Trial court did not abuse its discretion by denying defendant’s motion to sever battery by a prisoner by gassing from inmate assault charges. A jury convicted Ybarra of multiple counts relating to two separate incidents: an attack on a fellow inmate and gassing a correctional officer. He appealed, arguing the trial court erred by denying his motion to sever the gassing counts from the inmate assault counts because the evidence in the gassing case was strong and would be inappropriately used to bolster the weak evidence on the assault case. Held: Affirmed. To determine if the trial court abused its discretion in denying a motion to sever, the reviewing court considers whether the defendant made a clear showing of prejudice based on the evidence then available, and if so, whether the trial court properly weighed that potential prejudice against the state’s strong interest in the efficiency of a joint trial. Here, the gassing evidence was unlikely to inflame the jury against Ybarra any more than the evidence of the assault, which was a gang orchestrated, bloody, attack. Although the evidence in the gassing case was arguably stronger than the assault case because Ybarra admitted the gassing, the evidence of assault was also strong: DNA and surveillance video connected Ybarra to the assault. There was no real imbalance in the strength of the evidence, but if there was any, it certainly did not indicate a risk of prejudicial spillover effect. Accordingly, Ybarra failed to show any prejudice to balance against the state’s interest in the efficiency of a joint trial and the trial court did not abuse its discretion in denying his motion to sever.

Joinder did not violate due process based on defendant’s admission to the gassing incident during his trial testimony. Joinder is also improper when it results in “gross unfairness” amounting to a due process violation based on all the evidence admitted during the trial, not just the evidence that was available at the time the motion was made. Although Ybarra testified at trial and admitted to gassing the correctional officer, which made the gassing case stronger than the assault, the court held that “a defendant cannot create a due process violation from a trial court’s refusal to sever before trial based on testimony he gives later during trial—at least where the defendant provided no information to the trial court about his prospective testimony prior to the court’s ruling. To hold otherwise would allow defendants to cause a due process error with their own testimony and then cry foul on appeal.” Ybarra failed to show that the joinder resulted in gross unfairness.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C072880.PDF