Reset A A Font size: Print

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

The PEOPLE, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent. Paul William BRESNEY, Real Party in Interest.

No. D010738.

Decided: October 27, 1989

Edwin L. Miller, Jr., Dist. Atty., Thomas F. McArdle and Kerry Wells, Deputy Dist. Attys., for petitioner. No appearance, for respondent. Francis J. Bardsley, Public Defender, Charles Elliott and Richard P. Siref, Deputy Public Defenders, for real party in interest.

The People seek a writ, arguing the trial court exceeded its jurisdiction when it severed counts for reasons unrelated to considerations of prejudice to the defendant, Paul William Bresney.   Defendant responds a grant of severance is a nonreviewable act of discretion.   We conclude the issue raised concerns the jurisdictional limitations of a trial court's power to grant severance and is reviewable.   We conclude the trial court here exceeded its power and grant the petition.


The defendant is charged with having committed 54 robberies and 2 attempted robberies within the course of four months in early 1989.   In 35 of the counts it is alleged the defendant was armed with a weapon pursuant to Penal Code 1 section 12022.5.   The People and defense estimated the trial would take approximately four weeks to try.

In the department to which the jury trial was assigned, defendant brought an in limine motion to sever counts.   The motion was based upon the allegation the offenses were not of the same class for purposes of joinder, joinder would have an improper cumulative effect because the evidence of alleged robberies was not of equal strength in each count and because the defendant would be embarrassed or confounded by having to present separate defenses.   Counsel for defendant requested the court divide the counts into four relatively equal segments and impanel four separate juries to hear the case in the same courtroom.

The trial court rejected defendant's arguments, expressly finding the defendant would suffer no prejudice by having all counts tried by one jury.   However, while acknowledging it would be a “terrible burden” to require victims and police to appear in separate trials, the court found the number of charges “intimidating” and granted the motion to sever “in the interest of judicial economy and concern for the welfare of jurors.”   Specifically, the court expressed its concern one trial on all counts would occupy the courtroom for an unjustified period of time, particularly given the lack of adequate remuneration for jurors and its belief the charging of over 15 counts is generally “overkill.”   In light of these beliefs, the court stated it would “follow the lead of the federal court” and direct the prosecution to “pick your 15 best counts.   We will go on those first;  and if repeated trials are necessary, we'll handle them in sequence with new juries one after another in this department until you get tired of it.”

Upon further examining its trial schedule, the court concluded it would have a time problem were it to preside at all four trials.   Therefore it informed counsel it would begin the first trial, trail the remainder, hear as many trials as it could and then “send the rest back to [the criminal presiding department] if we are still going.”

The People bring a petition for writ of mandate or in the alternative prohibition, requesting this court find the trial court acted in excess of its jurisdiction and requesting we direct the lower court to vacate its order severing counts.   We grant their request.


 We are mindful that in the usual case the People may not challenge the grant of a motion for severance by petition for writ of mandate.   Section 1238 does not give the People a right to appeal the grant of a motion for severance.   Generally, the People may not evade this restriction by recourse to a petition for a writ where section 1238 does not grant that right.   However, exceptions exist.   If the challenged order of the trial court is an act “in excess of jurisdiction,” and if the need to correct judicial error outweighs the conflicting threat of harassment to the defendant, then the petition may be entertained.  (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 501, 72 Cal.Rptr. 330, 446 P.2d 138;  People v. Superior Court (Arthur R.) (1988) 199 Cal.App.3d 494, 502, 244 Cal.Rptr. 841;  People v. Superior Court (Duval) (1988) 198 Cal.App.3d 1121, 1126–1129, 244 Cal.Rptr. 522).

