People v. Simms

• Decision Date: 06 August 1970
• Docket Number: Cr. 7463
• Citation: 89 Cal.Rptr. 1,10 Cal.App.3d 299
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert C. SIMMS, Defendant and Appellant.

Page 1

89 Cal.Rptr. 1

10 Cal.App.3d 299

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert C. SIMMS, Defendant and Appellant.

Cr. 7463.

Court of Appeal, First District, Division 1, California.

Aug. 6, 1970.

Hearing Denied Oct. 1, 1970.

Richard A. Hodge, San Francisco, for appellant (by appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Gary Garfinkle, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction entered pursuant to a jury verdict finding him guilty of robbery. (Pen.Code, § 211.) Defendant makes several contentions which we shall discuss separately following the narration of the pertinent facts.

The Facts

On February 14, 1968, at about 2:15 p.m., defendant, codefendant Scott, and one Brady Harvey, the victim of the subject crime, were drinking together in an Oakland bar. Harvey left the bar in order to pick up his child from school. Defendant, Scott and one Collins followed Harvey to his car and asked him for a 'lift.' Harvey agreed. Defendant and Scott got into the back seat while Collins got into the front seat.

After Harvey had been driving for some time, defendant, from the back seat, put a knife to Harvey's throat and stated 'This is as far as you go.' Defendant then told Collins to take everything Harvey had. Collins thereupon removed all valuables from Harvey's person. ¹ Harvey was then struck alongside the head with a club he had in the car. Harvey 'blacked out.' On regaining consciousness he observed that the three passengers were gone. Harvey called the police and reported the incident.

Some six days subsequent, on February 20, 1968, while driving in the vicinity of the robbery, Harvey observed defendant and codefendant Scott. Harvey stopped a nearby police officer and reported defendant's presence. The officer thereupon stopped defendant and Scott. A pat-search of defendant produced a knife. Defendant and Scott were arrested and taken to police headquarters.

Codefendant Scott, testifying in his own behalf, stated that he was drunk the day of the incident. He stated further that the incident in fact took place as Harvey described, but that he took no part in it. Specifically, Scott stated that defendant, at knife point, took all of Harvey's valuables, struck Harvey with the club and fled the scene. Scott further stated that he had made similar statements to the police prior to trial and after his arrest. Scott's counsel introduced such prior consistent statement into evidence in corroboration of Scott's testimony. In the same vein, a psychiatric report concerning Scott's sanity made by Dr. Norman Rogers was introduced in evidence and read aloud. In that report Dr. Rogers stated that Scott told him that the man seated next to him in Harvey's car had robbed the latter at knife point.

Testifying in his own behalf, defendant admitted having been with and seen Harvey on the day of the incident. Defendant stated that he went directly home from the bar and from there directly to school to pick up his daughter. Defendant denied having seen Scott on the day of the robbery. Defendant denied any complicity in the robbery or its having taken place.

Separate Trials

Defendant asserts that reversible error was committed when the trial court permitted him to be tried jointly with Scott. In making this contention he acknowledges the rule that the failure to move for a severance or to make any objection to the consolidated trial before the commencement of the trial is deemed waived and not subject to review on appeal. (See People v. Burns, 270 Cal.App.2d 238, 251--252, 75 Cal.Rptr. 688; People v. Irvin, 264 Cal.App.2d 747, 764--765, 70 Cal.Rptr. 892; People v. Chambers, 231 Cal.App.2d 23, 28, 41 Cal.Rptr. 551; People v. Amata, 270 Cal.App.2d 575, 586, 75 Cal.Rptr. 860; see People v. Massie, 66 Cal.2d 899, 915, 59 Cal.Rptr. 733, 428 P.2d 869; People v. McGautha, 70 Cal.2d 770, 785, 76 Cal.Rptr. 434, 452 P.2d 650.)

Defendant contends, however, that the trial court should have granted the severance on its own motion when it became aware that the defenses to be presented by defendant and Scott were conflicting and antagonistic and that Scott had made extrajudicial statements implicating defendant. In this connection we point out that there is nothing in the record to show such awareness on the part of the court prior to the commencement of the trial. Indeed, these matters first came to the attention of the court during the opening statements of counsel for the prosecution and the defense and during the testimony adduced at the trial. It should be observed here, therefore, that jeopardy had attached to the defendants since the jury had been duly impaneled and charged with their deliverance. (Jackson v. Superior Court, 10 Cal.2d 350, 352, 74 P.2d 243; Paulson v. Superior Court, 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641; People v. Ham, 7 Cal.App.3d 768, 774, 86 Cal.Rptr. 906.) Under these circumstances a severance at that stage would have amounted to a discharge of the defendant whose trial was severed and, unless done with the consent of such defendant or justified on the basis of legal necessity, such severance would have placed that defendant in jeopardy so that he could not be retried. (Cardenas v. Superior Court, 56 Cal.2d 273, 275, 14 Cal.Rptr. 657, 363 P.2d 889; Paulson v. Superior Court, supra; People v. Ham, supra, 7 Cal.App.3d at pp. 774--775, 86 Cal.Rptr. 906.)

