responded to the scene. While there, a woman, Tina Torres, told Monge that a “mean guy” named “Jay Soper” frequently visited Rigby at his camp.
Among the items found around Rigby’s campsite was an unopened package of crackers. Defendant’s fingerprints were found on the package. Bloodstains were found on a paper bag near Rigby’s body, as well as on the cardboard underneath his body, near his hip and knee. DNA testing conducted on these bloodstains matched specimens taken from defendant.
The golf course landscaping crew had used railroad ties to fashion steps. A railroad tie that weighed approximately 30 to 40 pounds was on the ground near Rigby’s body. Bloodied hairs found on the railroad tie were linked to Rigby by DNA testing. Another sample from the railroad tie excluded defendant and Rigby, indicating it belonged to a third, unidentified male. Some of the bloodstains on the back of Rigby’s hands also appeared to be linked to the same unidentified male.
There was a depression and a split approximately four inches in length near Rigby’s left temple. Dr. Christina Stanley, a medical examiner, testified that Rigby had been killed by blunt force head injuries, and that he probably died the night before his body was found. According to the medical examiner, the lack of blood in the immediate vicinity of Rigby’s body suggested he had died from a single blow. In addition, an injury to the back right side of Rigby’s head indicated he had been lying down at the time of the killing. Rigby’s jacket pocket was open, and no money was found on his person or in the vicinity.
Several witnesses testified they had seen defendant with Rigby at his camp on the day before Rigby’s body was discovered. For example, Doris Daniel and her boyfriend Lewis Mungin saw Rigby and defendant together at Rigby’s camp at approximately midnight—about eight hours before Rigby’s
Richard Wagner, an acquaintance of defendant’s, testified that three or four months after the Rigby homicide, defendant told him that he was “on the run” because the police were looking for him.
B
On Thursday, September 16, 2004, City of Carlsbad police officers discovered James Olson’s decomposing body at his campsite in a drainage ditch on a hillside behind a Sav-On drug store in Carlsbad. The location was approximately two to three miles from the scene of the Rigby homicide. Olson was lying in a sleeping bag, and there was a block of concrete resting on his legs.
According to Dr. Christina Stanley, the medical examiner, Olson had suffered crushing head injuries. Police officers found defendant’s fingerprint on a jar of peanuts three or four feet from Olson’s body. Blood containing DNA that matched DNA samples from Olson was found on the concrete block. DNA testing also revealed that defendant could neither be identified nor excluded as the donor of other blood samples taken from the concrete block. One of Olson’s pants pockets was partially turned inside out and was empty; still, he had $9 in his pants change pocket.
Dr. Stanley concluded that Olson had been dead for several days, and possibly for as long as a week, before his body was discovered. Dr. Stanley further concluded that Olson died from blunt force head injuries, and that it was likely these injuries were inflicted by means of the concrete block found at the scene. Brian Kennedy, a crime scene reconstruction expert, testified that in his opinion, Olson probably died from a single blow from the concrete block.
John Rogers, a transient, knew Olson for 10 years, and met defendant approximately two weeks before the discovery of Olson’s death. Defendant told Rogers that his name was Richard Perry. The police investigated Rogers to determine his possible involvement in the homicide. DNA testing of blood samples taken from the concrete block excluded Rogers as a contributor. Rogers identified a pocketknife found at Olson’s camp as his own, but said that defendant had stolen it from him about two weeks earlier. Neither fingerprints nor DNA were found on the knife.
On Thursday, September 16, 2004, Carlsbad Police Officer William Michalek responded to the scene of the Olson homicide and attempted to locate other homeless persons in the area who might have information concerning the matter. Michalek encountered Rogers and defendant sitting together at the coffee shop where, Rogers later testified, he had been with defendant and Olson on the previous Saturday evening. When Officer Michalek asked Rogers and defendant for their names, Rogers gave his real name and defendant told Michalek that his name was “Richard Perry.” After a brief conversation, Michalek left. Later that same day, after Michalek had gathered more information about the killing, he attempted to locate Rogers and defendant. Michalek located Rogers, who accompanied him to the police station and provided an oral swab and a fingerprint. Michalek was unable to locate defendant, and informed other police officers that he would be interested in speaking with defendant.
