“Consolidated” Cases – The DA’s Ability to Join Two People, or Two Crimes, in a Single Complaint . . . and How to Fight Back

What is a “Consolidation”?

Consolidation refers to the ability of the District Attorney (“DA”) to join two separate crimes occurring separate dates together into one “complaint” – which lists the charges against a criminal defendant. But, consolidation with another person, known as a “co-defendant” in California, is also possible when two or more people are alleged to have committed a crime or crimes together.

The authority that allows the DA to consolidate  counts is under Penal Code section 954, which states:


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. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, 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. An acquittal of one or more counts shall not be deemed an acquittal of any other count.

Cal. Penal Code § 954.

Conversely, the statute that allows the DA to join two co-defendants in a single crime is Penal Code section 1098, which states:


When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a joint trial as to the others, or may order any number of the defendants to be tried at one trial, and any number of the others at different trials, or may order a separate trial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial.

Cal. Penal Code § 1098.

While Penal Code sections 1098 and 954 thus operate to permit the DA to file complaints joining together two co-defendants or alleged crimes occurring different dates in the same complaint, a skilled defense lawyer will be able to litigate this issue on the basis of caselaw developed in the Courts that have delineated under which situations such joiner is not proper. The lawyer does this by filing a “Motion to Sever”, which can refer to a request by an attorney for the judge to separate counts or defendants.

Filing a Motion to Sever Joined Counts regarding Different Alleged Crimes in One Complaint

In order for offenses committed on different dates to be properly joined under Penal Code section 954, the offenses must be “connected together in their commission”. [See Id.; see also, e.g., People v. Romero & Self (2015) 62 Cal.4th 1, 29; People v. Jones (2013) 57 Cal.4th 899, 927; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229n.19].  Similarly, offenses may be joined where the charges sought to be joined share “a common element of substantial importance their commission.” [See People v. Miranda (1987) 44 Cal.3d 57, 78; People v. Scott (1944) 24 Cal.2d 774, 778; But see Walker v. Superior Court (1974) 37 Cal.App.3d 938, 941]. Nonetheless, a Court may grant a request for severance of joined offenses that meet this baseline criteria under Penal Code section 954 where, “in the interests of justice and for good cause shown” the Court, 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.” Cal. Penal Code § 954.

A Court’s decision not to sever where the defense has asked it to invoke its discretion to order severance of counts is reviewable under an abuse of discretion standard, whereby:

`Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.’

[See Jones, supra, 57 Cal.4th at 925, citing People v. Bradford (1997) 15 Cal.4th 1229, 1315.]

Thus, even where the prosecution has iterated a foundation for possible connection between joined offenses that are of the same class, the Court is not without ability or duty to sever those counts where continued joinder would be fundamentally unfair to the defendant. “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,” in consideration of these delineated factors that may be present in a given case. [See Bradford, supra, 15 Cal.4th at 1315.]

In this way, a clever, skilled criminal defense attorney would make a motion to sever counts from different dates by demonstrating how the defendant would be predicted or unfairly disadvantaged if all of the counts from different dates were brought together in a single trial.

Filing a Motion to Sever Joined Co-Defendants, wherein a Complaint Charges Two Different People in One Complaint for a Joint Trial

As previously stated, Penal Code section 1098 vests the trial court with wide discretion to permit the continued joinder of defendants charged together in an accusatory pleading. [Cal. Penal Code § 1098; People v. Boyde (1988) 46 Cal.3d 212, 232, overruled on other grounds in People v. Johnson (2016) 62 Cal.4th 600, 648]. When joinder of defendants is not prohibited by the Ortiz rule (Ortiz, supra, 22 Cal.3d at 43), the factors that weigh in favor of severance of codefendants have been delineated:

The court should separate the trial of codefendants ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony’.

[People v. Turner (1984) 37 Cal.3d 302, 312, overruled on other grounds as stated in People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150, superseded by statute as stated in People v Letner and Tobin (2010) 50 Cal.4th. 99, 163, fn. 20.)].

In addition, a severance is proper under the following circumstances in which a co-defendant would be unfairly prejudiced by a continued joinder of cases:

(i) Great disparity between the count charged against the defendant and the one against the co-defendant. People v Chambers (1964) 231 Cal.App.2d 23, 27;

(ii) Evidence potentially prejudicial to the defendant will be admitted at trial, ostensibly against the co-defendant. People v Biehler (1961) 198 Cal.App.2d 290, 298; see also People v Massie (1967) 66 Cal.2d 899.

(iii) Joinder can result in a conviction of the defendant because of the association with co-defendants of disreputable character. Massie, supra, 66 Cal.2dat 916; Chambers, supra, 231 Cal.App.2d at 27.

Thus, in a similar manner in which a defense attorney would attempt to demonstrate that joinder of two separate crimes on different dates being charged together for a single trial would prejudice or place a defendant at undue risk of wrongful conviction, the same attorney would make such arguments pertaining to how joinder with another person together in the same trial would threaten to do the same.

Call Honeychurch & Boyd for Top-Tier Representation in Any Type of Joinder Case

If you or a loved one are being charged with or under investigation for a crime in Fairfield, Rio Vista, Suisun, Vacaville, Vallejo, Benicia, Dixon, or outer Solano County, or within any city in Napa County or Yolo County, in which authorities believe to have been committed with another person, or, under investigation for multiple crimes at the same time, you need a savvy, knowledgeable and articulate attorney to place you in the best position to attack the charges against you or to resolve your case if dismissal is impossible.

At Honeychurch & Boyd, our experienced attorneys have handled countless cases that included joined counts or co-defendants, and have achieved outstanding results on our client’s behalves due to quality representation and litigation of these issues.

Call our office today at 707-429-3111 for a free consult with one of our reputable attorneys to determine how we can get to work for you immediately in fighting the charges you face.

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