BARRY GLENN WILLIAMS, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
L.A. No. 31817
Supreme Court of California
July 16, 1984
36 Cal.3d 441
BARRY GLENN WILLIAMS, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Bernard Gross, Dennis A. Fischer and Fischer & Hill for Petitioner.
No appearance for Respondent.
Robert H. Philibosian, District Attorney, Donald J. Kaplan and Eugene D. Tavris, Deputy District Attorneys, for Real Party in Interest.
OPINION
BROUSSARD, J.—Petitioner is charged with five serious felony offenses, including two murder counts which carry special circumstances allegations. The charges stem from two separate and apparently gang-related incidents which occurred more than nine months apart. Respondent court denied petitioner‘s motion to sever one count of murder, alleged to have taken place in March 1982, from the remaining counts, which charge a murder, two attempted murders, and conspiracy relating to a shooting incident that occurred in June 1981. Petitioner now seeks a writ of mandate which would require separate trials for the two murder counts on grounds that a single
I.
One evening in June 1981, four persons were standing near a gymnasium at Green Meadow Park in Los Angeles when a burst of gunfire rang out. Two of the persons were wounded and another was killed by buckshot fired from a shotgun. Eyewitness testimony at a subsequent preliminary examination indicated that at least three assailants had been involved in the shootings and that multiple weapons were used. Several witnesses placed petitioner Williams in the group of assailants and saw him run from the scene along with others. However, there was no direct evidence that petitioner fired a weapon.
According to witnesses, there are two rival gangs—the “Green Meadow Park Boys” and the “89 Family Blood“—which frequent the area and have engaged in several shoot-outs. Petitioner is known to be a member of the 89 Family Blood gang, and two other persons placed at the scene are also known to be members of the “Bloods.” The victims of the shootings were not known to be members of any gang but were friends with some of the Green Meadow Park Boys. Witnesses also testified that the murder victim did not know petitioner.
Nine months later, in March 1982, an eyewitness observed someone she later identified as petitioner driving a van containing at least two other occupants. The van stopped and backed up very rapidly, causing the vehicle in which the witness was riding to brake sharply. Looking into the driver‘s side window of the van, the witness saw the occupants laughing and heard one say, “Let‘s go back and fuck him up.”
The van pulled up alongside a boy standing on the curb. The witness then saw an arm come out of the window on the driver‘s side holding an object that looked like a handgun. The boy on the curb began shaking his head and saying, “No, no, no.” Shortly thereafter he was shot and killed. The eyewitness was not certain whether petitioner had been the one holding the gun, although the killer was wearing a garment with dark colored sleeves and the witness had noticed that the driver was wearing a dark colored jacket. Another eyewitness testified that he was not sure who had done the shooting but that he believed it was the driver.
Different weapons were used in the June 1981 and March 1982 homicides. There is no evidence that the victim of the latter shooting was a member of or associated with any gang; however, the boy was standing in the “terri-
The procedural history of the case is somewhat intricate. Petitioner Williams was originally charged with only the June 1981 murder and attempted murders. He was arrested on these charges in April 1982, but moved successfully to dismiss the information pursuant to
Following the denial of his motion to dismiss, petitioner moved to sever the various counts relating to the June 1981 shootings from the March 1982 murder charge, arguing inter alia that trial on the consolidated charges would unfairly prejudice his defense.2 In denying the motion to sever, the trial court relied almost exclusively on the case of People v. Rhoden (1972) 6 Cal.3d 519 [99 Cal.Rptr. 751, 492 P.2d 1143], observing that this court in Rhoden had characterized the defendant‘s motion to sever counts of an information as “frivolous,” and suggesting that petitioner‘s argument was similarly “not well taken.”
II.
Petitioner, recognizing the well-settled case authority on this issue,3 readily acknowledges that the initial requirements for joinder under section 954 have been satisfied in this case, conceding that the two counts of murder are “offenses of the same class” and that the four offenses alleged to have been committed on June 16, 1981, were “connected together in their commission,” as prescribed by the statute. He therefore directs what is essentially a due process argument toward the second prong of section 954.