C
On September 19, 2004, Carlsbad Police Officer Paul Reyes noticed defendant standing at a freeway off-ramp holding a sign that read, “Please help if you can. Disabled. God Bless”—activity that, Officer Reyes testified, is illegal. Officer Reyes made contact with defendant, who told Reyes that his name was “Richard Perry.” Officer Reyes issued defendant a citation.
Following this encounter, defendant consented to speak with Carlsbad police detectives. In response to their questions concerning the Olson killing, defendant denied ever having been at Olson’s campsite or even knowing the victim. He also denied recognizing or ever having possessed the pocketknife that was found at Olson’s camp. Eventually officers learned through a fingerprint comparison that the person claiming to be Richard Perry was in fact defendant James Daniel Soper. After determining there was an outstanding parole violation warrant for defendant, the police arrested him.
During these interviews, defendant stated that he regularly consumed large quantities of alcohol and was being treated for alcohol withdrawal. Defendant claimed that because of his alcoholism, he had difficulty recognizing individuals by name. He also exhibited symptoms of alcohol intoxication.
With respect to the Rigby killing, defendant told the detectives that he never had been at the victim’s camp. Defendant also stated to the police that he had “no clue” how his fingerprint could have been found on the wrapper at Rigby’s camp, and denied visiting that site because, he explained, it was “hot”—meaning that the police often were there. Defendant made somewhat inconsistent statements concerning whether he knew Rigby, and how well he knew him. During questioning, defendant denied ever getting into a fight with “George,” denied knowing him, and then admitted seeing him “around ... a million times,” although, defendant maintained, he had never been formally introduced to Rigby. After the detectives asked defendant to consider whether there was any reason his fingerprints would be found at Rigby’s camp, they left the interview room. While defendant was alone in the room, the camera and audio recorder continued to record. Defendant groaned and stated, “I’m going to throw up.”
With respect to the Olson killing, the detectives showed defendant a picture of Olson and asked defendant whether he knew the name of the person depicted in the photograph. Defendant stated that he did not know the person’s name. Defendant told the detectives he was familiar with the area behind the Sav-On drug store where Olson had been killed, but never had been in that area.
The prosecution introduced evidence concerning the nature of the two homicides as compared with others that had been committed in the Oceanside and Carlsbad areas. Steven Walter, an Oceanside Police Department criminal analyst, testified that no other homicide in the area during the five years preceding the Rigby and Olson matters involved the killing of a transient at his or her camp. Walter also stated that no other homicide during that period involved a “weapon of opportunity”—an object obtained by the perpetrator in the immediate vicinity of the killing; nor was any other killing perpetrated by a single fatal blow to the head. Brian Kennedy, the crime scene reconstructionist, testified that despite his having investigated several hundred prior homicides, he never had encountered a case in which a transient was killed at
D
At trial, defendant challenged both his identity as the perpetrator and his ability to form the requisite intent to kill. In order to explain why his own blood was found at Rigby’s camp, he presented evidence establishing that he suffered a serious facial wound in late April 2004, requiring surgery. Defense counsel argued that the surgery may have caused defendant’s face to bleed periodically during the time in question. Ronald Marquez, a registered nurse at the Vista Detention Facility, testified that on September 19, 2004, after observing defendant exhibit symptoms consistent with alcohol withdrawal, he treated defendant at the jail with Librium, an antianxiety medication.
The jury convicted defendant of the first degree murder of Rigby and of the second degree murder of Olson.
II
Originally, the district attorney filed separate charges in each case—first in the Rigby matter, and then in the Olson matter. Thereafter, the prosecution filed a single amended complaint alleging two counts of murder, and moved to consolidate the two charges under section 954. That section 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.” (Ibid., italics added.) The 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.” (Ibid., italics added.)
