People v. Hall
Decision Date | 21 July 1980 |
Docket Number | Cr. 19788 |
Citation | 108 Cal.App.3d 373,166 Cal.Rptr. 578 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Bobby Ray HALL, Defendant and Appellant. |
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.
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.
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 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.
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:
Also accompanying the motion were declarations from three jurors, Ubungen, Larkin, and McClain. Each declaration was identical in format, and asserted:
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.
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 of all the jurors" (§ 1181, subd. 4). While section 1181 purports to state the "only" grounds upon which a new trial may be granted, the courts have recognized that "new trials are frequently granted on nonstatutory grounds where the failure so to do would result in a denial of a fair trial to a defendant in a criminal case." (People v. Davis (1973) 31 Cal.App.3d 106, 109, 106 Cal.Rptr. 897, 898.) "The power to grant a new trial on such nonstatutory grounds obviously is derived from the trial court's duty to insure an accused a fair trial." (Id., at p. 110, 106 Cal.Rptr. at p. 899.) Appellant argues that the affidavits submitted to the trial court establish grounds for a new trial under both subdivisions 3 and 4 of section 1181, or in the alternative that they establish grounds for a new trial on the basis of the due process clause of the federal Constitution and article I, sections 15 and 16 of the California Constitution.
Related to appellant's contention are the evidentiary rules which have developed around the proposition that jurors cannot impeach their verdicts. Prior to People v. Hutchinson (1969) 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132, that proposition, though subject to judicially created exceptions, was considered to have statutory foundation (e. g., People v. Gidney (1937) 10 Cal.2d 138, 146, 73 P.2d 1186), and to be "necessary to prevent instability of verdicts, fraud, and harassment of jurors" (Kollert v. Cundiff (1958) 50 Cal.2d 768, 773, 329 P.2d 897, 900). In Hutchinson, however, Chief Justice Traynor in a scholarly opinion for a unanimous court rejected both propositions. It declared that the "rule owes its continuing vitality, not to statute, but to the force of stare decisis (citations) and to a variety of legal arguments and public policies that, like the discredited policy against self-stultifying testimony, cannot withstand careful analysis." (71 Cal.2d at p. 348, 78 Cal.Rptr. at p. 200, 455 P.2d at p. 136.)
In modification of the older common law rule, the court in Hutchinson adopted the distinction which is reflected in Evidence Code section 1150, subdivision (a): The court noted that ...
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