Johns v. City of Los Angeles

• Decision Date: 21 March 1978
• Citation: 144 Cal.Rptr. 629,78 Cal.App.3d 983
• Parties: Andrew JOHNS and Johnie S. Choyce, Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants. Civ. 50511.
• Court: California Court of Appeals Court of Appeals

Page 629

144 Cal.Rptr. 629

78 Cal.App.3d 983

Andrew JOHNS and Johnie S. Choyce, Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

Civ. 50511.

Court of Appeal, Second District, Division 2, California.

March 21, 1978.

Hearing Denied June 1, 1978.

Irmas, Simke & Chodos, Inc., and Cochran, Atkins & Evans by Sydney M. Irmas, Jr., David Manning Chodos, and Pamela Trescott Ashman, Los Angeles, for plaintiffs and respondents

Burt Pines, City Atty., John T. Neville, Sr., Asst. City Atty., Daniel U. Smith, Deputy City Atty., for defendants and appellants.

COMPTON, Associate Justice.

In these consolidated wrongful death actions, plaintiffs, the parents of the decedent, sought damages against the City of Los Angeles and two members of the Los Angeles Police Department ¹ for the shooting death of the decedent.

The shooting occurred when police officers of the City of Los Angeles, seeking to arrest a suspect for a crime committed in that city, mistakenly entered the apartment of decedent in the City of Inglewood. In a struggle which ensued, decedent, who was a black man, was shot.

At the conclusion of a nine week trial the jury returned a 9-3 verdict for defendants. Subsequently, the trial judge granted a motion for a new trial. Defendants appeal from that order.

In an unpublished opinion filed October 5, 1977, we affirmed the order granting a new trial. Our decision was grounded on the traditional deference afforded to the exercise of the trial judge's discretion by a court of review.

Subsequently we granted defendants' petition for a rehearing in order to further examine into the question of whether under the unique circumstances of this case the granting of a new trial was truly a valid exercise of discretion or whether in fact defendants have been arbitrarily and improperly deprived of a judgment in their favor.

There has been a line of judicial decisions "which has expressed itself in recent years with increasing frequency to the general effect that the failure (of appellate courts) to 'probe the mental processes' of the . . . judicial decision-maker is 'destructive of judicial responsibility.' " (50 L.A.Bar Bull. 72, at 73, W. John Kennedy, The Substantial Evidence Test: A Cover-Up for Insubstantial Due Process (Dec. 1974); also see In re Sturm, 11 Cal.3d 258, 113 Cal.Rptr. 361, 521 P.2d 97.)

"(D)iscretion equated only with the feelings and hunches of the trial judge is not amenable to objective evaluation and appellate review, for the end result would be nonreviewable trial judge discretion in essence, no appeal whatsoever." (Knecht v. Marzano, 65 Wash.2d 290, at p. 295, 396 P.2d 782, at p. 785 (1964).) (Emphasis added.)

1] The proper exercise of trial court discretion " 'imports the exercise of discriminating judgment within the bounds of reason.' " (Gossman v. Gossman, 52 Cal.App.2d 184, at 195, 126 P.2d 178, at 184.)

Code of Civil Procedure section 657, which authorizes a trial judge to grant a new trial, underwent substantial amendment in 1965. One of the main features of the amendment was the requirement that a trial judge, in granting a motion for a new trial, file a written statement of the grounds and reasons therefor.

This latter requirement was a clear indication of the Legislature's desire for closer appellate scrutiny of those trial court orders which set at naught the product of a costly and time consuming trial.

Our Supreme Court perceived that legislative purpose and spoke forcefully on the subject of the appellate review of new trial orders in two cases which followed the 1965 amendment.

In Mercer v. Perez, 68 Cal.2d 104, at page 114, 65 Cal.Rptr. 315, at page 321, 436 P.2d 315, at page 321, the court stated: ". . . the principle that an abuse of discretion cannot be found in cases in which the evidence is in conflict . . . 'constitutes an iron curtain, cutting off any adequate review of whether or not there was any reason for the trial judge to . . . grant a new trial.' "

Later in Scala v. Jerry Witt & Sons, Inc., 3 Cal.3d 359, at page 363, 90 Cal.Rptr. 592, at page 594, 475 P.2d 864, at page 866, the following appears. "In Mercer v. Perez, . . . (w)e explained that the requirement of a specification of reasons served the two-fold purpose of encouraging careful deliberation by the trial court before ruling on a motion for new trial, and of making a record sufficiently precise to permit meaningful appellate review." (Emphasis added.)

