PEOPLE v. JOHNSON (1987)

This is an automatic appeal (Pen.Code, § 1239, subd. (b)) from a judgment imposing a sentence of death, prosecuted under the 1978 death penalty law (§ 190.1 et seq.).¹  We conclude that the improper and prejudicial admission of the rape victim's hypnotically induced testimony as to the identity of her assailant warrants reversal of the guilt and penalty judgments.  (People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 723 P.2d 1354, cert. den. 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114;  People v. Guerra (1984) 37 Cal.3d 385, 208 Cal.Rptr. 162, 690 P.2d 635.)   For purposes of retrial, we uphold a parole search of defendant's residence.

I. FACTS

A. Procedural History

In an amended information filed by the District Attorney of Sonoma County, defendant Joe Edward Johnson was charged with the murder of Aldo Cavallo, on or about July 24, 1979, in violation of section 187.   For enhancement purposes it was further alleged that defendant personally used a deadly or dangerous weapon, a barbell, in the commission of the murder.  (§ 12022, subd. (b).)  Count I also alleged two special circumstances—that the murder was committed (1) while defendant was engaged in the commission or attempted commission of a robbery in violation of section 211 (§ 190.2, subd. (a)(17)(i)), and (2) while defendant was engaged in the commission or attempted commission of a burglary in violation of section 459 (§ 190.2, subd. (a)(17)(vii)).

Defendant was separately charged with burglary in violation of section 459 (count II) and robbery in violation of section 211 (count III), each of which included the enhancement allegations of personal use of a deadly or dangerous weapon (§ 12022, subd. (b)) and the intentional infliction of great bodily injury (§ 12022.7).

In count IV, defendant was charged with the rape of S. on or about July 28, 1979, in violation of section 261, subdivisions (2) and (3).   It was further alleged that defendant was armed with and personally used a firearm (§§ 12022, subd. (a), 12022.5), and intentionally inflicted great bodily injury (§ 12022.7).

Based on the circumstances of the alleged rape, defendant was also charged with assault with intent to commit murder in violation of former section 217 (count V), robbery (§ 211) (count VI), and assault with a deadly weapon (§ 245, subd. (a)) (count VII).   In count VIII, defendant was charged with possession of a concealable firearm by an ex-felon (§ 12021).   Counts V, VI, and VII also alleged that defendant was armed with and personally used a firearm (§§ 12022, subd. (a), 12022.5), and intentionally inflicted great bodily injury (§ 12022.7).   In counts IV, V and VI, it was further alleged that defendant's personal use of a firearm during the aforementioned crimes precluded the granting of probation or suspension of sentence, since defendant had previously been convicted of assault with intent to commit murder (former § 217) and escape by violence (§ 4530, subd. (a)).

Finally, for additional enhancement purposes, it was alleged that defendant had previously been convicted of assault with intent to commit murder (former § 217), battery (§ 4501.5), and escape by violence (§ 4530, subd. (a)), each resulting in state prison sentences, after which defendant had failed to remain free of prison custody and the commission of a felony offense, for a period of five years (§ 667.5).

Defendant entered pleas of not guilty as to all counts, denied all enhancement and special circumstances allegations, and denied the prior convictions alleged in the information.   The superior court denied his motion to suppress evidence (§ 1538.5).   Defendant's motion to sever the rape and murder charges was also denied.   Pursuant to his motion for change of venue, venue was ordered transferred for trial to Sacramento County.

Defendant thereafter advised the court that he wished to enter a plea of not guilty by reason of insanity to the murder charges (counts I, II and III).   He also filed a second motion to sever the rape and murder charges, which was denied.   Defendant then admitted the prior convictions alleged in the information, and withdrew his plea of not guilty by reason of insanity to counts I, II and III, entering a plea of not guilty.

Trial commenced on January 26, 1981.   At the conclusion of the guilt trial, the jury found defendant guilty of all charges except those set forth in count VII (assault with a deadly weapon, a pistol, upon the person of S.).   After the penalty trial on count I, the jury fixed defendant's penalty at death.   The trial court declined to modify the verdict (§ 190.4, subd. (e)), and on the remaining charges imposed consecutive sentences of eight, two, and three years on count IV (for violation of §§ 261, subds. (2) and (3), 12022.5, and 12022.7, respectively), and one year four months each on counts II and V;  imposition of sentence was stayed on counts III and VI pursuant to section 654;  and imposition of sentence was suspended on count VIII.   Defendant was further sentenced to an additional year for each of his three prior felony convictions.   This appeal followed.

B. The Guilt Phase Evidence

1. The Murder

On Thursday, July 26, 1979, the body of Aldo Cavallo was discovered in the bed of his Santa Rosa condominium.   The body was lying under tightly tucked sheets and blankets pulled up to the chin, and was entirely covered by the bedspread.   It was determined that the cause of death was “skull fractures with subdural and interstitial hemorrhage to the brain due to trauma and force.”   The injury was apparently inflicted by a barbell found at the foot of the bed, and could have been caused by only one blow.   Type A blood, Cavallo's blood type, was found on the barbell.

The testimony of several neighbors and friends indicated that the crime occurred during the evening of Tuesday, July 24, 1979.   Only one of these witnesses gave a description of a suspect.   A neighbor, Jackie Wilkey, testified that on Tuesday evening, about 10 p.m., she noticed a man standing outside her apartment.   When she attempted to approach the man, he ran between the condominiums.   The man was tall, over six feet, with hair very close to the sides and higher on top.   The man could have been Black.

Investigators found a window open in Cavallo's apartment.   A nearby door, which could be opened by reaching through the window, was unlocked.   A screen, apparently taken from the open window, was leaning against a patio chair.   A fingerprint was obtained from the screen.   Although experts for the prosecution and defense differed on whether the fingerprint was sufficiently legible for identification, the prosecution expert identified it as matching defendant's right thumbprint.   A black glove was found in the apartment.

It appeared that the apartment had been burglarized and a television removed.   Police located a purchase receipt and other documents for a Bohsei color television set, purchased from Long's Drugstore on December 2, 1978.   The warranty registration card for that television, listing a serial number, had been completed by Cavallo and sent to Bohsei Enterprise Company in Los Angeles.   The television was later located in defendant's residence, in a search conducted August 9, 1979, pursuant to a parole search condition.

Two boxes of Monark .22 caliber cartridges were found in Cavallo's residence, in addition to two other boxes of cartridges, two shotguns, and a shotgun case.   No handgun was located.

The prosecution presented expert testimony that the Monark cartridges were packaged in April 1952, based on the inscriptions on the boxes.   Monark was a brand name of Federal Cartridge Company until 1963;  the cartridges themselves were manufactured until 1973.

The prosecution also presented testimony that Cavallo had owned a .22 caliber High Standard handgun that looked like a Field King or Sport King model.   One witness testified that Cavallo had stated he kept a handgun in his nightstand.

2. The Rape

On Saturday, July 28, 1979, Ms. S. attended the 8 a.m. mass at St. Eugene's Catholic Church in Santa Rosa.   She remained in the church after the service to say the rosary.   As she knelt, she noticed a tall Black man at the side door, about 12 feet away, who was looking around the church.   The man walked toward S. and said, “Ma'am, can you tell me where the priest is?   I haven't been to church in a long time.”   S. directed the man to the priest's house across the courtyard.

The man began walking away, then turned around and walked back to S.  He opened his jacket and revealed a handgun.   He said, “keep quiet now and you won't get hurt,” and told S. to walk to the back of the church.   He directed her to the “crying room,” and then into a bathroom.

The assailant fired the gun into the toilet and told S. to “take off your pants” and to “get on the toilet,” which she did.   He then said “have you ever fucked a black man before?” and “when was the last time you were fucked by your husband?” and “something about play with pussy or something.”   The assailant had intercourse with S. and then told her to put on her pants.

The assailant next asked S. if she had any money.   When she replied that she had no dollars, just change, he grabbed S.'s purse and looked through it.

S. was then told to “put your sweater over your head so you don't see me,” which she did.   She next recalled “groping around the pews,” feeling “excruciating pain in her head,” and seeking help from a woman sitting in the church.   That woman, Betty Jane Kropp, helped S. to the priest's house.

At the Santa Rosa Memorial Hospital it was determined that S. had received extensive head injuries which were life endangering and required immediate surgery.   The injuries could have been caused by blows from the butt of a pistol.

S. was hospitalized from July 28 until August 3, 1979.   On August 3, before her release, S. was shown several photographs.   Thirteen were in color and single views of suspects, while the remaining photograph was a black and white double view of the defendant.   S. did not identify any of the suspects as her assailant.

S. thereafter assisted in the preparation of a composite drawing of her assailant.   In addition to describing him as a tall Black man, she remembered that he had a “scraggly type beard ․ kind of all over ․ pretty much over most of his face ․ it wasn't like a goatee at all.”   S. also remembered that her assailant was wearing a shiny medium or dark blue jacket, but could not remember him wearing any jewelry.

S. was thereafter hypnotized to assist her in recalling the appearance of her assailant.   The next day, on August 15, 1979, less than 24 hours after being hypnotized, S. attended a lineup in San Francisco.   The people in the lineup were asked to speak.   S. identified defendant, who was clean shaven, as her assailant.   At the preliminary hearing and at trial, S. again identified defendant as her assailant.

Ms. Kropp, who had assisted S. to the priest's house, testified that she was nearsighted and was not wearing her glasses the morning of the assault.   She had noticed a tall Black man come through the door, and later walk down the aisle with S.   She initially thought the man was “our parishioner.”   She could not tell whether the man had a beard.   She could tell that the man was taller than a six-foot-tall police officer who subsequently questioned her.   She recalled hearing “what sounded like a firecracker exploding” sometime after S. and the man left her view.   She had been unable to identify defendant from photographs shortly after the assault, and did not recognize him at trial:  “I really don't see anyone that looks exactly like the man I saw that day.”

At the rape scene, authorities found various pieces of the handgun apparently used in striking S.   A gun clip containing eight cartridges was located.   The words “High Standard” were imprinted on the bottom of the clip.   Such a clip normally holds eight cartridges, along with the one in the chamber of the weapon.   A shell casing was also found at the scene, and it was evident that a bullet had been shot through the toilet.

