People v. Romo

• Decision Date: 09 April 1975
• Docket Number: Cr. 7582
• Citation: 47 Cal.App.3d 976,121 Cal.Rptr. 684
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward ROMO and Cameron Lynn DeWitt, Defendants and Appellants.

Page 684

121 Cal.Rptr. 684

47 Cal.App.3d 976

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward ROMO and Cameron Lynn DeWitt, Defendants and Appellants.

Cr. 7582.

Court of Appeal, Third District, California.

April 9, 1975.

As Modified May 9, 1975.

Evelle J. Younger, Atty. Gen. by Kevin M. Corrington, Deputy, Atty. Gen., Sacramento, for plaintiff-respondent.

James D. Garbolino Roseville, for Edward Romo.

Richard L. Reese, Jr., Sacramento, for Cameron Lynn DeWitt.

EVANS, Associate Justice.

A jury found defendant DeWitt guilty of murder of the first degree, and defendant Romo guilty of murder of the second degree; and they have appealed from the judgments.

This case discloses a sordid, gruesome, and tangled skein of facts from which a consistent factual thread stands out with sufficient clarity to make it possible to condense a factual summary.

On December 30, 1973, Romo, Rick Fournier (the murder victim), Kim Treharne (half brother of Romo), Bonnie Tovar (common-law wife of DeWitt), Ace Waldner and Linda Drouin (Romo's girl friend) spent approximately ten hours at Romo's residence in Sacramento drinking extensively. At approximately 10:30 p.m., all except Linda Drouin, who was ill, left Romo's house and traveled to DeWitt's home. Romo, Kim and Bonnie traveled together, and Fournier and Ace drove to DeWitt's house in Ace's car. Fournier appeared to be intoxicated; Romo appeared somewhat intoxicated but was capable of coherently conversing and driving the vehicle from his home to DeWitt's home without apparent trouble. At DeWitt's, additional drinking took place. Romo and Fournier (the victim) had a slight altercation but reconciled their differences. DeWitt later attacked Fournier and was joined in the attack by Romo and Kim. The three of them beat Fournier with their fists and kicked him about the head and body. Fournier, intoxicated but conscious, was lying on the floor not resisting. DeWitt ordered Bonnie to insert a dildo in Fournier's rectum. Bonnie resisted but was threatened by DeWitt and thereafter complied. After this assault upon Fournier, DeWitt was heard to state, 'We're going to have to, . . . dust this guy, he (Fournier) could violate our parole by a report to the police.' Hearing this, Fournier began pleading for his life. DeWitt pulled Fournier's trousers up, taped Fourner's hands behind his back, and blindfolded him with pieces of sheet. DeWitt and Kim Treharne was granted immunity to testify at the trial. Prior to trial, a motion to sever, pursuant to section 1098 of the Penal Code, was made by DeWitt. Counsel for Romo expressly disclaimed any intention of joining in the motion. DeWitt's motion was submitted without argument or citation of authority. However, the prosecutor supplied the court with his understanding of the reason for the motion and the authorities relied upon by DeWitt. ¹ The prosecutor advised the court that Romo had made two extrajudicial statements to police officers but that the statements would not be used in the prosecution's case in chief; however, if Romo testified, the People would offer one of the statements in rebuttal. The motion was submitted without argument and denied.

Romo forced Fournier to his feet and took him to the car Romo was using. At this time Fournier was conscious and pleading for his life. The defendants left with Fournier from DeWitt's home at about 12:45 a.m. with Romo driving, DeWitt in the passenger seat, and Fournier bound and blindfolded in the rear seat. Fournier's body was [47 Cal.App.3d 982] found several hours later with a bullet hole in his head and two through his body. As DeWitt and Romo were leaving DeWitt's home with Fournier, Kim observed a .38 caliber pistol in DeWitt's rear pocket.

On appeal, DeWitt contends, (1) the denial of the motion for severance of trials was a deprivation of the Sixth Amendment right to confrontation; (2) it was error and an abuse of discretion for the trial court to deny the motion for severance of trials; (3) the facts are insufficient to support a first degree murder conviction; and (4) the uncorroborated testimony of an accomplice (Romo) was an insufficient basis to sustain a conviction.

