People v. Diaz, Cr. 4616

• Court: California Court of Appeals
• Writing for the Court: VALLVALLEE; WOOD; SHINN
• Citation: 105 Cal.App.2d 690,234 P.2d 300
• Parties: PEOPLE v. DIAZ.
• Decision Date: 27 July 1951
• Docket Number: Cr. 4616

Page 300

234 P.2d 300 105 Cal.App.2d 690 PEOPLE
v.
DIAZ. Cr. 4616. District Court of Appeal, Second District, Division 3, California. July 27, 1951.
Rehearing Denied Aug. 6, 1951.
Hearing Denied Aug. 23, 1951.

George Finucane, Arroyo Grande, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

[105 Cal.App.2d 691] VALLVALLEE, Justice.

Appeal from a judgment of conviction of murder of the first degree rendered pursuant to a verdict, and from an order denying the motion for a new trial. Defendant was sentenced to imprisonment for life. His conviction occurred at the third trial after two juries had disagreed.

The sole point urged for reversal is that the trial court committed reversible error in refusing to allow defendant the number of peremptory challenges to which he was legally entitled.

Defendant was 67 years of age. He had lived for eight or ten years on a ranch

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about 3.2 miles from San Luis Obispo in the home of his nephew Frank Diaz, the latter's wife, daughter Josephine, 17 years of age, and other children. Between 8:00 and 8:30 p. m. on March 14, 1950, Josephine was killed by a shotgun fired through the window of the Diaz kitchen where she was washing dishes.

At the opening of the trial the court proceeded to impanel a jury. The names of seven jurors were drawn and they took places, designated by seat numbers 1 to 7, in the jury box. The following colloquy then occurred:

'The Court: The question has come up concerning the alternate juror.

'Mr. Grundell [District Attorney]: I would not only recommend but suggest that we have an alternate juror at this time. What do you think about it, Mr. Finucane?

'Mr. Finucane [Attorney for Defendant]: No objection by the Defendant, Your Honor.

'The Court: I think we'd better have one. The trial will take a good many days. If anything should happen to a juror, we'd lose all the time.'

The names of five jurors were next called and they took seats 8 to 12 in the box. The name of a thirteenth juror, Mr. Christian, was then called and he took seat 13. The procedure followed in the selection of the alternate juror was not that prescribed by section 1089 of the Penal Code, which provides for the selection of an alternate immediately after the jury is impaneled and sworn. ¹ The court examined the jurors generally. [105 Cal.App.2d 692] Several were excused and their places taken by others. Jurors 1 to 6 were examined by counsel for defendant and by the district attorney and passed for cause. Counsel for defendant then began examining Mr. Christian, alternate juror No. 13, when the following occurred:

'Mr. Grundell: Should we take them in order?

'Mr. Finucane: I'll ask. I don't know.

'Mr. Grundell: Does it make any difference?

'The Court: I don't see that it makes any difference, gentlemen. We're going to have thirteen here after you get thru. How you examine them makes no difference to me, if it doesn't to you. Go right thru them.'

After the examination of Mr. Christian, alternate juror 13, had been concluded, jurors 7 to 12 were examined for cause. After completion of the examination for cause, the parties exercised peremptory challenges alternately. As his tenth peremptory challenge defendant excused Mr. Christian, alternate juror No. 13, saying, 'I'll excuse the alternate juror, Mr. Christian.' Mr. Burns took Mr. Christian's place in the box. Mr. Burns was challenged by the district attorney and Mr. Montgomery took his place. After the People had exercised thirteen peremptory challenges, and after the defendant had exercised fourteen, the following occurred:

'Mr. Finucane: May I ask the Court for an interpretation of Section 1089, which provides that, in the case of an alternate juror, that the prosecution and the Defendant shall each be entitled to as many peremptory challenges to such alternate juror as there are alternate jurors called. Does that mean that you may only challenge the alternate juror with one challenge, or does that increase the peremptories?

'The Court: No, I consider him the same as any other juror. I think that he should be subject to every challenge that any other juror is subject to.

'Mr. Finucane: All right, Your Honor. We'll challenge Mr. Montgomery.'

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Mrs. Crye took Mr. Montgomery's place in seat 13. After defendant had exercised twenty peremptory challenges--eighteen to the regular panel and two to alternate jurors--the following occurred:

'The Clerk: That's Defendant number 20.

'The Court: Number 20.

'Mr. Grundell: Under that section, do you figure you have another peremptory.

'Mr. Finucane: Yes, sir; I do.

'Mr. Grundell: I haven't read it myself.

'The Court: Yes, if you want to exercise it on the alternate.

