PEOPLE v.SUPERIOR COURT OF LOS ANGELES COUNTY







Filed 3/24/11



CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; RONALD BRIM, Real Party in Interest.

B229701 (Los Angeles County Super. Ct. No. TA103351)

ORIGINAL PROCEEDINGS in mandate. Robert J. Perry, Judge. Petition granted.
Steve Cooley, District Attorney, Phyllis Asayama and Gilbert S. Wright, Deputy District Attorneys for Petitioner.
No appearance for Respondent.
Geoffrey R. Pope for Real Party in Interest.
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The People petition for a writ of mandate to vacate the trial court's October 28, 2010 order granting Ronald Brim's motion for a separate penalty jury in a capital murder case. The People contend the trial court abused its discretion under Penal Code section 190.4, subdivision (c). We agree and grant the petition, directing the trial court to vacate its order and issue a new order denying Brim's motion.

FACTUAL AND PROCEDURAL SUMMARY
Brim and his codefendant Richard Roberson were jointly charged with committing two murders and three attempted murders on September 23, 2008, during a gang-related shooting at the Compton Blue Line train station. Brim was charged separately with being a felon in possession of a firearm. The People are seeking the death penalty for Brim. Brim moved for separate guilt and penalty trials or the empanelment of separate juries in order to voir dire prospective jurors in the guilt and penalty phases differently. On October 28, 2010, the trial court granted the motion for a separate penalty jury not for the reasons advanced by Brim, but because it would take the defense more than a year to investigate 17 alleged prior incidents in aggravation. The People filed a petition for a writ of mandate on December 27, 2010. We issued an alternative writ of mandate, directing the trial court to either vacate its order granting Brim's motion for a separate penalty jury and issue a new order denying the motion or show cause why a peremptory writ of mandate should not issue. Brim filed a return.

DISCUSSION
The trial court's ruling on a motion to empanel a separate jury in a penalty phase of a capital case is reviewed for abuse of discretion. (People v. Bennett (2009) 45 Cal.4th 577, 599.) Failure to follow the applicable law is an abuse of discretion. (People v. Ibanez (1999) 76 Cal.App.4th 537, 549.)
Penal Code[1] section 190.4, subdivision (c) provides: â€