Supreme Court of California Justia
Citation 45 Cal. 4th 759, 200 P.3d 816, 89 Cal. Rptr. 3d 188

People v. Soper

Filed 2/19/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S152667
v.
Ct.App.
4/1
D047875
JAMES DANIEL SOPER,
) San
Diego
County
Defendant and Appellant.
Super. Ct. No. SCN193079
___________________________________ )

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.)1 Concluding that

1
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.
1


the joined murder charges should have been severed and tried separately, the
Court of Appeal reversed and ordered separate new trials.
We conclude that the Court of Appeal erred in finding that the trial court
abused its discretion by failing to sever the charged offenses.
I
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 drug 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.
2

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 body was found.
Jeffrey Nash testified that he and others played cards with defendant and Rigby at
the camp the day before Rigby’s body was found. Nash stated that defendant
became upset with Rigby while playing cards, pushed Rigby, and argued with him
throughout most of the game. Kenneth Whitaker testified that he shared a drink
with Rigby and defendant the morning before Rigby’s body was discovered.
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.
3

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.
Rogers explained that he had been with defendant and Olson on the
Saturday evening (September 11) before Olson’s body was discovered. Rogers
said that the men had watched a band perform at the Coffee Bean, a local coffee
shop located near Olson’s camp. Rogers testified that at approximately 8:30 p.m.
Olson left to purchase a beer, but soon returned to the Coffee Bean. Shortly
4
thereafter, Olson departed for his camp. According to Rogers, as Olson was
leaving, defendant told Olson that he would accompany Olson to his camp to have
a beer. Rogers further testified that he saw Olson shake his head “no” in a manner
indicating that Olson was frightened. Defendant followed Olson out of the Coffee
Bean, and this was the last time Rogers saw Olson alive.
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
5


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.
Defendant
was
given
Miranda advisements (Miranda v. Arizona (l966)
384 U.S. 436) and agreed to speak further with detectives from the Oceanside and
Carlsbad police departments. The detectives conducted several additional
audiotaped and/or videotaped interviews of defendant in late September 2004.
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.”
6

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 his or her campsite while lying down or sleeping.
Kennedy further testified that most homicides accomplished by blunt force trauma
involve multiple blows — as opposed to the single blows that killed Rigby and
Olson —and added that he found the similarities between the two cases “striking.”
Finally, Dr. Stanley, the San Diego County medical examiner who investigated
both cases and conducted both autopsies, testified that she was “struck by the
similarities” apparent at the respective crime scenes.
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
7
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.) 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.)2

2
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 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 . . . . An acquittal of one or more counts shall not be deemed
(footnote continued on next page)
8



In support of its motion, the prosecution, relying upon the information
known at that time (and subsequently developed later that day at the preliminary
hearing),3 asserted that evidence underlying both cases would be relevant and
admissible under Evidence Code, section 1101, subdivision (b),4 and also would

(footnote continued from previous page)
an acquittal of any other count.” (§ 954.)

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.)
3
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 ‘I 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. [¶] [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.
4
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
(footnote continued on next page)
9


be cross-admissible, even if there were separate trials on the two charges, based
upon two grounds: First, the prosecution argued, evidence pertaining to one
charge would establish, for purposes of the other charge, “intent to kill, as opposed
to an intent to inflict some non-lethal injury. It [would] disprove[] a wide variety
of possible excuses that would fall within the category of a ‘drunken mistake.’ ”
Second, the prosecution argued, evidence pertaining to one charge would
establish, for purposes of the other charge, common plan and identity.
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 two major issues in dispute
as to both charges: intent and identity.” (Italics added.) The prosecution filed
responsive papers.
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

(footnote continued from previous page)
good faith believe that the victim consented) other than his or her disposition to
commit such an act. [¶] (c) Nothing in this section affects the admissibility of
evidence offered to support or attack the credibility of a witness.”
10


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.
III
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.”5 As defendant concedes, the second alternative is satisfied: the charges
not only are of the same class, but they are identical — both counts alleged murder
(§ 187). Nor is there any doubt that the two charges are “connected together in
their commission.” (See generally Alcala v. Superior Court (2008) 43 Cal.4th
1205, 1218-1220 (Alcala).)
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, 43 Cal.4th 1205, 1220.)
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

