No severance for you" Defense motion to sever denied by Judge Johnson; defense quote of the day: ""Judicial economy should not trump my client's right to a fair trial."

To sever or not to sever, that was the question, Visiting Judge Arvid Johnson ruled in favor of the People and denied the motion to sever on September 4 and the Rodney and Vincent Ortiz cases remained joined. The prosecutor for this case is Deputy District Attorney Jackie Pizzo. Conflict Counsel's Mr. Greg Elvine-Kreis has been appointed to represent Vincent Ortiz. Public Defender Mr. Casey Russo has been appointed to represent Rodney Ortiz.

Only one Ortiz family member was in Courtroom 4 on Friday. Judge Johnson said, "The Court has read both the defense motions and the People's responses." He then allowed the attorneys to present oral arguments, during which, each attorney highlighted their reasons.

Mr. Russo referred to the Aranda Bruton rule and said it only applies to a confession. He cited People v Anderson where he said "statement and confession was used interchangeably. The prosecution is correct that statements are not testimonial. The DA has to get the statements in via hearsay exception." Mr. Russo then referred to People v Arceo. Unless People say they won't admit statements, we want a severance."

Mr. Elvine-Kreis said, "The two areas I am hoping the Court will focus on is association, People v Anderson. If there were separate trials, my client would be exonerated.Judge Miles agreed only one charge stands against my client. The evidence against my client is weak. Evidence against co-defendant will be used against my client by inferences."

"People are saying the jury can be asked to disregard. My client cannot get a fair trial." Then Mr. Elvine-Kreis referred to Cauldron v Superior Court. "Strong evidence against one defendant can be used to bolster a case against a weak defendant. If we have trials together, they will convict my client by inference."

Judge Johnson responded, "Even if we had separate trials, it depends on who goes first." Mr. Elvine-Kreis acknowledged that fact and that his client had a 50 % chance, then aid, "Yes. But  a 100% chance if my client goes later." Mr. Elvine-Kreis said he would file paperwork to ensure Vincent Ortiz goes after Rodney Ortiz.

Ms. Pizzo got her chance next. "Your honor, I think the only thing that makes sense is to have a joint trial. They were charged as joined  before the preliminary hearing. They are charged with the same charges against three victims. Vincent Ortiz's motion about disparity of evidence, the defense can argue whatever they like. The People's case is the same. It's like putting on two different trials when they are both charged with events happening the same day, same time, with the same charges. There is no evidence that is only going towards Mr. Rodney Ortiz."

"I ask the Court to deny the severance. Regarding Mr. Russo's Aranda Bruton motion, I 'm sure there will be numerous 402 hearings. We don;t have any statements like, "me and the co-defendant" in this case. I think there are hearsay exceptions. That is an issue for the trial Judge, not this court."

Before Judge Johnson, made his ruling, Mr. Elvine-Kreis said, "Judicial economy should not trump my client's right to a fair trial."

"The problem with one of your comments about Judge Miles," said Judge Johnson directing his remarks to Mr. Elvine-Kreis, "and I am not casting aspersions about Judge Miles' decision, is that you think Judges who have experience should try cases instead of a jury." Judge Johnson remarked on the importance of the jury in a criminal justice system, and about being judged by your peers. "That's what a good defense attorney is for. The trial judge can address the Aranda Bruton and whether the statements come in or not. I agree that judicial economy should not trump your client's right to a fair trial. There is not enough disparity to justify severance."

Then Mr. Kreis said that his client wants a date set on a no time basis, Mr. Russo said 'we will not be ready in 60 days." Ms. Pizzo said that according to PC 1050, "the Court can find good cause to continue co-defendant's case." A trial setting date and a hearing for the 995 motion is set for October 15 and a tentative jury trial date of January 11, 2016.

Fromilawdictionary.com:

In People v. Aranda, supra, 63 Cal.2d 518, 530-531 (hereafter Aranda), the California Supreme Court held that when the prosecution seeks to introduce an extrajudicial statement of one defendant that implicates a codefendant, the trial court must adopt one of three procedures:  (1) in a joint trial, effectively delete direct and indirect identifications of codefendants; (2) grant a severance of trials; or (3) if severance has been denied and effective deletion is not possible, exclude the statement.  In the absence of a holding by the United States Supreme Court, the Aranda court declared these rules were not constitutionally compelled, but judicially declared to implement the provisions for joint and separate trials of Penal Code section 1098.  (63 Cal.2d at p. 530.)

     A decision by the United States Supreme Court came three years later.  In Bruton v. United States, supra, 391 U.S. 123 [20 L.Ed.2d 476] (hereafter Bruton), the high court held that introduction of an incriminating extrajudicial statement by a codefendant violates the defendant’s right to cross-examination, even if the jury is instructed to disregard the statement in determining the defendant’s guilt or innocence.

     Aranda, supra, 63 Cal.2d 518 is now recognized as a constitutionally based doctrine, at least in part.  (People v. Mitcham (1992) 1 Cal.4th 1027, 1045.)  “To the extent Ar

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