Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of prohibition/mandate to challenge an order of the Superior Court of Orange County No. 06NF2865, James A. Stotler, Judge.
Deborah A. Kwast, Public Defender, Denise Gragg, Assistant Public Defender, and Tracy R. LeSage, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Tony Rackauckas, District Attorney, and Stephan Sauer, Deputy District Attorney, for Real Party in Interest.
OPINION
ARONSON, J.
Neil Deontrai Duffey seeks extraordinary writ relief to overturn the trial court’s ruling denying his motion to be tried separately from his codefendant, William Cartlidge, on two counts each of attempted murder and robbery arising from a liquor store holdup. Duffey contends that joining an assertedly weaker case against him with the stronger case against Cartlidge subjected him to unfair, prejudicial association with Cartlidge, and furthermore that the pair’s conflicting defenses required severance. As the trial court acknowledged, joinder may pose due process or other serious problems as the proceedings unfold, some of which we highlight below. But, as we explain, Duffey failed to carry his burden to show severance was required at the time of his motion, and we therefore cannot say the trial court abused its discretion in permitting the charges against each defendant to remain joined. Consequently, we deny the writ petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
During the late morning of August 8, 2006, Mote Malhas was working alone at Sunshine Liquor in Buena Park when two men entered the store. The liquor store’s security camera system recorded one man, who Malhas later identified as Duffey, approach the counter, while the other, who Malhas later identified as Cartlidge, remained near the entryway. Malhas characterized his identification of Duffey as 70 percent certain; he was 100 percent sure in identifying Cartlidge. Duffey and Cartlidge are cousins.
The suspect Malhas identified as Duffey wore a baseball hat and sunglasses. Duffey spoke briefly to Malhas and, when Malhas turned to retrieve an item, Duffey shot Malhas in the back of the head. Cartlidge immediately stepped over Malhas’s body, Duffey joined him behind the counter, and the pair attempted to open the cash register, but raced to the front of the store when a customer, Cesar Castillo, entered. Duffey shot Castillo twice, once in the eye and once in the neck. Castillo survived, but did not identify Duffey or Cartlidge. Duffey and Cartlidge returned to the cash register, unplugged it and moved it to the ground. Duffey then exited the store while Cartlidge searched Castillo’s pockets, removing a wallet.
A passerby, Michael Stevenson, observed Duffey leave the liquor store, walk northbound out of sight, and then return to the liquor store within a minute in a large grey or silver SUV. Stevenson saw Duffey and Cartlidge flee the liquor store with the cash register, placing it in the SUV. In a photo lineup, Stevenson identified Cartlidge with 85 percent certainty; he also identified Duffey, estimating his certainty at 65 percent. In a live lineup that included Duffey but not Cartlidge, Stevenson stated he was 85 to 95 percent sure in identifying Duffey.
The next day, based on a tip received after news media broadcast a portion of the liquor store security tape, the police set up surveillance of a Cerritos residence and soon apprehended a man disposing of the cash register and a.25-caliber gun. The man claimed he was doing a favor for Dartonyon Loyd. Loyd, a cousin of both Duffey and Cartlidge, told police he recognized them in the video broadcast on the news, and that Duffey and Cartlidge had each confirmed in separate telephone conversations their participation in the crime. Duffey lived in the same house with Loyd. Loyd found the gun and the cash register in the house, and he and his father, Curtis Washington, wiped down both items to remove any fingerprints. Washington told police he recognized Duffey as the shooter in the news broadcast and Cartlidge as the person behind the counter grabbing things. Later that day, Duffey and Cartlidge turned themselves in at the police station together.
In an interview with police, Cartlidge acknowledged the grey SUV used to flee the scene was his and that the security video accurately depicted the events inside the store. He told police he went with Duffey to the store to make a purchase. He did not know Duffey intended to rob the store or that he would shoot anyone. Cartlidge also admitted committing an armed robbery three days earlier, without Duffey’s involvement. The police found Cartlidge’s fingerprints inside the store, but not Duffey’s. DNA evidence connected Duffey to the handgun used in the shootings, but not to the sunglasses found inside the store.
The prosecutor filed an information charging Cartlidge with second degree robbery for his earlier holdup, and also charged Duffey and Cartlidge jointly with two counts of attempted murder and two counts of second degree robbery for the events at Sunshine Liquor, plus an aggravated mayhem count against Duffey for maiming Castillo.
