I N T H E S U P R E M E C O U R T O F C A L I F O R N I A
RODNEY JAMES ALCALA,
Petitioner,
S150806
v.
THE SUPERIOR COURT OF
Ct. App. 4/3 No. G036911
ORANGE COUNTY, )
)
Respondent;
) Orange
County
Super. Ct. No. C-42861
THE PEOPLE,
Real Party in Interest.
In this matter, the prosecution moved under Penal Code section 790, subdivision
(b) (section 790(b)),1 to join five murder charges — one originating in Orange County,
and the other four in Los Angeles County — in order to proceed with a single trial in
Orange County. Each murder charge alleges a separate special circumstance (§ 190.2),
making each a charge of a capital offense. We granted review to address the Court of
Appeal’s conclusions that (1) intercounty joinder is proper under the statute, but (2) two
of the Los Angeles murder charges must be severed for separate trial. We conclude that
the appellate court was correct on the first point, but erred on the second — and therefore
that a single trial on all five charges may proceed.
1
All further statutory references are to this code unless otherwise indicated.
1
I
Petitioner Rodney James Alcala was tried and sentenced to death in Orange
County for the June 1979 kidnapping and murder of 12-year-old Robin Samsoe. This
court reversed that judgment in People v. Alcala (1984) 36 Cal.3d 604 (Alcala I). Upon
retrial in Orange County, petitioner again was convicted and sentenced to death. We
affirmed on appeal (People v. Alcala (1992) 4 Cal.4th 742 (Alcala II)), but that judgment
was reversed by a federal district court, and the United States Court of Appeals for the
Ninth Circuit upheld that reversal. (Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862.)
Petitioner again was returned to Orange County for retrial on the charges relating
to Robin Samsoe. In the meantime, an Orange County grand jury issued an indictment
against petitioner on four additional counts alleging the murders of young women in Los
Angeles County occurring between November 1977 and June 1979. The prosecution,
relying upon section 790(b), moved to consolidate the Orange County (Robin Samsoe)
case with the four murder charges arising from Los Angeles County. The trial court
granted that motion and refused defendant’s request to sever the five murder charges.
Petitioner sought relief in the Court of Appeal by way of an alternative writ of mandate or
prohibition. The appellate court denied relief in part and granted in part; it concluded that
joinder of all five murder charges was proper under the statute, but that retrial of the
Robin Samsoe case in Orange County could proceed together with only two of the four
Los Angeles County murder charges, and that the other two Los Angeles murder charges
would have to be tried separately. As noted above, we conclude that all five murder
charges may be tried jointly in Orange County.
II
A.
The Robin Samsoe case
The Court of Appeal provided a factual recitation, which in turn was based largely
upon our recitation in Alcala II, supra, 4 Cal.4th 742:
2
On June 20, 1979, 12-year-old Robin Samsoe spent the afternoon with her
girlfriend, Bridget Wilvert, on the cliffs overlooking the beach in the City of Huntington
Beach in Orange County. A man approached asking to take their pictures for what he
represented to be a photography contest. The girls posed for him until Jackelyn Young,
Wilvert’s neighbor, noticed the attention being paid by the man to the young girls and
interrupted them. The man hurriedly picked up his equipment and left. This individual
later was identified as petitioner.2 (Alcala II, supra, 4 Cal.4th at pp. 755-756.)
A few minutes later, Robin and Bridget returned to Bridget’s home, where Robin
borrowed Bridget’s bicycle to ride to her ballet class. Robin was not seen alive again.
(Alcala II, supra, 4 Cal.4th at pp. 755-756.)
Dana Crappa was a seasonal worker for the United States Forestry Service
stationed at Chantry Flats, an area near Sierra Madre in Los Angeles County. Later on
the day Robin disappeared, Crappa, while driving in that mountainous area, came upon a
Datsun F10 automobile parked at a turnout. Crappa saw a dark-haired man pushing or
“forcefully steering” (Alcala II, supra, 4 Cal.4th at p. 758) a blond-haired girl toward a
dry stream bed. Although Crappa considered the scene strange, she took no action. The
next day, as Crappa was returning to her barracks and passing the same area, she saw the
same car parked near the original site and noticed what seemed to be the same dark-
2
Several other young girls at the beach were approached by petitioner, who sought
to photograph them. In each instance, someone was able to identify petitioner as the man
taking pictures of young girls in bikinis. Petitioner also was identified by Richard Sillett,
a survey party chief for the Huntington Beach recreational area. He recalled observing
petitioner carrying a 35-millimeter camera with a telephoto lens, an item of particular
interest to Sillett. One young woman, Lorraine Werts, was on a beach adjacent to that
occupied by Samsoe and Wilvert on the same day Samsoe disappeared. Petitioner took
several pictures of Werts in her bikini. (Alcala II, supra, 4 Cal.4th 742, 757.) As
explained post, after petitioner’s arrest the police discovered, in a storage locker rented
by him in Seattle, Washington, various items of evidence — including slide photographs
of Werts.
3
haired man leaning against a nearby rock. He appeared to have dirt or stains on the front
of his T-shirt. Crappa believed there was something wrong with this scenario, but again
took no action and told no one. (Id. at pp. 758-759; Alcala I, supra, 36 Cal.3d 604, 616.)
Subsequently, Crappa testified that the man she saw on June 20 resembled petitioner,
although she was “not 100 percent positive.” (Alcala II, supra, 4 Cal.4th at p. 758.)
Five days after the original sighting, Crappa again returned to the scene. She
discovered the mutilated and unclothed body of a young girl missing part of her head and
whose hands and feet had been severed. She did not report this finding, nor did she
reveal it to anyone, because she felt guilty about not having informed authorities what she
had seen five days earlier. Four days later, Crappa returned to the scene and noticed a
tennis shoe, shorts, and T-shirt in a pile together. Finally, on July 2, 1979 — 12 days
after Robin disappeared — a colleague of Crappa’s discovered a human skull and some
bones in the area and reported that find to the authorities. The front lower teeth were
smashed in, consistent with a traumatic blow to the mouth. By this time the skull had
become completely separated from the spine, and wild animals had so disrupted the
decomposed remains that it could not be determined what had caused the death or
whether the person had been sexually assaulted. A “Kane Kut” kitchen knife was found
near the main portion of the remains. Less than a mile away, Robin’s beach towel was
discovered with blood on it of a type consistent with that drawn from the bone marrow of
the remains. One of her personalized tennis shoes also was found, but that was the only
piece of clothing retrieved. (Alcala II, supra, 4 Cal.4th at pp. 758-760.)
In the interim, Robin’s companion, Bridget Wilvert, assisted a police composite
artist in drawing a sketch of the man who took the girls’ photographs. That composite
sketch was distributed by the media on or about June 22. Petitioner’s parole officer saw
the sketch and believed it matched petitioner, particularly in light of matters known to the
officer — such as petitioner’s aberrant sexual interest in young girls and his familiarity
with the area in which the remains were found. (Alcala II, supra, 4 Cal.4th at p. 756.)
4
When petitioner visited his girlfriend, Elizabeth Kelleher, in Long Beach on June
22, his hair was long and curly. On June 23, the composite sketch was distributed
throughout the area; on that same day, petitioner straightened his hair with the aid of a
chemical product. On June 26, he cut his hair. On July 8, he told Kelleher he had
decided to leave Southern California for Dallas, Texas, where he planned to establish a
photography business. Kelleher accompanied defendant to the Monterey Park residence
he shared with his mother to help him pack for the trip.
On July 11, defendant rented a storage locker in Seattle, Washington. When he
returned to California three days later, he did not mention to anyone that he had been to
Seattle, and instead told Kelleher he had been to Dallas. On July 23, defendant told
Kelleher he would leave for Dallas on the following day — and he told another
acquaintance he would leave for Chicago. (Alcala II, supra, 4 Cal.4th at p. 760.)