Six of the cartridges in the clip and the spent casing were later identified as being Monark .22's, manufactured by Federal Cartridge Company, and struck by the same die or dies as those found in Cavallo's residence.   A prosecution witness testified that while this evidence did not conclusively demonstrate that the cartridges came from the boxes located at Cavallo's residence, they “could not be eliminated as having come from the two boxes of Monark cartridges.”

A fingerprint was later obtained from the clip.   Though expert witnesses for the prosecution and defense differed on whether the print was sufficiently legible for identification, the prosecution expert testified that it matched defendant's right thumbprint.

Also found at the scene were a slide lock, slide lock spring, safety, front sight, and plastic parts of the grip of a handgun.   These parts were consistent with having come from either a Field King or Sport King model High Standard .22 caliber handgun.

Gerald Cardoza, defendant's parole officer, testified that he last visited defendant on Thursday, July 26, 1979.   Defendant had “hair on his face, he had sideburns, weren't really filled in all the way, and a little bit of hair on his chin.”   His hair “was longer than it is now, particularly on top,” and “shorter on the sides and longer, kind of swept back.”   Defendant's facial hair extended “kind of like a mutton chop sideburn would be.”

3. The Defense

Defendant did not take the stand.   His defense was alibi.   Defendant's wife, a registered nurse employed at Sonoma State Hospital, testified that defendant took her to work at 6:30 a.m. the morning of Tuesday, July 24, 1979, met her for lunch between 11 and 12, and picked her up after work at 3 p.m.   Defendant was at home with his wife from 3 p.m. that afternoon until 6:30 a.m. the next morning, when he again took her to work.   This schedule was repeated on Wednesday and Thursday, with the exception that on Thursday evening defendant and his wife visited with friends.

On Friday, defendant took his wife to work at 6:30 a.m. and picked her up at 11 a.m.   She had the rest of the day off.   When defendant met his wife at 11 a.m., she noticed that he had shaved his goatee and sideburns.

Defendant took his wife to work at 6:30 a.m. Saturday morning, July 28, 1979.   Defendant was wearing green pants, a tank top, a blue windbreaker with a white stripe down the sleeve, a blue bandana, a silver wedding band and silver neck chain.   The couple spoke on the telephone at 7 a.m. and 10 a.m.   Defendant met his wife for lunch between 11 and 12, and picked her up after work at 3 p.m.   The couple spent all of Sunday together.   They did not go to Spring Lake Park in Santa Rosa.  (See discussion, infra.)

Defendant's wife also testified that an acquaintance had sold defendant the Bohsei television later seized from their residence pursuant to a parole search and identified as having belonged to Aldo Cavallo.

The defense also presented evidence of third party guilt on the rape charges.   A witness testified that on Sunday, July 29, 1979, between 2 and 4 p.m., she was raped in Spring Lake Park in Santa Rosa.   She identified her assailant as “black ․ tall, six foot, heavy—heavier than [defendant], he was about a hundred and sixty, a hundred eighty pounds.”   He had a “small beard, just starting ․” and his arms appeared to have been recently scratched.   He was wearing blue cutoffs and a shirt.   The assailant approached her and forced her to the ground, saying “it's time you honky bitch get to enjoy the other color,” and “there should be more black on white.”   The assailant had a pistol with an iron handle.   The witness testified that “he missed hitting me with the gun” and picked her up and beat her on a rock.   He did not attempt to rob her.   At the San Francisco lineup held August 15, 1979, the witness identified someone other than defendant.   At defendant's trial, the witness testified that defendant was not the man who raped her.

Bruce Cooper testified that he was arrested sometime in mid or late July or early August 1979.  (The parties stipulated that Cooper was arrested on Monday, July 29, 1979.) ²  Cooper had a handgun in his possession at the time of his arrest.   The gun was in a holster and had a clip with bullets in it.   The grips were missing from the gun.   Cooper had purchased the gun early Sunday morning from a Black man named John.   Cooper described John as about 40 years of age, 6 feet tall, weighing about 170 pounds, and with a Fu Manchu type mustache and gruff hair on his chin but not on the sides of his face.   Cooper testified that defendant was not the person who sold him the gun.   Cooper fired the gun about six times, until it jammed.

Detective Peruzzo testified that he took possession of this handgun, a Sports King High Standard, from Sergeant Jim Hutmacher on August 2.   The hand grips were broken off.

Criminalist Richard Waller, a prosecution witness, testified on cross-examination that traces of human blood were found inside the grip area of this handgun, but there was an insufficient amount for typing purposes.   In addition to the missing grips, the safety and slide lock spring were missing.   The sight, which was pressed rather than screwed (in contrast to the gun sight located at the rape scene), was broken but intact.   Waller concluded, based upon test firing the weapon, that the spent casing found at St. Eugene's Catholic Church had not been fired from the weapon.   Murphy Delany, a gunsmith of more than 20 years, testified for the defense that Cooper's handgun had a broken firing pin, which could change the impression left on any fired casing.

Dr. Elizabeth Loftus, a professor of psychology at the University of Washington in Seattle, testified regarding human perception and memory.   She stated that stress affects a person's perception and retention of events and ability to retrieve those events from his or her memory.   Under extreme stress, memory will be diminished.   Additionally, violence can cause retrograde or anterograde amnesia, a reduced ability to remember the details that occurred prior to or after the violence.   Post-event information can also affect a witness's recall of an event.   For example, there is a greater chance of misidentification at a live lineup when the suspect's picture appeared in an earlier photo lineup.   Also, people have more difficulty identifying members of a race different from their own.

In the presence of the jury, defendant tried on the black glove found at the murder scene.   The glove was too small, and did not reach his wrist.   Defendant was unable to move his fingers with the glove on.

C. The Penalty Phase Evidence

We need not set forth the penalty phase evidence, as the dispositive issue arises from the guilt phase.

II. GUILT PHASE ISSUES

A. Hypnosis of the Rape Victim

 Defendant meritoriously contends that his convictions must be reversed because the trial court erred in permitting S. to testify as to the events surrounding her rape, including the identity of her assailant, after she had been hypnotized.   Under this court's rulings in People v. Shirley, supra, 31 Cal.3d 18, 181 Cal.Rptr. 243, 723 P.2d 1354, and People v. Guerra, supra, 37 Cal.3d 385, 208 Cal.Rptr. 162, 690 P.2d 635, S.'s testimony was erroneously admitted.

As earlier noted, S. was presented with photographs of 14 suspects shortly before her release from the hospital on August 3, 1979.   Thirteen of these photographs were in color and presented single views, while defendant's photograph was a black and white double view.   S. did not identify any of these suspects as her assailant.

On August 14, 1979, S. was hypnotized by a police officer to assist her in recalling the appearance of her assailant.   During the session, which was attended by the prosecutor, two detectives, and S.'s husband, S. was asked to picture her assailant, to “note the features ․ take a good notice of his jaw line ․ see his jaw, his cheekbones․”   When asked to describe what she saw, S. responded, “․ tall, black, quite a bit of facial hair ․ I don't see anything deeper than that, I [inaudible] y'know, the outline.”   The hypnotist instructed S. to “look deep at him, look deep, look through that facial hair, try to see the structure of his face․”

The next day, August 15, 1979, less than 24 hours after the hypnotic session, S. attended a lineup in which she identified defendant, who was clean shaven, as her assailant.

S. subsequently identified defendant as her assailant at the preliminary hearing, on January 16, 1980, and at trial a year later, on January 26, 1981.   When asked at trial if her recollection of her assailant's appearance was influenced by her identification of defendant in the lineup, S. responded, “I can recall him as I saw him in the church, yes.”

On February 17, 1981, prior to the close of the prosecution's case, defense counsel filed motions to strike S.'s testimony and in-court identification of defendant, and for declaration of mistrial.   Defendant relied on the then recently decided case of People v. Bicknell (1981) 114 Cal.App.3d 388.   Defendant's motions were denied.   The trial judge reasoned that Bicknell had effectively been depublished by this court's grant of hearing,³ and that defense counsel, although fully apprised of the hypnosis, had chosen not to raise the hypnosis issue up to that point.   The hypnosis issue was again raised by defense counsel in the motion for new trial, which was denied.

In People v. Shirley, supra, 31 Cal.3d at pages 66–67, 181 Cal.Rptr. 243, 723 P.2d 1354, this court held that “the testimony of a witness who had undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward.”   This exclusionary rule was given retroactive effect to “all cases not yet final as of the date it was decided.”  (People v. Guerra, supra, 37 Cal.3d at p. 390, 208 Cal.Rptr. 162, 690 P.2d 635.)

The Attorney General concedes that the Shirley-Guerra rule applies to this case, but argues that reversal is not mandated because the error in admitting S.'s testimony and identification of defendant was harmless.   In Shirley, this court held that “error in admitting the testimony of a previously hypnotized witness is not reversible per se;  its effect must still be judged under the prejudicial error test adopted in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].”  (31 Cal.3d at p. 68, citation omitted, 181 Cal.Rptr. 243, 723 P.2d 1354.)   Under this test, the appellate court must determine whether “it is reasonably probable that a result more favorable to the defendant would have occurred if the testimony of the previously hypnotized witness as to all matters relating to the events of the crime had not been admitted.”  (Id., at p. 70, 181 Cal.Rptr. 243, 723 P.2d 1354.)

The Attorney General argues that S.'s testimony was not essential to the prosecution's case because “[t]he vicious rape and beating [S.] suffered was more than adequately covered by the testimony of Father Keegan, Betty Jane Knopp, Dr. Kenneth Howe, and Dr. David Sheet.”   In addition to this testimony, respondent points to evidence that the gun parts and ammunition found at the rape scene were consistent with those from the murder scene, and that defendant's thumbprint was found at both scenes.⁴

The Attorney General's argument is meritless.   The testimony of the other four prosecution witnesses was by no means as incriminating as that of S.  Father Keegan did not testify about the appearance of S.'s assailant;  Ms. Knopp, who saw S.'s assailant, did not identify defendant;  Dr. Howe merely testified in pertinent part that S. had told him she had been raped by a tall Black man with a beard and a gun;  and Dr. Sheet testified in pertinent part only that the weapon depicted in the prosecution photographs of Field King and Sport King models of a High Standard semi-automatic .22 caliber handgun could have caused S.'s head injuries.