5
The statute is quoted more fully ante, at page 8 and in footnote 2.
11


Alcala, supra, 43 Cal.4th 1205, 1218, joint trial has long been prescribed — and
broadly allowed — by the Legislature’s enactment of section 954. The purpose
underlying this statute is clear: joint trial “ordinarily avoids the increased
expenditure of funds and judicial resources which may result if the charges were
to be tried in two or more separate trials.” (Frank v. Superior Court (1989) 48
Cal.3d 632, 639 (Frank).) “A unitary trial requires a single courtroom, judge, and
court attach[és]. Only one group of jurors need serve, and the expenditure of time
for jury voir dire and trial is greatly reduced over that required were the cases
separately tried. In addition, the public is served by the reduced delay on
disposition of criminal charges both in trial and through the appellate process.”
(People v. Bean (1988) 46 Cal.3d 919, 939-940 (Bean); see also, e.g., People v.
Geier (2007) 41 Cal.4th 555, 578 (Geier) [“consolidation of all three cases served
the interest of judicial efficiency”]; People v. Ochoa (1998) 19 Cal.4th 353, 409
[“consolidation ordinarily promotes efficiency”] People v. Mason (1991) 52
Cal.3d 909, 935 (Mason) [in a case in which jury selection took more than two
months, consolidation promoted efficiency by obviating the need to select an
additional jury and “reduced by at least a year the delay in bringing [one of the
charges] to trial”]; see generally People v. Scott (1944) 24 Cal.2d 774, 778-779.)
Decisions of our sister states, and of federal courts, recognize the same principles.
(E.g., State of Montana v. Richards (Mont. 1995) 906 P.2d 222, 227 (Richards)
[noting “the judicial economy which results from a joint trial”]; State of
Washington v. Bythrow (Wa. 1990) 790 P.2d 154, 159 (Bythrow) [joinder
promotes “ ‘obviously important considerations of economy and expedition in
judicial administration’ ”]; United States v. Acker (4th Cir. 1995) 52 F.3d 509, 514
[noting “dominant concern with judicial economy”]; United States v. Armstrong
(9th Cir. 1980) 621 F.2d 951, 954 (Armstrong) [same].) For these and related
reasons, consolidation or joinder of charged offenses “is the course of action
12
preferred by the law.” (Alcala, supra, 43 Cal.4th at p. 1220.) Application of this
preference has special force in the context of a motion to sever properly joined
charges on the ground that joint trial prejudicially would expose a jury to “other
crimes” evidence.
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, 46 Cal.3d 919, “the
People, as the proponent of the evidence, bear the burden of persuading the judge
that the potential prejudice from the jury becoming aware of the uncharged offense
is outweighed by the probative value of the evidence. This is [so] because
evidence of uncharged offenses is generally inadmissible. (Evid. Code, § 1101
[quoted ante, fn. 4]; [citation]. Admission of the evidence involves, inter alia, the
danger of confusing the issues, introducing collateral matters, or tempting the jury
to condemn [the] defendant because he has escaped adequate punishment in the
past. (People v. Thompson (1980) 27 Cal.3d 303, 317 & fn. 18.) It is therefore
appropriate, when the evidence is of an uncharged offense, to place on the People
the burden of establishing that the evidence has substantial probative value that
clearly outweighs its inherent prejudicial effect. (Id., at p. 318.)” (Bean, supra, 46
Cal.3d at p. 38, italics added.) In subsequent decisions addressing the admission
of evidence underlying uncharged misconduct, we have continued to stress that
such evidence “ ‘must not contravene other policies limiting admission, such as
those contained in Evidence Code section 352.’ ” (People v. Ewoldt (1994) 7
Cal.4th 380, 404 (Ewoldt).)6

6
Evidence Code section 352 provides: “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
(footnote continued on next page)
13



As we also observed in Bean, the applicable analysis is significantly
different in the context of properly joined charged offenses. (Bean, supra, 46
Cal.3d 919, 938-939; see generally Alcala, supra, 43 Cal.4th 1205, 1222, fn. 11.)
Unlike what occurs in situations involving the admissibility of uncharged
misconduct — in which the People bear the burden of establishing that the
evidence has substantial probative value that clearly outweighs its inherent
prejudicial effect — by contrast, in the context of properly joined offenses, “[t]he
burden is reversed.” (Bean, supra, 46 Cal.3d at p. 938.) In the latter setting,
“[t]he prosecution is entitled to join offenses under the circumstances specified in
section 954. The burden is on the party seeking severance to clearly establish that
there is a substantial danger of prejudice requiring that the charges be separately
tried. (People v. Ruiz (1988) 44 Cal.3d 589, 605); People v. Balderas (1988) 44
Cal.3d 173.) When the offenses are [properly] joined for trial the defendant’s guilt
of all the offenses is at issue and the problem of confusing the jury with collateral
matters does not arise. The other-crimes evidence does not relate to [an] offense
for which the defendant may have escaped punishment. That the evidence would
otherwise be inadmissible [under Evidence Code section 352] may be considered
as a factor suggesting possible prejudice, but countervailing considerations [of
efficiency and judicial economy] that are not present when evidence of uncharged
offenses is offered must be weighed in ruling on a . . . motion [to sever properly
joined charges]. The burden is on the defendant therefore to persuade the court
that these countervailing considerations are outweighed by a substantial danger of

(footnote continued from previous page)
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.”
14


undue prejudice.” (Bean, supra, 46 Cal.3d at pp. 938-939, italics added; see also
Alcala, supra, 43 Cal.4th 1205, 1220, and cases cited; accord, e.g., State v. Day
(R.I. 2006) 898 A.2d 698, 705 (Day); Richards, supra, 906 P.2d 222, 227;
Bythrow, supra, 790 P.2d 154, 158-159; Armstrong, supra, 621 F.2d 951, 954.)
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, 43 Cal.4th
1205, 1222, fn. 11.)
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, 43 Cal.4th 1205,
1220, and cases cited.) A trial court’s denial of a motion to sever properly joined
charged offenses amounts to a prejudicial abuse of discretion only if that ruling
“ ‘ “ ‘ “falls outside the bounds of reason.” ’ ” ’ ” (Ibid. ) We have observed that
“in the context of properly joined offenses, ‘a party seeking severance must make
a stronger showing of potential prejudice than would be necessary to exclude
other-crimes evidence in a severed trial.’ ” (Id., at p. 1222, fn. 11, quoting People
v. Arias (1996) 13 Cal.4th 92, 127 (Arias).)
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, 46
Cal.3d 919, 939, among the “countervailing considerations” present in the context
of severance — but absent in the context of admitting evidence of uncharged
15
offenses at a separate trial — are the benefits to the state, in the form of
conservation of judicial resources and public funds. (Id., at pp. 939-940.) As
explained below, these considerations often weigh strongly against severance of
properly joined charges.
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, 43 Cal.4th 1205, 1220.)
Although our assessment “is necessarily dependent on the particular circumstances
of each individual case, . . . certain criteria have emerged to provide guidance in
ruling upon and reviewing a motion to sever trial.” (Frank, supra, 48 Cal.3d 632,
639.)
First, we consider the cross-admissibility of the evidence in hypothetical
separate trials. (Alcala, supra, 43 Cal.4th 1205, 1220.) If the evidence underlying
the charges in question would be cross-admissible, that factor alone is normally
sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal
to sever properly joined charges. (Id., at p. 1221.) Moreover, even if the evidence
underlying these charges would not be cross-admissible in hypothetical separate
trials, that determination would not itself establish prejudice or an abuse of
discretion by the trial court in declining to sever properly joined charges. (Ibid.)
Indeed, section 954.1 (quoted ante, fn. 2) codifies this rule — it provides that
when, as here, properly joined charges are of the same class, the circumstance that
the evidence underlying those charges would not be cross-admissible at
hypothetical separate trials is, standing alone, insufficient to establish that a trial
court abused its discretion in refusing to sever those charges.
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-
16
crimes’ evidence on the jury in its consideration of the evidence of defendant’s
guilt of each set of offenses.” (Bean, supra, 46 Cal.3d 919, 938; accord, Day,
supra, 898 A.2d 698, 705; Richards, supra, 906 P.2d 222, 227; Bythrow, supra,
790 P.2d 154, 158-159.) In making that assessment, we consider three additional
factors, any of which — combined with our earlier determination of absence of
cross-admissibility — might establish an abuse of the trial court’s discretion:
(1) whether some of the charges are particularly likely to inflame the jury against
the defendant; (2) whether a weak case has been joined with a strong case or
another weak case so that the totality of the evidence may alter the outcome as to
some or all of the charges; or (3) whether one of the charges (but not another) is a
capital offense, or the joinder of the charges converts the matter into a capital case.
(Arias, supra, 13 Cal.4th 92, 127; see also Alcala, supra, 43 Cal.4th 1205, 1220-
1221, and cases cited.) We then balance the potential for prejudice to the
defendant from a joint trial against the countervailing benefits to the state.7
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.