Petitioner was arrested on July 24, however, and a search warrant was served on
the home he shared with his mother. The police impounded a Datsun F10 parked at the
residence and registered to petitioner, inside of which the officers found camera
equipment and a briefcase containing a set of keys. Inside the home, officers seized sets
of Kane Kut kitchen knives and observed a receipt for a storage locker located in Seattle,
Washington. One of the officers copied the information on the receipt but did not seize
it. Officers returned the next day to retrieve the receipt, but it was gone.3 (Alcala II,
supra, 4 Cal.4th at pp. 756-761.)
The Seattle storage locker was searched pursuant to a warrant. Police opened the
locker’s two locks with keys found inside petitioner’s briefcase. Inside the locker, the
officers discovered (1) a box of photographs, including photographic slides taken of
3
Petitioner’s sister spoke with him by telephone following his arrest, after which
she went to the home, retrieved the receipt, and gave it to petitioner’s mother. The
receipt could not be found thereafter. (Alcala II, supra, 4 Cal.4th at p. 761, fn. 7.)
5
Lorraine Werts (see ante, fn. 2) at the beach on the same day Robin disappeared; and
(2) a cloth pouch containing several items of jewelry, including gold earrings that,
according to the testimony of Robin Samsoe’s mother, often were worn by Robin and
that she identified as her own. Samsoe’s mother based her identification of the earrings
on a modification she had made by using her nail clippers to “trim” the earrings. The
striations found on the earrings were consistent with marks made by the same nail
clippers in a test. (Alcala II, supra, 4 Cal.4th at p. 761.)
Petitioner did not testify, but presented an alibi defense.4 He called various
witnesses, who recounted that he applied for a photographer’s position at Knott’s Berry
Farm about June 20, although none could testify to having seen him there on that date. A
defense witness testified that the striations on the gold earrings were consistent with
having been made with nail clippers provided by petitioner’s mother. One witness
testified that she never saw petitioner wear gold earrings like the ones worn by Robin, but
another witness friend testified she believed he in fact had worn such an earring. Finally,
a jail inmate who became acquainted with petitioner while the latter was awaiting his first
trial on the Orange County charges, testified that petitioner told him that Robin had
scratched him and yelled during the attack, and that petitioner also described Robin’s
body in prurient terms. (Alcala II, supra, 4 Cal.4th at pp. 761-763.)
4
Although petitioner did not testify at the guilt phase of the second trial, he testified
at the penalty phase concerning his alibi. (Alcala II, supra, 4 Cal.4th at p. 766.) He
admitted molesting a child in 1972 — and serving time in prison for that offense — and
assaulting Tali S., one of three child molestation victims the prosecution presented at the
penalty phase to prove he committed other, uncharged crimes. Petitioner likewise
admitted possessing child pornography, which resulted in his serving additional time in
custody for a parole violation. He further admitted raping and beating another 15-year-
old girl, Monique H. Nonetheless, petitioner appealed to the jury to send him to prison
for life, arguing that in prison he would be “absolutely harmless” and not “a threat to
children.” (Id., at pp. 766-767.)
6
B.
The four Los Angeles County charges
The relevant facts concerning the killings of four young women in Los Angeles
County were set forth by the Court of Appeal below, and we adopt that recitation with
minor corrections and changes. The indictment issued by the Orange County grand jury
was based upon the following information:
In November 1977, the body of Jill Barcomb was found on a remote dirt road in
the Hollywood Hills, essentially nude.5 She had suffered severe trauma to her head and
face. Her skull was crushed in the left forehead area, possibly with a rock approximately
seven-by-four inches in size that was found lying nearby, the pointed side of which was
covered with blood. Her front teeth had been fractured. She had a bloody bite mark on
the nipple of her right breast, as well as serious injuries to, and conspicuous bleeding
from, the anus. Finally, she had been strangled in three different ways: with a buckled
belt, with knee-high hose, and with one of the legs to the pants she had been wearing.
Her body was found in a position that appeared to be posed — kneeling, with legs spread
out, and with her genitalia exposed.
Barcomb stood no more than five feet tall and weighed about 95 pounds. Swabs
of fluid taken from her genital area were preserved. Subsequently, the development of
DNA typing techniques led to a comparison being made between the DNA in the sperm
found in the swabs and that of petitioner. The samples matched, with a random
correspondence occurring only once in 100 billion.
In December 1977, Georgia Wixted resided alone and was employed as a nurse.
In the early morning hours she gave her girlfriend, Barbara Gale, a ride home from a bar.
Gale expected to see Wixted at work the next day. After she failed to appear, law
5
The only clothing on her body was a sweater and top that were pulled up around
her shoulders. The rest of her body was entirely exposed.
7
enforcement officers who went to her Malibu apartment found her dead on the floor of
her bedroom. She was naked, lying on her back, with a bedspread partly under her; a
nylon stocking was wrapped around her neck several times and so tightly knotted that a
furrow was carved into the cartilage. She had died of strangulation and massive head
injuries: Her skull had been bashed, probably with a hammer lying nearby. Her face also
had been struck, and her genitals were mutilated. The contents of her purse were strewn
around the bathroom; the cabinet drawers throughout the apartment were open and their
contents in disarray, and there was evidence of forced entry.
Swabs of fluids were taken from the victim’s anus, and a palm print was lifted
from the bed’s brass railing. DNA analysis of fluids from the swabs matched petitioner’s
DNA, with a random correspondence occurring only once in one trillion. The palm print
later was compared with petitioner’s, and likewise matched.
In June 1978, Charlotte Lamb was found brutally killed in a laundry room of an
apartment complex in El Segundo. She was nude and had been strangled with a long lace
from a shoe she had been wearing. Her head and face had been beaten. The shoelace
was used as a garrote, so forcefully tightened that the cartilage around her voice box and
thyroid was fractured. Her right breast was scraped and there were lacerations over her
eye and to her entire genital area. She had pierced ears but was found without earrings.
Swabs of fluid taken from her vaginal area later were compared to the DNA sample
obtained from petitioner. The DNA found in seminal fluid on the swabs matched
petitioner’s DNA, with a random correspondence occurring once in 403 trillion. Her
naked body appeared to be posed, with the arms behind the back and the face up.
In June 1979, a few days before Robin Samsoe’s disappearance, Jill Parenteau left
her place of employment early to attend a baseball game. She failed to appear for work
the next day. When the police went to her Burbank apartment, they discovered evidence
of a forced entry and her body on the floor of the bedroom. She had been beaten about
the face and head. Parenteau had deep wounds to her vaginal and rectal areas, and
8
fingernail scratches on her breast. She had been strangled and had suffered severe
hemorrhaging throughout the area of her thyroid, voice box, and epiglottis. Her legs
were spread apart; her body, completely nude, appeared to be posed with pillows propped
up under the shoulders.
Swabs of fluids were taken from her genitals and her mouth. Only the oral swab
revealed any seminal fluid, and the only testing undertaken was to define the serological
characteristics of the contributor. That test revealed that petitioner could not be excluded
from having deposited the fluid, and that the combination of serological factors was
rare — it would be present in only 3.5 percent of the population.
One of Parenteau’s friends, Katharine Bryant, testified she recognized petitioner.
Bryant and Parenteau had gone “clubbing” one evening less than one month prior to
Parenteau’s death, and had encountered petitioner. They had seen him and socialized
with him at a club on more than one occasion.
All of the DNA and related testing concerning the Los Angeles County charges
was performed between 2001 and 2003. A further test was conducted on pieces of
jewelry found in the cloth pouch retrieved from petitioner’s storage locker in Seattle.
One pierced earring — other than the gold earrings recognized by Robin’s mother — was
in the shape of a rose. DNA testing was performed on this earring, revealing that fluids
from Lamb (matching with a random correspondence occurring less than once in 100
billion) remained present on the earring, even after the passage of more than 20 years.