In sharp contrast, S.'s testimony provided the only direct evidence linking defendant with the rape and, by implication, the murder.   Although, as the Attorney General points out, fingerprint evidence is strongly probative of identity (People v. Gardner (1969) 71 Cal.2d 843, 849, 79 Cal.Rptr. 743, 457 P.2d 575), the thumbprint evidence at both the rape and murder scenes was highly controverted as to its legibility.

Moreover, though the People successfully opposed defendant's two severance motions based on a purported evidentiary connection between the rape and the murder, they were unable to definitively establish at trial that the cartridges and gun clip found at the rape scene were taken from the murder victim.   The presence of Monark .22 caliber cartridges and defendant's partial thumbprints at both scenes, and the possibility that the murder victim may have owned a handgun similar to that used in the rape, was circumstantial evidence that defendant was involved in both crimes.   Admission of the rape victim's identification of her assailant significantly buttressed this evidentiary link as to identity.   Yet, absent this identification testimony, the link was weak at best.⁵

In light of these evidentiary shortcomings, it is extremely probable that the jury placed particular emphasis on S.'s positive identification of defendant in reaching its verdicts on both the rape and murder charges.   This is so despite the testimony of defense witness Dr. Loftus that an individual's memory of an event may be adversely affected by the stress of that event.   S. testified that she identified defendant based on her memory of him at the time of the assault rather than at the lineup;  this testimony may have been particularly convincing to the jury, notwithstanding its inherent unreliability.   As this court noted in People v. Shirley, supra, 31 Cal.3d at pages 65–66, 181 Cal.Rptr. 243, 723 P.2d 1354:  “[A] witness who is uncertain of his recollections before being hypnotized will become convinced by that process that the story he told under hypnosis is true and correct in every respect․  [T]he effect not only persists, but the witness' conviction of the absolute truth of his hypnotically induced recollection grows stronger each time he is asked to repeat the story;  by the time of trial, the resulting ‘memory’ may be so fixed in his mind that traditional legal techniques such as cross-examination may be largely ineffective to expose its unreliability.”  (Fn. omitted.)

Accordingly, we conclude that S.'s testimony concerning all matters relating to the identity of her assailant was improperly and prejudicially admitted at trial.   There can be no doubt that this tainted testimony, the primary incriminating evidence against defendant, helped secure his convictions on the rape and murder charges.   To prevent a miscarriage of justice, we are compelled to reverse defendant's guilt and penalty judgments.  (Cal. Const., art. VI, § 13.)   Such testimony is therefore inadmissible in any subsequent trial involving that issue.

In light of the above, we need not discuss defendant's numerous other claims of error with respect to the guilt and penalty trials.   For purposes of retrial, we do, however, address a significant search issue.

B. Parole Search of Defendant's Residence

Defendant contends that the warrantless search of his residence conducted on August 9, 1979, was invalid as a parole search because:  (1) he was given no notice of a search condition when last released on parole;  and (2) there was no reasonable nexus between the search and the parole process, particularly since he was in custody at the time.   These contentions are without merit.

On April 12, 1978, defendant was released from prison on parole for a one-year period.   His parole was based on convictions of grand theft auto, assault with intent to commit murder, and escape from state prison with force.   Upon his parole release, defendant signed a “Notice and Conditions of Parole” form, which contained general (preprinted) and special (specific to defendant) parole conditions.⁶  The general conditions included the following search provision, as set forth by California Administrative Code, title 15, section 2511, subdivision (b)(4):  “You and your residence and any property under your control may be searched without a warrant at any time by any agent of the Department of Corrections or any law enforcement officer.”   Defendant was notified that the search conditions would be in effect for a one-year period.

Nearly eight months later, on December 2, 1978, defendant was arrested for alleged parole violations and a hold was placed on his parole status.   A parole revocation hearing was held on December 28, 1978, resulting in findings that defendant had violated his parole by using an illegal substance and possessing a deadly weapon, with which he had committed an assault.   Defendant's parole was suspended for a six-month period, effective December 2, 1978, during which he was required to serve another six months in custody.   When he was released from custody on June 2, 1979, he was required to serve the unexpired four months of his original parole term.   Defendant was not given any new or different notice regarding the conditions of his parole.   This is the standard procedure of the Santa Rosa parole office, and apparently the State Department of Corrections, when no change is intended in the general or special conditions of parole.

Defendant was again arrested on August 2, 1979, following his conviction for assault with a deadly weapon, the same offense that resulted in his prior parole suspension.   From the time of his release on June 2 through August 2, 1979, defendant had reported regularly to his parole officer, Gerald Cardoza.   At the time, Cardoza was unaware of any new violation by defendant.

On August 9, 1979, a Santa Rosa police officer, Detective Gary McMahon, telephoned Cardoza and explained that in the course of an investigation of a rape at St. Eugene's Catholic Church, “he had found a gun print [on the clip] containing Joe Johnson's fingerprints,” but no gun.   McMahon stated that the ammunition found at the rape scene was similar to ammunition found at the home of a recent homicide victim, Cavallo, and that there might be a link between the two crimes.   McMahon also indicated that a television was believed to have been stolen from Cavallo's residence.⁷

According to his testimony, Cardoza considered this information and asked McMahon “if he would assist me in conducting a parole search in Mr. Johnson's residence for other possible fruits of the crime that show he may have violated his parole.”   McMahon agreed and Cardoza went to the police station to accompany McMahon and two other police officers to defendant's residence.   When he arrived at the police station, Cardoza learned from McMahon that defendant had been in custody for a week, based on the conviction for assault with a deadly weapon.

Cardoza, McMahon and the other officers went to defendant's residence.   Defendant's wife answered the door.   Cardoza explained that he and the officers “were there to conduct a parole search, and we had reason to believe Joe may have violated his parole.”   Mrs. Johnson responded that defendant was in jail and she was concerned whether a search was proper.   Cardoza assured Mrs. Johnson that the search was proper and encouraged her to call defendant's attorney.   The officers then entered the apartment.   While they conducted the search, Mrs. Johnson called defendant's attorney, Ed Krug.   Cardoza also spoke with Krug, and explained the purpose of the search.   Krug told Cardoza, “okay, just make sure you let her know if you take anything out of the house.”   As a result of the search, the officers took a color television from the living room and a man's jacket from the bedroom closet.⁸  Sometime after the search Cardoza placed a parole hold on defendant.

Prior to trial, defendant filed a section 1538.5 motion to suppress the evidence obtained from this search.   Following an evidentiary hearing, the motion was denied.   The trial court reasoned that the conditions of defendant's parole remained the same following the suspension.   No evidence was presented to indicate that defendant was not aware of the conditions of his parole or that he thought the search condition had been deleted upon his release.   The procedure of not issuing a new or different notice following parole suspension was reasonable.   Moreover, the search was “parole oriented,” and therefore proper, as it was instigated by defendant's parole agent to determine whether defendant had again violated his parole.   This conclusion was supported by the suspicion that defendant's current activities appeared to involve the same type of criminal conduct—violent crime and the possession of a deadly weapon—which had led to defendant's prior convictions and his prior parole suspension.   Parole orientation was not negated by the fact that evidence seized pursuant to the search could lead to a new criminal prosecution.   Finally, parole agents have a right to search the premises of a parolee independent of an arrest.

Defendant thereafter unsuccessfully petitioned the First District Court of Appeal for a writ of mandamus and/or prohibition.   Following his convictions, the search issue was renewed in his motion for new trial.

 Defendant first argues that he was not given notice of the continued general search condition permitting warrantless searches “by any agent of the Department of Corrections or any law enforcement officer.”   Defendant's reliance on Freytes v. Superior Court (1976) 60 Cal.App.3d 958, 132 Cal.Rptr. 26, is misplaced.   Freytes was placed on probation with the condition that he pay a fine and consent “to a warrantless search ‘of his person, home, or vehicle, at any time, day or night, during the period of probation, by any police officer or probation officer, with or without probable cause.’ ”  (Id., at p. 960.)   When he failed to pay the fine, probation was revoked and a bench warrant issued for his arrest.   At a subsequent hearing, the court recalled the bench warrant and restored Freytes to probation.   He was given a printed form entitled “Order Admitting Defendant to Probation to the Court.”   The form, which he signed, stated that he was “admitted” or “restored” to probation, set forth a schedule for payment of the fine, and listed six conditions of probation, five of which had been checked.⁹  As the Court of Appeal later noted, “[n]o mention was made in this document or in the court's minute order of a consent to a warrantless search, nor did the judge order that probation was restored on the same terms and conditions as the previous probation.”  (Id., at p. 961, 132 Cal.Rptr. 26.)

Freytes was subsequently arrested after police conducted a warrantless search of his residence and found narcotics.   He moved to suppress the contraband on the ground that he was not subject to a warrantless search as a valid condition of probation.   The trial court denied his section 1538.5 motion.   The Court of Appeal reversed, holding that the search condition to which Freytes had previously consented no longer existed after probation was revoked and restored.   The court reasoned that “[t]he document provided petitioner at the May 1974 hearing contains no reference to a warrantless search, but lists six specific terms of probation, five of which petitioner is expected to follow.   Under the doctrine of expressio unius est exclusio alterius we must infer that the listing of terms and conditions is complete, and that there are no additional requirements which bind petitioner.”  (Id., at p. 962, 132 Cal.Rptr. 26.)   The Attorney General contended “that when probation was restored it was, by implication, on the same terms and conditions as existed before revocation.”  (Id., at p. 962, 132 Cal.Rptr. 26.)   The Court of Appeal refused to find a waiver of Freytes's fundamental Fourth Amendment rights by implication.  (Id., at pp. 962–963, 132 Cal.Rptr. 26.)

