BROUSSARD, J.
I concur in the affirmance of the convictions of defendant for the offenses against Beth and George Schatz, and the special circum*959stance finding that the Schatz murder was committed during the course of burglary and robbery.11 dissent from the affirmance of the convictions for the offenses against Eileen Fox, from the special circumstance finding that the Fox murder was committed in the course of robbery and burglary and from the special circumstance finding that defendant had been convicted of more than one murder in the same proceeding. I dissent from the affirmance of the death judgment.
I disagree with the majority’s holding that the trial for the Fox murder was properly joined with the trial for the Schatz crimes. The two crimes bore no distinctive common marks; evidence of one would not have been admissible at a separate trial for the other. As to the Schatz counts, the evidence presented at trial was overwhelming, so that I agree that the addition of the Fox evidence did not prejudice defendant as to the Schatz counts. However, as to the Fox counts, the error in conducting a joint trial was prejudicial because the evidence that defendant committed the Fox offense was extremely weak. As for the penalty verdict in the Schatz case, the evidence in the Fox case was so weak that a jury determining penalty after a separate trial for the Schatz crimes may well have found that the prosecution could not prove the Fox crimes beyond a reasonable doubt. In addition, a jury determining penalty would not have been confronted with a multiple-murder special circumstance, another weighty factor in aggravation. Under these circumstances, I find it reasonably possible that the error in failing to sever affected the penalty verdict.
I also disagree with the majority’s analysis of the claim that Penal Code section 654 bars the jury’s consideration of multiple special circumstances which reflect crimes committed as part of an indivisible course of conduct. I adhere to the views expressed in the plurality opinion in People v. Harris (1984) 36 Cal.3d 36, 65, certiorari denied 469 U.S. 965 [83 L.Ed.2d 301, 105 S.Ct. 365],
I.
As the majority point out, the primary factor a trial court should use to determine whether to sever offenses of the same class is whether evidence of one offense would be admissible under Evidence Code section 1101 in a separate trial for the other offense. The trial court’s discretion to join unrelated cases is broader than its discretion to admit evidence under section 1101. However, since evidence that the defendant has committed other crimes is so prejudicial, severance may be necessary to satisfy the guaranty *960of due process. (See Williams v. Superior Court (1984) 36 Cal.3d 441, 452 [204 Cal.Rptr. 700, 683 P.2d 699].)
In the present case, the dissimilarities between the offenses are far more numerous and striking than the similarities: the Schatz case involved a nighttime entry by two men into a trailer where they beat the two residents with a hammer; Fox involved a daytime bare-handed assault on a woman outside her residence. The trial court ultimately came to the same conclusion, and determined that there was insufficient similarity between the crimes to permit an inference as to identity of the perpetrator. For this reason the court refused the district attorney’s request that the jury be instructed that it could use the similarity of the two crimes to establish identity of the perpetrator.
As the majority acknowledge, the trial court should have determined at the time of the severance motion that the two crimes were not cross-admissible, and then decided whether the likelihood that the joint trial would prejudice the defendant was sufficient to outweigh the state’s interest in joinder. Although lack of cross-admissibility and the existence of capital charges do not alone necessarily establish the clear prejudice necessary to require severance (People v. Balderas (1985) 41 Cal.3d 144, 173 [222 Cal.Rptr. 184, 711 P.2d 480]), there was more here to demonstrate the prejudice inherent in trying these cases together. Not only one, but both cases involved capital charges. Since at the time of the motion, the evidence of defendant’s participation in the Fox murder was limited to the discovery near the body of some sunglasses marked with his fingerprint, it should have been clear that trial of the Fox.and Schatz cases together would be unduly prejudicial as to the far weaker Fox counts. In the Schatz case, the prosecution had fingerprints and palm prints identified as defendant’s, and more importantly, defendant’s confession. There was a strong possibility that the jury would use the Schatz offenses to show defendant’s propensity to rob and murder, and thus to support the inference that he was the killer in the Fox crimes. Further, as defendant argued at the time of the motion, there had been considerable publicity about the Schatz crimes, which involved a well-known member of the community, and this could spillover to affect the Fox case. Finally, the nature of the crimes, involving senseless brutality against older, helpless victims, was inherently inflammatory. Under these circumstances, I think it was an abuse of discretion to deny the severance motion.
The error in refusing to sever was prejudicial as to the verdict on the weaker Fox counts. At a separate trial, the only admissible evidence of guilt would have been strongly controverted evidence as to the identity of the fingerprint, and highly equivocal evidence that defendant had been seen in a *961park across the street looking at the victim’s house weeks before the crime. I find it reasonably probable that without the inevitable prejudicial spillover from the Schatz evidence, a jury hearing only the evidence in the Fox case would not have convicted. I would conclude that the convictions for murder, robbery and burglary in the Fox case, and the related special-circumstance findings, should be reversed. This would also mean that the multiple-murder special-circumstance finding would have to be reversed.
II.
In argument at the penalty phase, the prosecutor stressed the circumstances of the charged crimes as a major factor in aggravation. Understandably, he dwelt upon the age, frailty and vulnerability of Mrs. Fox. He argued that her murder three days after the Schatz murder showed that defendant had no remorse for his earlier crimes, and asked the jury to agree with him that these multiple murders were of the kind that “we, as a society, must condemn with every ounce of energy that we have.” Evidence of the Fox crimes was thus central to the prosecutor’s plea for the death penalty in this case.
The defendant presented a sympathetic mitigating picture through the testimony of his parents, friends and neighbors, who portrayed him as an agreeable but alienated youth. A clinical psychologist testified that defendant was borderline defective in intelligence, and a clinical neuropsychologist testified that defendant had moderate organic brain damage.
In contrast, the prosecutor drew the picture of a remorseless multiple murderer already convicted by the jury of two murders. Had the Fox and Schatz cases been severed, however, and had the jury heard the evidence of the Fox crimes for the first time at the penalty phase of trial, their judgment as to defendant’s guilt of the Fox crimes would not be so predictable. After all, the only evidence to connect defendant to the Fox crimes was a highly controverted fingerprint on a pair of sunglasses found next to the body, the evidence he had been seen looking at the victim’s house weeks before the crime, and the fact that he lived not too far away and was familiar with the area where the victim’s car was abandoned. In my view, the importance of the Fox crimes to the prosecutor’s plea for the death penalty, in addition to the reasonable possibility that the jury would have rejected the Fox crimes had they heard evidence of them for the first time at the penalty phase, and the fact that they would not have been confronted with a multiple-murder special circumstance to consider in aggravation, made the court’s error in denying the severance motion prejudicial to the penalty verdict. The jury may also have overcounted the felony-murder special circumstances in aggravation, in violation of the plurality view in Harris, supra, 36 Cal.3d 36. *962Under these circumstances, I dissent from the affirmance of the death judgment.
Mosk, J., concurred.
Appellant’s petition for a rehearing was denied December 15, 1988. Mosk, J., was of the opinion that the petition should be granted.
I concur in the affirmance of the felony-murder special-circumstance findings under the compulsion of this court’s opinion in People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306],