III
Section 790, subdivision (a), long has provided that jurisdiction for a criminal
action for murder lies “in the county where the fatal injury was inflicted or in the county
in which the injured party died or in the county in which his or her body was found.”6
6
The statute continues: “However, if the defendant is indicted in the county in
which the fatal injury was inflicted, at any time before his or her trial in another county,
(footnote continued on next page)
9
Under this rule, homicides committed by a serial killer in different counties could not be
joined in a single accusatory pleading, or otherwise consolidated for trial in a single
county, but instead were required to be prosecuted successively in separate trials in
different counties. This required practice often resulted in inefficiency and high costs to
all parties, and forced witnesses — including surviving victims and victims’ family
members — to testify repeatedly and relive the often traumatic events underlying the
commission of the crimes.
Senate Bill No. 469 (1997-1998 Reg. Sess.) (Senate Bill No. 469) was enacted in
1998 to address these problems by adding section 790(b), the statute at issue in the
present case. (Stats. 1998, ch. 549, § 1.)7 That section provides: “If a defendant is
charged with a special circumstance pursuant to paragraph (3) of subdivision (a) of
(footnote continued from previous page)
the sheriff of the other county shall, if the defendant is in custody, deliver the defendant
upon demand to the sheriff of the county in which the fatal injury was inflicted. When
the fatal injury was inflicted and the injured person died or his or her body was found
within five hundred yards of the boundary of two or more counties, jurisdiction is in
either county.” (§ 790, subd. (a).)
7
A June 23, 1998, report by the Assembly Committee on Public Safety (at pp. 1-2)
sets forth the purpose of the bill: “According to the author, ‘Serial killers who go on
brutal killing rampages do so without consideration of county lines. However, under
current law, if a serial killer commits murder in more than one county, he must be tried
separately in each jurisdiction. This results in astronomical and unnecessary costs for
both prosecutors and defendants. In addition to the waste of public resources, it is unfair
to the victims’ families who must testify repeatedly about the same crime in different
trials. [¶] Senate Bill 469 would allow for the consolidation of murder charges into a
single trial for serial killers who are charged with murder in more than one county as long
as the murders are connected in their commission. This bill would alleviate the fiscal
burden of redundant trials and lessen the emotional strain on victims. [¶] Recent
multiple-county murder defendants include ‘The Freeway Killer’ (Richard Bonin), ‘The
Night Stalker’ (Richard Ramirez), and ‘The Trailside Killer’ (David Carpenter).”
(Assem. Com. on Public Safety, Rep. on Sen. Bill No. 469 (1997-1998 Reg. Sess.) as
amended June 17, 1998, pp. 1-2.)
10
Section 190.2 [that is, multiple murder], the jurisdiction for any charged murder, and for
any crimes properly joinable with that murder, shall be in any county that has jurisdiction
pursuant to subdivision (a) for one or more of the murders charged in a single complaint
or indictment as long as the charged murders are ‘connected together in their
commission,’ as that phrase is used in Section 954, and subject to a hearing in the
jurisdiction where the prosecution is attempting to consolidate the charged murders. . . .”8
(§ 790(b), italics added.)
We begin with the language of the statute, affording the words their ordinary and
usual meaning and viewing them in their statutory context. (People v. Watson (2007) 42
Cal.4th 822, 828; Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715;
accord, City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613,
625.)
The People read section 790(b) as allowing a single joint trial of intercounty
murder charges accompanied by a multiple-murder special-circumstance allegation so
long as one substantive condition is met: “the charged murders are ‘connected together in
their commission,’ as that phrase is used in Section 954.” Petitioner, however, divines in
section 790(b) another, and preliminary, substantive condition. Focusing on the phrase
“and for any crimes properly joinable with that murder,” he asserts the statute should be
read to require not only that joined murder charges be “ ‘connected together in their
commission,’ as that phrase is used in Section 954,” but also that the murders each be
“part of a common plan or scheme.” (Italics added.)
For the reasons that follow, we agree with the People’s construction of the statute.
By its terms, section 790(b) specifies that jurisdiction for the trial of any charged murder
8
The statute continues: “If the charged murders are not joined or consolidated, the
murder that was charged outside of the county that has jurisdiction pursuant to
subdivision (a) shall be returned to that county.” (§ 790(b).)
11
shall lie in any county that has jurisdiction “pursuant to subdivision (a) [of section 790]
for one or more of the murders charged in a single complaint or indictment as long as the
charged murders are ‘connected together in their commission,’ as that phrase is used in
Section 954.” (Italics added.) As explained below, we reject petitioner’s competing
interpretation, because we find it more reasonable to construe the statute’s “properly
joinable” language as merely providing that, with respect to the charged murders, any
other crimes (such as rape, kidnapping, etc.) that are “properly joinable” with a given
murder charge also may be charged and tried along with that murder. We do not read the
statute as imposing any substantive requirement other than that the charged murders be
“ ‘connected together in their commission,’ as that phrase is used in Section
954.” (§ 790(b).)
Although petitioner cites no decision supporting his view that the statute also
requires that the joined murders be “part of a common plan or scheme,” he asserts the
statute’s legislative history supports his interpretation. As explained below, we disagree
and find instead that these materials both (1) confirm the People’s construction and
(2) clarify that the Legislature intended a very broad test for joinder in employing the
language “ ‘connected together in their commission,’ as that phrase is used in Section
954.” (§ 790(b).)
As amended a few months after its introduction in February 1997, Senate Bill
No. 469 would have conditioned joinder of intercounty murder charges upon a finding of
cross-admissibility: the amended bill provided for joinder “if the evidence of one or
more of the charged murders would be admissible in separate trials of the other charged
murders pursuant to subdivision (b) of Section 1101 of the Evidence Code.”9 (Sen. Bill
No. 469, as amended June 2, 1997.) More than one year later, that proposed cross-
9
Evidence Code, section 1101, is quoted post, footnote 12.
12
admissibility test was removed in favor of the language found in the statute today,
permitting joinder “as long as the charged murders are ‘connected together in their
commission,’ as that phrase is used in Section 954.” (Sen. Bill No. 469 as amended June
17, 1978; see § 790(b).)10
In rejecting a requirement that one or more of the charged murders be cross-
admissible, in favor of the “connected together in their commission” language in section
790(b), the Legislature embraced a broad test that had been applied in numerous cases
construing section 954.
Until more than 90 years ago, joinder of criminal charges in a single accusatory
pleading had been strictly limited. Former section 954 read: “The indictment . . . may
10
Section 954 provides in full: “An accusatory pleading may charge two or more
different offenses connected together in their commission, or different statements of the
same offense or two or more different offenses of the same class of crimes or offenses,
under separate counts, and if two or more accusatory pleadings are filed in such cases in
the same court, the court may order them to be consolidated. The prosecution is not
required to elect between the different offenses or counts set forth in the accusatory
pleading, but the defendant may be convicted of any number of the offenses charged, and
each offense of which the defendant is convicted must be stated in the verdict or the
finding of the court; provided, that the court in which a case is triable, in the interests of
justice and for good cause shown, may in its discretion order that the different offenses or
counts set forth in the accusatory pleading be tried separately or divided into two or more
groups and each of said groups tried separately. An acquittal of one or more counts shall
not be deemed an acquittal of any other count.”
With the adoption of Proposition 115 by initiative in 1990, section 954.1 was
added, providing: “In cases in which two or more different offenses of the same class of
crimes or offenses have been charged together in the same accusatory pleading, or where
two or more accusatory pleadings charging offenses of the same class of crimes or
offenses have been consolidated, evidence concerning one offense or offenses need not be
admissible as to the other offense or offenses before the jointly charged offenses may be
tried together before the same trier of fact.” (Italics added.) As we observed in People v.