The instant case is distinguishable because there was no second or revised form or notice to support defendant's asserted belief that the conditions of his parole had changed.   As the trial court concluded, “there is no evidence that the defendant was not cognizant of the conditions of his parole, or that he thought that the search condition (or any other condition) was deleted upon his re-release, and it would be manifestly unreasonable to entertain that notion.”   Significantly, defendant does not argue that his re-release on parole was intended to fulfill other than the original one-year term.

Defendant's assertion that title 15, section 2356 of the California Administrative Code required that he be accorded notice of the conditions of his parole upon re-release is not supported by a plain reading of that regulation.¹⁰  He proffers no additional authority.

 Defendant alternatively argues that the lack of notice of his parole conditions upon re-release constituted a denial of due process in violation of Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and In re Prewitt (1972) 8 Cal.3d 470, 105 Cal.Rptr. 318, 503 P.2d 1326.   In Morrissey, the United States Supreme Court held that proceedings for parole revocation must conform to minimum due process requirements.   In Prewitt, this court held that the procedures required by Morrissey are applicable on the question whether an unexecuted order granting parole should be rescinded.   We explained, “[a]lthough the proceedings of which petitioner complains were not for revocation of parole but for rescission of an unexecuted grant of parole, we can perceive no significant distinction between the deprivation of the right to conditional liberty enjoyed by a parolee after release and the deprivation of the right to achieve such liberty after a grant thereof but before the date fixed for release.   In either event the parolee has been deprived of a valuable if limited right to be free (see Morrissey v. Brewer, supra, 408 U.S. at p. 482 [92 S.Ct. at pp. 2600–2601] );  People v. Vickers [ (1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313] ), and the same or substantially the same protection must be accorded him in effecting that deprivation.”  (Id., at p. 474, 105 Cal.Rptr. 318, 503 P.2d 1326.)

Defendant's attempted extension of this reasoning to require renewed notice of conditions of parole upon re-release from custody following a parole suspension is unrealistic and unsupported.  Morrissey and Prewitt deal with revocation and rescission of parole, and the liberty interests implicated thereby, not release on parole.

 Defendant next argues that the search of his residence was invalid because there was no reasonable nexus between the search and the parole process, particularly because it was known at the time of the search that he had been incarcerated for a week.   Defendant relies on People v. Coff man (1969) 2 Cal.App.3d 681, 82 Cal.Rptr. 782.

In Coffman, the defendant, a parolee, was arrested for burglary.   The day after his arrest, a police officer investigating the case telephoned the parole agent responsible for Coffman's supervision.   The police officer asked the parole agent to accompany the police in a search of Coffman's apartment.   The parole agent agreed, met the officers at Coffman's residence, and led the warrantless search, which uncovered several items of contraband.   At the time of the search, the parole agent knew Coffman was in custody.

On appeal, Coffman claimed ineffective assistance of trial counsel based on failure to raise an objection to this search.   The Court of Appeal agreed, reasoning that the search had been “primarily aimed at ordinary law enforcement, not parole administration.”  (2 Cal.App.3d at p. 689, 82 Cal.Rptr. 782.)  “The purpose of the search, not the physical presence of a parole agent, is the vital element.”  (Id., at p. 688, 82 Cal.Rptr. 782.)   The warrantless search of Coffman's apartment had not been conducted for the “ ‘purpose of maintaining the restraints and social safeguards accompanying the parolee's status․' ”  (Ibid., quoting People v. Hernandez (1964) 229 Cal.App.2d 143, 150, 40 Cal.Rptr. 100, cert. den. 381 U.S. 953, 85 S.Ct. 1810, 14 L.Ed.2d 725.)   The Court of Appeal noted that “[t]he parole agent was not engaged in administering his supervisorial function.   He had not instigated the search nor evinced any official interest in it except in his role as a ‘front’ for the police.   His presence was a ruse, calculated to supply color of legality to a warrantless entry of a private dwelling․   The search was primarily aimed at ordinary law enforcement, not parole administration.   Law enforcement searches are heartily to be encouraged, but by means sanctioned by the Constitution.   Defendant was in jail and the Chico police had ample time and opportunity to secure the search warrant mandated by the Fourth Amendment.   They chose the parole agent rather than a search warrant as their ticket of entry to the apartment.”  (2 Cal.App.3d at p. 689, fn. omitted, 82 Cal.Rptr. 782.)   Therefore, the Court of Appeal held, “[t]he search was illegal and its evidentiary products inadmissible.”   (Ibid.)

The case at bar is distinguishable because defendant's parole agent, Cardoza, sought the assistance of the police in conducting the search of defendant's residence.   As was noted in Coffman, “[p]arolee status alone does not justify a search by peace officers other than parole agents.  (People v. Thompson [1967] 252 Cal.App.2d [76] at p. 85 [60 Cal.Rptr. 203, cert. den. 392 U.S. 930, 88 S.Ct. 2276, 20 L.Ed.2d 1388];  see also People v. Gallegos [1964] 62 Cal.2d 176, 178 [41 Cal.Rptr. 590, 397 P.2d 174] )” (Id., at p. 688, 82 Cal.Rptr. 782;  accord, Smith v. Rhay (9th Cir.1969) 419 F.2d 160, 162–163.)   However, “[w]hen a parole agent is justified in making a search, he may enlist the aid of the police.  (People v. Thompson, supra.)”  (Coffman, supra, 2 Cal.App.3d at p. 688, 82 Cal.Rptr. 782;  see also cases collected in Annot., Validity, Under Fourth Amendment, of Warrantless Search of Parolee or his Property by Parole Officer (1977) 32 A.L.R.Fed. 155, 177–181, § 10;  cf. People v. Natale (1978) 77 Cal.App.3d 568, 574, 143 Cal.Rptr. 629.)

This court recently set forth the standard for parole searches in People v. Burgener (1986) 41 Cal.3d 505, at pages 528 to 536, 224 Cal.Rptr. 112, 714 P.2d 1251.  Burgener makes clear that unlike in the probation context, “a warrantless search condition is a reasonable term in any parole of a convicted felon from state prison.”  (Id., at p. 532, 224 Cal.Rptr. 112, 714 P.2d 1251.)   Because of the safety risks associated with parolees, a search condition is related to future criminality and hence a reasonable condition of parole.  (Id., at p. 533, 224 Cal.Rptr. 112, 714 P.2d 1251.)   Moreover, a parole search is reasonable under the Fourth Amendment if there is a reasonable nexus (a direct and close relationship) between the search and the parole process, and a reasonable suspicion, based on articulable facts, that the parolee has violated the terms of his parole or engaged in criminal activity.  (Id., at pp. 533–535, 224 Cal.Rptr. 112, 714 P.2d 1251.)  Burgener explains that, contrary to the implication in People v. Coffman, supra, 2 Cal.App.3d 681, 688–689, 82 Cal.Rptr. 782, neither police participation in the search nor the parolee's custodial status invalidates an otherwise proper parole supervision purpose.  (41 Cal.3d at p. 536, 224 Cal.Rptr. 112, 714 P.2d 125.)  “The [parole] agent clearly has a parole supervision purpose in a search undertaken to obtain evidence of a parole violation.”  (Ibid.)  To avoid possible confusion on this point, we disapproved Coffman, supra, 2 Cal.App.3d at pages 688–689, 82 Cal.Rptr. 782, “[t]o the extent it is inconsistent with this conclusion.”  (41 Cal.3d at p. 536, fn. 14, 224 Cal.Rptr. 112, 714 P.2d 125.) ¹¹

Applying the Burgener standard, we find that the trial court did not err in denying defendant's motion to suppress evidence found in his home.   The information relayed by Detective McMahon was more than adequate to give rise to a reasonable suspicion that defendant was involved in criminal activity—a rape and possibly a murder—and that evidence confirming that suspicion would be found at his home.   Cardoza's testimony established that upon hearing this information, he asked the police to assist him in conducting a parole search.   As the information given also indicated recent parole violations, the search was reasonably, directly and closely related to the purposes of the parole process.   Under Burgener, neither the fact that police initiated the inquiry which led to the search, nor the fact that defendant was in custody on an unrelated charge at the time, makes the parole officer's authorization a “ruse,” or undermines the validity of the search.  (41 Cal.3d at p. 536, 224 Cal.Rptr. 112, 714 P.2d 125.)   The search was therefore reasonable under the Fourth Amendment.

Since defendant failed to demonstrate lack of notice of his parole search condition, and since the search condition was reasonably invoked, the suppression motion was properly denied.

In accordance with the preceding discussion, the guilt and penalty judgments are reversed.   The cause is remanded for new trials consistent with the views expressed in this opinion.

I concur with the majority's reversal under compulsion of the court's rulings in People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 723 P.2d 1354, and People v. Guerra (1984) 37 Cal.3d 385, 208 Cal.Rptr. 162, 690 P.2d 635.   I write separately to stress that the majority's dicta on the severance issue overstates the effect of the disqualification of the rape victim's testimony on the relevance to the murder case of the physical evidence found at the rape scene.

The majority states that absent the victim's identification, the evidentiary link between the crimes becomes “weak at best.”  (Ante, at p. 570 and fn. 5, of 233 Cal.Rptr., at p. 139 and fn. 5 of 730 P.2d.)   Although the necessity for introducing the circumstances of the rape itself in order to explain the basis for the connection is obviated, the link between the evidence found at the rape scene and the defendant's participation in the murder remains essentially the same.   The cartridges, gun clip, and gun itself were all tied to the murder scene.   The victim's testimony and the fingerprint found on the clip both connected defendant to the physical evidence.   The victim's evidence added weight to the identification of defendant as the possessor of the items taken from the murder scene;  the fingerprint remains as probative evidence of that connection.

The jury, in order to make use of the physical evidence found at the rape scene, was required to find not only that defendant was the person in possession of that evidence, but also that the gun-related evidence originated at the murder scene.   The omission of the victim's testimony affects only the weight of the evidence relating to the first part of that equation, and alters only the considerations affecting severance.   Nonetheless, it is worth emphasizing that the physical evidence itself may still be introduced at the murder trial as highly probative circumstantial evidence connecting defendant with the murder.

I concur in the conclusion that the judgment must be reversed as a result of the prejudicial admission of Ms. S.'s hypnotically induced testimony.   I write separately to emphasize that the trial court's denial of the motion to sever the murder and rape charges provides an additional and compelling reason for reversal.

