People v. Hall, Cr. 19788

CourtCalifornia Court of Appeals
Writing for the CourtGRODIN; ELKINGTON, Acting P. J., and NEWSOM
Citation108 Cal.App.3d 373,166 Cal.Rptr. 578
PartiesThe PEOPLE, Plaintiff and Respondent, v. Bobby Ray HALL, Defendant and Appellant.
Decision Date21 July 1980
Docket NumberCr. 19788

Page 578

166 Cal.Rptr. 578
108 Cal.App.3d 373
The PEOPLE, Plaintiff and Respondent,
v.
Bobby Ray HALL, Defendant and Appellant.
Cr. 19788.
Court of Appeal, First District, Division 1, California.
July 21, 1980.
Hearing Denied September 17, 1980

[108 Cal.App.3d 374]

Page 579

Carlo Andreani, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Ronald E. Niver, Donna M. Petre, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

[108 Cal.App.3d 375] GRODIN, Associate Justice.

Bobby Ray Hall was convicted of assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)). He moved for a new trial on the ground that three jurors had voted for that conviction believing that they were making a finding of guilt only on a lesser included offense of misdemeanor assault. The issue on appeal is whether the trial court erred in denying that motion. We hold it did not, and consequently affirm.

Factual Background

According to evidence adduced by the prosecution, Hall met a Ms. S. at a neighborhood laundromat and accompanied her to her apartment. There he made sexual advances which she resisted, and a struggle ensued. Hall dragged Ms. S. into the bedroom, pinned her down, and threatened to hurt her if she continued to scream. Ms. S. managed to free herself, and ran out of her apartment screaming.

So far as relevant here, Hall was charged with assault with intent to commit rape (Pen.Code, § 220) and assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)). 1 The trial court instructed the jury as to the elements of both these offenses, and as to the lesser included offense of simple assault.

The jury retired to deliberate at 10 a. m. on May 4, 1979. At about 3:00 that afternoon the jury returned and through its foreman requested "a definition or clarification of assault by force in violation of 245(a) of the Penal Code," whereupon the court reread his previous instruction as to that charge. At defense counsel's request, the trial court also reread to the jury the definition of simple assault, and instructed the jury again that simple assault was necessarily included within the definition of assault by force in violation of section 245, subdivision (a), and that if the [108 Cal.App.3d 376] jury was not satisfied beyond reasonable doubt that the defendant was guilty of the charged offense it could find him guilty of such lesser offense.

Page 580

Less than two hours later the jury returned and announced it had reached a verdict on two counts, which were read by the clerk. One of these found the defendant not guilty of assault with intent to commit rape, the other found him guilty "of the crime of felony, to wit, violating Section 245(a) of the California Penal Code, assault by force, as charged in Count V of the Information." The court inquired whether these represented the unanimous verdicts of the jury as to each of those counts, and invited any juror who did not vote for either verdict to raise his hand. No juror so indicated, and both counsel waived polling of the jury as to both verdicts.

On June 5, 1979, Hall's counsel moved for a new trial "pursuant to Penal Code section 1181" on the ground that "three jurors believed that they were making a finding of guilt on violation of a lesser included offense of violation of Section 240 of the California Penal Code." Accompanying the motion was a declaration from Hall's counsel which stated in relevant part: "(O)n . . . May 7, 1979, after the jury was discharged by the Court, I had occasion to speak to some of the jurors in the hallway of the Hall of Justice. During the course of the conversation, I learned that two jurors there, did not realize that they convicted the defendant of violating Section 245(a) of the Penal Code, a felony, but that they thought they had convicted him of simple assault, a violation of Section 240. . . . (P) On May 9, 1979, I personally called jurors Cecila Ubungen, Linda Larkin, Lela McClain, and James Vigna. The three women confirmed that a verdict of guilty of violation of Section 245(a) . . . was not their intended verdict, but that they mistakenly thought they voted on the lesser included offense of violation of Section 240. . . . They advised me that they would be glad to sign affidavits to that effect. (P) Declarant also spoke to James Vigna regarding the verdict on Count V. . . . He stated that he thought he voted for a misdemeanor but that he was unwilling to sign an affidavit because he no longer had his notes on the trial. . . ."

Also accompanying the motion were declarations from three jurors, Ubungen, Larkin, and McClain. Each declaration was identical in format, and asserted: "I, . . . , say that: (P) I was juror number . . . in the trial of the above-entitled action. On Friday, May 1, 1979, the jury [108 Cal.App.3d 377] reached a verdict of guilty in Count V of the Information, a violation of Section 245(a) of the Penal Code. It was my belief at the time of signing of the verdict that I was voting on the lesser included offense, simple assault, a violation of Section 240 of the Penal Code, a misdemeanor and not a violation of Section 245(a), a felony. It was not my intention to vote guilty on a violation of Section 245(a) of the Penal Code and it at no time was my decision in this case. The only verdict of guilty intended by me was violation of Section 240 of the California Penal Code, a misdemeanor, and my vote in favor of violation of Section 245(a) of the Penal Code, a felony, was definitely a mistake. (P) I declare under penalty of perjury that the foregoing is true and correct. (P) Dated this . . . day of May, 1979, at San Francisco, California."