Since the statutory requirements for joinder were clearly met in this case, petitioner can predicate error only on clear showing of prejudice. (People v. Poon, supra, 125 Cal.App.3d 55; People v. Kemp (1961) 55 Cal.2d 458, 477 [11 Cal.Rptr. 361, 359 P.2d 913]; People v. Meneley, supra, 29 Cal.App.3d at p. 52.) If clearly established by defendant, prejudice may require severance, even though joinder is statutorily permissible under
We have previously noted that “‘[w]here the consolidation meets the test of joinder,’ . . . ‘the difficulty of showing prejudice from denial of severance is so great that the courts almost invariably reject the claim of abuse of discretion.‘” (People v. Matson (1974) 13 Cal.3d 35, 39 [117 Cal.Rptr. 664, 528 P.2d 752], quoting Witkin, Cal. Criminal Procedure at p. 288;
The initial step in any review of a motion to sever is to examine the issue of cross-admissibility of evidence. Since cross-admissibility would ordinarily dispel any possibility of prejudice (see, e.g., People v. Matson, supra, 13 Cal.3d 35, 39-41; People v. Poon, supra, 125 Cal.App.3d 55, 70-74; People v. Jackson (1980) 102 Cal.App.3d 620 [162 Cal.Rptr. 754]), we must inquire, had the severance motion been granted, would the evidence pertinent to one case have been admissible in the other under the rules of evidence which limit the use of character evidence or prior similar acts to prove conduct (
As we noted in People v. Thompson (1980) 27 Cal.3d 303, 316 [165 Cal.Rptr. 289, 611 P.2d 883], ”
In the present case, one of the crucial issues facing the jury will be the identity of the perpetrator(s) of the two killings and the related crimes. If the trials were to be severed, it is likely that the prosecution would try to introduce evidence relating to one of the shootings at the trial involving the other incident, on the grounds that such evidence would be probative of the identity of the killer. This is the only theory upon which such “other crimes” evidence might be admissible in the instant case,7 and it would almost certainly fail to meet the requisite standards for admission.
not because he is believed guilty of the present charge, but because he has escaped unpunished from other offenses . . . .’ (Ibid.) Moreover, ‘the jury might be unable to identify with a defendant of offensive character, and hence tend to disbelieve the evidence in his favor.’ (Note (1964) 78 Harv.L.Rev. 426, 436.) ‘We have thus reached the conclusion that the risk of convicting the innocent . . . is sufficiently imminent for us to forego the slight marginal gain in punishing the guilty.’ (People v. Schader, supra, 71 Cal.2d at pp. 772-773.)” (People v. Thompson, supra, 27 Cal.3d at p. 317, fns. omitted.)
Applying this analysis to the case at bar, it is readily apparent that evidence of each shooting incident would not be admissible to prove identity in the respective trial of the other under
The People themselves have indicated no factors, besides the alleged relation to gang activity, which would cause the evidence of the two crimes to cross the distinctiveness threshold which we have outlined. In fact, the one factor they suggest—evidence of common gang membership—might very well mitigate against admissibility of one offense in the trial of the other, since it is arguably of limited probative value while creating a significant danger of unnecessary prejudice.8
In the case at bar, the two additional factors favoring joinder suggested by this court in Matson provide little or no additional support for a decision to deny severance. The first of these factors—“the needless harassment of the defendant,” which has previously been noted in cases like Kellett v. Superior Court (1966) 63 Cal.2d 822, 825-827 [48 Cal.Rptr. 366, 409 P.2d 206]—is totally irrelevant since it is the defendant who has moved for separate trials, thereby waiving this concern. The second factor noted in Matson is “the waste of public funds which may result if the same general facts were to be tried in two or more separate trials” (citing People v. Brock (1967) 66 Cal.2d 645, 655 [58 Cal.Rptr. 321, 426 P.2d 889], disapproved on other grounds in People v. Cook (1983) 33 Cal.3d 400, 413, fn. 13 [189 Cal.Rptr. 159, 658 P.2d 86]). In Brock, the same factual issues relating to the defendant‘s arrest and the search of his room would have been litigated at both trials. Here, on the other hand, there would be virtually no duplication of evidence in a severed trial because the offenses are not connected together in their commission. Although there is inevitably some duplication in cases where the same defendant is involved, it would be error to permit this concern to override more important and fundamental issues of justice. Quite simply, the pursuit of judicial economy and efficiency may never