Zambrano (2007) 41 Cal.4th 1082, 1129, footnote 10, section 954.1 simply signifies that
“notwithstanding section 954, a trial court may not grant severance, where the statutory
requirements for joinder are met, solely on the ground that evidence in the joined cases is
not cross-admissible.”
13
charge different offenses, . . . under separate counts, but they must all relate to the same
act, transaction, or event, and charges of offenses occurring at different and distinct
times and places must not be joined.” (§ 954, amended by Stats. 1905, ch. 574, § 1,
p. 772, italics added.) In 1915, section 954 was amended to read in relevant part as it
does today, permitting the joinder of matters “connected together in their commission.”
(Stats. 1915, ch. 452, § 1, p. 744, italics added.) As Witkin long has observed (4 Witkin
& Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 208, p. 412; see also
Witkin, Cal. Criminal Procedure (1963) Proceedings Before Trial, § 207, pp. 194-195),
the revised language applicable since the 1915 amendment “is broader” than the former,
and “permits joinder of different offenses not related to the same transaction or event ‘if
there is a common element of substantial importance in their commission, for the joinder
prevents repetition of evidence and saves time and expense to the state as well as to the
defendant.’ ” (4 Witkin & Epstein, Cal. Criminal Law, supra, Pretrial Proceedings,
§ 208, at pp. 412-413, italics added, quoting People v. Scott (1944) 24 Cal.2d 774, 778
(Scott); see also, e.g., People v. Valdez (2004) 32 Cal.4th 73, 119; People v. Mendoza
(2000) 24 Cal.4th 130, 160 (Mendoza); People v. Lucky (1988) 45 Cal.3d 259, 276
(Lucky); People v. Matson (1974) 13 Cal.3d 35, 39; People v. Pike (1962) 58 Cal.2d 70,
84; People v. Kemp (1961) 55 Cal.2d 458, 475 (Kemp); People v. Chessman (1959) 52
Cal.2d 467, 492 (Chessman); People v. Poon (1981) 125 Cal.App.3d 55, 68 (Poon);
Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 958; People v. Walker (1952) 112
Cal.App.2d 462, 471 (Walker).) Moreover, as long observed in our cases, the
requirement of section 954 that offenses be “connected together in their commission”
may be satisfied even though “the offenses charged ‘do not relate to the same transaction
and were committed at different times and places . . . against different victims.’ ” (People
v. Polk (1964) 61 Cal.2d 217, 230, italics added; see also Chessman, supra, 52 Cal.2d
467, 492, and cases cited; Poon, supra, 125 Cal.App.3d at p. 68.)
14
This history, culminating in the Legislature’s adoption in section 790(b) of the
broad and long-construed “connected together in their commission” test from section
954, provides no support for petitioner’s argument that we should read section 790(b) as
requiring, in addition, that the charged murders be “properly joinable” with each other in
some manner beyond the requirement that they be connected together in their
commission. Nor do we discern in the language or history of the statute any legislative
intent to require that joined murders be part of a common plan or scheme. If the
Legislature had intended such an additional requirement, we expect it would have
expressly so provided in section 790(b).
We proceed to address the question whether, applying the “connected together in
their commission” test to the five murders charged, there exists a “common element of
substantial importance in their commission.” (Scott, supra, 24 Cal.2d at p. 778.) All five
homicide victims were young, single Caucasian females and all suffered blunt-force
facial trauma. All of the offenses occurred within a 19-month period, and the body of
each victim was discovered unclothed, or partially nude from the waist down. Each of
the five charged murders involves what were apparently sexually motivated assaults. All
four Los Angeles charges reveal clear evidence of sexual assault. Although Robin
Samsoe’s body was too decomposed to make a similar determination, the available
evidence — including (1) petitioner’s photographing bikini-clad young females on the
same day and near the general location of Robin’s disappearance, (2) Robin’s unclothed
remains, and (3) petitioner’s comments to jail inmates concerning Robin (Alcala I, supra,
36 Cal.3d 604, 618 [inmate testified that he overheard petitioner inform another inmate
that he had asked Robin whether she ever had posed nude]; Alcala II, supra, 4 Cal.4th
742, 761 [another inmate testified concerning petitioner’s prurient description of Robin’s
body]) — provides no rational explanation for her abduction other than an unlawful
sexual purpose.
15
Moreover, in addition to the common evidence described above, as the Court of
Appeal observed, the intent or motivation to brutally kill young females also ties all of
the crimes together. As we held in Mendoza, supra, 24 Cal.4th 130, the intent or
motivation with which different acts are committed can qualify as a “common element of
substantial importance” in their commission and establish that such crimes were
“connected together in their commission.” (Id., at p. 160 [“ ‘ “the element of intent to
feloniously obtain property runs like a single thread through the various offenses” ’ ” and
constitutes a “ ‘ “ ‘common element of substantial importance’ ” ’ ” in their
commission].) Other cases have similarly held. (Lucky, supra, 45 Cal.3d 259, 276
[same]; Chessman, supra, 52 Cal.2d 467, 492 [same]; Kemp, supra, 55 Cal.2d 458, 476
[listing as one of the “common elements of substantial importance” among crimes
occurring two years apart the circumstance that “[i]n each crime the obvious motive was
satisfaction of appellant’s sexual desires”]; Poon, supra, 125 Cal.App.3d 55, 69 [“the
offenses joined here share numerous ‘common elements’; the most significant being
sexual motivation and young girl victims,” and accordingly “the offenses were
‘connected together in their commission’ for purposes of section 954”]; Walker, supra,
112 Cal.App.2d 462, 471 [listing as a “common element of substantial importance”
among two crimes the circumstance that “in each instance a woman was kidnapped and a
common intent is clearly disclosed”].)
Petitioner asserts intent or motivation cannot constitute a “common element of
substantial importance,” and, instead, only physical or objectively measurable factors,
such as use of a specific individual weapon, can suffice. As shown by Mendoza, supra,
24 Cal.4th at page 160, and related cases cited above, California appellate courts long
have held otherwise. In any event, as also noted above, we discern various other
common elements. We conclude that the evidence, viewed cumulatively, amply connects
the five murder charges and justifies their joinder under section 790(b). Indeed, it
16
appears that these are precisely the types of cases that the Legislature intended to be tried
jointly.
IV
As we often have observed, because consolidation or joinder of charged offenses
ordinarily promotes efficiency, that is the course of action preferred by the law. (People
v. Geier (2007) 41 Cal.4th 555, 578 (Geier); People v. Stanley (2006) 39 Cal.4th 913,
933; People v. Ochoa (1998) 19 Cal.4th 353, 408-409, and cases cited; see generally Cal.
Const., art. I, § 30, subd. (a) [“This Constitution shall not be construed by the courts to
prohibit the joining of criminal cases as prescribed by the Legislature”].) Consistently
with these principles, and because the statutory requirements for joinder under section
790(b) have been met, petitioner can establish error in the trial court’s ruling allowing
joint trial of the five charged offenses only by making a “clear showing of prejudice to
establish that the trial court abused its discretion in denying . . . defendant’s severance
motion.” (Mendoza, supra, 24 Cal.4th 130, 160, and cases cited, italics added; People v.
Kraft (2000) 23 Cal.4th 978, 1030 (Kraft); People v. Marshall (1997) 15 Cal.4th 1, 27
(Marshall); see also Poon, supra, 125 Cal.App.3d at p. 69.)
A trial court’s denial of a motion for severance of charged offenses amounts to a
prejudicial abuse of discretion if the “ ‘trial court’s ruling “ ‘falls outside the bounds of
reason.’ ” ’ ” (People v. Ramirez (2006) 39 Cal.4th 398, 439.) In making that
assessment, we consider the record before the trial court when it made its ruling.