The motion was heard June 5, 1979, at which time the court granted a motion by the People to strike the declarations and denied Hall's motion for new trial. This appeal followed.

Discussion

Penal Code section 1181 specifies certain grounds upon which a court may grant a new trial. These include: "When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented" (§ 1181, subd. 3); and "When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part...

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15 practice notes
  • People v. Romero, Cr. 21839
    • United States
    • United States State Supreme Court (California)
    • June 21, 1982
    ...and signified appellant's guilt...." (126 Cal.App.3d at p. 49, 178 Cal.Rptr. 520.) [646 P.2d 831] Similarly, in People v. Hall (1980) 108 Cal.App.3d 373, 166 Cal.Rptr. 578, three jurors signed declarations stating that they meant to convict defendant of simple assault, a misdemeanor, instea......
  • Spain v. Rushen, No. C 81-4858 TEH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 29, 1982
    ...F. Supp. 774 supra, 102 S.Ct. at 944-46, and People v. Elkins, 123 Cal.App.3d 632, 637, 176 Cal. Rptr. 729, 732 (1981); People v. Hall, 108 Cal.App.3d 373, 380, 166 Cal.Rptr. 578, 582-83 (1980). At the same time, the Respondents necessarily concede that a juror may not testify post-trial ab......
  • Mesecher v. County of San Diego, No. D014082
    • United States
    • California Court of Appeals
    • October 1, 1992
    ...of the law." (Ibid.; accord People v. Romero (1982) 31 Cal.3d 685, 694, 183 Cal.Rptr. 663, 646 P.2d 824; People v. Hall (1980) 108 Cal.App.3d 373, 379, 166 Cal.Rptr. County attempts to avoid the impact of these rules by focusing on the fact that several of the jurors communicated their misu......
  • Ford v. Bennacka, No. DO10534
    • United States
    • California Court of Appeals
    • December 18, 1990
    ...impeachment of the verdict." (People v. Romero (1982) 31 Cal.3d 685, 694, 183 Cal.Rptr. 663, 646 P.2d 824.) In People v. Hall (1980) 108 Cal.App.3d 373, 379, 166 Cal.Rptr. 578, the appellate court rejected "appellant's theory that a mistake on the part of jurors constitutes misconduct which......
  • Request a trial to view additional results
15 cases
  • People v. Romero, Cr. 21839
    • United States
    • United States State Supreme Court (California)
    • June 21, 1982
    ...signified appellant's guilt...." (126 Cal.App.3d at p. 49, 178 Cal.Rptr. 520.) [646 P.2d 831] Similarly, in People v. Hall (1980) 108 Cal.App.3d 373, 166 Cal.Rptr. 578, three jurors signed declarations stating that they meant to convict defendant of simple assault, a misdemeanor, inste......
  • Spain v. Rushen, No. C 81-4858 TEH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 29, 1982
    ...F. Supp. 774 supra, 102 S.Ct. at 944-46, and People v. Elkins, 123 Cal.App.3d 632, 637, 176 Cal. Rptr. 729, 732 (1981); People v. Hall, 108 Cal.App.3d 373, 380, 166 Cal.Rptr. 578, 582-83 (1980). At the same time, the Respondents necessarily concede that a juror may not testify post-trial ab......
  • Mesecher v. County of San Diego, No. D014082
    • United States
    • California Court of Appeals
    • October 1, 1992
    ...of the law." (Ibid.; accord People v. Romero (1982) 31 Cal.3d 685, 694, 183 Cal.Rptr. 663, 646 P.2d 824; People v. Hall (1980) 108 Cal.App.3d 373, 379, 166 Cal.Rptr. County attempts to avoid the impact of these rules by focusing on the fact that several of the jurors communicated their......
  • Ford v. Bennacka, No. DO10534
    • United States
    • California Court of Appeals
    • December 18, 1990
    ...of the verdict." (People v. Romero (1982) 31 Cal.3d 685, 694, 183 Cal.Rptr. 663, 646 P.2d 824.) In People v. Hall (1980) 108 Cal.App.3d 373, 379, 166 Cal.Rptr. 578, the appellate court rejected "appellant's theory that a mistake on the part of jurors constitutes misconduct which c......
  • Request a trial to view additional results

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