Gatlin

*35 Opinion

A six-count information charged three females, Norris, Webster and Sperling, with four counts of second degree burglary (1 through 4), defendant and the three females with receiving stolen property ([clothing] count 5), and defendant alone, with receiving stolen property ([check] count 6), and alleged he suffered two prior prison terms (§ 667.5, subd. (b), Pen. Code). Two of the females, Norris and Webster, absconded and could not be tried; only Sperling remained to be tried with defendant— Sperling on counts 1 through 5, defendant on counts 5 and 6. Trial was had, commencing March 12 through March 19. On the third day of trial defendant also absconded, bail was revoked, a bench warrant issued and the rest of the trial was conducted in defendant’s absence. The jury found Sperling guilty on all counts, and defendant guilty on count 5 (receiving stolen property [clothing]) and the special allegation to be true, but deadlocked on count 6 which later was dismissed. Defendant appeals from the judgment.

Facts

On August 5, 1985, defendant was seen in the company of the three female codefendants, Norris, Webster and Sperling who, on that afternoon, entered a series of shops…

I respectfully dissent. For the reasons set forth below, I

believe the trial court abused its discretion in denying Gatlin’s motion to sever his trial from his codefendant, Sperling.

Trial courts should grant a motion to sever where there is a possibility that at a separate trial a codefendant would give exonerating testimony. (People v. Turner (1984) 37 Cal.3d 302, 312 [ 208 Cal.Rptr. 196 , 690 P.2d 669 ]; People v. Massie (1967) 66 Cal.2d 899, 917 [ 59 Cal.Rptr. 733 , 428 P.2d 869 ].) “When faced with a motion to sever on the ground that there is a possibility that at a separate trial there may be exonerating testimony by a codefendant, there are several areas of inquiry which, to some extent, overlap: (1) Does the movant desire the testimony of the codefendant; (2) will the testimony be exculpatory; (3) how significant is the testimony; (4) is the court satisfied that the testimony itself is bona fide; (5) on the basis of the showing at the time of the motion, how strong is the likelihood that, if the motion were granted, the codefendant will testify; and (6) what is the effect *47 of the granting in terms of judicial administration and economy?” (People v. Isenor (1971) 17…

A six-count information charged three females, Norris, Webster and Sperling, with four counts of second degree burglary (1 through 4), defendant and the three females with receiving stolen property ([clothing] count 5), and defendant alone, with receiving stolen property ([check] count 6), and alleged he suffered two prior prison terms (§ 667.5, subd. (b), Pen. Code). Two of the females, Norris and Webster, absconded and could not be tried; only Sperling remained to be tried with defendant — Sperling on counts 1 through 5, defendant on counts 5 and 6. Trial was had, commencing March 12 through March 19. On the third day of trial defendant also absconded, bail was revoked, a bench warrant issued and the rest of the trial was conducted in defendant's absence. The jury found Sperling guilty on all counts, and defendant guilty on count 5 (receiving stolen property [clothing]) and the special allegation to be true, but deadlocked on count 6 which later was dismissed. Defendant appeals from the judgment.

On August 5, 1985, defendant was seen in the company of the three female codefendants, Norris, Webster and Sperling who, on that afternoon, entered a series of…