The utility of this guideline, however, is seriously impaired by the ambiguous nature of the term “excess of jurisdiction.”   Some courts, a minority, have taken a restrictive view and use the term in the “traditional sense” of a court acting without subject matter or personal jurisdiction.   Some courts, on the other hand, have adopted a more expansive view and hold that any misinterpretation, misapplication or refusal to follow applicable constitutional, statutory or case authority is an act in excess of jurisdiction.  (See People v. Superior Court (Arthur R.), supra, 199 Cal.App.3d at p. 502, 244 Cal.Rptr. 841.)

The substantive issue raised by the People's petition in this case is whether a trial court may, pursuant to section 954, sever joined counts, not because of the potential for prejudice to the defendant, but for other reasons related to court management or convenience.   The issue is obviously a fundamental one which requires an interpretation of the power to sever as conferred by the Legislature.   We believe the criminal justice system would be ill served by a rule which would not allow the review of a trial court's determination of the very breadth of its power.   Such a rule would allow trial courts to act without guidance, to act without uniformity and to act in ways not authorized by higher courts or the Legislature.

We do not presume to reconcile the various positions taken on the proper definition of the term “excess of jurisdiction,” nor do we propose a universal rule for its determination.   We merely conclude that in the context of severance the question of whether a trial court may sever counts based on factors other than prejudice to the defendant is a fundamental one which goes to the very question of the power of the trial court.   If we determine section 954 was not intended to allow factors other than prejudice to the defendant to be considered in granting severance, then we are prepared to say that basing severance on such irrelevant factors is an act in “excess of jurisdiction.”   The issue is an important one, the resolution of which outweighs the potential for harassment of the defendant.   We therefore will entertain the issue raised.2

Section 954 provides a court in its discretion may “in the interests of justice and for good cause shown” order different offenses or different counts of an accusatory pleading tried separately or divided into groups which groups are then tried separately.

 The central issue is whether the scope of the amorphous phrase “in the interest of justice” permits severance based upon factors unrelated to potential prejudice to a defendant.  (See People v. Orin (1975) 13 Cal.3d 937, 945, 120 Cal.Rptr. 65, 533 P.2d 193.)   No authority has been cited to us which directly addresses this precise question and we have found none.

We therefore begin by noting the decision to sever has traditionally and invariably been treated as one involving the issue of potential prejudice to the defendant.   We do not believe this treatment to be coincidental or accidental.

There is in this state a strong policy favoring the joinder of separate counts.   Indeed the policy favoring joinder is so strong that our Supreme Court has stated if the test of joinder is met, courts will almost invariably reject a claim of abuse of discretion.  (See People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752;  People v. Rhoden (1972) 6 Cal.3d 519, 525, fn. 2, 99 Cal.Rptr. 751, 492 P.2d 1143.)   This language was later qualified in Williams v. Superior Court (1984) 36 Cal.3d 441, 204 Cal.Rptr. 700, 683 P.2d 699, where the court stated that while the policy favoring joinder is strong, severance must be granted in the interests of justice where a denial of severance would result in substantial prejudice to the defendant.  (Id. at p. 452, 204 Cal.Rptr. 700, 683 P.2d 699.)

Even more significant is the Supreme Court's direct observation that the statutory provision allowing severance “in the interest of justice” “reflects an apparent legislative recognition that severance may be necessary in some cases to satisfy the overriding constitutional guaranty of due process to ensure defendants a fair trial.”  (People v. Bean (1988) 46 Cal.3d 919, 935, 251 Cal.Rptr. 467, 760 P.2d 996.)   This thought was reiterated most recently in Frank v. Superior Court (1989) 48 Cal.3d 632, 639–640, 257 Cal.Rptr. 550, 770 P.2d 1119, where the court, consistent with the authorities which have been noted stated “[i]nasmuch as the statutory requirements of joinder are clearly met, [appellant] can predicate error [in denial of the severance motion] only on a clear showing of potential prejudice.”  (Id. at p. 638, 257 Cal.Rptr. 550, 770 P.2d 1119.)

