People v. Ortiz

• Decision Date: 30 August 1978
• Docket Number: Cr. 20126
• Citation: 583 P.2d 113,22 Cal.3d 38,148 Cal.Rptr. 588
• Court: California Supreme Court
• Parties: , 583 P.2d 113 The PEOPLE, Plaintiff and Respondent, v. Joseph R. ORTIZ, Defendant and Appellant.

Page 588

148 Cal.Rptr. 588

22 Cal.3d 38, 583 P.2d 113

The PEOPLE, Plaintiff and Respondent, v. Joseph R. ORTIZ, Defendant and Appellant.

Cr. 20126.

Supreme Court of California, In Bank.

Aug. 30, 1978.

Paul N. Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Jonathan B. Steiner and Cheryl Lutz, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow

and Lawrence P. Scherb, II, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant Joseph R. Ortiz appeals from a judgment of conviction for first degree armed robbery (Pen.Code, § 211) following a jury trial which also involved three codefendants accused of a crime distinct from the one in which defendant participated. Defendant contends that a pretrial motion to sever was improperly denied and, as a result, his defense was substantially prejudiced by the concurrent prosecution of a crime with which he was not charged.

On April 11, 1976, Beverly Fleming was approached by James Burris for the purpose of buying heroin. Burris had previously agreed with George Rivens that he would make a buy for the two of them, the latter having contributed $25 toward the purchase. Previously Fleming had an arrangement with one Willie Starling, an established drug dealer, whereby the latter would supply the needs of Fleming's $75-a-day heroin habit in exchange for sexual entertainment.

On the evening of the 11th, Fleming obtained narcotics from Starling and delivered them to Burris and Rivens, who became angry on discovering that the heroin had been diluted with lactose to the extent that it was valueless. After the two men appeared at her door early the following morning, Fleming drove Burris and Rivens to Starling's apartment. Fleming initially entered the apartment alone to speak with Starling, who stated he had no cash with which to make good the loss, but indicated he was due to receive a heroin delivery shortly.

Fleming left, but returned later, followed by Burris and Rivens. A lively argument ensued between Burris and Starling regarding the quality of the heroin, and it quickly evolved into a wrestling match. Rivens did not participate in the confrontation and Fleming apparently left unobtrusively. Burris and Rivens departed, unsatisfied.

A short while later, Starling telephoned Fleming to express his anger because she had led Burris and Rivens to his apartment. He also told Fleming that he would "get even" with the two men by calling the police and alleging that a robbery had been committed, a threat Fleming initially mistook as jest. After Fleming's arrest, Starling again called to say that he would "cut her loose" from any complicity in the crime once the trial began.

Starling denied that he was an active drug dealer. He claimed he had not seen Fleming or Burris for more than a year prior to the date in question and that Fleming had enticed him into opening his apartment door, whereupon the two men forced their way in. An armed robbery allegedly followed in which Starling was repeatedly threatened at knife and gun point and ultimately tied up in the bedroom while his color television was removed.

The foregoing was the substance of the count I charges. Count II arose out of an armed robbery of Georgia Solomos, owner of the Santa Monica "Mini Mart," the events occurring a few hours after the robbery alleged in the first count. According to the People's witnesses, three men, including Rivens and defendant, were seen conferring in a blue Oldsmobile parked in an alley adjacent to the market on the afternoon of April 12. Rivens left the alley, entered the market, purchased some candy, and returned to the car. Shortly thereafter, defendant and Rivens reentered the store together.

In response to Solomos' inquiry regarding his need for assistance, defendant pointed a handgun at her and announced, "I don't want help. This is a hold-up." He asked for money, and Solomos complied by emptying the contents of her cash register approximately $150 into a current copy of the local newspaper, the Evening Outlook, which lay open on the counter. Defendant took the victim's purse, sweater, and the money, and left the premises with Rivens. A neighbor who had witnessed the activity of the men outside the store soon entered, and he and Solomos called the police.

Defendant, Rivens, Fleming and Burris were arrested together the same afternoon, minutes after the robbery of the market, on the basis of a police radio call, which included a description of the perpetrators of the robbery and their vehicle. Officers observed the car parked on Rose Street in Venice and found that it was registered to one Bernado, a resident of apartment No. 3, 714 Rose Street.

