Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F09989, 06F00043
RAYE, Acting P. J.
This appeal involves two separate trial court cases involving defendant Mario Esparza Rojas that were consolidated over his objection. In the first case, in which defendant had been appointed counsel, a jury convicted him of misdemeanor vandalism but deadlocked on two felony charges that the People wanted to retry. The trial court (Winn, J.) granted the People’s motion to consolidate those charges with a second case, in which defendant had retained attorney Robert Holley.
Defendant objected that because he could not afford to pay Holley to represent him on all charges, the consolidation order deprived him of his right to retained counsel on the charges alleged in the second case. Defendant, represented in the consolidated case by the public defender, moved to sever in order to preserve his right to retained counsel in the second case.
But before defendant’s motion to sever was decided, he accepted a plea bargain, in which he pled no contest to driving under the influence and possession of cocaine, and admitted a prior prison term allegation. (Veh. Code, § 23152, subd. (a); Health & Saf. Code, § 11350, subd. (a); Pen. Code, § 667.5, subd. (b).) The trial court (Fall, J.) sentenced defendant to three years in prison in accordance with the plea bargain, and dismissed all remaining counts.
On appeal, defendant claims the trial court’s order consolidating the two cases had the effect of depriving him of his right to retained counsel. We conclude that because he failed to obtain a ruling on his motion to sever -- a motion that, if granted, would have obviated the claimed error -- defendant has forfeited his claim. Further, because there was a common factual element connecting the two cases, consolidation was proper. Accordingly, we shall affirm.
BACKGROUND
The facts and procedure leading to defendant’s claim on appeal are convoluted, but necessary to recite in detail.
In Sacramento County Superior Court case number 05F09989, defendant was charged with crimes committed in October 2005, when he allegedly threatened to kill his girlfriend and smashed the windshield of her new boyfriend’s vehicle. (Pen. Code, §§ 422 [criminal threats], 594, subd. (a) [vandalism].) After the preliminary hearing, the People added a stalking charge, alleging conduct occurring between June 1, 2005, and June 20, 2006, as well as a strike allegation and two prison term allegations. (Pen. Code, §§ 646.9, subd. (a), 667, subds. (b)-(i), 1170.12, 667.5, subd. (b).) We call this the domestic violence case.
In Sacramento County Superior Court case number 06F00043, defendant was charged with possession of cocaine and driving under the influence on January 1, 2006. (Health & Saf. Code, § 11350, subd. (a); Veh. Code, § 23152, subds. (a) & (b).) We call this the DUI case. At the preliminary hearing in the DUI case, held immediately after the preliminary hearing in the domestic violence case, evidence showed that officers were responding to the domestic violence victim’s house when defendant was seen driving with his lights off; when stopped, defendant was found to be drunk and in possession of cocaine.
A jury trial in the domestic violence case began on January 31, 2007. During an in limine hearing, the People sought to introduce evidence of the DUI case to show that defendant came to the victim’s house at night and then drove away with his lights off, evidencing his guilty mind. The conduct pertaining to the DUI case took place on January 1, 2006, within the period alleged for the stalking charge in the domestic violence case. The People also proposed to prove other specific incidents (in June 2005, and on March 4 and June 20, 2006) to support the stalking charge. The trial court (Thorbourne, J.) ruled that evidence of the January 1, 2006, incident was admissible in the domestic violence case, but excluded evidence of cocaine and drunk driving.
Accordingly, in the domestic violence case trial, the victim testified that defendant tried to break into her garage after midnight on January 1, 2006, but left when he heard her on the phone with the 911 operator. When the police came to tell her they had caught defendant, she did not want to press charges. Two peace officers testified that after midnight on January 1, 2006, they went to the victim’s residence to look for defendant’s “blacked out vehicle” (a vehicle being driven with its lights off) leaving her house, stopped that vehicle a couple of blocks away, and found defendant inside. In accordance with the in limine ruling, there was no testimony about drunk driving or cocaine during the People’s case-in-chief, and a stray reference to the DUI arrest -- made by a defense witness -- was stricken and the jury was admonished to disregard it.
During closing arguments in the domestic violence case, the defense conceded the vandalism count. The jury convicted defendant of vandalism, but deadlocked on the criminal threat and stalking charges.