(Mendoza, supra, 24 Cal.4th at p. 161.) “The factors to be considered are these: (1) the
cross-admissibility of the evidence in separate trials; (2) whether some of the charges are
likely to unusually inflame the jury against the defendant; (3) whether a weak case has
been joined with a strong case or another weak case so that the total evidence may alter
the outcome of some or all of the charges; and (4) whether one of the charges is a capital
offense, or the joinder of the charges converts the matter into a capital case.” (Ibid.; see
People v. Zambrano, supra, 41 Cal.4th 1082, 1128-1129 (Zambrano); Ramirez, supra, 39
17
Cal.4th 398, 439; People v. Carter (2005) 36 Cal.4th 1114, 1154 (Carter); People v.
Sandoval (1992) 4 Cal.4th 155, 172-173; Kraft, supra, 23 Cal.4th 978, 1030; Marshall,
supra, 15 Cal.4th 1, 27-28.) “The state’s interest in joinder gives the court broader
discretion in ruling on a motion for severance than it has in ruling on admissibility of
evidence.” (People v. Cummings (1993) 4 Cal.4th 1253, 1284 (Cummings); accord,
People v. Arias (1996) 13 Cal.4th 92, 127 (Arias).)
A.
Cross-admissibility of the evidence in separate trials
We frequently have observed that if evidence underlying the offenses in question
would be “cross-admissible” in separate trials of other charges, that circumstance
normally is sufficient, standing alone, to dispel any prejudice and justify a trial court’s
refusal to sever the charged offenses. (Carter, supra, 36 Cal.4th 1114, 1154; People v.
Cunningham (2001) 25 Cal.4th 926, 985 (Cunningham); People v. Bradford (1997) 15
Cal.4th 1229, 1315-1316, and cases cited.) Our cases, however, make it clear that
complete (or so-called two-way) cross-admissibility is not required. In other words, it
may be sufficient, for example, if evidence underlying charge “B” is admissible in the
trial of charge “A” — even though evidence underlying charge “A” may not be similarly
admissible in the trial of charge “B.” (Zambrano, supra, 41 Cal.4th 1082, 1129; Geier,
supra, 41 Cal.4th 555, 577-578; Cunningham, supra, 25 Cal.4th 926, 985; Cummings,
supra, 4 Cal.4th 1253, 1284.) Our decisions also make clear that even the complete
absence of cross-admissibility does not, by itself, demonstrate prejudice from a failure to
order a requested severance. We repeatedly have found a trial court’s denial of a motion
to sever charged offenses to be a proper exercise of discretion even when the evidence
underlying the charges would not have been cross-admissible in separate trials. (People
v. Bean (1988) 46 Cal.3d 919, 936-940 (Bean) [charges not cross-admissible on identity];
see also Geier, supra, 41 Cal.4th 555, 577 [“the absence of cross-admissibility alone
would not be sufficient to establish prejudice where (1) the offenses were properly
joinable under section 954, and (2) no other factor relevant to the assessment of prejudice
18
demonstrates abuse of discretion”]; People v. Manriquez (2005) 37 Cal.4th 547, 575-576
[although cross-admissibility was not present, joinder was appropriate]; Carter, supra, 36
Cal.4th at p. 1154 [“ ‘ “ ‘we have never held the absence of cross-admissibility, by itself,
sufficed to demonstrate prejudice’ ” ’ ”; Bradford, supra, 15 Cal.4th at p. 1317 [“even
had defendant demonstrated that the evidence would not have been cross-admissible, he
has failed to establish prejudice”]; Arias, supra, 13 Cal.4th 92, 127 [“joinder is often
permissible even when cross-admissibility is not present”]; People v. Mason (1991) 52
Cal.3d 909, 934 [assuming that one murder charge was not cross-admissible as to four
other murder charges, but finding no abuse of trial court’s discretion in failing to sever];
accord, § 954.1, quoted ante, fn. 10.)
As explained in People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt) — a case in
which we addressed the issue of admissibility of uncharged crimes, rather than, as here,
the issue of whether charged crimes should have been severed from a joint trial11 — there
11
Decisions such as Ewoldt are relevant to the analysis governing admissibility, but
both the burden of proof relating to admissibility and the assessment of prejudice are
different in the context of properly joined charged offenses. In the situation of uncharged
offenses, the People have the burden of establishing admissibility. (Bean, supra, 46
Cal.3d 919, 938.) In the situation of charged offenses that are properly joined, however,
“[t]he burden is reversed” and rests with the party who seeks severance — the defendant.
(Id., at pp. 938-939.) Similarly, although in the context of evidence of uncharged
offenses offered at trial, a court conducts an assessment concerning prejudice under
Evidence Code section 352 (see, e.g., Ewoldt, supra, 7 Cal.4th 380, 404-405
[“ ‘uncharged offenses are admissible only if they have substantial probative value’ ”]),
by contrast, 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” (Arias, supra, 13 Cal.4th 92, 127, italics added).
In the context of properly joined offenses, we assess potential prejudice not under
Evidence Code section 352, but instead in the context of the traditional four factors
outlined above: cross-admissibility of charges; tendency of the charges to inflame the
jury; the bolstering of a weak case; and the conversion of noncapital charges into a
capital case.
19
exists a hierarchy, or continuum, with respect to the degree of similarity that is needed for
cross-admissibility, depending upon the purpose (see Evid. Code, § 1001, subd. (b))12 for
which introduction of the evidence is sought. We observed: “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.]” (Ewoldt, supra, 7 Cal.4th at p. 402, italics added.)13
12
Evidence Code section 1101 provides: “(a) Except as provided in this section and
in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his
or her character (whether in the form of an opinion, evidence of reputation, or evidence
of specific instances of his or her conduct) is inadmissible when offered to prove his or
her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the
admission of evidence that a person committed a crime, civil wrong, or other act when
relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, or whether a defendant in a
prosecution for an unlawful sexual act or attempted unlawful sexual act did not
reasonably and in good faith believe that the victim consented) other than his or her
disposition to commit such an act. [¶] (c) Nothing in this section affects the
admissibility of evidence offered to support or attack the credibility of a witness.”
13
We contrasted this with the degree of similarity needed to demonstrate two other
matters — “common design or plan” and identity: “A greater degree of similarity is
required in order to prove the existence of a common design or plan. [When offered for
that purpose], evidence of uncharged misconduct must demonstrate ‘not merely a
similarity in the results, but such a concurrence of common features that the various acts
are naturally to be explained as caused by a general plan of which they are the individual
manifestations.’ (2 Wigmore, [Evidence] (Chadbourn rev. ed. 1979) § 304, p. 249, italics
omitted.) ‘[T]he difference between requiring similarity, for acts negativing innocent
intent, and requiring common features indicating common design, for acts showing
design, is a difference of degree rather than of kind; for to be similar involves having
common features, and to have common features is merely to have a high degree of
similarity.’ (Id., at pp. 250-251, italics omitted; see also 1 McCormick[ on Evidence (4th
ed. 1992)], § 190, p. 805.) [¶] 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. . . . [¶]
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
(footnote continued on next page)
20
Petitioner asserts in his opening brief that only identity, and not intent, is at issue
in these proceedings. Certainly, identity is one of the matters in dispute, but it is not the
only one. As the People observe, at petitioner’s first trial he argued that the evidence was
insufficient to support a finding of deliberate and premeditated first degree murder.
(Alcala I, supra, 36 Cal.3d 604, 625-627.) Similarly, at the second trial, the prosecution
pursued a theory of first degree, premeditated murder and therefore bore the burden of
proving, beyond a reasonable doubt, that petitioner acted with the specific intent to kill,
and with premeditation and deliberation. The prosecution, of course, must prove each
element of its case. Petitioner’s assertion that his defense to the Robin Samsoe murder in
the pending retrial will focus upon identity, and not intent, does not eliminate the
prosecution’s burden. Moreover, although in his reply brief petitioner challenges the
People’s cross-admissibility analysis, he does not contest that the mental state for murder
is likely to be at issue in his retrial for the murder of Robin Samsoe. As explained below,
it appears that evidence underlying all four of the Los Angeles charges would be relevant,
at a separate trial on the Samsoe charges, on the issue of petitioner’s intent in killing
Robin Samsoe, and that such evidence would be cross-admissible for that purpose at a
separate trial on those charges.