I.

Joinder of similar or related criminal charges is permitted by Penal Code section 954,¹ which provides in relevant part:  “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 ․;  [P]rovided, that 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.”

Both murder and rape are assaultive crimes against the person (People v. Kemp (1961) 55 Cal.2d 458, 476, 11 Cal.Rptr. 361, 359 P.2d 913, cert. den. 368 U.S. 932, 82 S.Ct. 359, 7 L.Ed.2d 194) and, as such, are “offenses of the same class” joinable under section 954.  (People v. Rhoden (1972) 6 Cal.3d 519, 524–525, 99 Cal.Rptr. 751, 492 P.2d 1143;  Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 135, 172 Cal.Rptr. 86, cert. den. 451 U.S. 988, 101 S.Ct. 2325, 68 L.Ed.2d 846.)   Robbery, assault with intent to commit murder, and assault with a deadly weapon, with which appellant was also charged, are also assaultive crimes against the person and hence properly joinable under section 954.   The remaining charges here, burglary and possession of a concealable firearm by an ex-felon, are “connected together in their commission” with the murder and rape charges, respectively, and are therefore also joinable under section 954.  (See People v. Renier (1957) 148 Cal.App.2d 516, 518–519, 306 P.2d 917;  People v. Ames (1943) 61 Cal.App.2d 522, 533, 143 P.2d 92.)

Even though the statutory requirements for joinder were met, section 954 expressly grants the trial court discretion to sever counts “in the interests of justice and for good cause shown.”   This court has previously noted the difficulty of showing an abuse of discretion in this context.  (See People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752;  People v. Rhoden, supra, 6 Cal.3d 519, 525, fn. 2, 99 Cal.Rptr. 751, 492 P.2d 1143.)   Recently, in Williams v. Superior Court (1984) 36 Cal.3d 441, at pages 447–448 and 452, 204 Cal.Rptr. 700, 683 P.2d 699, this court emphasized that defendant's clear showing of “substantial prejudice” may warrant severance, and denial thereof will constitute an abuse of discretion.   “Put simply, the joinder laws must never be used to deny a criminal defendant's fundamental right to due process and a fair trial.”  (Id., at p. 448, 204 Cal.Rptr. 700, 683 P.2d 699.)

While these severance motions were heard long before the decision in Williams, supra, 36 Cal.3d 441, 204 Cal.Rptr. 700, 683 P.2d 699, it is prudent and fair to follow the Williams analysis.  (Accord People v. Balderas (1985) 41 Cal.3d 144, 172, 222 Cal.Rptr. 184, 711 P.2d 480.)   In evaluating the merits of defendant's pretrial severance motions, consideration is limited, of course, to “the showings then made and the facts then known.”  (Id., at p. 171, 222 Cal.Rptr. 184, 711 P.2d 480;  see also cases cited therein.)   Appellant had the burden of proving substantial prejudice and potential denial of a fair trial;  a mere assertion of prejudice was not sufficient.  (Ibid.;  People v. Kemp, supra, 55 Cal.2d 458, 477, 11 Cal.Rptr. 361, 359 P.2d 913.)

II.

In his first severance motion, appellant argued that even if the state were able to show the crimes were of the same class or connected together in their commission, the court must order separate trials where appellant's substantial rights are compromised.   He stressed that “the mere presence of the rape charge, evidence of which would be inadmissible under section [1101] of the Evidence Code during a trial of the homicide alone, intolerably prejudices the defendant's right to a fair and impartial trial by a fair and unbiased jury.  [¶] Here the defendant's very life is at stake.   The countervailing interest [sic] are time and money.”  (Emphasis in original.)   He then quoted the following passage from Justice Tobriner's dissenting opinion in People v. White (1976) 16 Cal.3d 791, at page 802, 129 Cal.Rptr. 769, 549 P.2d 537:  “The state's interest in encouraging defendants not to seek severance is merely an administrative interest in judicial economy, and cannot overcome defendant's right to the protection of due process of law through severance of the charges.”  (Citations omitted.)

The state opposed the motion on grounds the rape and murder took place within four days of each other and were not only of the same class but were connected together in their commission.   Under Evidence Code section 1101, subdivision (b), evidence of “other crimes” was admissible to show motive, identity or intent.   The cartridges and gun clip found at the rape scene were believed to have been taken from the murder victim.   The state argued that the rape evidence showing it was defendant who left behind the gun parts “․ not only supplied a motive for the killing of Cavallo, but supplies premeditation and malice, as robbery is one of the felonies which will support first degree murder and special circumstances under the Penal Code.”   Moreover, “The forcible rape of [S.] also proves the identification of the perpetrator of the murderer of Cavallo because of the physical evidence the defendant left behind.”   The state argued that joinder of the rape was crucial because the murder case depended on circumstantial evidence—appellant's fingerprint found at the scene and his subsequent possession of property stolen from Cavallo.

At the five-day hearing on the severance and venue motions, appellant presented an array of experts who testified regarding the potential psychological and prejudicial effect on a jury resulting from joinder of unrelated charges in general, and joinder of a murder with a bizarre and brutal cross-racial rape in a church, in particular.   Specifically, John F. Kramer, Ph.D., Associate Director of the Institute for Applied Policy Research and professor of politics at Sonoma State University, and Craig Haney, Ph.D., a specialist in psychology and law, testified regarding a Sonoma County survey showing public memory of the charged crimes and attitudes towards guilt.   Elizabeth Loftus, Ph.D., professor of psychology at the University of Washington, testified regarding several recent jury simulation studies showing increased convictions in joined trials.²  Appellant hoped to demonstrate that because of the inflammatory aspects of the rape case, there was a greater chance he would be convicted of the murder charges in a joint trial than in a separate trial—thereby lightening the prosecution's burden of proof.

The trial court granted the venue motion based on significant public memory of and outrage at the rape in the church, but refused to sever the rape and murder charges.   The court stated:  “If there were no common connecting links between the two basic charges, strong arguments could be made that the charges must be tried separately.   However, it is very clear that there is a highly important connecting link between the rape and murder charges.   In the Court's view, it is inevitable that any jury trying this case will become acutely aware that the defendant is charged with both rape and murder.   Separation of the two basic charges and their respective collateral charges would be an idle act.”

In his renewed motion, after venue was transferred to Sacramento County, appellant asked for reconsideration in light of the state's failure to present any evidence at the preliminary hearing that the rape and murder were connected in their commission.   Appellant highlighted Dr. Loftus's testimony from the first hearing and argued that his change in plea to the murder count (to not guilty by reason of insanity) warranted another look at severance, since there was a probability of inconsistent defenses.   He also pointed out that special circumstances were present, and once trial began, there would be no way to undo the damage from joinder.

The state opposed on grounds the motion had already been litigated and appellant's appropriate remedy was to seek writ review of that ruling.   The state denied that the changed plea was a new circumstance, characterizing it as a ruse to support the severance motion.   The district attorney insisted that consolidation was proper, and that severance would not dispel any prejudice since the evidence found at the rape scene connected appellant to the murder, and the rape and murder were cross-admissible under Evidence Code section 1101.

At the second hearing, Dr. Loftus again testified to the prejudicial effect of multiple charging,³ particularly in this case.   The trial court agreed to reconsider the previous ruling, but found no changed circumstances warranting severance, and no showing of an improper joinder.

III.

Under Williams, the initial step in reviewing a motion to sever statutorily joinable offenses is to examine the issue of cross-admissibility of evidence from the jointly charged offenses.  (Williams v. Superior Court, supra, 36 Cal.3d at p. 448, 204 Cal.Rptr. 700, 683 P.2d 679.)   If the evidence pertinent to one case would have been admissible in the other case under rules of evidence limiting the use of character evidence or prior similar acts to prove conduct (Evid.Code, § 1101, subds. (a) and (b)), this would ordinarily dispel any possibility of prejudice.  (See People v. Matson, supra, 13 Cal.3d 35, 39–41, 117 Cal.Rptr. 664, 528 P.2d 752.)   If the evidence is not cross-admissible, the appellate court must then examine the prejudicial impact of joinder to decide whether denial of severance was an abuse of discretion.  (Williams, supra, 36 Cal.3d at pp. 451–452, 204 Cal.Rptr. 700, 683 P.2d 679.)

In the present case, the trial court and prosecutor stressed the connection between the two cases—the evidence found at the rape scene, linking appellant to the robbery murder—and assumed therefrom that the rape would be cross-admissible in a separate murder trial.   As will be seen, this assumption was incorrect.   Cross-admissibility is determined by strict application of long-established rules allowing use of similar uncharged crimes to show, by inference, some material fact—here, identity.  (See, e.g., People v. Thompson (1980) 27 Cal.3d 303, 314–319, 165 Cal.Rptr. 289, 611 P.2d 883.)

While the connecting evidence, indicating appellant's presence at both scenes, was no doubt admissible at both trials, the rape and murder were cross-admissible only if the manner in which they were committed tended to show the same person committed both crimes.   As it turns out, nothing about the rape suggested that if defendant committed the rape, he also committed the murder.   Thus the linking evidence merely invoked the principal justification for joinder:  judicial efficiency, or avoiding duplicate trials on the same set of facts.  (See Williams, supra, 36 Cal.3d 441, 451, 204 Cal.Rptr. 700, 683 P.2d 679.)

The trial court apparently overlooked a crucial inquiry in the motion for severance—whether, under established standards, the rape and murder were truly cross-admissible.   I proceed to undertake that inquiry.

A. Cross-admissibility

Evidence Code section 1101 provides in pertinent part:  “(a) ․ [E]vidence of a person's character or trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of misconduct) is inadmissible when offered to prove his conduct on a specified occasion.  [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident) other than his disposition to commit such acts.”  (Emphasis added.)

The only apparent basis under Evidence Code section 1101, subdivision (b), for admitting evidence that appellant raped Ms. S. in a separate trial on the murder charge, and the only basis asserted by the state, was to identify appellant as the perpetrator of the murder.⁴  However, admission of other-crimes evidence cannot be justified merely by asserting an admissible purpose.  “As with other types of circumstantial evidence, its admissibility depends upon three principal factors:  (1) the materiality of the fact sought to be proved or disproved;  (2) the tendency of the uncharged crime to prove or disprove the material fact;  and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.  [Citations.]”  (People v. Thompson, supra, 27 Cal.3d 303, 315, original italics, 165 Cal.Rptr. 289, 611 P.2d 883.)

