What is the test for a motion to sever a murder case?

On appeal, defendant argues the trial court abused its discretion based on the facts before it in denying the severance motion as to the murder counts, or at least as to the overt acts alleging the attempted murder.¹⁸ Defendant also argues the joinder of counts and overt acts resulted in gross unfairness at trial amounting to a denial of due process and requiring reversal. (People v. Carasi (2008) 44 Cal.4th 1263, 1296.) We disagree.

We review the court's ruling for abuse of discretion based on the facts before it at the time the motion was made. (People v. Avila (2006) 38 Cal.4th 491, 575.) "If the court's joinder ruling was proper at the time it was made, a reviewing court may reverse a judgment only on a showing that joinder ' "resulted in 'gross unfairness' amounting to a denial of due process." ' [Citation.] Even if the court abused its discretion in refusing to sever, reversal is unwarranted unless, to a reasonable probability, defendant would have received a more favorable result in a separate trial." (Ibid.)

The touchstone of a successful severance motion is the clear showing of "a substantial danger of prejudice" from joinder, and the party seeking severance bears that burden. (People v. Vines (2011) 51 Cal.4th 830, 855.) " ' " ' "The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial." [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges

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