Duffey moved to be tried separately from Cartlidge on the following grounds: (1) Cartlidge’s earlier robbery had no bearing on his guilt and would prejudice him, (2) Cartlidge’s statement to police could not be sanitized adequately to protect his confrontation rights, (3) he and Cartlidge had antagonistic defenses, preventing a fair trial, and (4) joinder of the weaker case against him with the stronger case against Cartlidge amounted to unfair and prejudicial association.
In her opposition papers, the prosecutor agreed the court should sever the robbery count against Cartlidge. Additionally, she promised “the People will not introduce the statement by [d]efendant Cartlidge that implicated [d]efendant Duffey,” acknowledging “that given the nature of the statement by [d]efendant Cartlidge and [the] line of cases interpreting Bruton [v. United States (1968) 391 U.S. 123; see also People v. Aranda (1965) 63 Cal.2d 518 (together, Aranda-Bruton)], the statement by [d]efendant Cartlidge may be difficult to redact.” The prosecutor reserved the right to seek admission of relevant portions of the statement to impeach Cartlidge if he “decides to take the stand and testify; however, then [d]efendant Duffey’s Sixth Amendment rights would not be at issue because he would be able to confront and cross-examine the witness against him.”
At the hearing on the motion, the trial court severed the robbery count against Cartlidge (count I). The court denied severance on the joint charges without prejudice, “strictly” basing its ruling on information presented at the time of the motion and permitting Duffey to renew the motion during trial if circumstances changed. The court explained: “[E]ven though the motion to sever is decided on the facts presented to the court and the law and the briefs on the day the motion of severance is heard, if a subsequent trial occurs and as a result of the consolidation there’s a denial of due process, then the defendant can get a reversal on appeal because of trial facts that occur. [¶] I’m aware of what is on the horizon and,” the court addressed counsel, “I’m sure you two are as well.”
The court elaborated: “What if one of the defendants testifies? Say Cartlidge gets up on the witness stand, then you have a whole different ball game.” The court noted that even if Cartlidge did not testify, but managed to implicate Duffey through statements he may have made to “friends” or his cousin Loyd, incriminating not just himself but potentially Duffey as well, such comments would raise not only Aranda-Bruton concerns but also bolster Duffey’s claim of conflicting defenses. Observing that “evidence may or may not come in” and “nobody can predict the future,” the trial court reiterated that “things may change.” The court concluded, “[S]o I don’t want to get into it right now. It’s not necessary. There’s too many unknowns. There’s permutations and combinations of what could occur in a trial. I’m simply denying severance of the defendants, but I am granting severance of count I.” Duffey now pursues this writ petition to challenge the trial court’s ruling.
II
DISCUSSION
Duffey challenges the trial court’s denial of his motion to sever his trial on all of the counts, not just Cartlidge’s earlier robbery charge. Penal Code section 1098 expresses a legislative preference for joint trials by providing that defendants generally “must” be tried together when charged with a public offense. (People v. Boyde (1988) 46 Cal.3d 212, 231.) The joint trial preference is designed to conserve scarce public resources. (People v. Coffman (2004) 34 Cal.4th 1, 40 (Coffman).) The trial court has discretion, however, to order separate trials (Pen. Code, § 1098), which may be appropriate “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (People v. Massie (1967) 66 Cal.2d 899, 917, fns. omitted.) Of the foregoing grounds, Duffey relies on his asserted prejudicial association with Cartlidge — based on the strength of the eyewitness case against Cartlidge compared to weaker identification evidence implicating him in the crime. Duffey also relies on the pair’s allegedly conflicting defenses.