If the fact sought to be proved is an ultimate fact in the proceedings—here, the identity of the murderer—the requirement of materiality is satisfied.  (Id., at p. 315, fn. 13 and accompanying text, 165 Cal.Rptr. 289, 611 P.2d 883.)

With respect to the second factor, “[i]n ascertaining whether evidence of other crimes has a tendency to prove the material fact, the court must first determine whether or not the uncharged offense serves ‘logically, naturally, and by reasonable inference’ to establish that fact.  [Citations.]  ․ If the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.  [Citations.]”  (Id., at p. 316, fn. omitted, 165 Cal.Rptr. 289, 611 P.2d 883.)

In determining whether the rape offense served “logically, naturally, and by reasonable inference” to establish that defendant was the perpetrator of the murder, the following analysis is applicable:  “[O]nly common marks having some degree of distinctiveness tend to raise an inference of identify and thereby invest other-crimes evidence with probative value.   The strength of the inference in any case depends upon two factors:  (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.”  (People v. Thornton (1974) 11 Cal.3d 738, at p. 756, 114 Cal.Rptr. 467, 523 P.2d 267, cert. den., 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, emphasis in original, 160 Cal.Rptr. 84, 603 P.2d 1.)

As asserted by the prosecution in opposition to the motions to sever, the murder and rape shared as many as three common marks suggesting that the perpetrator of the rape had also committed the murder:  (1) the presence at both scenes of Monark .22 cartridges which contained identical headstamps;  (2) the gun clip left at the rape scene was from the type of weapon believed taken from the murder scene;  and (3) both victims were injured by severe beatings to the head.

Only the first of these qualifies as a distinctive common mark.   According to the prosecutor's offer of proof, the cartridges and the spent casing found at the rape scene, and the cartridges discovered at the murder scene, were produced by the Federal Cartridge Company sometime prior to 1973, and had apparently been struck by the same die or dies during manufacturing.   In contrast, the evidence was at all times insufficient to support the prosecutor's assertion that the gun used in the rape had been taken from the murder scene.

Although the prosecutor suggested that a High Standard handgun had been taken from the scene of the murder, this inference was unsupported and could not be proven and was, therefore, too attenuated to be characterized as a common mark between the crimes.  (Cf. Williams, supra, 36 Cal.3d at p. 450, 204 Cal.Rptr. 700, 683 P.2d 679 [evidence of gang involvement in both shootings unproven and inflammatory, and hence improperly considered as distinctive common mark].)

Finally, the fact that both victims were beaten on the head cannot be said to be distinctive.   Head injuries are common to many assaultive crimes, and there was nothing so unique about the two head injuries to suggest a common modus operandi on the part of the assailant.  (See, e.g. People v. Haston (1968) 69 Cal.2d 233, 245, 248–249, 70 Cal.Rptr. 419, 444 P.2d 91.)

Aside from this single shared mark of the matching cartridges, there were few similarities between the two incidents.   As appellant pointed out, the murder of the male victim occurred during a nighttime residential burglary/robbery, while the sexual assault of the female victim took place in a public place, a church, after a lawful entry.

Though the state contended the motive for both crimes was robbery, this was by no means clear at the time (nor was it proven at trial).   The circumstances of the two incidents differed in almost every respect—the location, the time of day, the type of victim, the manner of attack and apparent motive.   There was certainly no common design or plan.   While the same handgun used in the rape was believed to have been taken from the murder scene, this was not proven at the time of the motions to sever (nor was it definitively proven at trial).   In any event, the handgun was not used in the robbery murder;  it was simply believed stolen from the murder victim's residence.

Thus, while the cartridges were a distinctive common mark, they alone do not “․ give logical force to the inference of identity.”  (People v. Haston, supra, 69 Cal.2d 233, 247, 70 Cal.Rptr. 419, 444 P.2d 91.)   In other words, there were not sufficient common marks between the rape and murder to raise a reasonable inference that the same person who committed the rape also perpetrated the murder.  (Williams v. Superior Court, supra, 36 Cal.3d 441, 450, 204 Cal.Rptr. 700, 683 P.2d 679;  People v. Thornton, supra, 11 Cal.3d 738, 756, 114 Cal.Rptr. 467, 523 P.2d 267;  People v. Haston, supra, 69 Cal.2d at pp. 246–247, 70 Cal.Rptr. 419, 444 P.2d 91.)

Even if the rape offense could have been shown to be minimally relevant to identity, by virtue of the cartridges, the (theoretically uncharged) rape would undoubtedly be excluded under the third Thompson factor.   That is, there is a rule or policy to exclude uncharged offenses without substantial probative value, because of the inherent risk of serious prejudice.  (People v. Thompson, supra, 27 Cal.3d at p. 318 & fn. 20, 165 Cal.Rptr. 289, 611 P.2d 883.)   The probative value of such evidence must clearly outweigh its prejudicial effect, and any doubts about probative value should be resolved in favor of excluding the evidence.  (Ibid.)  As Thompson explained, “Probative value goes to the weight of the evidence of other offenses.   The evidence is probative if it is material, relevant, and necessary.”  (Id., at p. 318, fn. 20, 165 Cal.Rptr. 289, 611 P.2d 883.)

The probative value of the rape itself was weak.   The rape proved nothing about the identity of the murderer.   It was not the fact or circumstances of the rape, but rather the items found at the rape scene, that provided a link to the murder.   These items could have been introduced in a separate murder trial in some “sanitized” fashion.⁵  Thus it was not necessary to prove identity by means of the rape itself.

Thus, it seems clear that in a separate murder trial, the court would either exclude the rape evidence entirely under Evidence Code section 352, or would consider “․ severing relevant [the cartridges and gun clip with thumbprint] from irrelevant portions of evidence [the rape itself] ․ to protect the accused from undue prejudice.  [Citation.]”  (People v. Kelley (1967) 66 Cal.2d 232, 239, 57 Cal.Rptr. 363, 424 P.2d 947, disapproved on other grounds People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1;  accord People v. Guerrero (1976) 16 Cal.3d 719, at pp. 725–727,129 Cal.Rptr. 166, 548 P.2d 366 [uncharged rape and threat with a wrench inadmissible in murder trial to show intent or identity].)  It was not necessary to introduce the rape to show that appellant possessed a gun believed taken from the murder victim.

The danger inherent in other-crimes evidence is that the jury will disregard the asserted basis for admissibility and find appellant guilty merely because he is a likely person or has a propensity to do such acts, because he has committed other acts of misconduct, or because he is to be condemned irrespective of his guilt on the charged offenses.  (People v. Thompson, supra, 27 Cal.3d at p. 317, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Guerrero, supra, 16 Cal.3d 719, 724, 129 Cal.Rptr. 166, 548 P.2d 366.)   This is particularly so here, where the inflammatory nature of the uncharged rape weighs against admissibility in a separate trial.  (Cf. Williams, supra, 36 Cal.3d at p. 450, 204 Cal.Rptr. 700, 683 P.2d 679 [gang membership evidence].)

Because this rape was brutal, occurred in a church and was perpetrated by a Black man on a White woman, its admission in a separate murder trial would be “prejudicial beyond a shadow of a doubt․  ‘The net effect to the jury was to paint a sign on [appellant] which said “rapist.” ’  [Citation.]”  (People v. Guerrero, supra, 16 Cal.3d at 730, 129 Cal.Rptr. 166, 548 P.2d 366.)   Therefore, evidence of the rape would not have been cross-admissible in a separate murder trial.   The trial court erred in so finding.

B. Prejudicial Impact of Joinder

Having concluded that the rape offense was not cross-admissible, it must now be determined whether the prejudicial impact of the jointly charged offenses warranted severance.   As Williams noted, an accused seeking severance must make a strong showing of prejudicial effect.   The reason is that “ ‘ “[t]he judge's discretion in refusing severance is broader than his discretion in admitting evidence of uncharged offenses․   In both cases the probative value of considering one alleged offense in light of another must be weighed against the prejudicial effect, but additional factors favor joinder.  ‘Joinder of unreleated charges ․ ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials.’ ”  [Citations.]  ․ [I]n the weighing process, the beneficial results from joinder are added to the probative-value side.' ”  (Williams, supra, 36 Cal.3d at p. 451, 204 Cal.Rptr. 700, 683 P.2d 679, quoting People v. Matson, supra, 13 Cal.3d at p. 41, 117 Cal.Rptr. 664, 528 P.2d 752, and Coleman v. Superior Court, supra, 116 Cal.App.3d at pp. 138–139, 172 Cal.Rptr. 86.)

Here, as in Williams, the cited factors favoring joinder provided little support for a denial of severance.   By moving for severance not once but twice, appellant obviously waived his right to be free of “needless harassment.”   The state did not seriously contend that public funds would be unduly wasted in duplicate trials.

There was some overlapping evidence, as discussed.   The state argued the offenses were connected together in their commission, and shared a common element of substantial importance, by virtue of the cartridges and gun clip left at the rape scene, connecting appellant to the robbery murder.   However, the nature and timing of the crimes was dissimilar and there was little actual overlap of facts in dispute.   As appellant pointed out at the severance hearings, the prosecution presented no connective evidence or witnesses at the preliminary hearing.   Unlike in People v. Brock (1967) 66 Cal.2d 645, 655, 58 Cal.Rptr. 321, 426 P.2d 889 (disapproved on other grounds in People v. Cook (1983) 33 Cal.3d 400, 413, fn. 13, 189 Cal.Rptr. 159, 658 P.2d 86, and cited by Matson, supra, 13 Cal.3d at p. 41, 117 Cal.Rptr. 664, 528 P.2d 752, and Williams, supra, 36 Cal.3d at p. 451, 204 Cal.Rptr. 700, 683 P.2d 679), the same factual issues relating to appellant's arrest and the parole search of his residence would not have been litigated at separate trials.