1. Cross-admissibility of the evidence at hypothetical separate trials
As explained in Ewoldt, supra, 7 Cal.4th 380, there exists a continuum
concerning the degree of similarity required for cross-admissibility, depending

7
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, 43 Cal.4th 1205, 1221.)
17


upon the purpose for which introduction of the evidence is sought: “The least
degree of similarity . . . is required in order to prove intent. . . . In order to be
admissible [for that purpose], the uncharged misconduct must be sufficiently
similar to support the inference that the defendant ‘ “probably harbor[ed] the same
intent in each instance.” [Citations.]’ [Citation.]” (Id. at p. 402, italics added.)
By contrast, a higher degree of similarity is required to prove common design or
plan,8 and the highest degree of similarity is required to prove identity.9

8
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.) [¶] 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, 7 Cal.4th 380, 402-403.)
9
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)] 50
Cal.3d 954, 987.) ‘The pattern and characteristics of the crimes must be so
unusual and distinctive as to be like a signature.’ (1 McCormick, supra, § 190,
pp. 801-803.)” (Ewoldt, supra, 7 Cal.4th 380, 403; see also People v. Balcom
(1994) 7 Cal.4th 414, 425 [in order to be admissible on the issue of identity,
evidence underlying an uncharged offense “must share with the charged offense
characteristics that are ‘ “so unusual and distinctive as to be like a signature” ’ ”
and “virtually eliminate[] the possibility that anyone other than the defendant
committed the charged offense”].)
18


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.10 It was apparent at the
time the trial court denied severance that identity was one of the issues (and
perhaps the primary one) that would be disputed at trial.11 As the People observe,
however, intent to kill, along with premeditation and deliberation, also was in
dispute and would have been at issue in any separate trial as well. The
prosecution, of course, must prove each element of its case. Defendant’s assertion
that his defense to the two charges was bound to focus upon identity, and not
intent, would not eliminate the prosecution’s burden to establish both intent and
identity beyond a reasonable doubt. (See Alcala, supra, 43 Cal.4th 1205, 1223.)
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, 7 Cal.4th 380, 403, set forth more fully ante, fn. 9.) Next,
the Court of Appeal determined that although the evidence underlying the two

10
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, 43 Cal.4th 1205,
1220.) We have observed ante, in footnote 3, that in the present case the
information available to the trial court when it made its severance ruling consisted
of (1) evidence substantially similar to that subsequently presented at trial, as well
as
(2) additional evidence not presented by the prosecution at trial.
11
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 . . . .”
19


charges would be relevant and potentially cross-admissible on the issue of
defendant’s intent under the lower standard of similarity governing evidence
offered for that purpose (Ewoldt, supra, 7 Cal.4th at p. 402, quoted ante, p. 18),
nevertheless, because a jury would be tempted to employ that same evidence for
the improper purpose of determining identity, the probative value of the evidence
in establishing intent would be “outweighed by the possibility of prejudice
pursuant to Evidence Code section 352.”12 In the course of its analysis, the
appellate court also suggested that in addition to the perceived problem arising
under Evidence Code section 352, the evidence would not be admissible at
hypothetical separate trials to prove defendant’s intent because it was neither
conceded, nor could it be assumed, that defendant was the perpetrator of both
charged offenses.13

12
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.”
13
In this regard the Court of Appeal quoted language in Ewoldt, supra, 7
Cal.4th 380, stating that “[e]vidence of intent is relevant to establish that,
assuming the defendant committed the alleged conduct, he or she harbored the
requisite intent.” (Id., at p. 406, italics added.) Thereafter, the appellate court
stated: “This was not a case in which the identity of the perpetrator of the two
murders could be assumed, and [in which] the issue for the jury was the nature of
the perpetrator’s intent in committing the murders.”