While the jury in the domestic violence case was deliberating, Robert Holley substituted in as retained counsel for defendant in the DUI case.
The People wanted to retry the deadlocked charges from the domestic violence case and moved to consolidate those charges with the DUI case. The People’s motion included an offer of proof, consistent with the evidence at the first trial, showing that on January 1, 2006, defendant tried to break into the victim’s garage, and the police found him driving away with his lights off. Defendant was drunk and had cocaine in his pocket. The People argued these facts would be cross-admissible on retrial of the domestic violence case.
Defendant opposed consolidation, arguing the cases were not connected and charged different classes of crimes; the evidence was not cross-admissible; and joinder would prejudice defendant by combining the strong DUI case with the weaker domestic violence case, which carried with it inflammatory allegations. Further, defendant had retained Holley for the DUI case but was represented by appointed counsel in the domestic violence case. Because he could not afford to pay Holley to defend both cases, consolidation would require Holley to withdraw, depriving defendant of his right to retained counsel of choice in the DUI case. However, the defense conceded that the DUI case arose near the domestic violence victim’s house.
Judge Winn granted consolidation. He noted that the stalking charge alleged conduct occurring between June 1, 2005, and June 20, 2006, and observed that stalking “is an offense that requires repetitive conduct. As a result, evidence from the January 1, 2006, incident is admissible to establish the repetitive element[.]”
Defendant sought writ relief, which we summarily denied. We grant defendant’s unopposed request for judicial notice of the file in that matter. (Rojas v. Superior Court, C056725, Sept. 6, 2007 [order].)
On January 8, 2008, the People filed a consolidated information, which combined the DUI case with the remaining charges from the domestic violence case.
At the arraignment on the consolidated case, Judge Sumner sought to ascertain who represented defendant. He stated that if defendant wanted to retain Holley to represent him, he could; otherwise, he would appoint the public defender. Holley asserted that Judge Winn, in granting consolidation, had not intended to change the status of the attorneys; instead, Holley would continue to represent defendant on the DUI incident charges, and the public defender would continue to represent defendant on the domestic violence charges.
Judge Sumner concluded that the DUI case no longer existed as a distinct case following the consolidation order, and stated he would relieve Holley as counsel if he declined to represent defendant on the whole consolidated case. Both Holley and the public defender protested, stating that this violated Judge Winn’s intentions in granting consolidation. Holley argued that if Judge Winn had known this would happen, consolidation would not have been granted: “It was very clear at the time that this consolidation was granted that I would be representing him along with the public defender on the two separate charges, two very separate charges.” Holley maintained that if the consolidation order meant he could not represent defendant unless he undertook to represent him on the entire case, because defendant could not afford his fees for the entire case, that order would deprive defendant of his right to retained counsel; the public defender echoed Holley’s contentions.
Judge Sumner noted that the parties would have to continue the arraignment to the afternoon, because there was a question about whether the public defender’s office could continue to represent defendant, and emphasized that he was simply trying to ascertain who was the attorney of record so that he could arraign defendant on the consolidated case before him: “I didn’t mean to imply that you can’t come and participate in Mr. Rojas’s defense if that’s what his attorney of record wants. But at the moment I’m told by both you and Mr. Rojas that he cannot retain you to be his attorney on this consolidated case.”
Holley was relieved “in former case 06F00043, that case having been consolidated into 05F09989.” Under protest, the public defender accepted an appointment to represent defendant in the consolidated case.
Judge Sumner noted that the defense had filed a motion to sever, included within an omnibus in limine motion filed that day, echoing the opposition to consolidation. Because both defense attorneys had represented that Judge Winn’s written consolidation order did not fully capture its meaning, Judge Sumner ruled that the motion to sever, embracing the subsidiary issue of the meaning of the consolidation order, should be transferred back to Judge Winn, and granted a continuance for that purpose.
The motion to sever came before Judge Winn on January 11, 2008, and was continued for two weeks, to “deal with the motion to sever, as well as the issue that we discussed in chambers regarding [defendant’s] joint representation by [the public defender] and Mr. Holl[e]y.” The reporter’s transcript shows that on January 25, 2008, after the trial court denied the speedy trial motion, a plea bargain was offered. Defendant wanted to adjudicate a suppression motion, and the People agreed to keep the offer open until that could be done. There was no ruling on the motion to sever, and the matter was continued to February 1, 2008.