In considering defendant's contention we first observe that in California the Legislature has, by the enactment of Penal Code, section 1098, provided that 'When two or more defendants are jointly charged with any public offense, * * * they Must be tried jointly, unless the court orders separate trials * * *.' (Emphasis added; see People v. Graham, 71 A.C. 320, 347, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Clark, 62 Cal.2d 870, 883, 44 Cal.Rptr. 784, 402 P.2d 856; People v. Santo, 43 Cal.2d 319, 332, 273 P.2d 249 (cert. den. Graham v. People, 348 U.S. 959, 75 S.Ct. 451, 99 L.Ed. 749).) We also note that a person jointly accused with another does not have a right to a separate trial, but has merely the right to ask for it, and the court is vested with the discretion to grant or deny such request. (People v. Cohen, 107 Cal.App.2d 334, 342, 237 P.2d 301; People v. Massie, supra, 66 Cal.2d 899, 916, 59 Cal.Rptr. 733, 428 P.2d 869; People v. Graham, supra, 71 A.C. at p. 347, 78 Cal.Rptr. 217, 455 P.2d 153.)

The trial court is not obliged, therefore, to order a separate trial on its own motion. Such an order requires a request for a severance by the defendant and the exercise of a legal discretion upon the showing made at the time the motion is made and not upon what may have transpired thereafter. (See People v. Santo, supra, 43 Cal.2d 319, 332, 273 P.2d 249; People v. Eudy, 12 Cal.2d 41, 46, 82 P.2d 359.)

In the light of these principles we observe that the principle contended for by defendant is one that comes into play when the trial court has been called upon to exercise its discretion upon a timely demand for a separate trial. Accordingly, in the exercise of sound discretion a court should separate the trials of codefendants where it is shown that there are conflicting defenses or a prejudicial association with a codefendant; that confusion will likely result from evidence on multiple counts; that there is a possibility that at a separate trial a codefendant will give exonerating testimony; that the prosecution proposes to introduce into evidence a confession of one defendant that implicates a codefendant. (People v. Massie, supra, 66 Cal.2d 899, 916--917, 59 Cal.Rptr. 733, 428 P.2d 869; People v. Graham, supra, 71 A.C. 320, 347, 78 Cal.Rptr. 217, 455 P.2d 153.) We should point out here that it is not an abuse of discretion to deny a motion for a separate trial where a defendant moves for a separate trial on the basis of a codefendant's extrajudicial confession, if the incriminating portion of a codefendant's confession can be effectively deleted without prejudice to the defendant, or if the prosecutor assures the court that the confession will not be used. (People v. Aranda, 63 Cal.2d 518, 530--531, 47 Cal.Rptr. 353, 407 P.2d 265; People v. Charles, 66 Cal.2d 330, 333, 57 Cal.Rptr. 745, 425 P.2d 545; People v. Massie, supra, 66 Cal.2d at p. 918, 59 Cal.Rptr. 733, 428 P.2d 869.)

We observe, finally, that in the cases where the court's discretion was reviewed in the light of the foregoing principles, timely objections were interposed. (See People v. Massie, supra, 66 Cal.2d 899, 915, 59 Cal.Rptr. 733, 428 P.2d 869; People v. Graham, supra, 71 A.C. 320, 330, 78 Cal.Rptr. 217, 455 P.2d 153.) The only exception that we perceive is in Charles where the Aranda rules were held applicable to cases tried before the date on which Aranda was announced and which were pending on appeal. In such cases the Aranda rules were held to govern despite the absence of a motion for severance or an objection to a joint trial upon the rationale that convictions on appeal should be tested under the law then applicable rather than the law prevailing at the time of trial. (People v. Charles, supra, 66 Cal.2d 330, 335, 57 Cal.Rptr. 745, 425 P.2d 545. ² In McGautha, supra, the defendant, in a case tried two years after Aranda, did not seek a severance nor did he request the deletions and exclusions authorized by Aranda. It was held he could not complain on appeal of the introduction in evidence of the extrajudicial incriminating statements by a codefendant where the defendant knew that the prosecution was likely to use the implicating statement. (70 Cal.2d 770, 785, 76 Cal.Rptr. 434, 452 P.2d 650.) ³

In the instant case it does not affirmatively appear that defendant's trial counsel was unaware of the principles enunciated in Aranda and Massie. Certainly, he should have been aware of these principles since the...