'Mr. Finucane: Well, that was the question I put to Your Honor. I didn't [105 Cal.App.2d 693] so understand the ruling.

'Mr. Grundell: I haven't read that section.

'Mr. Finucane: That is the second paragraph, I believe, Mr. Grundell.

'The Court: I have in mind the code section all right.

'Mr. Finucane: I have exercised one peremptory on an alternate.

'The Court: Yes.

'Mr. Finucane: That's right.

'Mr. Grundell: That's what it looks like it's tied down to, George.

'Mr. Finucane: I have exercised two on alternates.

'Mr. Grundell: Well, I think you'd have one for as many alternates as you have.

'The Court: I didn't understand my ruling to extend the number of peremptories that you might exercise.

'Mr. Finucane: Well, the section certainly anticipates 21 peremptory challenges.

'The Court: Yes, and where there is an alternate involved, I feel the 20 involve him too. I don't think it operates to extend your peremptories beyond the 20.

'Mr. Finucane: If the Court rules, I say that's all right. We haven't arrived at that stage yet.

'The Court: No, we haven't come to the problem yet.

'Mr. Finucane: No. I don't want to waive my rights under the section.'

After two additional regular jurors were examined, one of whom was excused for cause, the following took place:

'Mr. Finucane: The defendant will ask to exercise another challenge under that code section.

'Mr. Grundell: I don't believe it's permissible, Your Honor.

'The Court: No. Let the record show that the Court rules that the Defendant has exhausted his peremptory challenges, and has no more to exercise.

'Mr. Finucane: Either as to the alternate or as to the regular panel now in the box?

'The Court: Yes.

'Mr. Finucance: All right.

'The Court: All right. Will you all please raise your right hand and be sworn'

The jury was then sworn.

At the close of the People's case, the defendant moved the court 'for a mistrial on the ground that the Defendant has been deprived of a substantial right in regard to the matter of the selection and impaneling of the jury.' The motion was denied.

If the offense is punishable with death or with imprisonment for life, the defendant is entitled to twenty peremptory challenges to the regular panel. Pen.Code, § 1070. If an order is made that one alternate juror be drawn, as was done here, the defendant is entitled to one peremptory challenge to such alternate juror. Pen.Code, § 1089.

It is obvious that defendant was denied the right of peremptory challenge given by Penal Code section 1070. The statute [105 Cal.App.2d 694] says that the defendant is entitled to twenty peremptory challenges to the regular panel. He exercised eighteen and was denied the right to exercise more. The statute says that the defendant is entitled 'to as many peremptory challenges to such alternate jurors as there are alternate jurors called.' One alternate juror was to be called. Defendant exercised two peremptory challenges to prospective alternate jurors. He was allowed only twenty peremptory challenges in all. He had a right to twenty-one in all: twenty to the regular panel and one to the prospective alternate.

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Twelve jurors, not thirteen, were called in the selection of the regular panel. After the twelve regular jurors had been called and had taken their seats in the box, an alternate, Mr. Christian, was called and took seat 13. ² The court and counsel for both sides recognized that he was an alternate and not one of the regular panel. Mr. Christian was peremptorily challenged by defendant. Mr. Burns was then called and took seat 13. Mr. Burns was peremptorily challenged by the People. Mr. Montgomery was then called and took seat 13. Mr. Montgomery was peremptorily challenged by defendant. Mrs. Crye was then called and took seat 13. Neither Mr. Christian nor Mr. Burns nor Mr. Montgomery nor Mrs. Crye was called or examined in the process of impaneling the twelve regular jurors. Neither Mr. Christian nor Mr. Burns nor Mr. Montgomery was challenged in the process of impaneling the twelve regular jurors. They were called, examined and challenged in the process of selecting an alternate. The challenges that defendant exercised on Mr. Christian and Mr. Montgomery were not challenges to one of the regular panel. No one of them was at any time treated as an additional member of the regular panel by either court or counsel. The fact that they were called to seat 13, examined and challenged in the course of impaneling the regular jurors, and were not called after the regular jurors had been impaneled and sworn as prescribed by section 1089, did not make them members of the regular panel. It cannot be said merely because defendant was erroneously allowed two peremptory challenges to alternates when he was only entitled to one that the thirteenth juror was called in [105 Cal.App.2d 695] the selection of the regular panel and not in the selection of an alternate. Having exercised two peremptory challenges on alternates, defendant had no right to peremptorily challenge Mrs. Crye who was the alternate finally selected. The twenty peremptory challenges used by defendant were not used on jurors who would have served as members of the regular panel. Only eighteen were so...