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
(footnote continued on next page)
20



In response the People assert, first, that the evidence underlying the two
charges would indeed be cross-admissible at hypothetical separate trials on both
the issue of intent and on the issue of identity — and that the trial court was
correct in so concluding when it denied the motion to sever and subsequently
admitted the evidence for both purposes at the joint trial. The People further
contest the Court of Appeal’s suggestion (and that of defendant — see ante,
fn. 13) that in order to introduce such evidence of intent, either it must be
conceded or a court must be able to assume that the defendant was the perpetrator
in both charged offenses. In this regard, the People assert instead that properly
admissible evidence may be considered by a fact finder to prove intent if the
evidence is sufficient to sustain a finding “by a preponderance of the evidence”
that the defendant committed those other crimes. (Quoting People v. Carpenter
(1997) 15 Cal.4th 312, 380-383 (Carpenter); see Evid. Code, §§ 403, 115.)
As we recently observed in Alcala, supra, 43 Cal.4th 1205, a fact finder
properly may consider admissible “other crimes” evidence to prove intent, so long
as (1) the evidence is sufficient to sustain a finding that the defendant committed
both sets of crimes (id., at p. 1224 & fn. 14, citing Carpenter, supra, 15 Cal.4th
312, 380-383), and further (2) the threshold standard articulated in Ewoldt can be

(footnote continued from previous page)
is the perpetrator,” evidence of uncharged conduct to prove intent “should be
deemed inadmissible.” In support, defendant relies upon Hassoldt v. Patrick
Media Group
(2000) 84 Cal.App.4th 153, 166-167 (a civil case employing
Ewoldt’s principles), which observes: “[I]t would make no sense to admit
evidence of uncharged misconduct on the issue of intent, motive or lack of mistake
or accident where the identity of the actor is not yet determined. Stated otherwise,
it would not be relevant to inquire into the issues of intent or motive until it is
established the defendant is the person or entity whose motive or intent is at
issue.”
21


satisfied — that is, “the factual similarities among the charges tend to demonstrate
that in each instance the perpetrator harbored” the requisite intent. (Alcala, supra,
43 Cal.4th at p. 1224, paraphrasing Ewoldt, supra, 7 Cal.4th 380, 402.) There is
no requirement that it must be conceded, or a court must be able to assume, that
the defendant was the perpetrator in both sets of offenses.
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,14 and also
satisfies the threshold standard articulated in Ewoldt, supra, 7 Cal.4th 380, 402,
for admission to prove intent.15 We further agree with the People that the
evidence appears to be cross-admissible on the issue of identity, but in an
abundance of caution we shall assume for purposes of analysis that (as the Court
of Appeal determined) the evidence did not meet the stringent standard for

14
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 close to the time of the deaths. In the
Rigby case, witnesses testified that defendant played cards with the victim at his
camp shortly before his death, and at least one witness (Nash) testified that
defendant was upset with Rigby, pushed him, and argued with him throughout the
game. In the Olson case, a witness (Rogers) testified that when Olson last was
seen alive, defendant said that he would accompany Olson to his camp to have a
beer, and as Olson and defendant departed for his camp, Olson had shaken his
head “no,” indicating to Rogers that Olson was frightened.
15
As in Alcala, supra, 43 Cal.4th 1205, “the factual similarities among the
charges tend to demonstrate that in each instance the perpetrator harbored the
intent to kill and that the homicides were premeditated.” (Id., at p. 1224.) In each
case, the victim was a homeless man, killed by a single blow to the head as he
slept at his camp; and in each case the weapon employed was a large and heavy
object apparently found by the perpetrator at the camp and discarded at the scene.
22


similarity required by Ewoldt, supra, 7 Cal.4th at page 403, in order to be
admissible on that issue. Accordingly, we also shall assume that the evidence
underlying the two offenses would not have been cross-admissible on the issue of
identity at hypothetical separate trials.16
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 court abused
its discretion in failing to sever those charges. Accordingly, the assumed absence

16
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.
23


of cross-admissibility on the issue of identity in the present case is simply one
factor to be weighed against the benefits of joinder. (Frank, supra, 48 Cal.3d 632,
641.) We turn to the other three factors that often are considered in evaluating
such requests (see ante, p. 17 — likelihood to unduly inflame; bolstering of a
weak case with a strong one; and conversion of charges into a capital offense), and
proceed to weigh all four factors against the benefits to the state of joinder.
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, 52 Cal.3d 909,
934.) Nor is this a situation in which either charge is a capital offense, or in which
the prosecutor sought joinder in order to convert the matter into a capital case.
(Compare Williams v. Superior Court (1984) 36 Cal.3d 441, 454 [a case in which
“it is the joinder itself which gives rise to the special circumstances allegation of
multiple murder”].)
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,
24
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
blood samples found on a paper bag and cardboard at Rigby’s camp matched
DNA from samples taken from defendant, whereas, by comparison, DNA testing
of samples from the Olson camp revealed no link to defendant. On the other hand,
we note that different DNA evidence taken from the railroad tie found at the Rigby
camp excluded both defendant and Rigby, and apparently belonged to a third,
unidentified male — a circumstance highlighted by defense counsel in her closing
argument to the jury.17 By comparison, no such forensic evidence concerning a
third person was found at the Olson camp — and so in this sense, the Rigby
evidence may be seen as more susceptible to challenge than the Olson evidence.
Even assuming that, when viewed as a whole, the Rigby evidence may have
appeared, at the time of the severance motion, to be somewhat stronger than the