In support of its motion, the prosecution, relying upon the information known at that time (and subsequently developed later that day at the
After the preliminary hearing was conducted and defendant was held to answer, but before the trial court ruled on the motion to consolidate, defendant asked the court to exercise its discretion under section 954 to sever the charges, arguing that the evidence would not be cross-admissible at separate trials and that joinder posed an undue risk of prejudice. Defense counsel conceded in a declaration, however, that “[a]rguably there are at least
At a subsequent hearing on the motion, the trial court declined to sever the charges, observing that because the charges were properly joined under section 954, defendant bore a heavy burden of establishing that they should be severed. The court concluded that defendant had failed to carry his burden, in part because there were witnesses common to each case, evidence underlying the two charges would be cross-admissible at separate trials, and the jury in any event would be instructed to decide each count separately. After the trial court ruled that the evidence would be admissible at separate trials for the purposes of establishing both intent and identity, the evidence was received at a joint trial for both purposes. On appeal, the resulting judgment of conviction on both charges was reversed because the Court of Appeal concluded the trial court abused its discretion in refusing to sever the two charges. We granted the People’s petition for review.
Ill
A
As noted above, pursuant to section 954 an accusatory pleading may charge two or more different offenses so long as at least one of two conditions is met: The offenses are (1) “connected together in their commission,” or (2) “of the same class.”
We conclude that the Rigby and Olson charges were properly joined under section 954. Indeed, as we observed in similar circumstances in Alcala, these are “precisely the types of cases that the Legislature intended to be tried jointly.” (Alcala, supra,
B
Article I, section 30, subdivision (a) of the California Constitution provides: “This Constitution shall not be construed by the courts to prohibit the joining of criminal cases as prescribed by the Legislature . . . .” As recently described in Alcala, supra,
It is useful to contrast the situation here at issue—concerning severance of properly joined charges—with the analysis employed in the related but different situation posed by the admission into evidence of facts underlying an uncharged offense. In the latter situation, as we explained in Bean, supra,
As we also observed in Bean, the applicable analysis is significantly different in the context of properly joined charged offenses. (Bean, supra,
Not only is the burden allocated differently in cases involving properly joined charges as compared with cases involving the introduction of uncharged misconduct, but the nature of the abuse of discretion standard—and the ensuing method utilized to analyze prejudice, undertaken to determine whether a trial court abused its discretion in a specific case—also are significantly different from what is employed in determining whether a trial court erred in allowing the introduction of evidence of uncharged misconduct. (See generally Alcala, supra,
A defendant, to establish error in a trial court’s ruling declining to sever properly joined charges, must make a “ 'clear showing of prejudice to establish that the trial court abused its discretion . . . .’ ” (Alcala, supra,
Most significantly, the method utilized to analyze prejudice is itself significantly different from that employed in reviewing a trial court’s decision to admit evidence of uncharged misconduct. As we observed in Bean, supra,
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.” (Alcala, supra,
First, we consider the cross-admissibility of the evidence in hypothetical separate trials. (Alcala, supra,
If we determine that evidence underlying properly joined charges would not be cross-admissible, we proceed to consider “whether the benefits of joinder were sufficiently substantial to outweigh the possible ‘spill-over’ effect of the ‘other-crimes’ evidence on the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.” (Bean, supra,
Applying these principles, and observing that the statutory requirements for joinder under section 954 have been met in the present case, we proceed to assess defendant’s claim that the trial court abused its discretion in denying the motion for severance, clearly prejudicing defendant.
As explained in Ewoldt, supra,
Defendant asserts that only identity, and not intent, actually was at issue in the joint trial, and hence, defendant claims, only identity—and not intent—would have been at issue in hypothetical separate trials.
