APPEALS from judgments of the Superior Court of Los Angeles County. LeRoy Dawson, Judge.
Shinn, P. J. Vallee, J., and Ford, J., concurred.
Appeals from judgments of convictions of mutiple offenses of robbery and burglary. An amended information was filed against appellants Robert Leroy Biehler and Ray McCoy Bradley, together with two other defendants,
William Arnole Rainbolt, Jr., and Roy Justino Andrade, charging the following:
In Count I, Rainbolt and Biehler were charged with the robbery, on August 9, 1960, of the Boysburger Cafe. It was charged that Rainbolt was armed at the time with a revolver, and Biehler with a shotgun and a revolver. Biehler was, in addition, charged with a prior conviction of robbery.
In Count II, Rainbolt and Bradley were charged with the armed robbery, on August 1, 1960, of the Gaye Motel.
In Count III, Rainbolt was charged with the armed robbery, on August 4, 1960, of Paul's Liquor Store.
In Count IV, Biehler was charged with the burglary on August 3, 1960, of Uncle Fred's Swap Shop.
In Count V, Rainbolt and Andrade were charged with the armed robbery, on August 12, 1960, of the Signal Trucking Service. In addition, Andrade was charged with prior convictions of forgery and grand theft.
The information was an amendment of a prior information wherein the charges set out in Counts I through III were made against Rainbolt alone. The amended information represented a consolidation of the original information against Rainbolt and four other informations, two of which charged Biehler alone with the matters set out in Counts I and IV of the amended information; one of which charged Bradley alone with the crime set out in Count II of the amended information; and one of which charged Rainbolt and Andrade with the substance of Count V of the amended information. The original informations were all consolidated into the amended information, on motion of the district attorney, and over the objection of all defendants. The defendants then moved for a severance of their trials on the charges contained in the amended information. The objection to consolidation and the motion for severance were made on the ground that the five counts of the amended information all related to unconnected crimes, and that the effect of a consolidated trial of all of the offenses would be to unfairly prejudice the jury against the defendants. The People opposed the motions for severance on the ground that a common purpose underlay all the crimes charged, and that some of the weapons taken in the burglary were used in the robberies. The court denied the motions for severance, and a single jury trial was had on all five counts. All defendants were found guilty as charged, with the single exception that Bradley was found to have been unarmed at the time of the commission of the offense charged
in Count II. Bradley appeals on the ground that as a result of the consolidation of the various charges he was unable to have a fair trial. Biehler appeals on that ground, on the additional grounds that the evidence was insufficient to sustain the verdict, that the court failed to properly admonish the jury according to section 1122 of the Penal Code, and that the jurors were guilty of misconduct. For the reasons which follow, the judgments must be reversed.
The principles governing the consolidation of distinct offenses into one information or indictment are set forth in Penal Code section 954: "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 . . . ." That section further provides ". . . 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."
Since robbery and burglary are of the "same class of crimes," within the meaning of section 954 (People v. Johnston, 114 Cal. App. 241, 244 [299 P. 805]), the consolidation as occurred in the instant case fell within the provision for consolidation of "two or more different offenses of the same class of crimes or offenses." However, compliance with the section in that respect is an insufficient test whether a consolidated information and trial are proper in all cases. Otherwise, every single person charged with a specific crime could be required to stand trial with any number of other defendants charged with independent, unrelated crimes of the same class. On the other hand, the state is not required to hold a separate trial for every single offense charged against every individual defendant. However, it is unnecessary for this court to determine the outer limit to the consolidation permitted under section 954, since that limit has been drawn short of the consolidation attempted in the instant case.