As we noted in Ewoldt, supra, 7 Cal.4th 380, “ ‘[t]he recurrence of a similar result
. . . tends (increasingly with each instance) to negative accident or inadvertence or self-
defense or good faith or other innocent mental state, and tends to establish (provisionally,
(footnote continued from previous page)
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, 402-403, italics added.)
21
at least, though not certainly) the presence of the normal, i.e., criminal, intent
accompanying such an act . . . .’ ” (Id., at p. 402, quoting 2 Wigmore, Evidence
(Chadbourn rev. ed 1979) § 302, p. 241; see also People v. Rogers (2006) 39 Cal.4th 826,
853; People v. Robbins (1988) 45 Cal.3d 867, 879-880, and authorities cited.)
The evidence underlying the Orange County and Los Angeles County charges
supports a conclusion, by a preponderance of the evidence, that petitioner was the
perpetrator in each,14 and 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. As we observed earlier in our discussion (ante, at pp. 15-16)
concerning the existence of common elements of substantial importance supporting a
finding that the five charged murders are “connected together in their commission” under
section 790(b), various similar features are present. Each of the victims was a young,
single Caucasian female; all of the homicides involved blunt-force facial trauma and
14
As explained in People v. Carpenter (1997) 15 Cal.4th 312, a jury may consider
properly admissible “other crimes” evidence so long as it finds “by a preponderance of
the evidence” that the defendant committed those other crimes. (Id., at pp. 380-383; see
also Judicial Council of Cal. Crim. Jury Instns. (2007-2008) No. 375.) That standard is
clearly met with respect to the Robin Samsoe charges and the four Los Angeles charges.
Evidence linking petitioner to the Robin Samsoe charges includes the following: He was
seen photographing Samsoe on the afternoon she disappeared; Dana Crappa testified that
later the same day she saw, in a mountainous area near where Samsoe’s remains
subsequently were discovered, a Datsun F10 automobile and a dark-haired man who
resembled petitioner, pushing or “forcefully steering” a blond-haired girl toward a dry
stream bed; petitioner’s Datsun F10 automobile was parked at his residence when he was
arrested; and earrings identified by Robin Samsoe’s mother as having often been worn by
Robin were found in a pouch in petitioner’s Seattle storage locker — along with another
earring containing the DNA of a separate homicide victim, Charlotte Lamb, to whom
petitioner was linked by his own DNA left at the scene of that homicide. Evidence
linking petitioner to the four Los Angeles County charges includes forensic evidence
tying petitioner to each of those homicide victims, as well as eyewitness evidence
connecting him to one of those victims.
22
occurred within a 19-month period; and the bodies of all of the victims were discovered
unclothed, or nude from the waist down. In addition, all of the offenses appear to involve
a sexually sadistic motive. Each of the Los Angeles County victims was sexually
assaulted and, although Robin Samsoe’s body was too decomposed to permit a
determination whether she had been sexually assaulted, the evidence — including the
photographs that petitioner took of other bikini-clad young women at the same general
time and location of Robin’s disappearance, Robin’s unclothed remains, and the
testimony of jail inmates concerning petitioner’s comments about Robin, including a
prurient description of her body — indicates she was abducted for a sexual purpose.
Petitioner focuses upon differences between the Orange County charge and the
Los Angeles County charges. He stresses that (1) all of the Los Angeles County victims
were young adults, whereas Robin was 12 years of age; (2) most of the Los Angeles
County victims (all except Barcomb, who was found in a canyon) were found indoors,
whereas Robin’s body was discovered on a remote hillside; (3) all of the Los Angeles
County victims exhibited physical evidence of sexual assault, whereas Robin’s body,
which was decomposed, revealed no such evidence; and (4) when discovered, most if not
all of the Los Angeles County victims appeared to have been posed, whereas there is no
evidence that Robin’s body, which may have been disturbed by wild animals, was left in
a posed position.
As the People observe, we addressed a similar situation in Kraft, supra, 23 Cal.4th
978, a case in which we considered the admission of evidence to prove “common scheme
or plan” — a category of evidence that, as we explained in Ewoldt, supra, 7 Cal.4th 380,
402-403, falls between the strict similarity requirements for evidence offered to prove
identity, and the more lenient similarity requirements for evidence offered to prove intent.
(See ante, fn. 13.) In Kraft, the defendant argued that the trial court abused its discretion
in failing to sever 16 charged murder counts and try them separately. Our discussion in
Kraft makes it clear that, even with respect to the comparatively higher degree of
23
similarity required for the use of other-crimes evidence to establish “common scheme or
plan,” the standard can be met despite the existence of some factual differences between
or among the charged offenses. Specifically, we held it sufficient that “most” of the 16
charged murders shared substantial similarities, and that evidence underlying those 16
charged murders “generally” would have been admissible at separate trials.15 We then
noted that, “ ‘unlike evidence of uncharged acts . . . to prove identity,’ ” evidence
designed to prove a common scheme or plan “ ‘need not be unusual or distinctive; it need
only exist to support the inference that the defendant employed that plan in committing
the charged offense.’ ” (Kraft, supra, 23 Cal.4th at p. 1031, quoting Ewoldt, supra, 7
Cal.4th at p. 403.)16
15
We observed: “In denying the severance motion, the trial court in this case noted
most of the evidence on the various charges would be cross-admissible. Defendant
disputes that conclusion. We find his arguments unpersuasive. In a trial on each
individual murder count, evidence of the other charged murders generally would have
been admissible to show defendant committed the charged murder as part of a common
scheme or plan, which was relevant to the element of intent. (Evid. Code, § 1101, subd.
(b); Pen. Code, § 187.) The victims shared certain characteristics, all being White males
between the ages of 18 and 25, all but one being single, and most being, at the time of the
offense, vulnerable by virtue of lack of transportation. The method of obtaining control
over the victims was similar in most of the charged offenses: Defendant generally
supplied the victims with alcohol and drugs, often diazepam, to the point they could no
longer resist, whereupon defendant generally bound their wrists with ligatures, frequently
using shoelaces. After gaining control over the victims in such a manner, unless they
were already succumbing from the effects of the drugs, defendant killed them, often by
ligature strangulation. After the victims’ deaths, defendant disposed of the bodies
generally by dumping them from his car, usually on or near a freeway or other roadway.
And each murder involved some type of arguably sexual activity or aberration, whether
taking the form of sodomy, mutilation or stripping the victim of clothing.” (Kraft, supra,
23 Cal.4th at pp. 1030-1031, italics added.)
16
In upholding the trial court’s refusal to sever the 16 murder charges from each
other, we rejected the defendant’s contention that “the evidence in each charged murder
had to be so similar as to establish a distinctive ‘signature’ for cross-admissibility under
the common plan theory pursuant to Evidence Code section 1101, subdivision (b).” We
reiterated our holding in Ewoldt, supra, 7 Cal.4th 380, 403, that “a lesser degree of
(footnote continued on next page)
24
Our accommodating analysis in Kraft, concerning the similarity required in order
to prove the existence of a common scheme or plan, applies all the more to the use, in the
present case, of other charged crimes in order to prove intent — which, as noted, requires
an even lesser degree of similarity among the offenses. We conclude that the evidence
linking petitioner to all five charges — and underlying each of those charges — satisfies
the standard we articulated in Ewoldt, supra, 7 Cal.4th 380: It “support[s] the inference
that the [perpetrator] ‘ “probably harbor[ed] the same intent in each instance.” ’ ” (Id., at
p. 402.) Accordingly, based upon information available to us at this stage of the
proceedings, it appears that the evidence underlying the four Los Angeles charges would
be relevant at a separate retrial of the Robin Samsoe case to demonstrate the mental states
of premeditation and deliberation required for murder, and that such evidence would be
cross-admissible for that purpose at a separate trial on the Samsoe charges.17
(footnote continued from previous page)
similarity is necessary to admit evidence of other offenses to prove a common design or
plan than to prove identity.” (Kraft, supra, 23 Cal.4th at pp. 1031-1032.)