In addition to direction provided by our Supreme Court we are also guided by case law interpreting comparable statutory language in section 1385 which requires dismissal of an action be “in the furtherance of justice.”   It has been held a dismissal under this section founded only upon the congestion of the court's calendar is not “in the furtherance of justice.”  (People v. Mack (1975) 52 Cal.App.3d 680, 684, 125 Cal.Rptr. 188.)   Rather, “ ‘ “ ‘[F]urtherance of justice’ ” [means] justice to society [the People] as well as to a criminal defendant․  “[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.” ' ”  (Ibid., see also People v. Orin (1975) 13 Cal.3d 937, 947, 120 Cal.Rptr. 65, 533 P.2d 193;  People v. Superior Court (Montano) (1972) 26 Cal.App.3d 668, 671, 102 Cal.Rptr. 925.)   From these cases we can discern that for purposes of interpreting the phrase “in the furtherance of justice” the condition of the courts, independent of its effect on the fairness of a given defendant's trial, is not in itself an appropriate factor in granting a dismissal.

It is worthy of note that Federal Rules of Criminal Procedure 3 are in conformity with this position.   Rule 8, which contains joinder provisions comparable to those of section 954, provides:  “Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged ․ are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”  (18 U.S.C.A., Fed.Rules Crim.Proc., rule 8(a).)   Significantly, rule 14 provides in part:  “If it appears that a defendant or the government is prejudiced by a joinder of offenses ․ in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.”  (18 U.S.C.A., Fed.Rules Crim.Proc., rule 14, italics added.)

In light of the direction in which we are led by existing authority, the lack of authority permitting or requiring severance based upon factors unrelated to prejudice to the defendant and the strong interest in the joinder of counts, we conclude properly joined counts may be severed only upon a clear showing that a lack of severance will result in potential prejudice to the defendant.

Here the trial court expressly found the joinder of counts would not prejudice the defendant, and further stated its concern was solely the length of time the case would take to try and the inconvenience to jurors who would receive little remuneration for their services.4

Having interpreted the scope of the phrase “in the interests of justice” as authorizing severance only upon a clear showing of potential prejudice to a defendant, we conclude that when the trial court expressly stated no prejudice would result to defendant, its inquiry necessarily ended and it had but one choice—to deny severance.   In granting severance based upon factors totally unrelated to the potential prejudice to this defendant, the court acted in excess of its jurisdiction.

The petition is granted.   The trial court is directed to vacate its order severing counts.


FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   It is unfortunate the question of reviewability is tied to the arcane task of determining whether a trial court has exceeded its “jurisdiction.”   We believe a better approach would be to directly weigh the potential for harassment to the defendant against the interest in correcting error.   The avoidance of harassment is a strong interest, especially when review is sought from an order not appealable under section 1238.   It may, however, in a rare instance, be desirable to correct a fundamental error, especially when that error involves a question of law or when the issue raised is a recurring one.   Under such circumstances, to deny review is to cripple the common law system.   This approach would defer to the limitations on review suggested in section 1238 and the interests of the defendant since such review would be both extraordinary and discretionary.  (See People v. Superior Court (Elder) (1988) 201 Cal.App.3d 1061, 1065, 1069, 247 Cal.Rptr. 647;  People v. Superior Court (Arthur R.), supra, 199 Cal.App.3d at p. 502, fn. 9, 244 Cal.Rptr. 841.)

3.   All rule references are to the Federal Rules of Criminal Procedure unless otherwise specified.

4.   The court opined the length of trials and lack of remuneration to jurors can theoretically lessen the pool from which jurors are selected.   The court however provided no indication of what it felt was a realistic estimate for trial of this case.   Nor was there any indication a jury could not be properly constituted in this case.   This is not a case in which the predicted length of the trial, in and of itself, suggests the likelihood of prejudice to the defendant due to unreasonable imposition upon the time of the jury.

BENKE, Associate Justice.

TODD, Acting P.J., and FROEHLICH, J., concur.