In addressing the issue of cross-admissibility, the Court of Appeal below reasoned, first, that the evidence would not be cross-admissible on the issue of identity at hypothetical separate trials, because the evidence underlying the two charges was not “ ‘ “so unusual and distinctive as to be like a signature.” ’ ” (Quoting Ewoldt, supra,
In response the People assert, first, that the evidence underlying the two charges would indeed be cross-admissible at hypothetical separate trials on
As we recently observed in Alcala, supra,
We return to the People’s assertion that the evidence underlying the two charges would be cross-admissible at hypothetical separate trials on both the issue of intent and the issue of identity. Clearly, the evidence is sufficient to sustain a finding that defendant was the perpetrator of each of the two offenses,
Assuming the absence of a clear finding of “full” cross-admissibility on both contested issues—intent and identity—we proceed to weigh the factors indicating potential prejudice against the benefits of joinder. As explained below, we conclude there was no abuse of the trial court’s discretion or undue prejudice arising from its failure to sever the two properly joined charges.
2. Weighing of factors indicating potential prejudice versus the benefits to the state of joinder
As observed earlier, section 954.1 (quoted, ante, fn. 2), provides that when, as here, properly joined charges are of the same class, the circumstance that evidence underlying those charges would not be cross-admissible at hypothetical separate trials is, standing alone, insufficient to establish that a trial
The homicides at issue in the Rigby and Olson cases are similar in nature and equally egregious—hence neither, when compared to the other, was likely to unduly inflame a jury against defendant. (See, e.g., Mason, supra,
Although neither of these two factors militates against the benefits of joinder in the present proceedings, defendant suggests that the remaining factor does: he asserts (and the Court of Appeal found) that the Olson charges were relatively weak compared with the Rigby charges, and that the spillover effect of a joint trial would—and did—unfairly alter the outcome of one or both of the charges.
As an initial matter, based upon the information before the trial court at the time it ruled on the severance motion, it was not clear that the evidence supporting the Olson charge was significantly weaker than that underlying the Rigby charge. In each instance, defendant’s fingerprints linked him to the victim’s campsite. And in each, witness testimony was proffered, establishing that defendant was in the company of the victim at or near his camp, and was acting in an aggressive fashion shortly before the commission of the homicide. In the Rigby case, testimony was proffered establishing that defendant played cards with the victim at his camp shortly before his death, and at least one witness (Nash) was prepared to testify (and did so at trial) that defendant was upset with Rigby, pushed him, and argued with Rigby throughout the game. In the Olson case, a witness (Rogers) was prepared to testify (and did so at trial) that when Olson last was seen alive as he left the Coffee Bean, defendant said that he would accompany Olson to his camp to have a beer, and that when Olson and defendant departed for the camp, Olson shook his head “no,” indicating to Rogers that he was frightened.
Defendant suggests that the evidence supporting the Rigby charge was stronger than that underlying the Olson charge, because DNA identified from
In any event, as between any two charges, it always is possible to point to individual aspects of one case and argue that one is stronger than the other. A mere imbalance in the evidence, however, will not indicate a risk of prejudicial “spillover effect,” militating against the benefits of joinder and warranting severance of properly joined charges. (People v. Ruiz, supra,
Against this showing of potential prejudice, the Court of Appeal considered the benefits of joinder and found them to be “minimal.” But, as explained below, the appellate court inappropriately minimized the benefits of joinder.
As the appellate court conceded, a single trial of properly joined charges would promote case-specific efficiencies. The record before the trial court at the time of the severance motion revealed that in the event of separate trials, there would be overlap concerning matters such as the cause of death and the
In addition, the Court of Appeal failed to take into account the circumstance that, as a general matter, a single trial of properly joined charges promotes important systemic economies. Whenever properly joined charges are severed, the burden on the public court system of processing the charges is substantially increased. Even assuming that some level of economy might be preserved by (when possible) appointing or assigning the same counsel, investigators, and paralegals to prosecute and defend each charge separately, merely segmenting the proceedings typically will result in inefficiency. For example, each of the numerous procedural steps attendant to any criminal proceeding—such as discovery, pretrial motions, as well as trial sessions themselves—would proceed on discrete tracks. Additionally, when two previously joined matters advance to separate trials, approximately twice as many prospective jurors would need to be summoned and subjected to the selection process.
