Joint trial of codefendants is proper even though one codefendant felt tormented and distressed because she had to sit next to the other codefendant who tried to kill her. Zendejas and her boyfriend, Garza, robbed and assaulted their roommates. While on the run, Garza tried to kill Zendejas. Both were ultimately tried jointly for the robbery and convicted. On appeal, Zendejas argued that having to sit next to Garza during the trial caused her torment and distress that interfered with her right to counsel and a fair trial. Held: Affirmed. Penal Code section 1098 sets forth the legislative preference for joint trials: “When two or more defendants are jointly charged with any public offense . . . they must be tried jointly, unless the court orders separate trials.” That preference may be overcome and separate trials ordered when, for example, there is an “incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (People v. Avila (2006) 38 Cal.4th 491, 574-575.) Zendejas did not argue that any of these grounds for severance existed. Instead, she argued that having to sit next to Garza during trial was akin to being forced to wear a stun belt during trial or being involuntarily administered antipsychotics. The Court of Appeal found the analogy “inapt” and agreed with the trial court that Zendejas did not state a valid ground for overcoming section 1098’s preference for a joint trial.

Trial court properly denied Marsden motion. During trial, Zendejas made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 to obtain replacement counsel. The basis for her request was that her appointed counsel did not move for a separate trial. The trial court denied her motion. On appeal, Zendejas argued that the trial court erred. The Court of Appeal disagreed. Under Marsden, “a defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” Zendejas failed to make that showing. Counsel’s failure to obtain a separate trial was not inadequate performance because Zendejas’ asserted ground for separate trials was invalid.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B260892.PDF