We turn then to the question of prejudice and more specifically to whether the trial court should have exercised its discretion and granted the motion to sever “in the interests of justice and for good cause shown.” It should be clear by now that a demonstration of substantial prejudice by a defendant may be sufficient to warrant severance of charges which could otherwise properly be joined. When substantial prejudice is clearly shown, a trial court‘s denial of a defendant‘s motion for severance constitutes an abuse of discretion under
We wish to stress, however, that a determination of prejudice is a highly individualized exercise, necessarily dependent upon the particular circumstances of each individual case. In analyzing this issue in the instant matter, we find the most useful mode for analysis to be that set out in Coleman v. Superior Court, supra, 116 Cal.App.3d 129, 137-140. There, the defendant was charged with various sexual crimes against two minor children as well as with the rape and murder of an adult victim. The charges had been joined for purposes of trial, and the trial court refused to grant defendant‘s severance motion. The Court of Appeal reversed, holding that the denial of the motion to sever was an abuse of discretion because (1) the evidence of the crimes against the children did not share sufficient common distinctive marks with the crimes against the adult and therefore would not have been admitted in the trial of the crimes against the adult, (2) sexual crimes against children are highly inflammatory and might have a very serious prejudicial effect on the jury in the trial of the crimes against the adult, (3) the joinder of the charges involving the adult, the evidence of which was relatively weak, with the charges involving the children, the evidence of which was strong, would have a prejudicial effect, and (4) if convicted of the crimes against the adult, the defendant would be subject to the death penalty.
It is true that the present case does not involve the “highly inflammatory” issue of sex crimes against children. Yet it would be folly to suggest that we should limit the consideration of the prejudicial impact of a joint trial to cases which involve sexual assaults against minors. Examining the facts of the two separate incidents here, we find that all four of the factors established in the above model are also present in the current matter, albeit in somewhat different form.
First, as we have noted above, the two shootings do not share sufficient common and distinctive marks to be admissible in the respective separate
Third, whether we choose to view this case as involving the joinder of one weak and one strong case or alternatively of two relatively weak cases,10 joinder would still remain very prejudicial to defendant under the facts of this case. In Coleman, supra, 116 Cal.App.3d 129, the court was concerned with the potentially prejudicial effect of joining a weak case, the murder, with the charges of sexual attacks against minors, for which the evidence was much stronger. The court feared that the jury would be unable to decide one case exclusively on the evidence relating to that crime, noting that it would be difficult for jurors to maintain doubts about the weaker case when presented with stronger evidence as to the other. (Coleman, supra, 116 Cal.App.3d at p. 138.)
This reasoning should not be limited to situations where the relative strengths of the cases are unequal. Indeed, our principal concern lies in the danger that the jury here would aggregate all of the evidence, though presented separately in relation to each charge, and convict on both charges in a joint trial; whereas, at least arguably, in separate trials, there might not be convictions on both charges. Joinder in this case will make it difficult not to view the evidence cumulatively. The result might very well be that
The final consideration in our analysis is that since one of the charged crimes is a capital offense, carrying the gravest possible consequences, the court must analyze the severance issue with a higher degree of scrutiny and care than is normally applied in a noncapital case. Even greater scrutiny is required in the instant matter, for it is the joinder itself which gives rise to the special circumstances allegation of multiple murder under
Let a peremptory writ of mandate issue, directing the trial court to set aside its order denying defendant‘s motion to sever and to enter an order granting said motion.
Bird, C. J., Mosk, J., Kaus, J., Reynoso, J., and Grodin, J., concurred.