Further amplifying these and related trial-level inefficiencies resulting from separate trials is the appeal of right afforded to all convicted criminal defendants. Separate appellate records would be compiled by the clerk’s offices of the respective trial courts. Even assuming the same appellate counsel could be appointed or assigned to represent the parties, once again merely segmenting the proceedings generally will cause inefficiency. Furthermore, the Court of Appeal, through its own clerk’s office, would be required to manage and process discrete appeals, and provide an opportunity for separate oral arguments. Individual written decisions would be drafted, considered, and filed. Subsequently, separate petitions for rehearing could be filed in the Court of Appeal, followed by individual petitions for review in this court. This court, in turn, would need to process, analyze, and dispose of each. Thereafter, separate collateral reviews at the three levels of the federal court system—reprising versions of many of the procedures outlined above— could ensue.
Although our courts work diligently to ensure due process in all proceedings, their resources are limited. California’s trial courts in particular face ever-increasing civil and criminal dockets without any guarantee of corresponding, additional funds for court services—judges, judicial staff, and clerk’s office personnel—to meet the demand. Today, no less than in the past, the opportunity for joinder with its attendant efficiencies provided by section 954 is integral to the operation of our public court system. Manifestly, severance of properly joined charges denies the state the substantial benefits of efficiency and conservation of resources otherwise afforded by section 954.
C
“We have held that even if a trial court’s ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts or defendants for trial resulted in gross unfairness depriving the defendant of due process of law. [Citations.]” (People v. Rogers (2006)
Although defendant asserts that “the leitmotiv of the People’s theory at trial”—and especially in closing argument—“was that whoever committed one of the murders must have committed the other as well,” various factors lead us to conclude that defendant has not met his high burden of establishing that the trial was grossly unfair and that he was denied due process of law.
As noted above, we assume for purposes of analysis that the evidence underlying the Rigby and Olson charges would not have been cross-admissible at separate trials on the issue of identity, and therefore also assume that the evidence could not properly be considered by the jury for that purpose at defendant’s joint trial. The circumstance that the jury was not specially instructed at the joint trial in this case to restrict its consideration of the evidence to the issue of defendant’s intent as to each charge (and that it should not employ that evidence to establish defendant’s identity as the perpetrator in both cases) is a factor in our assessment of whether the
Appellate courts have found “ ‘no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials.’ ” (Bean II, supra,
IV
The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for proceedings consistent with this opinion.
Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
The jury also found that defendant personally used a firearm in the commission of the offenses. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) In separate proceedings, the jury further found that defendant had served four prior prison terms (§ 667.5, subd. (b)) and had suffered one prior strike conviction under the “Three Strikes” law. (§ 667, subds. (b)-(i)-) The trial court sentenced defendant to 86 years to life in prison.
The statute further provides: “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
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.)
The evidence adduced at the preliminary hearing was substantially similar to the evidence later presented at trial and described, ante, in part I. As the People explain, the following additional evidence was presented at the preliminary hearing, but not at trial: “On August 3, 2004, police interviewed Karen Stahnke. Stahnke asked to speak to the police about the Rigby case after she was arrested on drug-related charges. She told them that, sometime after the Rigby murder, she ‘got high’ with [defendant] in the Oceanside area. During this time, [defendant] admitted killing Rigby, saying T didn’t mean to kill him, and I didn’t want him to die. Things had just gone wrong.’ Stahnke had used methamphetamine the night before her interview with [the] police, [f] [Moreover, according to an investigating police officer, at] some time before Olson was murdered, he asked individuals at the coffee shop nearby his campsite to help him get away from [defendant] because [defendant] was harassing him.”
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, [f] (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. []Q (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
The statute is quoted more fully, ante, at page 769 and in footnote 2.
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if 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.”
In light of the countervailing benefits of a single trial of properly joined charges, we have observed that “ ‘[t]he state’s interest in joinder gives the court broader discretion in ruling on a motion for severance [of properly joined charges] than it has in ruling on admissibility of evidence’ [of uncharged offenses in a separate trial], [Citations.]” (Alcala, supra,
As we explained in Ewoldt: “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.) [1] 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.” (Ewoldt, supra,
As we further explained in Ewoldt: “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 noted above, in determining whether a court abused its discretion under section 954 in failing to sever properly joined charges, we consider the record existing at the time the court made its ruling. (Alcala, supra,
Defendant emphasizes that “it was the leitmotiv of the People’s entire case . . . that whoever committed the one offense necessarily committed the other. Considerable evidence was elicited to this effect and this was also the thrust of the prosecutor’s closing argument, not to mention his justification for joinder in the first place . . . .”