In the case of People v. Davis, 42 Cal. App. 2d 70, 74 [108 P.2d 85], it was held that where "The crimes charged were separate and distinct crimes, occurring at different times, against different persons and were charged against different defendants," they may not be joined in a single indictment. In the Davis case, the facts were as follows: The defendants "A" and "B" were charged in an indictment with the robbery
of a drugstore alleged to have been committed December 23, 1939. The same defendants were charged, in a separate indictment, with another and distinct robbery alleged to have been committed on January 14, 1940. In a third indictment the defendants "B" and "C" were charged with a further separate and distinct robbery alleged to have been committed on January 12, 1940. These indictments were consolidated for trial, over the objection of the defendant "A." At trial, the defendant "C" pleaded guilty to the robbery charged in the third indictment; the court directed a verdict of acquittal as to both defendants charged in the second indictment; and directed a verdict of acquittal as to the defendant "B" with respect to the charge against him in the first indictment. Thus, there remained but two charges for the determination of the jury: the charge against the defendant "A" in the first indictment, and the charge against the defendant "B" in the third indictment. The jury returned verdicts of guilty as to both defendants, and the defendant "A" appealed. Reversing the judgment of conviction, the court quoted the United States Supreme Court, in McElroy v. United States, 164 U.S. 76 [17 S.Ct. 31, 41 L.Ed. 355]: "While the general rule is that counts for several felonies of the same general nature, requiring the same mode of trial and punishment, may be joined in the same indictment, subject to the power of the court to quash the indictment or to compel an election, such joinder cannot be sustained where the parties are not the same and where the offenses are in nowise parts of the same transaction and must depend upon evidence of a different state of facts as to each or some of them," and further approved the statement in the McElroy case that "The order of consolidation was not authorized by statute and did not rest in mere discretion." Considering the effect of California Constitution, article VI, section 4 1/2, the Davis court said "It would seem to us that in the very nature of things the consolidation of such separate unconnected charges for trial could not help but be prejudicial to either or both defendants."
The principles enunciated in Davis have been reasserted in subsequent decisions by the reviewing courts of this state. In People v. Duane, 21 Cal. 2d 71 [130 P.2d 123], at page 76, the court stated: "A defendant may be prejudiced if forced to stand trial on one charge with a codefendant or codefendants who are charged with a distinct and unconnected offense. The charges may be of the same class and therefore
subject to consolidation, but if unconnected and dependent upon evidence of an entirely different state of facts, one defendant may be prejudiced by evidence introduced in support of an information charging a second defendant with a separate offense." The court there held the doctrine inapplicable to the facts of that case, since but one defendant was tried. In People v. O'Leary, 130 Cal. App. 2d 430 [278 P.2d 933], the appellant and a codefendant were charged in one count of an information with robbery; in another count the codefendant and a third defendant were charged with a separate and distinct robbery; and in a further count, the third defendant was charged with still another robbery. The two defendants other than the appellant pleaded guilty, and the only evidence introduced at trial related to the single offense of which the appellant was charged. The appellant contended on appeal that "there is no authority of law for joining in a single indictment, or trial, charges against several individuals accused of having committed separate unconnected crimes at different times and upon different people," and cited the Davis case to that effect. The court agreed with the proposition, but held that the appellant could not have been prejudiced by the joint information, under the facts of that case, stating: "If the three defendants had gone to trial and evidence had been introduced in support of the allegation of the information [appellant's] contention would have been sustainable for reasons which were stated fully in People v. Davis, supra, and cases therein cited. But O'Leary and Weaver, out of the presence of the jury, pleaded guilty; no evidence was produced on behalf of the People with respect to their crimes." (People v. O'Leary, supra, pp. 437-438.)
The case of People v. Andrews, 165 Cal. App. 2d 626 [332 P.2d 408], relied upon by the Attorney General, does not establish a different rule from that set forth in the Davis case. There the appellants were all employed as truck drivers for a company engaged in the business of rendering meat byproducts into usable commodities. Their duties consisted of picking up these products from markets located on routes served by the drivers. They were accused in a single indictment of falsifying their records so as to overcredit certain markets regarding the quantity of products picked up, and undercredit others, all of which was part of a scheme whereby they received "kick-backs" from the favored markets. The drivers were charged with theft as to the substantive crimes, and with conspiracy to effect the thefts. They were found
guilty of the substantive crimes, but not guilty of the conspiracy. The court applied the principles stated in Davis, but stressed the statement in People v. Duane, supra, 21 Cal. 2d 71, (which, in turn, was based upon language in McElroy, supra) that a defendant may be prejudiced by such joinder "only if the evidence of the commission of separate offenses is dependent upon 'an entirely different state of facts.'" The Andrews decision further relied on the case of In re Pearson, 30 Cal. 2d 871 [186 P.2d 401], where it was stated that joinder of multiple offenses is permissible "if there is a common element of substantial importance in their commission." Setting forth the rather unique nature of the crimes charged, and their common elements, the court held that the requisite "common element of substantial importance" and the common "state of facts" justifying joinder were present. However, those common elements which in Andrews justified a single trial were similarly the elements which justified the conspiracy indictment in that ...