Newman

In this case we address the question of whether the prosecution must try petitioner separately for offenses arising from the alleged rape of two women. The offenses were jointly charged and a motion to sever was made and denied after the preliminary hearing. This court denied a petition for writ of mandate challenging the denial of the motion to sever. *380 The Supreme Court granted a petition for hearing and directed this court to issue an alternative writ.

Petitioner is charged in a single information in counts 1, 2, and 3 with the rape (Pen. Code, § 261, subd. (2)), 1 forcible oral copulation (§ 288a) and assault (§ 245, subd. (a)(1)) of Karen K. on February 22, 1985. He is charged in counts 4 and 5 with the rape (§ 261, subd. (2)) and forcible oral copulation (§ 288a) of Monica R. on September 7, 1984. Counts 4 and 5 include an enhancement for the use of a knife (§ 12022.3). He moved to sever counts 1, 2 and 3 from counts 4 and 5.

The only testimony at the preliminary hearing was that of the two alleged victims. Monica R. testified that on September 7, 1984, she met petitioner, a slight acquaintance, at a bus stop and he offered her a ride home if she would come to…

I reluctantly concur in the result in light of the recent decision of People v. Balderas (1985) 41 Cal.3d 144, 171-177 [ 222 Cal.Rptr. 184 , 711 P.2d 480 ], which has, in my view, watered down Williams v. Superior Court (1984) 36 Cal.3d 441 [ 204 Cal.Rptr. 700 , 683 P.2d 699 ], to the point that no longer will trial court decisions on severance motions be subject to any genuine appellate review. Instead, such decisions will be upheld on the basis of boilerplate paragraphs.

That is not to say that I believe that due process will be served by trying these unrelated, and not-cross-admissible, rape charges together, or that judicial economy is served by a consolidated trial: the evidence simply is not overlapping. What is foreseeable is that defendant will be convicted on both crimes so long as the evidence on one is convincing. I have a hard time squaring that with the notion of a due process right to a fair trial, but after Balderas , such notions are irrelevant. Balderas makes Williams either a sport in the law or a case limited to its facts. In either event the California Supreme Court has spoken authoritatively.

Petitioner’s application for review by the Supreme Court was…

John K. Van de Kamp, Attorney General, Ronald E. Niver and Christopher J. Wei, Deputy Attorneys General, for Real Party in Interest.

OPINION

CHANNELL, J.

In this case we address the question of whether the prosecution must try petitioner separately for offenses arising from the alleged rape of two women. The offenses were jointly charged and a motion to sever was made and denied after the preliminary hearing. This court denied a petition for writ of mandate challenging the denial of the motion to sever. The Supreme Court granted a petition for hearing and directed this court to issue an alternative writ.

Petitioner is charged in a single information in counts 1, 2, and 3 with the rape (Pen. Code, § 261, subd. (2)), [1] forcible oral copulation (§ 288a) and assault (§ 245, subd. (a)(1)) of Karen K. on February 22, 1985. He is charged in counts 4 and 5 with the rape (§ 261, subd. (2)) and forcible oral copulation (§ 288a) of Monica R. on September 7, 1984. Counts 4 and 5 include an enhancement for the use of a knife (§ 12022.3). He moved to sever counts 1, 2 and 3 from counts 4 and 5.

The only testimony at the preliminary hearing was that of the two alleged victims. Monica R.…