People v. Isenor

Opinion

In count I of an information, the appellant Robert Isenor and a codefendant Pepi Rogers were charged with burglary (Pen. Code, § 459); in count II, the appellant Robert Isenor and the aforesaid codefendant Pepi Rogers were charged with grand theft (Pen. Code, §§ 484-487); in count III, the appellant Melody Isenor was charged with receiving stolen property (Pen. Code, § 496); in count IV, appellant

The day after their arrest, a Huntington Beach police officer obtained a warrant to search their apartment. The fourth stolen fur was found hidden inside the lining of one of Melody’s jackets.

Larry Stephenson testified upon behalf of the prosecution to the following effect: He had a conversation with Robert wherein the latter admitted that he had “received a great deal of money [$1,000] and two coats” in the Huntington Beach burglary; Robert further stated that two other persons were involved, but that only one of the others entered the premises, while he and the remaining person waited in a car in an alley outside the home.

Stephenson further testified that he had nothing to do with the burglary or stolen property; on 2-3 occasions he saw the fur coats or fur pieces, as well as the stolen tape recorder, in the appellants’ apartment. He also related a further conversation in which Robert indicated that the furs had been taken from a residence owned by the “people who owned the Villa Sweden.” After appellants’ arrest, Robert asked him to tell the police that the fur coats belonged to him [Stephenson]; when the request was originally made, he [Stephenson] agreed to lie for Robert, but later changed his mind.

Relatives of all three defendants testified, some for the prosecution, others for the defense. Prosecution witnesses indicated that Robert admitted he had stolen the furs and offered to sell them. Relatives called by the defense attacked the credibility of the prosecution witnesses, maintaining that they were biased as a result of a family feud. These defense witnesses also testified that they had observed one of the prosecution witnesses in possession of one of the furs and some of the cash realized in the burglary.

Both appellants testified in their own behalf. Robert claimed he was at a union hall at the time of the theft. He further testified that on the day of his arrest, Larry Stephenson came to his apartment and stated that the police were after him and handed Melody a bag which she threw out of the window; he had a conversation with the codefendant Pepi Rogers, in which Pepi admitted his involvement in the burglary.

A Huntington Beach police officer testified that the codefendant Pepi Rogers had confessed to the burglary, admitting he gained entry through a sliding glass door.

A Santa Ana labor union dispatcher corroborated Robert’s alibi to the

Melody testified as follows: On the day of her arrest, Larry Stephenson came to the apartment with a sack of furs; he told her he had stolen them and the police were after him; when Robert spotted the police approaching the apartment, she tossed the three furs out the window and requested two little boys to throw them in the trash can; she had never seen the one fur coat and two fur pieces previously; several people knew the place where she had hidden the key to the apartment (thereby implying someone else had “planted” the other fur coat in her closet); on the day of the burglary her husband left home about 12 noon to visit union headquarters and returned about 3 p.m.

Robert Isenor, Sr., Robert’s father, testified that Larry Stephenson told him that he [Stephenson] had taken the furs to appellants’ apartment; that on a later occasion, Stephenson told him he was going to change his story because he had been induced to do so by the district attorney’s office; however, Stephenson at no time admitted that he had anything to do with the actual burglary.

The father further testified that he had a telephone conversation with the codefendant Pepi Rogers wherein Pepi admitted that he had committed the burglary without the aid of appellants, and that he had so informed the police.

The codefendant [Rogers] did not testify.

In seeking a reversal, appellants maintain that: (1) The court abused its discretion in denying their motion to sever their trial from that of the codefendant Pepi Rogers; and (2) they were deprived of their Sixth Amendment right to present witnesses in their own behalf (the right to call the codefendant) by reason of the trial court’s denial of the severance motion.

Section 1098 of the Penal Code provides as follows: “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(s) separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a joint trial as to the others, or may order any number of the defendants to be tried at one trial, and any number of others at different trials, or may order a separate trial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial.”