17
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].”
25


Olson evidence, the salient point is that the proffered evidence was sufficiently
strong in both cases.
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, 44 Cal.3d 589, 607
(Ruiz) [severance not required of two properly joined murder charges even though
evidence underlying one charge was “relatively weak” and was made “much
stronger” by the evidence underlying the second charge].) Furthermore, the
benefits of joinder are not outweighed — and severance is not required — merely
because properly joined charges might make it more difficult for a defendant to
avoid conviction compared with his or her chances were the charges to be
separately tried. (E.g., Zafiro v. United States (1993) 506 U.S. 534, 540
[“[D]efendants are not entitled to severance merely because they may have a better
chance of acquittal in separate trials”]; accord, Richards, supra, 906 P.2d 222,
227.)
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
significance of blood sample evidence. Moreover, as the People observe, “[t]he
jury would also have to be educated in both cases regarding facts unique to the
26
transient lifestyle,” and “[t]he prosecution . . . intended to impeach [defendant]
with the same evidence if he testified.”
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
27
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 and 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.
The Court of Appeal erred, initially, by failing to take into account these
general benefits in its consideration of whether the advantages of joinder were
sufficiently substantial to outweigh any possible spillover prejudice to defendant,
and further erred by concluding that the benefits of joinder were minimal. Quite
to the contrary, the benefits of joinder were very substantial. (Bean, supra, 46
Cal.3d 919, 939-940; see also Frank, supra, 48 Cal.3d 632, 639; Mason, supra, 52
Cal.3d 909, 935; accord, Richards, supra, 906 P.2d 222, 227; Bythrow, supra, 790
P.2d 154, 158-159.) On the record before us, after considering the factors set out
above, we conclude that defendant has “failed to carry his burden of making the
clear showing of prejudice [required] to establish that the superior court abused its
discretion in declining to sever the [two] charges.” (Alcala, supra, 43 Cal.4th
1205, 1229.)
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
28


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) 39 Cal.4th 826, 851 [finding no such violation]; accord, People v.
Zambrano (2007) 41 Cal.4th 1082, 1130 [same]; Mason, supra, 52 Cal.3d 909,
935-936 [same]; see also Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, 1084-
1086 (Bean II) [finding such a violation]; see generally United States v. Lane
(1986) 474 U.S. 438, 446, fn. 8 [“[M]isjoinder would rise to the level of a
constitutional violation only if it results in prejudice so great as to deny a
defendant his Fifth Amendment right to a fair trial”].)
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 resulting trial was grossly unfair, but standing alone the absence of
such a limiting instruction does not establish gross unfairness depriving defendant
of due process.
Appellate courts have found “ ‘no prejudicial effect from joinder when the
evidence of each crime is simple and distinct, even though such evidence might
29
not have been admissible in separate trials.” (Bean v. Calderon, supra, 163 F.3d
1073, 1085, quoting Drew v. United States (D.C. Cir. 1964) 331 F.2d 85, 91.)
Here as well, the evidence underlying the Rigby and Olson charges was relatively
straightforward and distinct, and as noted ante, in part I, and summarized in
footnote 14, the evidence related to each charge was independently ample to
support defendant’s conviction of both crimes. Nor was there any great disparity
in the nature of the two charges — the facts pertaining to each crime, compared to
the other, were not likely to unduly inflame the jury. Nor, contrary to defendant’s
assertion, is it clear that the evidence underlying one charge (the Olson murder)
was significantly weaker than that underlying the other (the Rigby murder).
Finally, the jury was instructed on the elements of murder, on the burden of proof
for conviction, and — consistently with defense counsel’s closing argument to the
jury, stressing the need to consider each charge separately and to avoid
bootstrapping — that each count charged a distinct offense that must be separately
decided.18 These instructions mitigated the risk of any prejudicial spillover
(Geier, supra, 41 Cal.4th 555, 578-579), and indeed it appears that the jury in fact
was able to follow the instructions and to compartmentalize the evidence
presented in the two cases: The circumstance that the jury found defendant guilty
of only second degree murder as to Olson, while finding him guilty of the first
degree murder of Rigby, “suggests that the jury was capable of differentiating
between defendant’s various murders; no improper spillover effect is evident
here.” (Ruiz, supra, 44 Cal.3d 589, 607; accord, Richards, supra, 906 P.2d 222,

18
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.)
30


227; Bythrow, supra, 790 P.2d 154, 159.) Considering the proceedings as a
whole, we conclude that defendant’s trial was not grossly unfair.
IV
The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court for proceedings consistent with this opinion.
GEORGE,
C.
J.
WE CONCUR:
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
31




CONCURRING AND DISSENTING OPINION BY KENNARD, J.

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
1


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. 22-23.) 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) 7 Cal.4th 380, 403.) This court has said that for evidence of another crime
to be admissible on the issue of the perpetrator’s identity, the similarities between
the two crimes must be “ ‘so unusual and distinctive as to be like a signature.’ ”
(Ibid., quoting 1 McCormick on Evidence (4th ed. 1992) § 190, p. 803.) It must
be remembered, however, that it is the combination of features, and not any
individual feature, that must be highly distinctive. (See, e.g., People v. Rogers
(2006) 39 Cal.4th 826, 852; People v. Roldan (2005) 35 Cal.4th 646, 706.)
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
2
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, 7 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) 43
Cal.4th 1205, 1221; People v. Carter (2005) 36 Cal.4th 1114, 1154.) This case
contains no unusual circumstance that would preclude application of the normal
rule. Therefore, the conclusion that evidence of the Rigby and Olson murders
would have been fully cross-admissible on the issues of identity and intent in
hypothetical separate trials is sufficient to establish both that the trial court did not
err in denying defendant’s pretrial severance motion and that the resulting trial on
all charges did not result in such gross unfairness as to deny defendant due process
of law. On this basis, I join the majority in reversing the Court of Appeal’s
judgment and remanding the matter to that court for further proceedings.
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 and
Olson murders the prosecution’s evidence against defendant would not have been
cross-admissible on the issue of his identity as the perpetrator of those murders.
3
The majority makes this assumption even though it professes to “agree with the
People that the evidence appears to be cross-admissible on the issue of identity.”
(Maj. opn., ante, at p. 22.) After making the assumption of non-cross-
admissibility, the majority nonetheless concludes, by means of a labored analysis,
that the trial court properly denied the severance motion (id. at p. 28) and that the
joint trial on these charges, at which the jury was permitted to consider the
evidence of each murder in deciding whether defendant committed the other
murder, was not grossly unfair to defendant (id. at p. 31). I am not persuaded.
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 the 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.1
The majority’s unnecessary and unrealistic assumption that evidence of the
two murders was not cross-admissible on the issue of identity would similarly

