People v. Grider

Decision Date03 November 1966
Docket NumberCr. 4160
Citation246 Cal.App.2d 149,54 Cal.Rptr. 497
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Harry Lee GRIDER, Defendant and Appellant.

Fred P. Tuttle, III, Auburn, for appellant.

Thomas C. Lynch, Atty. Gen., by Theodore T. N. Slocum, Deputy Atty. Gen., Sacramento, for respondent.

REGAN, Justice.

Defendant appeals from a conviction of robbery in the first degree (Pen.Code, § 211a), after a jury trial where defendant was represented by the public defender. The case in the trial court involved the entry and recordation of two separate verdicts--guilty of robbery in the second degree and guilty of robbery in the first degree. The only issue raised on this appeal is the validity of the second verdict. Defendant's purported appeal from the order denying a new trial and sentence is dismissed.

It is unnecessary to set forth a detailed statement of facts surrounding the robbery. It will suffice to state that defendant robbed a liquor store. The evidence would support a finding of robbery in either the first or second degree.

At the completion of the trial proceedings, the jury was given three forms of verdict: guilty of robbery in the first degree; guilty in the second degree; and innocent. At 3:18 p.m., on January 26, 1966, after deliberating for a little over an hour, the jury foreman informed the court that the jury had reached a verdict. The clerk read the verdict which found the defendant guilty of violation of Penal Code section 211, robbery in the second degree, a lesser included offense of the charge. The verdict had been signed by the foreman. After the reading of the verdict the jury was asked if this was their verdict and they replied 'yes.' There was no request for a poll, and the judge ordered the clerk to enter the verdict in the minutes and records of the court. After thanking the jurors for their services the judge discharged the jury and adjourned the court.

The verdict was entered in the minutes of the court by the clerk at 3:30 p.m. At 3:39 p.m. the judge reconvened the court with all members of the jury, defendant and counsel for both sides present. The judge then stated that he had been 'informed that there may have been a mistake on the verdict signed.'

The clerk re-read the verdict finding the defendant guilty of second degree robbery, and the judge ordered a poll of the jury on the question '(I)s this individually the verdict you voted for, that is, robbery in the second degree * * *?' Each juror answered 'No' to the question put. Upon questioning by the trial judge, the jury foreman stated that he had made a mistake in reading and signing the first verdict.

The judge then directed the jury to continue its deliberations and the jury was left in the courtroom for this purpose. At 3:50 p.m. the jury returned a second verdict of robbery in the first degree. The jury was polled as to whether they had individually voted for this second verdict, and each juror answered 'Yes.'

The judge then ordered another poll, and asked each juror whether this second verdict was the one which they had voted for originally. Each juror answered 'Yes.' In response to a question put by the court as to whether the signing of the first verdict was a clerical error, the foreman replied 'Yes.' The court entered the new verdict conditionally, pending hearing of arguments on defense counsel's motion to set the verdict aside.

The prosecutor and the bailiff testified as to how they discovered that there was a mistake in the original verdict.

As the jury was leaving the courtroom and dispersing into the adjoining foyer after it had been discharged, the prosecutor asked one of the jurors, 'How did you ever find second degree in this case?' The juror replied, 'We didn't. We found first degree.' Upon hearing this, the prosecutor told the bailiff to stop the jury and to have them reconvene in the courtroom, and notify the judge, defense attorney and defendant.

As the bailiff circulated among the jurors in the hallway outside the courtroom, he heard a juror remark to a couple of other ladies, 'That wasn't our verdict. The Foreman just signed the wrong verdict.' The bailiff motioned to the prosecutor and defense counsel and then left immediately to notify the judge.

On February 10, 1966, the court denied defense counsel's motion to set aside the second verdict. The court ruled that the second verdict was a correction of a clerical error made by the foreman and ordered the first verdict of robbery of second degree set aside, but only upon the condition that the first degree verdict be upheld on appeal. Defendant was then sentenced to prison for the term prescribed by law for the crime of robbery in the first degree. This sentence was made conditional. The court also sentenced defendant for the crime of robbery in the second degree, in the event the first degree verdict should be set aside.

The question thus presented is the validity of the second verdict.

Section 1164 of the Penal Code provides as follows: 'When the verdict given is such as the court may receive, the clerk, or if there is no clerk, the judge or justice, must record it in full upon the minutes, and if requested by any party must read it to the jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact must be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete and the jury must be discharged from the case.'

The words of the statute are clear and unequivocal. Nonprejudicial departures from the procedure specified by the section have been sharply criticized but held not to constitute reversible error. (Witkin, Cal.Criminal Procedure, § 532, p. 545.) The error here, however, was prejudicial for the jury rendered a verdict of first degree robbery after its second consideration. In effect, the issue of the degree of the crime charged was resubmitted to the jury, and such a procedure has been held to constitute reversible error. (See People v. Hughes, 171 Cal.App.2d 362, 369--370, 340 P.2d 679.)

In People v. Lee Yune Chong (1892) 94 Cal. 379, 29 P. 776, the court was faced with the following situation: The jury found the defendant guilty of murder; this verdict was declared...

To continue reading

Request your trial
17 cases
  • People v. Bonillas
    • United States
    • California Supreme Court
    • 1 Mayo 1989
    ...7 Cal.App.3d 768 , overruled on other grounds in People v. Compton (1971) 6 Cal.3d 55 [98 Cal.Rptr. 217, 490 P.2d 537]; People v. Grider (1966) 246 Cal.App.2d 149 ; and People v. Powell (1950) 99 Cal.App.2d 178 .) From these cases it correctly derived the following principles: 'Once a "comp......
  • U.S. v. Boone
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 5 Diciembre 1991
    ...663, 646 P.2d 824 (1982) the California Supreme Court summarized the problem with belated jury polls: ... in [People v.] Grider [246 Cal.App.2d 149, 54 Cal.Rptr. 497 (1966) ] the miscue was caught and rectified in a matter of minutes; here, the error, if any there was, was not brought to th......
  • Clough v. Evans
    • United States
    • U.S. District Court — Eastern District of California
    • 9 Mayo 2008
    ...and dispersed (see, e.g., 6 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Criminal Judgment, § 50, pp. 81-84; People v. Grider (1966) 246 Cal.App.2d 149, 151-154 [jury stopped in the foyer as it was leaving the courtroom and then reconvened]; People v. Lee Yune Chong (1892) 94 Cal. 379, ......
  • People v. Romero, Cr. 21839
    • United States
    • California Supreme Court
    • 21 Junio 1982
    ...of demarcation between such clerical errors and what are termed "deliberative" errors is sometimes unclear. In People v. Grider (1966) 246 Cal.App.2d 149, 54 Cal.Rptr. 497, the jury was given three forms of verdict: guilty of robbery in the first degree, guilty of robbery in the second degr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT