People v. Harris

• Decision Date: 21 October 1992
• Docket Number: No. E009237,E009237
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Danny Lynn HARRIS, Defendant and Appellant.

Page 758

12 Cal.Rptr.2d 758

10 Cal.App.4th 672

PEOPLE of the State of California, Plaintiff and Respondent, v. Danny Lynn HARRIS, Defendant and Appellant.

No. E009237.

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

Oct. 21, 1992.

Review Denied Feb. 2, 1993.

[10 Cal.App.4th 674] Jonathan P. Milberg, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Senior Asst. Atty. Gen., Keith I. Motley, Supervising Deputy Atty. Gen., and Lilia E. Garcia, Deputy Atty. Gen., for plaintiff and respondent.

TIMLIN, Associate Justice.

Defendant appeals from the judgment entered upon his conviction by jury of one count of first degree burglary (Pen.Code, §§ 459/460), two counts of unlawful taking of a vehicle (Veh.Code, § 10851, subd. (a)) and one count of receiving stolen property (Pen.Code, § 496). ¹

On appeal, defendant has raised the following contentions: (1) The trial court committed "per se" reversible error by conducting a portion of the voir dire proceedings in its chambers and outside the presence of the public, thus violating defendant's constitutional right to a public trial; (2) there was insufficient evidence to support his conviction for receiving stolen property; (3) there was insufficient evidence to support his conviction on one of the counts of unlawful taking of a vehicle; (4) the trial court committed reversible instructional error by giving the "flight" instruction; (5) the trial court violated section 654 in sentencing defendant; and (6) the trial court improperly relied on several sentencing factors in imposing consecutive sentences on defendant. We shall conclude that defendant's first contention is meritorious and, consequently, that the judgment entered below must be reversed. ² Given our conclusion as to defendant's first contention, there is no need to address defendant's other contentions on appeal. ³

FACTS

Given the singular ground upon which we have determined to reverse the judgment Jury trial as to both defendant and codefendant Portillo thereafter commenced. At the very beginning of the jury selection proceedings, and outside the presence of the venirepersons, the trial judge proposed a particular procedure for selecting the jury--which procedure was new to counsel and is best explained by simply setting forth the following somewhat condensed and edited version of exchanges which took place between the trial judge and counsel:

entered below, there is no need for a lengthy and seamless rendition of the facts underlying the charges brought against defendant. It suffices to note that defendant, together with a female companion (Portillo), was charged with various counts of burglary and unlawfully taking a vehicle--which counts referred to events occurring on two distinctly different occasions. Defendant pled not guilty to all counts.

"THE COURT: Back on the record. My proposal is, counsel, that I'll voir dire on all--in all areas and I'll receive, as I have Mrs. McGuire's [Portillo's counsel], all your concerns and questions you wish to ask I'll address to the jury for you. I will also give you each ten minutes with the panel beyond my extensive voir dire.

"MR. LEVINE [counsel for defendant]: And by 'the panel', the Court means the--

"THE COURT: The first 20, right.

"MR. LEVINE: I didn't count. There's gonna be 20 people sitting up there?

"THE COURT: A total of 20, right.

"MR. LEVINE: So we would have ten minutes each, for a total of 30 minutes, since there's three counsel?

"THE COURT: Right.

"MR. LEVINE: To question the first 20 people?

"THE COURT: Right.

"MR. LEVINE: And then if we have preempts [sic] or for cause, what about the individual jurors that come up there?

"THE COURT: We'll do a chambers striking, as I suggested to you, and then if we have to have additional jurors beyond that, we'll discuss how much time is appropriate.

"MR. HARRISON [prosecutor]: The chambers striking, I'm uncertain what the Court intends on that.

"MR. LEVINE: Are we going to wait until all of them are questioned?

"THE COURT: All questioned and all the for cause [challenges] passed.

"MR. LEVINE: Then we'll go inside and exercise peremptories back and forth with the people seated?

"THE COURT: Filling the chairs of those--

"MR. LEVINE: On this side of the box?

"THE COURT: If you exercise a perempt on chair one, we'll fill it with--

"MR. LEVINE: Chair 14?

"THE COURT: Shall we have two alternates in this case? I think one will be enough. So we'll fill it with chair 14, right. And then so we'll have a jury of 13 eventually impaneled, but we'll fill chair one with chair 13 [sic], then we'll go on the [sic] to the other side and then we'll fill--

"MR. HARRISON: You just go through the in-chambers striking, peremptory striking, one time, and subsequent excusals--

"THE COURT: My hope is that we'll have a jury as a result of that. If we don't, we'll do that striking, then fill the additional chairs, those seven chairs with an additional seven and qualify them and then go through a similar striking process.

