Smallwood

Appellant, Ronald Jerome Smallwood, was convicted of one count of first degree murder with the use of a firearm (Pen. Code, §§ 187, 12022.5) 1 and one count of robbery (§ 211) with firearm use and great bodily injury findings (§§ 12022.5, 12022.7). Special circumstance allegations that the murder (1) was intentional and carried out for financial gain (§ 190.2, subd. (a)(1)) and (2) was committed while appellant was engaged in or was an accomplice in the commission of robbery (§ 190.2, subd. (a)(17)(i)) were found true. Appellant waived his right to a jury at the *418 penalty phase and the court fixed the punishment at death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

Appellant has also filed a petition for writ of habeas corpus which was consolidated with this appeal.

I.

A. Prosecution Case

Appellant was initially charged with two murders, each with special circumstances, arising out of the killings of George House and John Dunbar. 2 The jury failed to reach a verdict on charges relating to Dunbar, and as to those charges a mistrial was declared. The facts relating to the Dunbar homicide must nevertheless be set forth in detail because…

I respectfully dissent. The majority reverses this death penalty case in its entirety solely on the basis that the trial court erred in denying defendant’s pretrial motion to sever the two murder counts. In light of the broad discretion vested in the trial court regarding such matters, I would find no error and would affirm the judgment. Even assuming arguendo that error occurred, it clearly was not prejudicial in light of the overwhelming evidence of defendant’s guilt of the offenses of which he was convicted.

Penal Code section 954 permits the charging of two or more different though unrelated offenses, provided they are “of the same class of crimes,” and the section authorizes the trial court “in its discretion” to sever such charges. It is uncontradicted that the House and Dunbar murders are offenses *434 of the same class, and that the trial court, in denying the motion to sever, expressly stated that it was exercising its discretion. Nonetheless, relying on inapposite cases, the majority concludes that the trial court abused its discretion because (1) the evidence underlying the two homicides lacked cross-admissibility, (2) such evidence as to the House murder was…

Appellant, Ronald Jerome Smallwood, was convicted of one count of first degree murder with the use of a firearm (Pen. Code, §§ 187, 12022.5) [1] and one count of robbery (§ 211) with firearm use and great bodily injury findings (§§ 12022.5, 12022.7). Special circumstance allegations that the murder (1) was intentional and carried out for financial gain (§ 190.2, subd. (a)(1)) and (2) was committed while appellant was engaged in or was an accomplice in the commission of robbery (§ 190.2, subd. (a)(17)(i)) were found true. Appellant waived his right to a jury at the penalty phase and the court fixed the punishment at death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

Appellant has also filed a petition for writ of habeas corpus which was consolidated with this appeal.

Appellant was initially charged with two murders, each with special circumstances, arising out of the killings of George House and John Dunbar. [2] The jury failed to reach a verdict on charges relating to Dunbar, and as to those charges a mistrial was declared. The facts relating to the Dunbar homicide must nevertheless be set forth in detail because of their…