Defendant asserts on appeal that his motion to sever was denied, citing “1 CT 18.” That reference is to a minute order that states the motion to sever was called on January 25, 2008, and also states a speedy trial motion was denied. It does not state that the motion to sever was denied.
The speedy trial motion was based on the claim that the consolidation motion led to an unwarranted continuance of trial, without a time waiver by defendant. In part the motion implied that the severance motion had been denied by Judge Sumner, but it also stated Judge Sumner “compounded” the alleged error in removing Holley from the case by sending the matter back to Judge Winn. By acknowledging the matter had been referred to Judge Winn, the motion conceded that Judge Sumner had not ruled on the issue. As stated, Judge Sumner referred the motion to sever back to Judge Winn, so that he could clarify his intentions in granting the consolidation order. That was an appropriate exercise of judicial comity. (See In re Alberto (2002) 102 Cal.App.4th 421, 427-428.)
There were further references to severance. The public defender stated that defendant was interested in the plea offer in light of “removal of my client’s choice of counsel,” and argued it was that action which purportedly justified dismissal based on violation of statutory speedy trial rights. But the plea was not conditioned on preserving the issue. (Cf. People v. DeVaughn (1977) 18 Cal.3d 889, 895-896 [plea induced by mistaken belief that an issue was preserved for appeal].) Judge Winn also referred to a chambers discussion about whether or not Judge Sumner had been wrong “on the whole dual representation issue,” but that comment was made in the context of the speedy trial motion: it does not show Judge Winn had ever ruled on the motion to sever, nor that any conclusion about dual representation was reached in chambers.
On February 1, 2008, Judge Fall denied the motion to suppress, and defendant accepted the plea offer. The plea bargain provided for a prison sentence of three years, based on defendant’s no contest pleas to possession of cocaine and misdemeanor drunk driving, and admission of a prior prison term; all other charges were dismissed. Defendant timely filed this appeal. With leave of this court, defendant belatedly obtained a certificate of probable cause.
DISCUSSION
Defendant contends that the practical effect of the consolidation order was to deprive him of his right to retained counsel of choice on the DUI case charges.
The Attorney General does not argue that the plea bargain itself precludes defendant from raising this issue. The point is arguable. On the one hand, other than suppression motions, most procedural issues are not cognizable after a guilty plea; in particular, it has been held that the denial of a motion to sever is not cognizable after a guilty plea. (People v. Haven (1980) 107 Cal.App.3d 983, 986; see People v. Sanchez (1982) 131 Cal.App.3d 323, 335 [as between two defendants]; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 14.) Because a motion to sever is the converse of a motion to consolidate, it would seem that an order granting consolidation, too, is not cognizable. The fact defendant obtained a certificate of probable cause “cannot widen the scope of review so that it includes noncognizable issues.” (People v. Marlin (2004) 124 Cal.App.4th 559, 567.)
On the other hand, we have held that a claim of denial of counsel survives a guilty plea. (See People v. Turner (1985) 171 Cal.App.3d 116, 126-127; People v. Robinson (1997) 56 Cal.App.4th 363, 368-372 [claimed impairment of right to self-representation survives plea].) As defendant points out, some pretrial rulings that do not directly relate to the right to counsel may have the practical effect of impairing such right. (See People v. Holland (1978) 23 Cal.3d 77, 85-89 [order blocking access to money impaired Holland’s ability to retain counsel], disapproved on another point in People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098; People v. Byoune (1966) 65 Cal.2d 345, 346-348 [order denying continuance after additional charges were added impaired Byoune’s right to retain counsel of choice].) Thus, review of a procedural ruling that might ordinarily be foreclosed by a guilty plea might not be foreclosed if the practical result of the ruling impaired the right to counsel. Under this view, because defendant obtained a certificate of probable cause, he could raise the issue despite his plea. (Pen. Code, § 1237.5, subd. (a).)
Because the Attorney General does not claim defendant’s plea forecloses the issue, we will assume that it does not.
