Consolidation or Severance of Misdemeanor and Felony Charges in a Criminal Case

    Penal Code sections 954 and 954.1 state the applicable statutory law for the consolidation or severance of misdemeanor and felony charges in a criminal case.  Penal Code section 954 states, in 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..." 

    In People v. Marshall (1997) 15 Cal 4th  1, 27, the California Supreme Court outlined the factors that should be considered by the court in a motion to consolidate or sever charges.  These factors are: 1) the cross-admissibility of the evidence in separate trials; 2) whether some of the charges are likely to unusually inflame the jury against the defendant; 3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges and 4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.  Where neither of the two crimes is significantly stronger or more inflammatory than the other, joinder is proper.  (People v. Hill (1995) 34 Cal App 4th 727).

    Penal Code section 954.1 states that when charges have been consolidated pursuant to Penal Code section 954, "...evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact."  Section 954.1 was intended to overrule prior cases that required severance by implying that prejudice was always presumed from a lack of cross-admissibility of the evidence.  While cross-admissibility is still relevant, it is not the primary factor that the court must consider.  (Belton v. Superior Court (1993) 19 Cal App 4th 1279).  Offenses are considered "of the same class" if they possess a common characteristic or attribute (People v. Rhoden (1972) 6 Cal 3rd 519).  Robbery and murder charges are considered "of the same class" since both offenses share common characteristics as assaultive crimes against the person (People v. Lucky (1988) 45 Cal 3rd 259).

    Misdemeanor and felony counts may be joined in the same accusatory pleading.  (Aydelott v. Superior Court (1970) 7 Cal App 3rd 718).  If the charged offenses have a common element of substantial importance in their commission, they may be joined even though the offenses do not relate to the same transaction and were committed at different times and places against different victims.  (People v. Matson (1974) 13 Cal 3rd 35).  When counsel believes that offenses are improperly joined, the defense must demur or move for a severance (Penal Code section 1004(3), People v. Kemp (1961) 55 Cal 2nd 458).  If no demurrer or severance motion is filed, the claimed defect in the pleading is deemed waived (Penal Code section 1012, People v. Martin (1967) 250 Cal App 2nd 263).  If the motion is denied, on appeal the defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant's severance motion (People v. Marshall (1997) 15 Cal 4th 1, 27).   

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