While the Legislature has expressed a preference for joint trials

The Echeles case, supra, involved an attorney charged with suborning perjury, impeding justice, and conspiracy to commit those offenses; the reviewing court reversed Echeles’ conviction for failure of the trial court to grant a motion to sever, basing its decision, for the most part, on the possibility that the codefendant Arrington would offer exonerating testimony at a separate trial. (United States v. Echeles, supra, 352 F.2d 892 , 897-898.) The facts before the Echeles court at the time the motion for severance was made were unique and distinctive in that the codefendant Arrington had made three judicial statements in a prior trial exonerating Echeles and had indicated thereby that he was not only willing but desirous of testifying in behalf of Echeles in the event the latter’s motion for separate trial was granted.

In the relatively recent case of Byrd v. Wainwright (5th Cir. 1970) 428 F.2d 1017 , a strong showing was made that a codefendant would give exonerating testimony in the event a severance was granted the moving defendant; Byrd and six others were indicted for the mass rape of a single victim; at the time of the hearing of the severance motion, Byrd’s counsel represented that the defense would be alibi, and that most, if not all, of the codefendants would testify that Byrd was not present at the time of the attack; under such circumstances, the denial of the motion to sever constituted a deprivation of due process.

Byrd, supra, articulated several relevant tests to guide a trial court in evaluating the adequacy of the showing at the time of the severance motion. When faced with a motion to sever on the ground that there is a possibility that at a separate trial there may be exonerating testimony by a codefendant, there are several areas of inquiry which, to some extent, overlap: (1) Does the movant desire the testimony of the codefendant; (2) will the testimony be exculpatory; (3) how significant is the testimony; (4) is the court satisfied that the testimony itself is bona fide; (5) on the basis of the showing at the time of the motion, how strong is the likelihood that, if the motion were granted, the codefendant will testify; and (6) what is the effect of the granting in terms of judicial administration and economy? (See Byrd v. Wainwright, supra, 428 F.2d 1017 , 1019-1020.)

When the motion for severance was argued and considered, Rogers’ counsel was present. He informed the court that: he had no knowledge of the matters contained in the hearsay declaration filed by Robert; Rogers was related to appellants; he implied that if a severance were granted and tiie Isenors were tried first, he would advise his client [Rogers] of his legal right not to testify on the grounds of self-incrimination.

Obviously, appellants satisfied the first three requirements of Byrd, supra, and our review of the denial of the motion to sever will focus on the latter three areas of inquiry.

Turning first to the issue of the court’s satisfaction with the bona fideness of the exculpatory statement, the court was informed that the three defendants were closely related in that Melody Isenor was the sister of the codefendant Rogers. Consequently, the trial court could have inferred that no exculpatory statement had ever been made by Rogers to Robert, and that even if the statement had been made, that Rogers had a motive in doing so, to wit, to extricate his sister from her involvement in the affair. In addition, the circumstances under which the statement was alleged to have been made were not divulged. In both Massie and Echeles the exonerating statements were made by the codefendants before judicial officers. Similarly, in Byrd, the court treated the exculpatory statements by the codefendants as trustworthy. (Byrd v. Wainwright, supra, 428 F.2d 1017 , 1020.) In contrast, the trial court herein was not required to accept defendant’s unsupported version of the purported statements by Rogers. It is not error to deny a motion to sever based solely on defendant’s bald assertion that someone has made an exonerating statement in his behalf. (See Fields v. United States (5th Cir. 1969) 408 F.2d 885 , 886-887.)

Second, the likelihood that Rogers would testify in the event a severance was granted was not established. Rather, Rogers’ counsel informed the court that he would advise his client not to testify. Therefore, there was no positive assurance that even if the codefendants were to be tried first that he would later testify for appellants, except Robert’s uncorroborated declaration that Rogers would be willing to do so. The mere assertion that a codefendant might be willing to exculpate a defendant

Finally, the trial court should consider the import of the granting of a severance on the problem of judicial administration. In order for appellants’ motion to gain them anything, it would have been necessary not only that Rogers be tried separately, but that his trial be completed before theirs and culminate in a final judgment. Rogers’ counsel, in opposing the motion to sever, had already expressed his reluctance to allow his client to testify, and the court could have inferred that he would have attempted to safeguard Rogers’ rights by advising him not to incriminate himself irrespective of which parties were tried first.

It necessarily follows that the trial court carefully considered the criteria enunciated in Massie in exercising its discretion and properly determined that there had been an insufficient showing that Rogers would give exonerating testimony in appellants’ behalf in the event a separate trial were to be granted.