But defendant overlooks another procedural hurdle, one that the Attorney General does interpose. Defendant sought relief from the consolidation order by moving to sever, and both Holley and the public defender represented to Judge Sumner that Judge Winn had not intended the consolidation order to deprive defendant of Holley’s services. To clarify what the consolidation order meant, Judge Sumner transferred the severance motion back to Judge Winn for clarification. But defendant failed to obtain any such ruling from Judge Winn.
A general rule of appellate procedure is that before raising an issue on appeal, a party must obtain a final adverse ruling from the trial court. (See People v. Braxton (2004) 34 Cal.4th 798, 813-814; Goodale v. Thorn (1926) 199 Cal. 307, 315 [party failed to “mak[e] certain the meaning of the court’s ruling”]; People v. Brewer (2000) 81 Cal.App.4th 442, 459-462.)
In particular, the California Supreme Court has held that the failure to obtain a ruling on a motion to sever precludes a criminal defendant from raising the issue on appeal. (People v. Cunningham (2001) 25 Cal.4th 926, 983-984; People v. Pinholster (1992) 1 Cal.4th 865, 930-931; see People v. Miranda (1987) 44 Cal.3d 57, 77-78, overruled on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)
Although defendant frames his appeal as an attack on the consolidation order, the meaning of that order was fully embraced by defendant’s motion to sever and was headed for resolution by Judge Winn; that was Judge Sumner’s explicit purpose in referring the motion to sever to Judge Winn. Therefore, although defendant purports to attack only the consolidation order, because it was not final, being subject to clarification in connection with the motion to sever, defendant never obtained a final adverse ruling that he may now challenge.
Defendant suggests that somehow Judge Sumner or Judge Winn or both effectively deprived him of Holley’s services before the motion to sever could be heard and therefore the issue is not forfeited. Defendant states that after consolidation it was “not possible” for Holley to represent him on the DUI charges. But whether Holley could represent defendant on some but not all of the charges in the consolidated case was a live issue that could have been resolved in defendant’s favor had he pressed for a ruling on his motion to sever. By failing to obtain such a ruling, defendant deprived the trial court of the opportunity to address the claimed impairment of counsel. We conclude defendant thereby forfeited such claim.
Further, the premise of defendant’s briefing is that the DUI case and the domestic violence case bore no relationship to each other, and therefore the evidence of one would not be cross-admissible in the other and a consolidated trial would have exposed him to unfair prejudice. By this argument he suggests that no valid purpose was served by consolidation, and therefore there was no justification for disrupting the scope of Holley’s representation. We disagree.
Penal Code section 954 addresses the propriety of consolidation of charges and its converse, the propriety of severance of charges, as follows: “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, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.... [T]he court in which a case is triable, in the interest 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.” (Pen. Code, § 954; see People v. Soper (2009) 45 Cal.4th 759, 769 (Soper).)
It is clear that the DUI case was “connected” with the stalking charge alleged in the domestic violence case, and therefore consolidation would promote judicial efficiency. (See Soper, supra, 45 Cal.4th at pp. 771-772.) As mentioned above, but disregarded in defendant’s briefing, evidence of the DUI incident had already been ruled cross-admissible by Judge Thorbourne in the trial of the domestic violence case, and such evidence was actually admitted at that trial.
As stated in Judge Winn’s consolidation order, because the domestic violence case included a stalking charge that alleged a course of conduct over a period of time encompassing the date of the DUI incident, it would again have been admissible in a second severed trial. “If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges.” (Soper, supra, 45 Cal.4th at pp. 774-775.)
Specifically, we presume the second jury would also hear evidence that defendant tried to break into the victim’s garage after midnight on January 1, 2006, but left when she said she was calling 911, and that the police found him driving away with his lights out.