Two officers covered the rear of the building while the remainder entered through the front door. Rivens' attempt at escape from a rear window was foiled. Defendant was discovered hiding in a large closet from which Solomos' purse was later recovered. The officers also found Solomos' sweater in the apartment as well as a popcorn can filled with coins wrapped in that day's copy of the Evening Outlook. Fleming, Burris, Rivens, and defendant were arrested. Defendant and Rivens were identified by Solomos at the preliminary hearing as the perpetrators of the robbery of the market.

Fleming, Burris and Rivens were charged with armed robbery in count I of the information, and defendant and Rivens were charged with armed robbery in count II. The three defendants charged in count I were found not guilty, but the jury could not agree as to Rivens' guilt on count II, and the court declared a mistrial. Defendant was found guilty of the crime charged in count II.

Defendant had made a timely motion to sever his trial from that of the other defendants upon the ground that he was not charged with the separate offense stated against Burris, Fleming and Rivens in count I, citing Dove v. Superior Court (1974) 39 Cal.App.3d 960, 114 Cal.Rptr. 889. The trial court denied the motion, and later denied defendant's motion for a new trial based upon the same ground.

On this appeal from the ensuing judgment of conviction, defendant asserts primarily that the trial court's denial of his motion for severance violated section 1098 of the Penal Code because he was not jointly charged with his codefendants in any count of the information. As we shall see, defendant is correct in this assertion.

At the threshold, we reject the contention of the People that defendant is precluded from claiming on appeal that the trial court erred in denying his motion for severance because the transcript of the oral arguments on the motion is not before us. Defendant has included in the record on appeal his motion to sever, of which we take judicial notice (Evid.Code, § 459, subd. (a)), and the denial of his motion is confirmed by the minutes included in the clerk's transcript. Since we shall conclude that the trial court was required to grant the motion as a matter of law under section 1098 of the Penal Code, the failure to include in the record the transcript of the oral arguments does not preclude our consideration of defendant's claim.

Section 1098 of the Penal Code provides in part, "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 separate trials." ¹ We construe the section to mean that a defendant may not be tried with others who are charged with different crimes than those of which he is accused unless he is included in at least one count of the accusatory pleading with all other defendants with whom he is tried. ²

The requirement of the section that defendants jointly charged be jointly tried unless in the trial court's discretion separate trials are appropriate clearly implies that a joint trial is improper if there is no joint charge. Decisions interpreting section 1098 are consistent with this construction. Indeed, cases have consistently held that it is error to try together different defendants for different crimes unless at least one count of the accusatory pleading charges all the defendants with a single crime.

In Dove v. Superior Court (1974) supra, 39 Cal.App.3d 960, 114 Cal.Rptr. 889, a husband was charged in one count with selling cocaine, and his wife was charged in a different count with the same crime, occurring on a different date, but the two sales were made from the same location. The trial court refused to sever their trials, and this refusal was held to be erroneous. The appellate court determined that even if under the doctrine of constructive possession the husband and wife could have been charged together on each of the counts, they were in fact not jointly charged in one count, and such a charge is a prerequisite to a joint trial under section 1098. The present case is even more demanding of severance, since defendant could not have been charged in count I with the robbery of Starling.

People v. Davis (1940) 42 Cal.App.2d 70, 108 P.2d 85, also supports our conclusion. There, the defendant and George Miller were charged with two separate counts of robbery. A third count charged George and Doris Miller with another robbery. It was held that the trial of the counts charged against the defendant with the separate crime charged against the two Millers was erroneous because they were "separate and distinct crimes, occurring at different times, against different persons, and . . . charged against different defendants." (Id. at p. 74, 108 P.2d at p. 87.)

Davis was followed in People v. O'Leary (1955) 130 Cal.App.2d 430, 278 P.2d 933. Watson and Weaver were charged with one count of robbery, Weaver and O'Leary with another, and O'Leary with a third. Each count involved a separate crime committed on a different date against a different victim. The...