1
In concluding that, in the absence of full cross-admissibility, the benefits of
joinder would have outweighed the grave risk of prejudice to the 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.
4


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, 7 Cal.4th at p. 404 [acknowledging that other-crimes
evidence always involves an inherent and substantial risk of prejudice].)
Thus, I do not join the majority in its analysis of the issues under review,
but, for the reasons I have set forth earlier, I do join the majority in reversing the
Court of Appeal’s judgment.
KENNARD,
J.
5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Soper
__________________________________________________________________________________

Unpublished Opinion

NP opn. filed 4/10/07 – 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S152667
Date Filed: February19, 2009
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Runston G. Maino

__________________________________________________________________________________

Attorneys for Appellant:

David M. McKinney, under appointment by the Supreme court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief
Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, David
Delgado-Rucci, Steve Oetting and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and
Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

David M. McKinney
1347 Tavern Road, #18, PMB 339
Alpine, CA 91901
(619) 445-0194

Raymond M. DiGuiseppe
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92186-5266
(619) 645-3180


Document Outline

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Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. This case presents the following issue: In concluding that the trial court abused its discretion when it denied defendant's motion to sever two murder counts for trial, did the CA err in holding that evidence of each murder could not be admitted on the question of intent or motive as to the other murder because identity was at issue and the crimes were not cross-admissible on that point?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 02/19/200945 Cal. 4th 759, 200 P.3d 816, 89 Cal. Rptr. 3d 188S152667Review - Criminal Appealclosed; remittitur issued

Parties
1Soper, James Daniel (Defendant and Appellant)
California State Prison, Sacramento
P.O. Box 290066
Represa, CA 95671

Represented by David M. Mckinney
Attorney at Law
1347 Tavern Road, Suite 18, PMB 339
Alpine, CA

2Soper, James Daniel (Defendant and Appellant)
California State Prison, Sacramento
P.O. Box 290066
Represa, CA 95671

Represented by Appellate Defenders, Inc.
555 W. Beech Street, Suite 300
555 W. Beech Street, Suite 300
San Diego, CA

3The People (Plaintiff and Respondent)
Represented by Raymond Mark Diguiseppe
Office of the Attorney General - San Diego
110 West "A" Street, Suite 1100
San Diego, CA


Opinion Authors
OpinionChief Justice Ronald M. George
ConcurJustice Joyce L. Kennard
DissentJustice Joyce L. Kennard

Disposition
Feb 19 2009Opinion: Reversed

Dockets
May 11 2007Petition for review filed
  the People, plaintiff and respondent Raymond DiGuiseppe, Dep. A.G.
May 15 2007Received Court of Appeal record
  one volume
Jun 11 2007Record requested
  remaining record.
Jun 13 2007Received additional record
  one box
Jun 27 2007Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jul 19 2007Request for extension of time filed
  Respondent, The People, requesting to August 27 to file opening brief on the merits (to court for permission)
Jul 26 2007Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including August 27, 2007.
Aug 9 2007Counsel appointment order filed
  Upo request of appellant for appointment of counsel, David M. McKinney is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Aug 15 2007Request for extension of time filed
  Raymond DiGuiseppe, Deputy Attorney General, counsel for respondent requesting to September 26 to file respondent's opening brief on the merits. (to court for permission)
Aug 22 2007Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's opening brief on the merits is hereby extended to and including September 26, 2007.
Sep 25 2007Opening brief on the merits filed
  the People, plaintiff and respondent Raymond DiGuisppe, Dep. A.G.
Oct 17 2007Change of contact information filed for:
  James Soper
Oct 22 2007Request for extension of time filed
  David M. McKinney counsel for appellant Soper requesting to November 24, 2007, to file anwser brief on the merits (to court for permission)
Oct 25 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including November 24, 2007.
Nov 26 2007Request for extension of time filed
  David M. McKinney counsel for appellant requesting to December 24 to file answer brief on the merits (to court for permission)
Nov 30 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including December 24, 2007.
Dec 21 2007Answer brief on the merits filed
  James Soper, defendant and appellant David McKinney, counsel
Jan 3 2008Request for extension of time filed
  Dep. Atty. Gen. Raymond M. DiGuiseppe, counsel for respondent, requesting a 30-day extension to Feb. 11, 2008, to file reply brief on the merits.
Jan 10 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including February 11, 2008.
Feb 7 2008Reply brief filed (case fully briefed)
  The People, Plaintiff and Respondent Raymond M. DiGuiseppe, Deputy Attorney General
May 1 2008Compensation awarded counsel
  Atty McKinney
Oct 22 2008Case ordered on calendar
  to be argued on Wednesday, December 3, 2008, at 1:30 p.m., in Los Angeles.
Nov 12 2008Order filed
  In addition to the issue framed in the petition for review, the parties are requested to be prepared to address, at oral argument, whether the trial court erred in denying the motion to sever and, if not, whether defendant was nonetheless prejudiced by the joinder.
Nov 19 2008Supplemental brief filed
  The People, Respondent by Raymond D. DiGuiseppe, counsel
Dec 1 2008Received:
  Supplemental Letter Brief James Soper, Defendant and Appellant. David M. McKinney, counsel
Dec 3 2008Cause argued and submitted
 