In the light of what developed during the trial, it is obvious that the appellants’ motion could have been supported by strong declarations of third parties, to wit, Robert Isenor, Sr., and the Huntington Beach police officer to whom Pepi Rogers confessed. However, their trial testimony was obviously not before the court at the time it ruled on the motion. Whether denial of a motion to sever the trial of a defendant from that of a codefendant constitutes an abuse of discretion must be decided on. the facts as they appear at the time of the hearing on the motion rather than on what subsequently develops. (People v. Gant, 252 Cal.App.2d 101 , 112 [ 60 Cal.Rptr. 154 ]; People v. Gann, 259 Cal.App.2d 706 , 714 [ 66 Cal.Rptr. 508 ].) Consequently, it cannot be stated that the trial court abused its discretion in denying the motion.

Even if it were to be assumed, arguendo, that the trial court erred in denying the motion for severance, it has not been established that appellants suffered substantial prejudice as a result thereof. A conviction achieved at a joint trial should not be reversed in the absence óf a reasonable probability that defendant would have obtained a more favorable result at a separate trial; the question of the erroneous denial of a severance does not rise to judicial magnitude nor is a right to a separate trial so

The trial court permitted Robert’s father to testify to the effect that he had a telephone conversation with Pepi Rogers wherein Rogers stated that the appellants were not involved in the charged offense. The appellant Robert Isenor also testified that Pepi had confessed to him. The officer to whom Pepi confessed rendered testimony to the effect that Pepi told him that he had committed the burglary and that he was confessing to get his sister [Melody] “. . . off the hook.” Therefore, Pepi’s confession and his exonerating statements were before the jury and, from its verdict, it can be inferred that it gave little credence to Pepi’s purported efforts to extricate the appellants.

Defendants’ final contention is that they were deprived of their constitutional right to compel the attendance of witnesses in their behalf, citing Washington v. Texas, 388 U.S. 14 [ 18 L.Ed.2d 1019 , 87 S.Ct. 1920 ]. In Washington, the defendant desired to call a coparticipant in the crime as a witness but was prevented from doing so by a statute which allowed the coparticipant to testify for the prosecution but not for the defense; the coparticipant, who had been tried first and convicted, was willing to testify for the defense; the court struck down the statute as being violative of the Sixth Amendment right to compulsory process.

Washington, supra, is readily distinguishable from the instant case. The coparticipant herein was not willing to become a witness; he invoked his Fifth Amendment right against self-incrimination, and could not be compelled to testify at either a joint or separate trial. Furthermore, the California scheme is entirely consistent with the decision and rationale in Washington. The right of comptilsory process is guaranteed. (Cal. Const., art. I, § 13.) There is no provision of law that a defendant is not a competent witness for himself or for a codefendant if he is willing to testify. (See People v. Yeager, 194 Cal. 452 , 488 [ 229 P. 40 ].) The issue is therefore without merit.

If the codefendant Rogers had been willing to testify, he was able to do so. The joint trial would have presented no obstacle. Obviously, Rogers’ failure to testify arose from a decision to invoke his Fifth Amendment rights.

Finally, we address ourselves to a point not raised in the briefs. Defendant Robert Isenor was found guilty of second degree burglary (Pen. Code, § 459) and grand theft (Pen. Code, §§ 484-487), and sentenced to concurrent terms in state prison thereon. Both convictions arose out of

Where double punishment has been imposed for second degree burglary and grand theft, the appropriate procedure is to eliminate the effect of the judgment as to the lesser offense of grand theft insofar as penalty alone is concerned, and to permit the judgment and sentence to stand as to the greater offense of second degree burglary inasmuch as the penalty for second degree burglary is greater under section 461 of the Penal Code than that imposed for grand theft under section 489 of the Penal Code. (People v. McFarland, 58 Cal.2d 748 , 762-763 [ 26 Cal.Rptr. 473 , 376 P.2d 499 ].)

The judgment is reversed insofar as it imposes a sentence for grand theft and in all other respects is affirmed.

Tamura, Acting P. J., concurred.

The petition of appellant Isenor for a hearing by the Supreme Court was denied June 23, 1971.