The Court of Appeal articulated the following analysis under Evidence Code section 352: “While the People argue that the evidence of the two murders was probative to establish that the killer had the intent to kill rather than some less culpable intent, it is clear that the probative value of the evidence for this purpose would be substantially outweighed by the danger that the jury would use the evidence for purposes of determining the identity of the killer. This would be an improper and therefore, unduly prejudicial, use of the evidence because the evidence was not properly admissible for purposes of proving identity. Further, . . . because the entire theory of the prosecution’s case at trial was that the evidence was relevant to prove the killer’s identity, the potential for prejudice in this case was overwhelming.”
In this regard the Court of Appeal quoted language in Ewoldt, supra,
Defendant expands upon this same point, asserting that unless a “defendant’s identity as the perpetrator of the act in question” is either “conceded, or [can be] demonstrated to the point where one is justified in assuming he or she is the perpetrator,” evidence of uncharged conduct to prove intent “should be deemed inadmissible.” In support, defendant relies upon Hassoldt v. Patrick Media Group, Inc. (2000)
The homicides occurred within four months of each other at campsites that were within easy walking distance from each other—about two to three miles apart. In each case, forensic evidence tied defendant to the crime scene, and witnesses linked defendant to each victim
As in Alcala, supra,
Although we are willing to assume for purposes of analysis that the evidence would not have been cross-admissible on the issue of identity at hypothetical separate trials, we do not agree with the Court of Appeal’s conclusion (see, ante, fn. 12) that absent an affirmative finding of cross-admissibility of the evidence to prove identity at hypothetical separate trials, the evidence underlying the Rigby and Olson charges would have been inadmissible for all purposes at such hypothetical separate trials. Specifically, we reject the proposition, inferred by the People from the Court of Appeal’s decision, that whenever identity remains at issue—and in the absence of an affirmative finding of cross-admissibility of the evidence to prove identity—evidence underlying uncharged offenses that otherwise would be admissible to prove intent always will be inadmissible under Evidence Code section 352 for that purpose. Rather, the admissibility of such evidence would be a matter subject to the trial court’s discretion under Evidence Code section 352, after balancing the probative value of the evidence against the potential for prejudice.
Counsel argued: “We have the murderer’s DNA on that weapon. Was it run anywhere? Did you hear any evidence this DNA was run in ... a data bank? Did you hear any of the [other] homeless people in that area were giving DNA samples?” Later, counsel argued: “Then we heard there was DNA on the victim’s hands. . . . Again, we don’t know who it is. It was never run through a data bank. No one else was tested. We know it’s not [defendant].”
On the latter point, the jury was instructed, pursuant to CALJIC No. 17.02: “Each Count charges a distinct crime. You must decide each Count separately. The defendant may be found guilty of either or both of the crimes charged in Counts One and Two. Your finding as to each Count must be stated in a separate verdict.” (Italics added.)
Concurrence Opinion
In this noncapital case, defendant James Daniel Soper was charged with two murders committed four months apart. The trial court denied a pretrial defense motion to sever the murder charges, ruling that evidence of the two homicides would be cross-admissible on the issues of identity and intent even if the charges were tried separately. At the trial, the jury was allowed to consider the evidence of each murder to establish both identity and intent as to the other murder, and it convicted him of both crimes. On defendant’s appeal from the resulting judgment, the Court of Appeal reversed, holding that the two crimes were insufficiently similar for cross-admissibility on the issue of identity, that under Evidence Code section 352 the risk the jury would misuse the evidence to prove identity outweighed its probative value on the issue of intent, that without cross-admissibility the prejudice resulting from joinder outweighed the benefits of joinder, that the trial court therefore had erred in denying the motion to sever, and that this error required reversal of defendant’s conviction. This court granted review.
