Friday, March 25, 2011
C.A. Overturns Order for Separate Penalty Trial in Shooting
By KENNETH OFGANG, Staff Writer
An order requiring that a defendant accused of killing two people in a gang-related drive-by shooting at the Compton Blue Line station be tried by a separate jury in the penalty phase if convicted of special-circumstances murder was overturned yesterday by the Court of Appeal for this district.
A trial judge may not “empanel a separate penalty jury without a showing on the record that a single jury would be unable to perform its function,” Presiding Justice Norman Epstein wrote for Div. Four. The panel granted prosecutors’ petition for a writ of mandate directing that the order be vacated.
Los Angeles Superior Court Judge Robert J. Perry had ordered a separate penalty jury for Ronald Brim, one of two men facing separate trials for the September 2008 shooting. Brim and Ronald Roberson are each charged with two counts of first degree murder and three counts of attempted murder.
Brim’s attorney, Geoffrey Pope, asked Perry to order a separate penalty jury so that the defense might voir dire prospective jurors in the guilt and penalty phases differently. Perry declined to grant the request on that ground, but said he would order the separate jury because the defense would need a year to investigate 17 prior bad acts alleged as aggravating circumstances, and that delaying the entire trial would be unfair to Roberson, against whom the death penalty is not being sought.
Epstein, however, cited Penal Code Sec. 190.4, which requires good cause for the empanelment of a separate jury in the penalty phase. The presiding justice said both prosecution and defense bear a significant burden in attempting to show that a separate jury is necessary.
“Thus, a delay of the penalty phase does not constitute good cause because it does not by itself impair the jury’s ability to perform its function,” the presiding justice wrote. “Nor does the defense’s desire to voir dire differently for the guilt and penalty phases, or its claim that death-qualified jurors are more likely to convict a defendant, constitute good cause for empanelling separate guilt and penalty phase juries.”
Epstein noted that neither defendant requested a continuance. If such a request is made, he said, the trial judge will have to consider Penal Code Secs. 1050(a) and 1050.1, which require good cause for a continuance, express a preference for joint trials of jointly charged defendants, and allow a joint trial to be continued upon one defendant’s showing of good cause, even over the objection of other defendants.
Attorneys on appeal were Pope for the defendant and Deputy District Attorneys Phyllis Asayama and Gilbert S. Wright for the prosecution.
The case is People v. Superior Court (Brim), 11 S.O.S. 1536.
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