The only additional facts that the jury in a consolidated second trial would hear would be evidence that defendant drove drunk and possessed cocaine that night. That would not be unduly prejudicial when compared to the evidence about the criminal threats and other stalking incidents. At the first trial, that evidence included the victim’s testimony that defendant pulled a gun on her and said he would kill her, but she was too afraid to report this at the time. Before that he had thrown a brush at her and slashed her clothing and shoes. She allowed defendant to babysit their daughter after the January 1, 2006, incident and thought he would change. On March 4, 2006, she called the police because defendant was banging on her door and windows, demanding admittance. At this point she had a restraining order, but she continued to see defendant and invite him over to babysit their daughter. On June 20, 2006, defendant threw a glass through her window, and “the glass hit [her] elbow and cut it.” The parties stipulated at the first trial that defendant had a 1997 domestic violence conviction, not involving the current victim. Compared to this testimony, we see nothing inflammatory about the additional facts that defendant was drunk and possessed cocaine during the January 1, 2006, incident.
In this connection we observe that the prejudice analysis pertaining to consolidation and severance of charged offenses is not the same as the prejudice analysis pertaining to uncharged offenses. “Unlike what occurs in situations involving the admissibility of uncharged misconduct -- in which the People bear the burden of establishing that the evidence has substantial probative value that clearly outweighs its inherent prejudicial effect -- by contrast, in the context of properly joined offenses, ‘[t]he burden is reversed.’ [Citation.] In the latter setting, ‘[t]he prosecution is entitled to join offenses under the circumstances specified in [Penal Code] section 954. The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.... That the evidence would otherwise be inadmissible [under Evidence Code section 352] may be considered as a factor suggesting possible prejudice, but countervailing considerations [of efficiency and judicial economy] that are not present when evidence of uncharged offenses is offered must be weighed in ruling on a... motion [to sever properly joined charges]. The burden is on the defendant therefore to persuade the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice.’” (Soper, supra, 45 Cal.4th at p. 773.)
As to noncross-admissible charges, in assessing prejudice “we consider three additional factors, any of which -- combined with our earlier determination of absence of cross-admissibility -- might establish an abuse of the trial court’s discretion: (1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citations.] We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state.” (Soper, supra, 45 Cal.4th at p. 775.)
As indicated, the fact defendant forced his way into the victim’s house on January 1, 2006, was cross-admissible. The additional anticipated facts at the consolidated trial, that defendant was driving drunk and possessed cocaine, were not inflammatory and were not capital charges. Defendant asserts the domestic violence charges were more serious than the cocaine and drunk driving charges, but the trial court thought that point was debatable. In any event, nothing about the facts of the domestic violence charges, as presented at the deadlocked trial, suggests that they would inflame the jury to convict defendant of drug and drunk driving charges. Nor does the fact that the first jury deadlocked on the domestic violence charges mean that the evidence was so “weak” in comparison to the DUI case evidence that there was a risk a second jury would convict him of domestic violence charges because the DUI case was relatively stronger. Accordingly, because there was no likely prejudice, consolidation was not an abuse of discretion. (See Soper, supra, 45 Cal.4th at p. 774.)
This conclusion answers defendant’s apparent view that no purpose was served by consolidation other than disrupting the attorney-client relationship with Holley. Defendant was not forced to accept the plea and had the reasonable option of obtaining a final ruling on his motion to sever, a motion that embraced clarification of the consolidation order. (See People v. Krotter (1984) 162 Cal.App.3d 643, 648-649 [rejecting claim that denial of change of venue could be reviewed following plea, because Krotter could have preserved the issue by renewing his motion during jury selection].) Had defendant thereafter gone to trial with the public defender representing him on all charges, he could then have sought review of the issue on appeal. (See, e.g., People v. Strozier (1993) 20 Cal.App.4th 55, 60-62 (Strozier) [Strozier claimed trial court improperly relieved retained counsel].)
Strozier aptly stated: “Appellant argues that his due process rights were violated by the trial court’s order relieving his retained counsel. We disagree. The concept of due process, as it relates to the right of counsel, must be weighed against ‘... other values of substantial importance, such as assurance of an orderly and speedy determination of criminal charges....’ [Citation.]” (Strozier, supra, 20 Cal.App.4th at p. 61 [denial of continuance].)
Because consolidation was proper and because there was no final ruling precluding defendant from proceeding with two attorneys at the anticipated second trial -- Holley on the DUI case charges and the public defender on the domestic violence charges -- we reject defendant’s claim that the consolidation order interfered with his right to retained counsel of choice.
DISPOSITION
The judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.