With these principles in mind we proceed to examine the order for a new trial in this case. Plaintiff noticed a motion for a new trial on the following grounds:

(1) Irregularity in the proceedings;

(2) Misconduct of the jury;

(3) Insufficiency of the evidence to justify the verdict; and/or

(4) The verdict is against the law; and

(5) Error in law occurring at the trial.

Plaintiffs supported their motion with affidavits by two of the dissenting jurors, Jury Foreman Reed and Juror Maille which attributed to various other members of the jury statements allegedly made during the course of deliberation.

Defendants countered with affidavits of the remaining ten jurors, including the third dissenting juror, essentially denying that such statements were made.

At the hearing on the motion for a new trial no evidence was received in other than affidavit form. Plaintiffs' counsel basically argued two grounds for the motion (1) insufficiency of the evidence to support the verdict, and (2) misconduct of the jury. As to the latter ground the focus was entirely on a claim that members of the jury were racially biased and concealed that fact on voir dire.

The "Order Granting New Trial and Specifications" (hereinafter "the Order") filed by the trial judge recites seven statements allegedly made by four of the majority jurors which are variously characterized as either (1) jury misconduct, or (2) indicating a bias concealed on voir dire. In connection with each specification there is reference to page and line of the various affidavits.

In conclusion the order states "The above specifications of irregularities in the proceedings of the jury, and/or jury misconduct, clearly indicates that the plaintiffs did not receive a fair evaluation of the evidence from an unbiased jury."

The only reasonable interpretation which can be drawn from the order is that the trial judge granted the motion on the grounds that certain jurors had, on voir dire, concealed a racial bias. From the failure to include in the order any grounds for granting the motion other than jury misconduct we can only conclude that the trial judge believed that the evidence supported a defense verdict and that the verdict was in all other respects invulnerable. (Mercer v. Perez, supra ; Code Civ.Proc., § 657.)

Thus we are presented with another case of, in our opinion, those too frequent attempts to impeach a jury's verdict by jurors disclosing what allegedly occurred during the "give and take" of jury deliberation. The evidence upon which the order here was based came entirely from jurors and consisted of statements allegedly made by some jurors and overhead by others.

Evidence Code section 1150 permits the use of any otherwise admissible evidence of occurrences either within or without the jury room which occurrences are likely to "This distinction between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved, . . . has been the basic limitation on proof set by the leading decisions allowing jurors to impeach their verdicts." (People v. Hutchinson, 71 Cal.2d 342, at 349, 78 Cal.Rptr. 196, at 200, 455 P.2d 132, at 136.)

have improperly influenced the verdict. But that section further provides that no evidence is admissible to show the effect of such occurrences on the jurors' mental processes and further provides that the Code in no way affects the law relating to the competence of jurors to give evidence to impeach the verdict.

2] Evidence Code section 1150 does not alter the traditional rule that jurors may not impeach their verdict except in the case of a verdict arrived at by lot or chance (Code Civ.Proc., § 657, subd. (2)) or where a juror has a bias which was concealed on voir dire.

In this context, the "otherwise admissible" requirement of Evidence Code section 1150 raises the threshold question of the application of the hearsay rule. (Weathers v. Kaiser Foundation Hospitals, 5 Cal.3d 98, 95 Cal.Rptr. 516, 485 P.2d 1132.)

3] The evidence can escape the interdiction of the hearsay rule and Evidence Code section 1150 if it is offered to establish simply that the statements were made by the jurors, i. e., so-called "verbal acts," and not to prove the truth of what was said or the effect of the statement on the jurors' mental processes in arriving at a verdict. (Weathers v. Kaiser Foundation Hospitals, supra.)

4] Accepting the proposition that the trial judge received the evidence for the purpose of showing that the statements were made, the next inquiry is whether the fact of making the statements was relevant and tended to establish a legally recognizable basis for upsetting the verdict. Evidence Code section 1150 does not envision a procedure whereby a trial judge, as a result of a claim of jury misconduct, reviews a "replay" of the particular language used by various jurors as they deliberated and makes a subjective determination of its propriety. Such a procedure would be too great an extension of the court's limited authority to invade the traditionally inviolate nature of the jury proceedings.

An application of these principles to the order in this case leads us to conclude that only the evidence tending to show that two of the alleged statements were made one by Juror Pepper and one by Juror Miller could possibly serve to support the order. The two statements referred to are the only ones which the trial judge himself...