The parole search turned up no evidence linking appellant to the rape.   Aside from the rape victim's identification testimony—which turned out to be inadmissible—there was very little duplication of evidence.   The similarity of the Monark cartridges found at both scenes, and presence of a broken gun clip which may have come from a gun believed to be taken from the murder scene, hardly justified a joint trial in the interest of judicial economy.   Even if identity was the crucial issue in both cases, the four-day time gap and the lack of eyewitnesses to the murder meant that different evidence and defenses were involved in each incident.  (Cf. People v. Balderas, supra, 41 Cal.3d 144, 174–175, 222 Cal.Rptr. 184, 711 P.2d 480 [common witnesses, police investigation, and diminished capacity defense].)

In opposing the severance motion, the prosecutor argued that “it is crucial that the rape case not be severed from the murder case because the proof of the murder case depends on circumstantial evidence of the defendant's fingerprint at the scene of the murder and his subsequent possession of stolen property taken from the home of Aldo Cavallo.   Since [Ms. S.] will identify the defendant as the rapist and the rapist left behind property from the burglary of Cavallo's residence, her identification proves Joe Edward Johnson is the murderer of Aldo Cavallo.”   The prosecutor ignored the fact that appellant's thumbprint on the clip also presented a crucial link.   Further, Ms. S.'s identification of appellant as the man who left the gun parts in the church might have come in, in some “sanitized” fashion, in a separate trial on the murder charges.  (See fn. 5, ante.)   Moreover, the state did nothing to rebut appellant's showing of prejudice.   The state's obvious but improper purpose was to make it easier to prove the murder—not solely because of the connecting evidence, but also because once the jurors heard Ms. S.'s testimony regarding the brutal rape, they would be bound to convict on the murder as well.

Closely examined, the beneficial aspects of joinder were more illusory than real.⁶  As we noted in Williams, “the pursuit of judicial economy and efficiency may never be used to deny a defendant his right to a fair trial.”  (36 Cal.3d at pp. 451–452, 204 Cal.Rptr. 700, 683 P.2d 679, citing In re Anthony T. (1980) 112 Cal.App.3d 92, 102, 169 Cal.Rptr. 120;  accord People v. Smallwood (1986) 42 Cal.3d 415, 427, 228 Cal.Rptr. 913, 722 P.2d 197.)   Moreover, “[w]hen substantial prejudice is clearly shown, a trial court's denial of a defendant's motion for severance constitutes an abuse of discretion under Penal Code section 954.   Fundamental principles of due process compel such a conclusion.”  (Williams, supra, 36 Cal.3d at p. 452, 204 Cal.Rptr. 700, 683 P.2d 679.)

Williams, at pp. 452–454, 204 Cal.Rptr. 700, 683 P.2d 679 adopted the analysis set forth in Coleman v. Superior Court, supra, 116 Cal.App.3d at pages 137–140, 172 Cal.Rptr. 86, for determining the prejudicial impact of jointly charged offenses.   Both cases concluded that noncross-admissible charges should be severed, based on three factors:  (1) the inflammatory nature of one of the offenses, or of a distinctive common factor, could have a prejudicial effect on the jury in a joint trial;  (2) joinder of a strong case with a weak one, or of two weak cases, would create a likelihood that the jury would impermissibly aggregate evidence;  and (3) one of the joined crimes, or joinder itself, would render the defendant subject to the death penalty.

It must be emphasized, as it was in Williams, “that a determination of prejudice is a highly individualized exercise, necessarily dependent upon the particular circumstances of each individual case.”  (Id., 36 Cal.3d at p. 452, 204 Cal.Rptr. 700, 683 P.2d 679.)   Since the decision to sever is generally within the trial court's discretion, appellate review of a severance ruling is not subject to a rigid formula.   Thus, the factors cited in Coleman and Williams are neither all-inclusive nor applicable to every case.

I have already explained that the rape and murder did not share sufficient distinctive common marks to be cross-admissible.   As for the first Williams-Coleman prejudice factor, it should be noted that the nature of the rape clearly could create “a very prejudicial, if not inflammatory effect on the jury in a joint trial.”  (Williams, supra, 36 Cal.3d at p. 453, 204 Cal.Rptr. 700, 683 P.2d 679.)

The church setting created significant public awareness and memory of the event, and prompted the trial court to grant appellant's motion for change of venue.   The trial court observed:  “The single element which attracted so much public attention and reaction was the fact that the rape had occurred in a Catholic Church.   This was the bell ringer:  this was the highly bizarre feature of the rape which generated so much reader and listener interest and caused such a remarkable public memory of the event.   The manner in which the crimes were successively reported made it very clear that there was a common link between the rape, the murder and the defendant.   Had the rape occurred in any place other than the Catholic Church, it is very likely that the public memory of the event a year later would be minimal.” ⁷  This public memory of the rape was apparently due to the outrage members of the public felt in learning that a rape had occurred in a place generally revered and believed safe.   The potential for prejudice was accordingly greater in a murder trial that included these rape charges than in one that did not.⁸

The hostility traditionally directed toward a Black male defendant accused of raping a White woman created another possible source of prejudice inherent in the rape charge.   Dr. Loftus, the defense expert, testified that certain studies had found “an increase in conviction rates [on rape charges] when ․ it's cross-racial rape of this sort versus a same-race rape or ․ a rape where the ․ race of the victim is not specified.”   There was a strong possibility that such prejudice would “spill over” to other offenses with which the appellant was jointly charged.  (See fn. 8, ante.)

A final source of prejudice inherent in the rape was the brutality of that crime.   It was clear from the preliminary hearing that Ms. S. would be called upon to testify at trial about the details of the rape, as would witnesses to her condition following the rape.   These details, which included a surgeon's removal of rosary bead fragments from Ms. S.'s bloody hair, were particularly inflammatory.

Appellant also persuasively argued that joinder of the rape and murder charges could prejudice him in the jury selection process, since “there would ordinarily be a class of people who might be most acceptable to the defense to act as jurors in connection with the capital murder type offense that would not be acceptable to use when that murder offense was joined with the rape of a woman in a church.”   Appellant pointed out that this situation could create a much lengthier jury selection process, thereby defeating one of the commonly noted rationales for joinder of charges—economy of time and expense.  (See, e.g., Williams, supra, 36 Cal.3d at p. 451, 204 Cal.Rptr. 700, 683 P.2d 679.)

Accordingly, appellant demonstrated that the nature and circumstances of the rape substantially prejudiced his right to a fair trial on the murder charges.  (Id., at p. 453, 204 Cal.Rptr. 700, 683 P.2d 679.)

This potential for prejudice was compounded by the fact that the murder case consisted entirely of circumstantial evidence, while the evidence pertaining to the rape included a positive identification of appellant by the rape victim.   This evidentiary inequity implicated the second Williams-Coleman prejudice factor:  in a joint trial, jurors would be unable to decide one case, particularly the weaker one, exclusively on the evidence relating to that crime.  (Coleman, supra, 116 Cal.App.3d at p. 138, 172 Cal.Rptr. 86.) ⁹  When confronted by direct evidence from the rape victim concerning appellant's propensity to commit a senseless, brutal, and irreverent crime, “the jury would be hard-pressed to decide the murder case exclusively upon evidence related to that crime.”  (Id., at p. 138, 172 Cal.Rptr. 86;  see also United States v. Burkley (D.C.Cir.1978) 591 F.2d 903, 919, fn. 34 and accompanying text, cert. den. 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782.)

The state conceded that it needed the rape victim's testimony to bolster the circumstantial and relatively weaker murder case.  “Clearly joinder should never be a vehicle for bolstering either one or two weak cases against one defendant, particularly where conviction will give rise to a possible death sentence.”  (Williams v. Superior Court, supra, 36 Cal.3d at p. 454, 204 Cal.Rptr. 700, 683 P.2d 679.)

This brings us to the final Williams-Coleman prejudice factor:  “since one of the charged crimes is a capital offense, carrying the gravest possible consequences, the court must analyze the severance issue with a higher degree of scrutiny and care than is normally applied in a noncapital case.”  (Williams, supra, 36 Cal.3d at p. 454, 204 Cal.Rptr. 700, 683 P.2d 679.)  (Cf. Gregory v. United States (D.C.Cir.1966) 369 F.2d 185, 189, cert. den. 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119 [“It may be seriously questioned whether it is proper in any capital case to join for trial offenses occurring at different times and places.   The danger arising from the cumulative effect of evidence of other offenses on the minds of the jurors is too great to tolerate in such cases.”] )

Based upon these factors, appellant demonstrated substantial prejudice from joinder.   Therefore, the trial court abused its discretion in denying his motions for severance.   Given the inflammatory nature of the evidence on the rape charge, and the relative weakness of the evidence on the capital charges, the error was clearly prejudicial and requires reversal of appellant's convictions.¹⁰

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   In fact, July 29, 1979, was a Sunday.

3.   This court granted hearing in Bicknell and then transferred the case to the Court of Appeal with references to Shirley and Guerra.

4.   The Attorney General also argues that the error in admitting S.'s testimony was harmless because her testimony was devoid of any reference to hypnosis, the hypnotist did not mention defendant or the rape, and “[t]here is just nothing to show [S.] received impermissible suggestions or was in any way cued by the remarks of the hypnotist.”   Shirley does not permit such distinctions.   Under the circumstances, we must assume that S.'s identification of defendant was the product of her hypnosis, which related solely to the appearance of her assailant.  (See id., 31 Cal.3d 18, 66–69, 181 Cal.Rptr. 243, 723 P.2d 1354.)   Similarly, respondent's attempt to distinguish between S.'s ability to identify defendant at the hospital photo display and at the post-hypnosis live lineup must fail.