Feb 18 2009Notice of forthcoming opinion posted
 
Feb 18 2009Filed:
  by appellant, "Declaration in Support of Appellant's Motion to Augment the Record on Appeal"
Feb 19 2009Opinion filed: Judgment reversed
  and the matter is remanded to that court for proceedings consistent with this opinion. Majority Opinion by George, C. J. ..... joined by: Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. Concurring and Dissenting Opinion by: Kennard, J.
Mar 25 2009Compensation awarded counsel
  Atty McKinney
Apr 14 2009Remittitur issued
 
Apr 20 2009Returned record
  4 doghouses
Apr 20 2009Received:
  Receipt for Remittitur

Briefs
Sep 25 2007Opening brief on the merits filed
 
Dec 21 2007Answer brief on the merits filed
 
Feb 7 2008Reply brief filed (case fully briefed)
 
Brief Downloads
application/pdf icon
Soper.Merits.pdf (294598 bytes) - Soper Merits Brief for Defendant
application/wordperfect icon
SoperAnswerBrief.FinalCopy.wpd (149919 bytes) - Soper Answer Brief for Defendant
application/wordperfect icon
70101907.wpd (157449 bytes) - Soper Merits Brief for the State
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 23, 2011
Annotated by allen gleckner

Facts:

Defendant, a homeless man, was charged with murdering two other homeless men within approximately four months of one another. Both of the victims were killed by one blow from a blunt force trauma from a large object that existed at the crime scene and was left near the victim. Both victims were found in their camps, which were about three miles apart.

Procedural History:

The state initially charged Defendant with separate murder charges for each victim, but subsequently filed a single amended complaint alleging two murder charges and moved to consolidate the charges under Pen. Code §954 (available at http://law.justia.com/codes/california/2010/pen/948-973.html). Defendant moved to sever the two charges pursuant to §954. The trial court ruled that the charges were properly joined and denied the Defendant’s motion to sever. After trial, the jury convicted Defendant of First Degree murder for one case, and Second Degree murder for the second case. The Court of Appeal reversed, finding that Defendant’s motion to sever should have been granted. The state appealed the Court of Appeal’s decision to the Supreme Court.

Issues:

Whether the trial court abused its discretion by denying Defendant’s motion to sever.

Holdings:

The trial court did not abuse its discretion by failing to sever the two murder charges.

Analysis:

The court held that Defendant had to carry a substantial burden in order for the trial court to grant its motion to sever. “The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” (page 13). Further, on appeal, the Defendant has to make a “clear showing of prejudice to establish that the trial court abused its discretion.” (page 14).

To determine if the trial court abused its discretion, the court examined factors established in Alcala and Bean (see Related/Cited Cases section below). First, it asked whether the evidence for the multiple charges would be admissible for both charges if they were being tried via separate trials – or whether the evidence would be “cross-admissible.” If yes, then the motion to sever fails. Here, the court found that the evidence going to the Defendant’s identity would certainly be cross-admissible. However, even though it thought it likely that evidence brought to prove the Defendant’s identity would be cross-admissible, for cautionary purposes it assumed that this evidence would not be cross-admissible.

Thus, the court moved to the second part of the analysis to determine “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.” (pages 15-16). This determination requires the court to consider three factors “(1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case.” If the court finds that any of these is present, it then balances the “potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state” from a joint trial. (page 16).

The court found that since the charges were identical and the crimes so similar in nature that one would not inflame the jury for purposes of the other. Also, neither charge was capital. For factor (2), the court found that while the evidence for one of the murders was stronger (see pages 23-24), it was not “significantly” stronger and, more importantly, the evidence in both cases was strong. In addition, it found that there were “very substantial” benefits of joinder through both its “case-specific” efficiencies (ie, witnesses and evidence) and “systemic” efficiencies (ie, lawyers and staff) and that these benefits would also be true on appeal.

Finally, the court found that Defendant did not meet “his high burden of establishing that the trial was grossly unfair and that he was denied due process of law.” (page 28). Defendant argued that the trial was unfair because the prosecution used the argument that whoever committed one of the murders must have committed the other, and therefore proving only one of the murders would get two convictions. The court rejected this argument finding inter alia that the jury instructions and defense counsel’s closing arguments “mitigated the risk of any prejudicial spillover.” (page 29).

Tags:
cross-admissibility, motion to sever, joinder, grossly unfair trial, multiple charges

Relate/Cited Cases:
Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1218–1220, 78 Cal.Rptr.3d 272, 185 P.3d 708
http://scholar.google.com/scholar_case?case=5584480521163871135

People v. Bean (1988) 46 Cal.3d 919, 939–940, 251 Cal.Rptr. 467, 760 P.2d 996
http://scholar.google.com/scholar_case?case=371186664056579291

Annotation by Allen Gleckner

Mar 13, 2009
Annotated by diana teasland

Written by Katrina Eiland

Procedural History

Defendant moved to sever two murder charges that had been joined into a single trial pursuant to California Penal Code §954, arguing that the evidence would not be cross-admissible at separate trials and that joinder posed an undue risk of prejudice. The trial court rejected defendant’s motion to sever and he was subsequently convicted of first-degree murder in one charge and second-degree murder in the other. The California Court of Appeal for the 4th Appellate District reversed, finding the trial court abused its discretion in denying defendant’s motion to sever and ordered separate trials. In finding defendant was entitled to severance of the two murder counts, the appellate court held that the trial court erred in finding that evidence of two homicides would be cross-admissible. The California Supreme Court accepted the government’s petition for review and reversed.

Summary

Opinion by Chief Justice George

The California Supreme Court reversed the Court of Appeal, finding that defendant’s motion to sever two charges of murdering homeless men was properly denied by the trial court.

