Filed 10/11/17 P. v. Bondurant CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

Travis Lee Bondurant and Gary Garrett were arrested for conspiring to sell or furnish a controlled substance (count 1, Pen. Code,[1] § 182, subd. (a)(1)) and for possessing a controlled substance in jail (count 2, § 4573.6). Prior to trial, Bondurant unsuccessfully moved to sever his trial from his codefendant's. The jury found Bondurant guilty of possession of a controlled substance in jail. Bondurant appeals, arguing the joint trial violated his constitutional rights to due process. We reject Bondurant's contention and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Deputy Sheriff Francis Gardiner was assigned to monitor the fourth floor of the San Diego County Jail where Bondurant and Garrett resided. Upon arrival, Bondurant and Garrett were issued laundered uniforms that had been worn by other inmates. Inmates on this floor are allowed several hours during the day where they can access the open cells of other detainees. During Gardiner's shifts, he observed that Bondurant and Garrett were consistently within feet of each other. Gardiner also noticed Bondurant and Garrett seemed hyperactive and nervous, and that both men had dilated pupils. Gardiner decided to monitor Bondurant and Garrett more closely because their behavior suggested they were under the influence of a controlled substance.

Two days later, Gardiner saw Garrett make two phone calls with Bondurant nearby. After Garrett hung up, Gardiner listened to recordings of the calls and discovered Garrett had asked his girlfriend to "do a three-way" and "go pick up 60 bucks." Gardiner also heard Garrett discuss taking the blame for crimes his girlfriend might be charged with. Based on Gardiner's experience, the term "three way" refers to phone calls commonly used by inmates to organize drug deals. As a result, Gardiner suspected one or both of the men were in possession of methamphetamine and organized a search of the men and their shared cell.

When Bondurant removed his clothing during the search, Gardiner saw a bindle roll out of Bondurant's pants and underwear. The bindle contained 2.63 grams of methamphetamine. Gardiner did not find any contraband on Garrett during his search. Then, the search of Bondurant and Garrett's cell revealed a device used to inhale narcotics, a lighter, and two stacked paper cups with 0.25 grams of methamphetamine in the bottom cup.

Before trial, Bondurant moved to sever his trial from Garrett's based on the possibility Garrett would give testimony exonerating Bondurant. Bondurant's counsel asserted that Garrett told a member of Bondurant's defense team that he was "ready, willing, and able to testify" on behalf of Bondurant. Garrett's counsel did not take a position regarding the motion to sever. The court denied Bondurant's motion. The jury found Bondurant guilty of possession of a controlled substance in jail, and Bondurant appeals.[2]

DISCUSSION

I

STANDARD OF REVIEW

The denial of a motion to sever is reviewed for abuse of discretion based on the "facts as they appeared at the time of the ruling." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41 (Coffman).) Reversal is required if it is reasonably probable the "defendant would have received a more favorable result in a separate trial." (Ibid.) Even if the trial court's denial of the severance motion was proper, reversal is appropriate if the joint trial " ' "resulted in 'gross unfairness' amounting to a denial of due process." ' " (People v. Souza (2012) 54 Cal.4th 90, 109.)

Bondurant contends the trial court erred in denying his motion to sever because (1) there was a chance Garrett would have given exonerating testimony, and (2) he and Garrett had antagonistic defenses.

II

ANALYSIS

Jointly charged defendants "must be tried jointly, unless the court order[s] separate trials." (§ 1098.) Defendants charged with " 'common crimes involving common events' " present a " 'classic case' " for a joint trial. (Coffman, supra, 34 Cal.4th at p. 40, quoting People v. Keenan (1988) 46 Cal.3d 478, 499-500 (Keenan).) The court, however, may grant severance " 'in the face of an incriminating confession . . . conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.' " (Coffman, supra, at p. 40.) The court may also grant severance if "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants." (Zafiro v. United States (1993) 506 U.S. 534, 539.)

A. Exonerating Testimony

On a motion to sever based on exonerating testimony the court considers the following factors: (1) whether the movant desires the testimony, (2) whether the testimony will be exculpatory, (3) significance of the testimony, (4) whether the testimony is bona fide, (5) the likelihood the codefendant will testify, and (6) the effect on judicial administration and economy. (People v. Isenor (1971) 17 Cal.App.3d 324, 332 (Isenor).)