17
At this stage in the proceedings — prior to trial (joint or otherwise) — we cannot
determine whether the Los Angeles County charges actually would be admissible at any
separate trial on the Samsoe charges. In order to make that determination, a trial court
would need to undertake an analysis, informed by evidence adduced or proffered at a
separate (and theoretical) new trial of the Samsoe charges, focusing upon probative value
versus prejudice under Evidence Code section 352. (See ante, fn. 11.) That form of
section 352 analysis, however, cannot be undertaken by an appellate court at the present
stage of the proceedings, because we do not know what evidence would be adduced at a
separate trial; we can only assume that the evidence would be similar to that presented in
the prior Samsoe trials, and to the information concerning the Los Angeles County
charges presented to the grand jury. Nevertheless, that limited information is sufficient to
allow us to make an assessment concerning cross-admissibility, for purposes of severance
analysis. As noted earlier, the party seeking severance of properly joined charges bears
the burden of establishing that the trial court abused its discretion in declining to sever
charges for trial. Petitioner “must make a stronger showing of potential prejudice than
would be necessary to exclude other-crimes evidence in a severed trial.” (Arias, supra,
13 Cal.4th 92, 127, italics added.) In light of the defendant’s burden and the strong
(footnote continued on next page)
25
In any event, as observed above, we have held in numerous cases that although a
finding of cross-admissibility normally would be sufficient, standing alone, to justify a
trial court’s refusal to sever charged offenses, and to support a conclusion that the trial
court did not abuse its discretion in refusing to sever the charges, even the absence of
cross-admissibility would not establish that a trial court erred when, as here, the offenses
have been properly joined by statute and none of the other three factors relevant to the
severance issue demonstrates an abuse of the trial court’s discretion. As explained
below, we conclude that, with respect to the other three factors that we often consider in
evaluating such requests, petitioner has failed to carry his burden of making the clear
showing of prejudice required to establish that the trial court abused its discretion in
declining to sever the five charges.
B.
Whether some of the charges are likely to unusually inflame the jury against
the defendant
The sexual assaults and murders at issue in the Los Angeles County cases
certainly are aggravated charges — but we conclude they are not “unusually likely to
inflame” a jury that, in any event, properly will hear testimony concerning the abduction
and brutal murder of Robin Samsoe, a vulnerable 12-year-old girl whose unclothed body
(footnote continued from previous page)
preference for joinder of charges, as a general matter we find “cross-admissibility” — for
purposes of severance analysis — so long as it appears, based upon the available
information, that the evidence “would” be cross-admissible at a separate trial.
Finally, the circumstance whether the evidence, if admissible, might be admissible
“the other way” — that is, whether the evidence underlying the Orange County charge
could be admissible in each of the four Los Angeles County cases — would not be
dispositive. As noted earlier, complete or “ ‘two-way’ cross-admissibility is not
required.” (E.g., Zambrano, supra, 41 Cal.4th 1082, 1129.) In any event, petitioner’s
argument in favor of severance focuses exclusively upon the asserted undue influence of
the Los Angeles charges upon the Orange County case, and not vice versa.
26
was found with her face smashed in. The evidence underlying each of the five charges is
“similar in nature and equally gruesome.” (Carter, supra, 36 Cal.4th 1114, 1155.)
C.
Whether a weak case has been joined with a strong case or with another weak
case so that the total evidence unfairly may alter the outcome of some or all of
the charges
The evidence underlying the four Los Angeles County murder charges —
supported in three cases by DNA evidence, and in the fourth by serological evidence and
eyewitness testimony connecting petitioner to victim Jill Parenteau less than one month
prior to her murder (a crime that, as noted, occurred only a few days before Robin
Samsoe disappeared) — clearly is strong. On the other hand, we doubt that the evidence
in the Orange County case, even as it existed at the time of the first two trials, ever
properly could be described as weak. (See Alcala II, supra, 4 Cal.4th 742, 755-764.) But
now, pending the second retrial, in light of the discovery that another earring in
petitioner’s possession belonged to Los Angeles County victim Charlotte Lamb, the
evidence underlying the Orange County charges also must be described as strong.
As the People observe, throughout the Samsoe proceedings there has been a
recurring dispute concerning whether earrings found in a jewelry pouch in petitioner’s
Seattle storage locker belonged to Robin’s mother, had been “trimmed” by her, and were
worn by Robin at the time of her disappearance. Petitioner has claimed those earrings as
his own, but the prosecution’s expert testified that they exhibited a pattern of striations
similar to those produced by nail clippers belonging to Robin’s mother. This evidence,
although disputed by a defense expert, supports an inference that petitioner took the
earrings from Robin Samsoe and kept them as a trophy from her killing. More recently,
pending retrial of the Orange County case, it was discovered that another earring in the
same pouch contains DNA matching that of Los Angeles County victim Charlotte Lamb.
The People assert: “This newly discovered fact makes the Lamb murder especially
probative in the Samsoe case, insofar as it tends to show that the jewelry pouch was
27
indeed a trophy” container, and hence further identifies petitioner as the person who
killed Robin. The People continue: “The evidence is even more compelling [because] it
shows that [petitioner] lied when he testified, and wrote in his book,[18] that all the
jewelry found in the pouch was possessed for innocent reasons. . . . [T]his is highly
probative evidence that has become a critical component of the prosecution’s case on the
Samsoe murder.”
We agree that the Lamb earring evidence, which appears to significantly
undermine petitioner’s prior claims that the “Samsoe earrings” are his own and never
belonged to Samsoe, is clearly relevant — and also appears to be cross-admissible for the
same purpose at a separate trial on the Samsoe charges. (See ante, fn. 17.) Accordingly,
it appears that the evidence of petitioner’s guilt of the Samsoe charges is quite strong —
and hence that a joint trial of all five changes would not unfairly merge weak and strong
cases.
D.
Whether one of the charges is a capital offense, or the joinder of the charges
converts the matter into a capital case
The People argue that because the Samsoe case carries its own death-qualifying
special-circumstance allegation (murder during the commission of kidnapping) and each
of the four Los Angeles County charges also alleges several special circumstances, this
case does not present a situation in which the prosecution seeks to “convert” a matter into
a capital case; all five matters already are capital cases. (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”].) We agree.19
18
As observed by the Court of Appeal below, after his retrial, but prior to the DNA
testing that linked him to the Lamb homicide, petitioner authored a book in which he
“express[ed] his ownership of all the jewelry items found in the pouch.” (Italics added.)
19
Although we suggested in Williams that when “one of the charged crimes is a
capital offense, . . . the court must analyze the severance issue with a higher degree of
(footnote continued on next page)
28
As we observed in Arias, supra, 13 Cal.4th 92, 127, “Because of the factors
favoring joinder, 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.”
We conclude that petitioner has not carried his burden of making a “clear showing of
prejudice” (Mendoza, supra, 24 Cal.4th 130, 160) to establish that the superior court
abused its discretion in refusing to sever the five murder charges.