The flawed premise of Duffey’s challenge, at this point in time, is his claim that “Cartlidge will deflect culpability for these crimes on[to] petitioner and shift the focus to petitioner who he will make the heavy as the shooter during the offenses.” (Italics added.) As noted, however, the prosecutor represented to the trial court that she will not introduce in her case-in-chief Cartlidge’s statement to police implicating Duffey. Consequently, at this time, it is not Cartlidge who implicates petitioner as the shooter, but rather independent evidence in the form of the store security tape showing Cartlidge as the non-shooter, coupled with positive identifications of Duffey by a victim, a witness, and others, plus Duffey’s DNA residue on the handgrip of the gun. While Malhas could only identify Duffey — in contrast to Cartlidge — with less than 100 percent certainty, Duffey’s DNA connection to the gun and the number and consistency of persons identifying him, including Stevenson’s estimate of up to 95 percent certainty, hardly make for a weak case. Accordingly, we find no merit in Duffey’s claim the prosecutor prejudicially associated him with Cartlidge by joining a weak case to a strong one. (See People v. Marshall (1997) 15 Cal.4th 1, 27-28 [abuse of discretion standard applies to alleged misjoinder of lopsided charges, bearing in mind it is defendant’s burden to show necessity of severance].)
Petitioner nowhere in his briefs acknowledges this important detail, nor did the district attorney bring it to our attention.
True, the trial court’s observation that “things may change” applies both to the strength of the case against each defendant and to the possibility Cartlidge may implicate Duffey, depending upon the evidence admitted at trial. But as the trial court correctly noted, whether to grant or deny the defendant’s motion and whether “denial of a severance motion constitutes an abuse of... discretion is judged on the facts as they appeared at the time the court ruled on the motion.” (People v. Hardy (1992) 2 Cal.4th 86, 167 (Hardy).)
Here, the prosecutor’s representation she will not use Cartlidge’s statement to the police means that, at this time, his and Duffey’s defenses are not conflicting. Duffey, in noting the lack of certainty some witnesses admitted in identifying him, appears to be relying on misidentification as his defense, while Cartlidge may argue the prosecution failed to establish he knew of the shooter’s intent to rob or kill. Theoretically, a jury could find Cartlidge did not know of the shooter’s intent and could simultaneously accept Duffey’s similar argument raising reasonable doubt about his identification. Their defenses therefore do not fall, presently, within the conflicting defenses basis for severance. (See Hardy, supra, 2 Cal.4th at p. 168 [defenses must be “irreconcilable” or, “[s]tated another way, ‘“mutual antagonism” only exists where the acceptance of one party’s defense will preclude the acquittal of the other’”]; accord, Coffman, supra, 34 Cal.4th at p. 41.)
But the way forward is fraught with potential for error. For instance, even if Cartlidge does not testify, the trial court may have to preview any testimony by his friends or relatives to prevent potential Aranda-Bruton error, somehow guarding against their inadvertent or purposeful disclosure of hearsay by Cartlidge that implicates Duffey. And as Duffey notes, given the limited defenses available to Cartlidge, he may testify and in doing so most likely will identify Duffey as the shooter, directly contradicting Duffey’s misidentification defense. If Cartlidge testifies, the Aranda-Bruton dilemma disappears, only to be replaced by a vivid conflict in defenses, in which it may border on the fanciful to say a jury could acquit Cartlidge, crediting his lack of knowledge defense, but find him to be a liar in implicating Duffey. (See Hardy, supra, 2 Cal.4th at p. 168 [to avoid mutual antagonism, acceptance of one party’s defense must not preclude acquittal of the other].)
The trial court also must guard against Griffin-type error if Cartlidge testifies and Duffey does not, to avoid impugning the latter’s Fifth Amendment right. (Rhone v. United States (1966) 365 F.2d 980, 981 [corollary difficulty of conflicting defenses is that testifying defendant may cause jury “to draw an adverse inference from his codefendant’s silence”]; cf. Griffin v. California (1965) 380 U.S. 609; see also Zafiro v. United States (1993) 506 U.S. 534, 539 [constitutional basis for severance rests in part on whether “a joint trial would compromise a specific trial right of one of the defendants”].) We do not pretend to identify all of the issues that may or may not arise from a joint trial, the resolution of which will rest in the trial court’s sound discretion. Whether to allow a joint trial in the face of conflicting defenses is also a matter for the trial court’s discretion. (People v. Avila (2006) 38 Cal.4th 491, 575.) For now, it is enough to conclude that, because petitioner failed to meet his burden to demonstrate, at the time of the trial court’s ruling, prejudicial association with Cartlidge or that his defense and Cartlidge’s were irreconcilable, he is not entitled to a writ countermanding the trial court’s denial of his severance motion.
III
DISPOSITION
The writ petition is denied.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.