I join the majority in reversing the Court of Appeal’s judgment. I agree with the majority that the trial court did not err in denying defendant’s motion to sever the charges relating to the murders of George Rigby and James Olson and that joinder of those charges for trial did not result in gross unfairness depriving defendant of due process of law. I agree with the majority that in hypothetical separate trials, evidence of the two murders would have been cross-admissible on the issue of defendant’s identity as the perpetrator of both murders, as well as on the issue of defendant’s intent when he inflicted the blows that killed the two victims.
I write separately because, unlike the majority, I see no reason to assume, in analyzing defendant’s contentions, that evidence of the two murders would not have been cross-admissible on the issue of identity in hypothetical separate trials. (Maj. opn., ante, at pp. 778-779.) Nor am I able to conclude, if that assumption is made, that the trial court ruled correctly in denying defendant’s motion for severance or that joinder of the two murder counts for trial did not result in gross unfairness depriving defendant of due process of law.
I
To prove that a defendant committed a charged offense, the prosecution may introduce evidence that the defendant has committed a similar offense, but only if the two crimes shared common features that are sufficiently distinctive to support an inference that the same person committed both. (People v. Ewoldt (1994)
Here, in both the Rigby and the Olson homicides, the victim (1) was a homeless man (2) who was killed at his own campsite (3) while lying on his back (4) by a single blow (5) to the head (6) with a heavy object (7) that the killer both found and left at the scene. Moreover, the killings occurred only two to three miles and four months apart, and defendant’s fingerprints were found at both campsites. Considered separately, none of these features is highly unusual or distinctive; but the many common features, viewed together, form a pattern that is distinctive and unusual enough to be like a signature. Accordingly, in my view, the trial court did not abuse its discretion when it concluded that evidence of the two murders was cross-admissible on the issue of defendant’s identity as the perpetrator of both. Because a lesser degree of similarity is required for cross-admissibility on the issue of intent (People v. Ewoldt, supra, 1 Cal.4th at p. 402), it follows that evidence of the two murders was cross-admissible on that issue as well.
If evidence of two crimes would be fully cross-admissible in separate trials, that circumstance alone is normally sufficient to eliminate any possibility of prejudice from joining the charges for trial. (Alcala v. Superior Court (2008)
II
Rather than taking the simple and direct analytic road I have described, the majority chooses to assume that in hypothetical separate trials of the Rigby
As I have explained, the many common features of the two murders, considered together, were so distinctive and unusual as to strongly support an inference that the same person committed both. If the evidence were not cross-admissible on the issue of the perpetrator’s identity, this powerful inference would produce a correspondingly grave risk that the jury would be unable to obey an instruction not to consider the evidence for this purpose. I am unable to conclude that this grave risk of prejudice to defendant would have been outweighed by the benefits of joinder. For this reason, I question the majority’s conclusion that even if evidence of the two murders were not cross-admissible on the issue of identity, despite their many common features forming a distinctive pattern, it would have been proper for the trial court to deny defendant’s severance motion.
The majority’s unnecessary and unrealistic assumption that evidence of the two murders was not cross-admissible on the issue of identity would similarly raise grave doubts about the fairness of defendant’s trial because, contrary to the majority’s assumption, the prosecutor at that trial argued to the jury that the many common features of the two murders proved that the same person had committed both, and the trial court’s instructions allowed the jury to use that method of reasoning in determining defendant’s guilt. Had that method of reasoning been impermissible, as it would necessarily have been under the majority’s assumption, the fairness of defendant’s trial would have been seriously compromised. (See People v. Ewoldt, supra,
In concluding that, in the absence of full cross-admissibility, the benefits of joinder would have outweighed the grave risk of prejudice to defendant, the majority cannot rely on the deference that an appellate court would normally give to the trial court’s determination of that issue. Because the trial court concluded, as have I, that evidence of the two murders was fully cross-admissible, it never undertook that weighing process.