V
The Court of Appeal concluded that trial should proceed on the Orange County
charges, joined with two of the Los Angles County charges (Lamb and Parenteau), but
that the other two Los Angeles charges (Wixted and Barcomb) must be severed. In so
concluding, the appellate court found that the latter two cases possess fewer “marks of
similarity” compared with the three other charges, and it accepted petitioner’s assertion
that a single trial of all five murder charges, at which he would face the DNA and
serological evidence described above, would be “potentially unfair.”
We agree with the People that the appellate court’s conclusion in this respect fails
to accord proper deference to the exercise of discretion by the trial court and cannot be
squared with the requirement that a petitioner challenging a trial court’s refusal to sever
properly joined charges has the burden of making a clear showing of prejudice resulting
from the joinder. (See People v. Balderas (1986) 41 Cal.3d 144, 171 [a “bald assertion”
of prejudice is “not enough” to satisfy the defendant’s burden].) As the People observe,
(footnote continued from previous page)
scrutiny and care than is normally applied in a noncapital case” (Williams, supra, 36
Cal.3d at p. 454), the subsequent enactment of section 790(b) — which, as noted,
specifically provides for joinder of capital cases such as these — makes it clear that such
a heightened analysis is no longer called for.
29
“there is nothing unfair about the defendant facing an overwhelmingly high likelihood of
conviction based on admissible evidence and permissible inferences.”
VI
The judgment of the Court of Appeal is reversed. A single trial on all five murder
charges may proceed in Orange County.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
30
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Alcala v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 147 Cal.App.4th 1492
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S150806Date Filed: June 12, 2008
__________________________________________________________________________________
Court:
SuperiorCounty: Orange
Judge: Francisco P. Briseno
__________________________________________________________________________________
Attorneys for Appellant:
Richard L. Schwartzberg, under appointment by the Supreme Court, and George Peters for Petitioner.__________________________________________________________________________________
Attorneys for Respondent:
No appearance for Respondent.Tony Rackaukas, District Attorney, Brian N. Gurwitz and James J. Mulgrew, Deputy District Attorneys, for Real
Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard L. Schwartzberg60 Van Ness Avenue, PMB E-728
San Francisco, CA 94102
(415) 293-1718
James J. Mulgrew
Deputy District Attorney
Post Office Box 808
Santa Ana, CA 92702
(714) 347-8463
Petition for review after the Court of Appeal granted in part and denied in part a petition for peremptory writ of mandate. This case presents the following issues: (1) Was consolidation of four newly alleged homicides in Los Angeles County with the retrial of a homicide in Orange County authorized by Penal Code section 790, subdivision (b)? (2) Did the Court of Appeal err in directing that two of the four Los Angeles County homicide prosecutions be severed?
| Date: | Citation: | Docket Number: | Category: | Status: |
| Thu, 06/12/2008 | 43 Cal. 4th 1205, 185 P.3d 708, 78 Cal. Rptr. 3d 272 | S150806 | Review - Criminal Original (non-H.C.) | closed; remittitur issued |
| 1 | Alcala, Rodney James (Petitioner) 550 North Flower c/o Orange County Jail Santa Ana, CA 92703 Represented by Richard L. Schwartzberg Attorney at Law 601 Van Ness Avenue, Suite E-728 San Francisco, CA |
| 2 | Alcala, Rodney James (Petitioner) 550 North Flower c/o Orange County Jail Santa Ana, CA 92703 Represented by George A. Peters Attorney at Law 100 Hargis Place Cotter, AR |
| 3 | Superior Court Of Orange County (Respondent) 700 Civic Center Drive West Santa Ana, CA 92701 |
| 4 | The People (Real Party in Interest) Represented by James J. Mulgrew Orange County District Attorney's Office 401 Civic Center Drive West P.O. Box 808 Santa Ana, CA |
| 5 | The People (Real Party in Interest) Represented by Attorney General - San Diego Office P.O. Box 85266 P.O. Box 85266 San Diego, CA |
| 6 | The People (Real Party in Interest) Represented by Brian Neal Gurwitz Orange County District Attorney's Office 401 Civic Center Drive West Santa Ana, CA |
| 7 | Office Of The District Attorney San Joaquin County (Pub/Depublication Requestor) Represented by Kevin Hicks San Joaquin County District Attorney's Office 222 E. Weber Avenue, Suite 202 Stockton, CA |
| Disposition | |
| Dec 31 1969 | Opinion: Reversed |
| Dockets | |
| Dec 31 1969 | Received: premature depub. request, Office of the Dist. Atty, San Joaquin Co. |
| Dec 31 1969 | Received premature petition for review Rodney James Alcala, appellant Richard Schwartzberg, CAP/appointed |
| Dec 31 1969 | Record requested |
| Dec 31 1969 | Case start: Petition for review filed Rodney James Alcala, petitioner Richard Schwartzberg, counsel |
| Dec 31 1969 | Request for depublication (petition for review pending) Office of the Dist. Attorney, San Joaquin Co. (non-party) Kevin Hicks, DDA |
| Dec 31 1969 | Received Court of Appeal record one file jacket/transcripts |
| Dec 31 1969 | Answer to petition for review filed The People, Real Party in Interest Brian N. Gurwitz, Senior Deputy District Attorney (CRC 8.25b) |
| Dec 31 1969 | Petition for review granted (criminal case) Votes: George, C. J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ. |
| Dec 31 1969 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Richard L. Schwartzberg 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 of this order. |
| Dec 31 1969 | Request for extension of time filed 30 days until August 7, 2007, to serve and file the opening brief on the merits Rodney J. Alcala, petitioner Richard Schwartzberg, counsel |
| Dec 31 1969 | Extension of time granted On application of petitioner and good cause appearing, it is ordered that the time to serve and file the petitioner's opening brief on the merits is extended to and including August 7, 2007. No furthur extensions will be granted. |
| Dec 31 1969 | Opening brief on the merits filed counsel for petnr. (Alcala) (8.25(b)) |
| Dec 31 1969 | Compensation awarded counsel Atty Schwartzberg |
| Dec 31 1969 | Answer brief on the merits filed Real Party People Senior Deputy District Attorney James J. Mulgrew |
| Dec 31 1969 | Reply brief filed (case fully briefed) Rodney J. Alcala, Petitioner by Richard Schwartzberg, counsel |
| Dec 31 1969 | Filed: Letter dated February 28, 2008, from counsel for Real Party in Interest, regarding oral argument scheduling. Requests not to be on calendar the week of May 5, 2008. |
| Dec 31 1969 | Case ordered on calendar to be argued on Wednesday, April 2, 2008, at 1:30 p.m., in Los Angeles |
| Dec 31 1969 | Cause argued and submitted |
| Dec 31 1969 | Opinion filed: Judgment reversed A single trial on all five murder charges may proceed in Orange County. Majority Opinion by George, CJ. joined by Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Dec 31 1969 | Opinion modified - no change in judgment |
| Dec 31 1969 | Order filed The opinion is modified on the court's own motion. George, C.J., was absent and did not participate. Werdegar and Corrigan, JJ., were absent and did not participate. |
| Dec 31 1969 | Order filed The finality of the opinion in the above-entitled case is hereby extended to and including August 8, 2008, or until further order of this court. |
| Dec 31 1969 | Order filed The order of this court filed on July 3, 2008 extending the finality of the opinion is hereby vacated. |
| Dec 31 1969 | Remittitur issued (criminal case) |
| Dec 31 1969 | Compensation awarded counsel Atty Schwartzberg |
| Dec 31 1969 | Received: Receipt for remittitur from the Court of Appeal, Fourth Appellate District, Division three |
| Briefs | |
| Dec 31 1969 | Opening brief on the merits filed |
| Dec 31 1969 | Answer brief on the merits filed |
| Dec 31 1969 | Reply brief filed (case fully briefed) |
| Dec 6, 2008 Annotated by diana teasland | Written by: Robert Sensenbrenner Summary of Opinion: Procedural History: Analysis: Importance of the case: |