A claim of exonerating testimony is not bona fide if based on an unsupported assertion by the moving party. (Isenor, supra, 17 Cal.App.3d at p. 333.) Such testimony is unlikely when there is no substantial evidence in favor of the testimony or when testimony is offered in exchange for a favorable bargain. (Id. at p. 331; People v. Conerly (2009) 176 Cal.App.4th 240, 252.) However, testimony is likely when a codefendant makes multiple judicial statements to give testimony, or when codefendant's counsel represents the client will provide testimony. (Isenor, supra, at pp. 331-333, referencing United States v. Echeles (7th Cir. 1965) 352 F.2d 892 and Byrd v. Wainwright (5th Cir. 1970) 428 F.2d 1017.)

Here, the parties agree the first three factors are met but do not agree that Garrett's testimony was bona fide or likely, or that the effect on judicial economy supported the trial court's decision to deny Bondurant's motion. We conclude the suggestion of exonerating testimony was not bona fide or likely and that the joint trial supported judicial economy.

Bondurant asserts the suggestion Garrett's testimony was bona fide because Garrett made statements to a member of Bondurant's defense team. Bondurant contends this fact distinguishes his case from Isenor, supra, 17 Cal.App.3d 324, where the assertion of exonerating testimony was made to the defendant. However, like Isenor, there is no other evidence supporting the possible testimony by Garrett. Even though the statements were made to a member of Bondurant's defense team, there was no evidence presented at trial and Garrett's defense counsel did not comment on such testimony. Therefore, we find that the claim of possible testimony was not bona fide.

Bondurant also contends Garrett's testimony was likely because (1) Garrett's counsel did not advise Garrett not to give testimony, and (2) Garrett would avoid testifying about his phone calls. Garrett's counsel did not comment on the testimony, and despite not verbally advising Garrett not to testify, there is still minimal evidence any testimony was probable. Also, the possibility that Garrett would not have had to testify regarding his phone calls is not a significant factor in determining the likelihood of the testimony. Testimony is likely when multiple statements are made to judicial officers or made by defense attorneys representing the codefendant giving testimony. No similar evidence is present in this case so it was not an error to find the testimony unlikely.

Finally, trying Bondurant and Garrett together furthered judicial efficiency and economy. Garrett and Bondurant were tried for the same offenses under the same facts presenting a " 'classic case' " for joint trials. (Coffman, supra, 34 Cal.4th at p. 40, quoting Keenan, supra, 46 Cal.3d at pp. 499-500.) Because there was no assurance of Garrett's exonerating testimony, the trial court did not abuse its discretion in denying the motion to sever.

B. Antagonistic Defenses

Bondurant also contends severance was required because Garrett's defense denying possession of the methamphetamine was antagonistic to Bondurant's own defense also denying possession. Severance is proper when antagonistic defenses are "irreconcilable" or " 'where the acceptance of one party's defense will preclude the acquittal of the other.' " (People v. Hardy (1992) 2 Cal.4th 86, 168.) However, when there is sufficient independent evidence against the moving party, antagonistic defenses will not justify severance. (Coffman, supra, 34 Cal.4th at p. 41.)

Here, overwhelming independent evidence linked Bondurant to the crime. When Bondurant was searched a bindle of methamphetamine rolled from his pants, presenting strong evidence that he possessed the controlled substance. Bondurant argues that since he was issued recycled clothing it is probable another party was responsible for the drugs. Bondurant's contention is not reasonably probable because the clothes had been washed before they were given to him and the substance was found in his pants.

III

PREJUDICE

We conclude that Bondurant was not prejudiced in this case. There was sufficient evidence for the jury to find Bondurant guilty of possession of a controlled substance in jail. There is not a reasonable probability Bondurant would have received a better outcome if the severance had been granted given the weight of the evidence, the possibility of any exonerating testimony was neither bona fide nor likely. Further, even though Bondurant and Garrett had conflicting defenses, there was sufficient independent evidence linking Bondurant to the crime so severance was not proper. The trial court did not abuse its discretion and there is no prejudice in this case.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.