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 ...