On appeal Romo contends, (a) the denial of the severance motion was a denial of due process where antagonistic defenses exist between the codefendants; (b) the prosecutor committed misconduct by his reference to the parole status of Romo; (c) incompetency of trial counsel; and (d) the prosecution's reliance upon the felony-murder doctrine denied due process of law.

SEVERANCE

For different reasons, DeWitt and Romo attack the trial court's denial of the motion to sever trials. DeWitt contends he was denied his Sixth Amendment confrontation rights by the introduction of Romo's extrajudicial statements, because the Sixth Amendment guarantees the right to confront and cross-examine extrajudicial declarants at the time the statement is made. He did not have such opportunity and argues as a result, his confrontation rights were violated. His assertion does not accurately reflect the law.

In California v. Green (1970) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489, the court sets forth the present rule regarding the use of extrajudicial statements as follows: '(T)he Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.' In 1971, the court reaffirmed this doctrine in Nelson v. O'Neil (1971) 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222. That case involved a joint trial at which incriminating extrajudicial statements of one codefendant tending to implicate the other were admitted. Both defendants here, however, took the stand and testified. The court, in O'Neil at page 627, 91 S.Ct. at page 1726, stated: 'The Constitution as construed in Bruton . . ., is violated Only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for 'full and effective' cross-examination.' (Emphasis in original.) In both Green and O'Neil, both defendants testified as witnesses and were subject to full and effective cross-examination. Thus, no violation of the confrontation clause existed.

In Bruton v. United States, supra, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, the extrajudicial statement of a codefendant was admitted which implicated both the defendant Bruton and the codefendant. The court there stated, "A defendant may be prejudiced by the admission in evidence against a co-defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by cross-examination If the co-defendant does not take the stand. Limiting instructions to the jury may not in fact erase the prejudice. . . ." (Emphasis added.)

In support of their assertion that denial of the motion for severance was reversible error, both defendants urge upon the court the holding of People v. Aranda, supra, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265. We distinguish that case because the court's holding there is confined to the singular factual situation presented. The principal evidence against defendant Aranda, and upon which his conviction was obtained, was the extrajudicial statement of codefendant Martinez. Under circumstances where no clear evidence of joint action, or other evidence under which the conviction could clearly stand, is presented, the court established the procedures to be followed: 'When the prosecution proposes to introduce into evidence an extrajudicial statement of one defendant that implicates a codefendant, the trial court must adopt one of the following procedures: (1) It can permit a joint trial if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant. By effective deletions, we mean not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established. (Footnote omitted.) (2) It can grant a severance of trials if the prosecution insists that it must use the extrajudicial statements and it appears that effective deletions cannot be made. (3) If the prosecution has successfully resisted a motion for severance and thereafter offers an extrajudicial statement implicating a codefendant, the trial court must exclude it if effective deletions are not possible.'

Aranda distinctions have been previously made. (People v. Epps (1973) 34 Cal.App.3d 146, 157, 109 Cal.Rptr. 733.) It is not Aranda error to admit into evidence the admission or confession of one defendant, which reflects his commission of a crime that is revealed by the physical evidence, even though such evidence might reflect on the issue of whether or not the crime was actually committed also by another, who is linked to the offense by evidence other than the confession. In such circumstances, the joint trials have been held eminently proper. (People v. Diaz (1969) 276 Cal.App.2d 547, 81 Cal.Rptr. 16.) Where both defendants implicate themselves in the offense charged in a joint conversation, separate trials are not indicated by Aranda. (People v. Fuller (1969) 268 Cal.App.2d 844, 854--855, 74 Cal.Rptr. 488.) In view of the decisions in California v. Green, supra, and Nelson v. O'Neil, supra, the Aranda principle must be narrowly applied.

DENIAL OF SEVERANCE AS ABUSE OF DISCRETION

DeWitt asserts the denial of the severance motion was an abuse of discretion. And, for the first time here on appeal, DeWitt asserts that when the severance motion was denied, the trial judge failed to take into account the dictates of People v. Massie (1967) 66 Cal.2d 899, 916--917, 59 Cal.Rptr. 733, 428 P.2d 869, and did not exercise discretion in the denial. Neither contention has merit. The motion for severance as disclosed by the augmented reporter's transcript on appeal...