People v. Isenor

• Decision Date: 30 April 1971
• Docket Number: Cr. 4194
• Citation: 17 Cal.App.3d 324,94 Cal.Rptr. 746
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert J. ISENOR and Melody M. Isenor, Defendants and Appellants.

Page 746

94 Cal.Rptr. 746

17 Cal.App.3d 324

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert J. ISENOR and Melody M. Isenor, Defendants and Appellants.

Cr. 4194.

Court of Appeal, Fourth District, Division 2, California.

April 30, 1971.

Hearing Denied June 23, 1971.

[17 Cal.App.3d 327] Ronald Steelman, Santa Ana, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Frederick R. Millar, Jr., Deputy Atty. Gen., for plaintiff and respondent.

OPINION

KERRIGAN, Associate Justice.

In Count I of an information, the appellant Robert Isenor and a codefendant Pepi Rogers were charged with burglary (Pen.Code, § 459); in Count II, the appellant Robert Isenor and the aforesaid codefendant Pepi Rogers were charged with grand theft (Pen.Code, §§ 484--487); in Count III, the appellant Melody Isenor was charged with receiving stolen property (Pen.Code, § 496); in Count IV, appellant Robert Isenor was charged with receiving stolen property (Pen.Code, § 496); the information also contained an allegation that appellant Robert Isenor had suffered a 1968 felony conviction of first degree burglary; he admitted the prior felony.

The appellants Robert Isenor (hereinafter 'Robert') and Melody Isenor (hereinafter 'Melody') are husband and wife. The codefendant Pepi Curt Rogers and Melody are brother and sister.

Prior to trial, the appellants made a motion to sever their trial from that of the codefendant on the ground that Pepi desired to testify in their behalf and give exonerating testimony to the effect that they had no connection with the burglary or stolen property. Appellant's motion for a separate trial was denied.

A jury found Robert and the codefendant Pepi Rogers guilty of second degree burglary (Count I) and grand theft (Count II). Melody was found guilty of receiving stolen property (Count III). Pursuant to motion of the district attorney, the charge of receiving stolen property as to Robert (Count IV) was dismissed.

Robert was sentenced to state prison for the term prescribed by law on Counts I and II, the sentences to run concurrently. Melody was sentenced to state prison on Count III; the sentence was suspended, and she was placed on probation on condition she serve one year in the county jail.

Robert appeals from the judgment of conviction, and Melody appeals from the order granting probation. ¹

The issues on appeal involve the propriety of the pretrial order denying severance.

Between 12:00 noon and 3:00 p.m. on May 26, 1969, the Huntington Beach residence of the owner of a Swedish restaurant was burglarized and the following items stolen: 2 mink coats, 2 mink collars, a watch, a gold piece, a necklace, a bracelet, a tape recorder, $3,500 in cash and $1,500 in checks. Entry to the home was apparently gained through a side door.

On September 6, 1969, three Huntington Beach police officers went to the appellants' apartment for the purpose of arresting one Larry Stephenson on a charge completely unrelated to the Huntington Beach burglary. Robert Isenor saw one of the uniformed officers approaching the entrance. The officers knocked on the apartment door, but there was no immediate response. While the officers were at the front door, Melody Isenor threw a bag containing three of the stolen furs out a rear window. Some youngsters immediately found the bag and reported their discovery to the police. Robert and Melody were both placed under arrest.

The day after their arrest, a Huntington Beach police officer obtained a warrant to search their apartment. The fourth stolen fur was found hidden inside the lining of one of Melody's jackets.

Larry Stephenson testified upon behalf of the prosecution to the following effect: He had a conversation with Robert wherein the latter admitted that he had 'received a great deal of money ($1,000) and two coats' in the Huntington Beach burglary; Robert further stated that two other persons were involved, but that only one of the others entered the premises, while he and the remaining person waited in a car in an alley outside the home.

Stephenson further testified that he had nothing to do with the burglary or stolen property; on 2--3 occasions he saw the fur coats or fur pieces, as well as the stolen tape recorder, in the appellants' apartment. He also related a further conversation in which Robert indicated that the furs had been taken from a residence owned by the 'people who owned the Villa Sweden.' After appellants' arrest, Robert asked him to tell the police that the fur coats belonged to him (Stephenson); when the request was originally made, he (Stephenson) agreed to lie for Robert, but later changed his mind.