The Supreme Court found that the trial court did not abuse its discretion in denying defendant’s motion to sever two charges of murdering homeless men in their sleep. In finding that the trial court properly denied defendant’s request to sever charges, the Court agreed with the government that the factual similarities between the two murders was sufficient to support cross-admission on the issue of intent and identity (which were in dispute) in hypothetical separate trials. For purposes of its analysis, however, the Supreme Court assumed that the information before the trial court did not meet the stringent standard required for cross-admission. The Court then weighed the factors indicating potential prejudice to the defendant against the benefits of joinder. In undertaking its balancing analysis, the court considered the lack of cross-admissibility as just one factor to be weighed against the benefits of joinder. The Supreme Court found that evidence supporting one of the murder charges was not significantly weaker than the other, and therefore, did not indicate a risk of a prejudicial “spillover effect.” In its analysis of the countervailing benefits of joinder, which the Court found to be substantial, it relied heavily on the general benefits of efficiency and resources conservation resulting from the denial of severance, such as avoiding the repetition of certain procedural steps, both during trial and on appeal. Based on this assessment, the Court found that the defendant failed to carry his burden of making the clear showing of prejudice required to establish that the superior court abused its discretion in declining to sever the properly joined charges. Additionally, the court held that, in the end, the joinder of the two murder counts did not result in gross unfairness depriving the defendant of due process of law.

Concurring and Dissenting Opinion, Justice Kennard

Justice Kennard agreed with the majority that the evidence of similarity between the crimes was sufficient to support a finding of cross-admissibility of evidence at hypothetical separate trials. In her opinion, this finding alone would have been sufficient to sufficient to establish both that the trial court did not err in denying defendant’s pretrial severance motion and that the resulting trial on all charges did not result in such gross unfairness as to deny defendant due process of law. Justice Kennard dissented in part, however, because she did not believe that had the evidence of similarity between the two crimes not supported cross-admissibility, the potential prejudice to defendant would have been outweighed by the benefits of joinder.

Important Points of Law

Joinder (California Penal Code §954 ) Background and Purpose

• Requirements for Joinder Under § 954
o Two charges “of the same class” or “connected together in their commission,” may be properly joined

• Standard for Severance o
o § 954 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

• Joinder and the California Constitution
o For purposes of the § 954, the Constitution of California shall not be construed by the courts to prohibit the joining of criminal cases as prescribed by the Legislature.

• The Purpose of § 954
o The purpose underlying this statute is clear: joint trial ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials

Analysis of Whether Trial Court Abused Discretion in Denying Severance

• Allocation of Burden of Proof/Abuse of Discretion Standard
o 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. A trial court's denial of a motion to sever properly joined charged offenses amounts to a prejudicial abuse of discretion only if that ruling falls outside the bounds of reason.

• Countervailing Considerations to Finding of Prejudice
o Unlike in the analysis when reviewing court’s decisions to admit evidence of uncharged acts, in determining whether there has been a clear showing of prejudice in a trial court's ruling declining to sever properly joined charges, countervailing considerations against any showing of prejudice include the benefits to the state in the form of conservation of judicial resources and public funds

• At what point in time to Evaluate Lower Court’s decision
o Consider the record before the trial court when it made its ruling

• Guidelines for Assessment of Lower Court’s Decision Declining to Sever Charges
o Although assessment depends on the particular facts of the case, certain criteria has emerged to provide guidance
o First, consider whether evidence (that would prejudice defendant) would be cross-admissible at hypothetical separate trials
 Cross-admissibility is generally sufficient to dispel suggestions of prejudice and support a trial court’s refusal to sever
 Even if evidence underlying the charges would not be cross-admissible at hypothetical separate trials, that alone is insufficient to establish that a trial court abused its discretion in refusing to sever those charges.
o Second, if evidence underlying properly joined charges would not be cross-admissible, consider whether the benefits of joinder were sufficiently substantial to outweigh the possible prejudicial “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
 Consider the following in deciding if there was “spillover prejudice,” which, together with a finding of lack of cross-admissibility may establish abuse of discretion:
• (1) whether some of the charges are particularly likely to inflame the jury against the defendant;
• (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or
• (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case
o Third, then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state

• Cross-Admissibility of Evidence of Intent and Identity – Cal. Evidence Code § 1101
o On the continuum concerning the degree of similarity required for cross-admissibility of evidence at separate trials, a higher degree of similarity is required to prove common design or plan than is required to prove intent, and the highest degree of similarity is required to prove identity
o A fact finder properly may consider admissible “other crimes” evidence to prove intent, so long as (1) the evidence is sufficient to sustain a finding that the defendant committed both sets of crimes and (2) the factual similarities among the charges tend to demonstrate that in each instance the perpetrator harbored the requisite intent.

• Weighing Factors Indicating Potential Prejudice
o The assumed absence of cross-admissibility on the issue of identity in the present case is simply one factor to be weighed against the benefits of joinder.
o Also consider:
• (1) whether some of the charges are particularly likely to inflame the jury against the defendant;
• (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges;
o 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
• (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case

• Weighing Benefits of Joinder
o Against a showing of potential prejudice, consider the benefits of joinder, which are generally substantial:
 Joinder prevents overlap in witnesses and experts
 Joinder promotes important systemic economies
 Prevents repetition of procedural steps at both trial and appellate stages
o Court erred in unduly minimizing benefits of joinder and failing to consider its general benefits when weighing potential prejudice to defendant against the benefit of joinder

• Gross Unfairness Inquiry
o 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
 Because the court assumes the evidence would not be cross-admissible at separate trials, the fact that the jury was not instructed at the joint trial to restrict its consideration of the evidence to the issue of defendant's intent as to each charge is one factor showing prejudice in the gross unfairness analysis
 If evidence of each crime is simple and distinct, there may be no prejudicial effect from joinder
 The fact that the jury convicted defendant of first degree murder in one charge and second degree murder in the other shows the jury was able to distinguish evidence and this there was no improper spillover effect