5.   In light of our holding that the conceded Shirley error was prejudicial, we need not reach defendant's substantial claim that the trial court abused its discretion in denying his motions for severance of the rape and murder charges.   We find it judicious to observe, however, that the inadmissibility of the rape victim's identification testimony eliminates the People's primary justification for consolidation of charges.   In opposing both severance motions, the People argued that the victim's positive identification of her assailant, together with the print on the gun clip, buttressed their circumstantial evidence (the print on the screen and defendant's possession of the television set) showing that defendant also committed Cavallo's murder.   Without the rape victim's identification, the evidentiary connection between the rape and murder was tenuous at best.Recent case law makes clear that even where joinder is permitted by statute (§ 954), charges which are not “cross-admissible” should be severed “in the interests of justice” when defendant makes a clear showing of substantial prejudice.   In other words, joinder should not be permitted where it would deny a fair trial.  (See Williams v. Superior Court (1984) 36 Cal.3d 441, 447–448, 452, 204 Cal.Rptr. 700, 683 P.2d 699;  People v. Smallwood (1986) 42 Cal.3d 415, 425–427, 228 Cal.Rptr. 913, 722 P.2d 197;  cf. People v. Balderas (1985) 41 Cal.3d 144, 170–177, 222 Cal.Rptr. 184, 711 P.2d 480.)   Clearly, the rape and the murder lacked sufficient distinctive common marks to be cross-admissible at separate trials under Evidence Code section 1101.  (See Williams v. Superior Court, supra, 36 Cal.3d at pp. 448–450, 204 Cal.Rptr. 700, 683 P.2d 699, and cases cited therein.)   As for prejudice, the inflammatory nature of the rape—a brutal, cross-racial rape in a church—coupled with the fact that the murder is a capital offense, weigh heavily against a joint trial upon retrial.  (Id., pp. 452–454, 204 Cal.Rptr. 700, 683 P.2d 699.)

6.   Defendant was given two special conditions of parole—to submit to antinarcotic testing, and to attend parole outpatient clinic.

7.   Cardoza also testified that he had previously supplied the Santa Rosa Police Department with a photograph of defendant as a possible suspect in these cases.   Cardoza explained that parole agents routinely review their caseloads to determine if someone they supervise might be a suspect in a new case.

8.   The jacket was never introduced into evidence.

9.   The form provided:  “ ‘Defendant having been convicted of 23105 V.C. on the 15th day of May, 1974, and no legal cause being shown why judgment should not now be pronounced:  IT IS HEREBY ORDERED that the defendant be admitted to probation to the Court pursuant to the following order:  b/w recalled restored to probation.   Pay $100 today & $34 mo. thereafter.   Bail $324.’   The form then listed six terms and conditions of probation, each of which had a box next to it.   The form was signed by [Freytes] under the following statement:  ‘The undersigned hereby certifies that he has read the foregoing Order for Probation and understands same and agrees to conduct himself strictly in accordance with said terms.’ ”  (60 Cal.App.3d at pp. 960–961, 132 Cal.Rptr. 26.)

10.   Title 15, section 2356 of the California Administrative Code provides:  “Prior to release on parole, the prisoner shall be given the notice and conditions of parole by department staff.”   Section 2355 defines “release on parole” as “the actual transfer of a prisoner confined in prison to parole supervision in the community.   Actual release on parole ․ shall occur when all the provisions of these rules and any applicable department regulations have been met.”

11.   We would stress that Coffman is factually distinguishable from Burgener and the case at bar, in that the parole agent had no valid parole purpose in mind when he agreed to accompany police in a search of Coffman's apartment.  (2 Cal.App.3d at p. 687, 82 Cal.Rptr. 782.)   Burgener disapproved Coffman to the extent Coffman seemed to imply that parole supervision purposes and police investigation purposes are mutually exclusive, and that a police-initiated search may never be subject to the reasonable suspicion standard.   Yet the thrust of Coffman's reasoning with respect to the legality of the search in that case is consistent with the standards promulgated in Burgener.   Coffman stands for the proposition that absent a proper parole purpose, the parole agent's mere presence or authorization for the search is ineffective to validate the search.

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   The results of a study conducted by Dr. Loftus and her graduate student were later published in a professional journal.  (See Greene and Loftus, When Crimes are Joined at Trial (1985) Law and Human Behavior, vol. 9, no. 2, p. 193.)

3.   Dr. Loftus testified regarding another recent jury simulation study showing increased convictions and aggregation of evidence, despite limiting instructions, in joined trials.  (See Tanford, Penrod, and Collins, Decision Making in Joined Criminal Trials:  The Influence of Charge Similarity, Evidence Similarity, and Limiting Instructions (1985) Law and Human Behavior, vol. 9, no. 4, p. 319.)

4.   As noted, in its opposition to the first severance motion, the district attorney argued that appellant's possession of the cartridges and gun clip at the rape scene provided the motive for killing Cavallo, as well as premeditation and malice.   The district attorney dropped this argument in his opposition to the second severance motion.

5.   Unlike the rape itself, these items—the cartridges and gun clip—were material and relevant to identity in the murder case.   They appeared to have been taken from the murder scene, and the partial print on the clip provided a clue to the murderer's identity.   As such, they bolstered the state's other circumstantial evidence showing appellant was the murderer:  his thumbprint found on the screen and possession of the murder victim's television set.   Standing alone, the cartridges and gun parts were probative of guilt and not unduly prejudicial.  (Evid.Code, § 352.)   Thus, these items would have been admissible in a separate murder trial, independent of the rape as circumstantial evidence of the murderer's identity (see People v. Gardner (1969) 71 Cal.2d 843, 849, 79 Cal.Rptr. 743, 457 P.2d 575).   They could have been introduced by the police officer who found them in the church, without reference to the rape.   Neither the rape nor the rape victim's testimony was essential to show these items linked defendant to the Cavallo murder.Of course, the rape victim's identification of appellant as assailant who left the gun parts might have bolstered the state's showing that the print on the gun clip was defendant's.   Yet, in light of its inflammatory nature, the rape victim's testimony would no doubt have been excluded under Evidence Code section 352.  (People v. Thompson, supra, 27 Cal.3d 303, 318, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Schader (1969) 71 Cal.2d 761, 772, fn. 4, and 773–774, 80 Cal.Rptr. 1, 457 P.2d 841.)   As it turned out, Ms. S.'s identification of defendant was improperly admitted at trial, as the product of her hypnosis.   While this fact was not known at the time of the severance hearings, it is now clear that the rape victim's identification testimony must be excluded in a joint or separate trial.   The cartridge and gun clip were admissible even without her testimony.

6.   In this respect, People v. Balderas, supra, 41 Cal.3d 144, 222 Cal.Rptr. 184, 711 P.2d 480, a recent decision of this court, is distinguishable.   The trial court there had refused to sever trial of a kidnapping, robberies and forcible sex crimes committed on a male and female from the kidnapping, robbery and murder with special circumstances of a male victim.   This court rejected Balderas's contention on appeal that the refusal to sever was an abuse of discretion.   Unlike appellant here, Balderas presented no showing of specific prejudice from joinder;  he merely argued that capital and noncapital charges should never be joined.  (Id., at p. 171, 222 Cal.Rptr. 184, 711 P.2d 480.)   This was clearly insufficient to require severance—particularly since there were substantial benefits to be gained from a joint trial, i.e., common prosecution and defense witnesses.  (Id., at pp. 174–175, 222 Cal.Rptr. 184, 711 P.2d 480.)   There was no substantial likelihood the strong evidence on the noncapital case would “spill over” and affect the verdicts on the capital charges.  (Id., at p. 174, 222 Cal.Rptr. 184, 711 P.2d 480.)   Moreover, the sex crimes in the noncapital case “․ were not particularly brutal, repulsive or sensational.”  (Ibid.)

7.   The trial judge's conclusion that there was significant public memory of the rape was based on Dr. Kramer's survey of 445 potential jurors in Sonoma County.   Although defense counsel initiated the survey, the state's only witness to testify on the survey conceded that the methodology was in accordance with accepted survey techniques and the number of persons interviewed was a scientifically representative sample.   The trial judge noted that “[o]f the 445 persons interviewed, 61 plus percent stated that they recalled the rape incident in the church.   A very high percentage of that group had specific memory of various details of the rape crime and a similarly high percentage made connection between the rape, the murder and the defendant.”   The judge also based his venue decision on the fact that 36 percent of those interviewed stated that they had formed an opinion that appellant was definitely or probably guilty.

8.   This conclusion is further supported by the testimony of defense expert Dr. Elizabeth Loftus.   Relying on several jury simulation studies and her interpretation of the Sonoma County public opinion survey, Dr. Loftus testified that “the presence of a rape charge added to a murder charge almost doubled the likelihood of conviction on the murder.”   Later she opined that “[t]he worst possible case is when a black defendant is accused of raping a white woman,” in terms of prejudicial “spill-over” of evidence.   In her mind, the cross-racial element created “a tremendous amount of prejudice.”

9.   This second factor is still met when Ms. S.'s positive identification of appellant is excluded under People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 723 P.2d 1354 and People v. Guerra (1984) 37 Cal.3d 385, 208 Cal.Rptr. 162, 690 P.2d 635.   As this court stated in Williams, this factor “should not be limited to situations where the relative strengths of the cases are unequal.   Indeed, our principal concern lies in the danger that the jury here would aggregate all of the evidence, though presented separately in relation to each charge, and convict on both charges in a joint trial;  whereas, at least arguably, in separate trials, there might not be convictions on both charges.   Joinder in this case will make it difficult not to view the evidence cumulatively.   The result might very well be that the two cases would become, in the jurors' minds, one case which would be considerably stronger than either viewed separately.”  (36 Cal.3d at pp. 453–454, 204 Cal.Rptr. 700, 683 P.2d 679.)

10.   Contrary to the Attorney General's contentions, the record does not demonstrate a lack of prejudice in that:  the jurors were extensively voir dired as to their ability to separate the evidence;  the jury returned guilty verdicts on the murder charges five days before reaching a verdict on the rape charges;  and the rape would have been admitted in a separate murder trial in any event, during the penalty phase, under section 190.3, subdivision (b).   The jury's ability to be objective at the time of voir dire was entirely speculative.   One can only guess at the reasons for the prompt verdict on the weaker murder charges.   Even so, this factor tends to bolster the conclusion that the prejudicial joinder influenced the murder verdicts.   Finally, there may not have been a penalty trial on the capital charges had the murder and rape charges been severed.

REYNOSO, Justice.

MOSK, BROUSSARD and GRODIN, JJ., concur.