GOLDSTEIN, J.*—I respectfully dissent. We are here confronted with a petition for extraordinary relief from an alleged abuse of discretion on the part of the trial court which considered and denied petitioner‘s motion for severance under section 954 of the Penal Code. Because there is no substantial prejudice to petitioner resulting from the denial of his motion for severance, I would find no abuse of discretion and deny the writ.
Petitioner concedes, as he must,¹ that the June 16, 1981, murder count and the March 25, 1982, murder count are “offenses of the same class”
*Assigned by the Chairperson of the Judicial Council.
¹See, footnote 3, majority opinion, ante, page 447.
Statutory permission to join did not prevent petitioner from moving the trial court for severance because
Put simply, in the absence of a constitutional infirmity,
The majority opinion states, “[t]he initial step in any review of a motion to sever is to examine the issue of cross-admissibility of evidence.” (Majority opn., ante, p. 448.) The test of cross-admissibility is erroneous both in logic and law.
Until the Coleman court was enticed into stating that nonadmissibility was one of the four bases for its conclusion that the trial court had abused its discretion by denying a motion to sever, cross-admissibility had never been used as a test to show prejudice when all the offenses were charged. (Cole-
The Coleman court correctly decided the question of joinder under
The fact that evidence would be cross-admissible if charges were severed does prove that denying severance is without prejudice. On the other hand, it is necessary to ignore the fact that all the offenses are charged as to one another and assume precisely what is being sought, severance, before nonadmissibility can be entertained as a basis for granting a motion to sever. (People v. Shells, supra, 4 Cal.3d at pp. 631-632; People v. Meneley (1972) 29 Cal.App.3d 41, 51-52 [105 Cal.Rptr. 432].)
We are not being asked to approve the joinder of separately charged offenses (uncharged as to one another) where petitioner would lose the ben-
Contrary to the majority‘s approach, it would seem more correct to start with
I adopt the following from Justice Hasting‘s decision below, “Legally, petitioner relies upon Coleman v. Superior Court (1981) 116 Cal.App.3d 129 [172 Cal.Rptr. 86], wherein the court found that it was error not to sever two counts of sexual assaults against children from counts charging the rape-murder of an adult. The factors cited by the court in Coleman, supra, were that the evidence in the rape-murder was weaker than that in the child assaults [there were no eyewitnesses to the former crime and identity was in issue], the evidence of the crimes against the children would not be admissible to prove identity as to the murder charge, joinder of the highly inflammatory sexual assaults on children, as to which there was eyewitness evidence, would have a serious prejudicial effect on the jury, and the fact that the defendant faced the death penalty, but only as to the rape-murder, exacerbated the potential for prejudice.
“Comparison of the facts before us with those present in Coleman, supra, demonstrates conclusively that respondent court herein did not abuse the discretion . . . . Thus the inflammatory quotient of the June 16th and March 25th incidents is virtually identical. Both involved wanton gang related shootings in public locations after dark [fn. omitted]. There is strong eyewitness evidence establishing petitioner as a participant in both incidents.
“Gang membership may be relevant to establish motive in both incidents. We need not now decide whether evidence of gang membership will be admissible at trial; it would, in fact, be premature to do so now. We can say, however, that the relevant factors as to admissibility will be the same for both incidents . . . .
“Petitioner‘s situation falls well within the purview of People v. Matson (1974) 13 Cal.3d 35, 39, wherein the court, citing Witkin, California Procedure, page 288, held that where, as here, the test for joinder is met, the difficulty of showing prejudice from denial of severance is so great that the courts almost invariably reject the claim of abuse of discretion; and further pointed out: ‘The judge‘s discretion in refusing severance is broader than his discretion in admitting evidence of uncharged offenses. The requirements of similarity that apply to the admission of evidence of uncharged offenses [citation omitted] are not applicable when all offenses are charged. (People v. Shells, supra, [94 Cal.Rptr. 275, 483 P.2d 1227], italics in the original.)’ People v. Matson, supra, 13 Cal.3d 35, 41.)”
There being no substantial prejudice to petitioner, I would deny the writ.