"MR. HARRISON: Out of the presence of the jury?

"THE COURT: Right.

"MR. HARRISON: I'm not sure if I want to do it that way.

"THE COURT: Well, I do. And then I'll come out and announce who's to leave the box and who's to replace who.

"MR. HARRISON: I think we have the right to do our jury selection in the open court room in front of the jury. I understand the desire of moving it along speedily and that sort of thing, but at the same time, I think the panel has a right to know who's excused by whom.

"THE COURT: Well, we'll do it my way, counsel. Thank you.

"......

"MR. HARRISON: I want to make a record on the jury selection process, specifically on 13259 of the pamphlet given to the Court, the second column, the fourth paragraph, 'while concluding'.

"THE COURT: That's interesting and it's informative. I'll be happy to select 12 and not 13.

"......

"THE COURT: It admonishes us to consider a jury of 12 as opposed to 14, ...

"MR. HARRISON: There's one other issue that needs to be addressed.

"......

"MR. HARRISON: In addition, the peremptory challenge outside the jury, let me cite to the Court the Press Enterprise Company versus Superior Court, a 1984 case, U.S. Supreme Court, 464 U.S. 501 [104 S.Ct. 819, 78 L.Ed.2d 629], for the proposition that the voir dire process is a public process. The public has right to be here. The People and the defense and the public have a right to a public trial, and the exercise of peremptory challenges in chambers, sequestered away from the public area, the jury itself, violates that public process.

"MR. LEVINE: I think the public just spoke and told us that voir dire is something the public doesn't want.

"THE COURT: I am, I acknowledge to you, experimenting with these procedures to expedite the jury selection, and I think the process that I used previously in the Kolstead case, which I suggest to you now is one that is--does not violate any basic right of anyone, indeed it can be argued, perhaps persuasively, that it's an even better process because nobody is prejudiced by the exercise of peremptory challenges in this manner. [p] There's always a tendency, when those are exercised in front of the jury, to suggest, by the number exercised or not exercised, that one party is more blameless than the other in that challenging process. So I think that this may be--this more sanitized method of selection may be preferred.

"MR. HARRISON: It may be preferred, but it's contrary to Statute 226 of the Civil Code of Procedure--

"THE COURT: I just read 226, and it doesn't say a thing about that. Point to me what my proposed process abridges in 226.

"MR. HARRISON: Challenges shall be taken first by the defendants and then by the People. Peremptory challenge, under 231, prescribes the method of peremptory challenge.

"THE COURT: That's the way we'll do it, taking first by the defense, then by the People, in the striking manner that I've suggested.

"MR. HARRISON: If we're going to do it one at a time, it does nothing to speed the the [sic] jury selection process.

"THE COURT: Well, it sure does.

"MR. HARRISON: Are you requiring me to make all of my peremptory challenges out of the first batch at the very beginning of the selection process?

"THE COURT: No. We'll do it just as we would do it here except we'll do it in the privacy of chambers, moving through those that have been qualified and passed on for cause. We'll move through that panel first, and it may be that you're satisfied with the number that you have within that panel. And if you're not, we'll bring another group forward.

"......

"THE COURT: Are you understanding what I'm--

"MR. HARRISON: No, I don't, not at all. This is very burdensome.

"THE COURT: All right. We'll qualify all 20, then we'll each retreat to chambers. I'll ask the People for their exercise of their first peremptory, and then we'll move juror number 13 into that first challenged chair. And then we'll move to the defendants jointly--they have ten jointly--and they'll exercise their perempt. Then chair number 14 will occupy that seat. [p] We'll go back to the prosecution to exercise their second perempt, and if you exercise a "MR. HARRISON: Up to the point I've exercised 20?

                perempt at that point, we'll move the 15th juror into that chair.  [p] Do you follow me?   Back and forth, just like we would do out here--
                

"THE COURT: Up to the point where we've basically exhausted this panel, if we reach that point and you're not happy with the jury.

"MR. HARRISON: This is unduly lengthening the process. I've selected juries in this courtroom before and as the Court is aware, I do not spend a whole lot of time on the individuals.

"THE COURT: I thought we would try this, folks. I've found it--other judges in the state with whom I've discussed this found it to be expeditious. I found it, in the...