Relatives of all three defendants testified, some for the prosecution, others for the defense. Prosecution witnesses indicated that Robert admitted he had stolen the furs and offered to sell them. Relatives called by the defense attacked the credibility of the prosecution witnesses, maintaining that they were biased as a result of a family feud. These defense witnesses also testified that they had observed one of the prosecution witnesses in possession of one of the furs and some of the cash realized in the burglary.

Both appellants testified in their own behalf. Robert claimed he was at a union hall at the time of the theft. He further testified that on the day of his arrest, Larry Stephenson came to his apartment and stated that the police were after him and handed Melody a bag which she threw out of the window; he had a conversation with the codefendant Pepi Rogers, in which Pepi admitted his involvement in the burglary.

A Huntington Beach police officer testified that the codefendant Pepi Rogers had confessed to the burglary, admitting he gained entry through a sliding glass door.

A Santa Ana labor union dispatcher corroborated Robert's alibi to the extent that he testified that Robert was in the union hall after 2:30 p.m. on the day of the crime.

Melody testified as follows: On the day of her arrest, Larry Stephenson came to the apartment with a sack of furs; he told her he had stolen them and the police were after him; when Robert spotted the police approaching the apartment, she tossed the three furs out the window and requested two little boys to throw them in the trash can; she had never seen the one fur coat and two fur pieces previously; several people know the place where she had hidden the key to the apartment (thereby implying someone else had 'planted' the other fur coat in her closet); on the day of the burglary her husband left home about 12:00 noon to visit union headquarters and returned about 3:00 p.m.

Robert Isenor, Sr., Robert's father, testified that Larry Stephenson told him that he (Stephenson) had taken the furs to appellants' apartment; that on a later occasion, Stephenson told him he was going to change his story because he had been induced to do so by the district attorney's office; however, Stephenson at no time admitted that he had anything to do with the actual burglary.

The father further testified that he had a telephone conversation with the codefendant Pepi Rogers wherein Pepi admitted that he had committed the burglary without the aid of appellants, and that he had so informed the police.

The codefendant (Rogers) did not testify.

In seeking a reversal, appellants maintain that: (1) The court abused its discretion in denying their motion to sever their trial from that of the codefendant Pepi Rogers; and (2) they were deprived of their Sixth Amendment right to present witnesses in their own behalf (the right to call the codefendant) by reason of the trial court's denial of the severance motion.

Section 1098 of the Penal Code provides as follows:

'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order(s) separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a joint trial as to the others, or may order any number of the defendants to be tried at one trial, and any number of others at different trials, or may order a separate trial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial.'

While the Legislature has expressed a preference for joint trials (see People v. Lara, 67 Cal.2d 365, 394, 62 Cal.Rptr. 586, 432 P.2d 202), the matter of granting separate trials remains largely in the discretion of the trial court. (People v. Graham, 71 Cal.2d 303, 330, 78 Cal.Rptr. 217, 455 P.2d 153.)

In People v. Massie, 66 Cal.2d 899, 59 Cal.Rptr. 733, 428 P.2d 869, the California Supreme Court indicated a trial court should consider several criteria in determining whether to grant a severance motion. Such factors and the authorities relied on by the Massie court (pp. 916--917 and ftns. 18, 19, 20, 21, 22, 59 Cal.Rptr. 733, 428 P.2d 869) are defined as follows: (1) Where there is an extrajudicial statement made by one defendant which incriminates another defendant and which cannot adequately be edited to excise the portions incriminating the latter (People v. Aranda, 63 Cal.2d 518, 530--531, 47 Cal.Rptr. 353, 407 P.2d 265; see also Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476); (2) where there may be prejudicial association with codefendants (People v. Chambers, 231 Cal.App.2d 23, 28--29, 41 Cal.Rptr. 551); (3) where there may be likely confusion from evidence on multiple counts (People v. Chambers, Supra, p. 34, 41 Cal.Rptr. 551); (4) where there may be conflicting defenses (Day v. State, 196 Md. 384, 391, 76 A.2d 729); and (5) where there is a possibility that in a separate trial the codefendant may give exonerating testimony. (United States v. Echeles (7th Cir. 1965) 352 F.2d 892, 898.)

Invoking the Massie court's reliance on United...