People v. Rojas

• Decision Date: 20 November 1975
• Docket Number: Cr. 18552
• Citation: 15 Cal.3d 540,542 P.2d 229,125 Cal.Rptr. 357
• Court: California Supreme Court
• Parties: , 542 P.2d 229, 92 A.L.R.3d 1127 The PEOPLE, Plaintiff and Respondent, v. Abel Magleno ROJAS et al., Defendants and Appellants.

Page 357

125 Cal.Rptr. 357

15 Cal.3d 540, 542 P.2d 229, 92 A.L.R.3d 1127

The PEOPLE, Plaintiff and Respondent, v. Abel Magleno ROJAS et al., Defendants and Appellants.

Cr. 18552.

Supreme Court of California In Bank.

Nov. 20, 1975.

F. Thomas Huster, San Francisco, under appointment by the Supreme Court, William F. Bryan, Robert H. Ames, Elizabeth A. Helfrich and Pioda, Bryan & Ames, Salinas, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci and J. Patrick Collins, Deputy Attys. Gen., for plaintiff and respondent.

BY THE COURT.

Abel Magleno Rojas and Arthur Nester Ramirez appeal from judgments upon jury convictions of assault with a deadly weapon in two counts as to each defendant (Pen.Code, § 245) and, as to Ramirez only, of use of a firearm in the commission of the assaults (Pen.Code, § 12022.5). ¹ Rojas alone contends that the court erred in denying his motion to enter a plea of once in jeopardy due to discharge of the jury upon its failure to reach a verdict in a prior trial. Both defendants urge prejudicial error when, because the prosecution's chief witness who had been granted immunity refused to testify, the court admitted transcripts of the witness' testimony received at the preliminary hearing and at the prior trial. We have concluded that defendants' contentions are without merit and we affirm the judgments.

The assaults occurred late one night after a party at a county fairgrounds attended by young adults. Earlier in the evening one of the victims had participated briefly in a fight with a number of individuals including defendants. Another person who had been involved in the fight on the side of defendants had received a serious knife wound. Later when the victim of the assault involved in the matter now before the court left the party and was approaching his car he heard a gunshot and saw a person in front of him fall on the ground. As he attempted to assist the wounded man he also was hit by a shot fired from a nearby automobile. The vehicle from which the shots were fired sped away and a witness who followed in another car observed three or four persons abandon the pursued vehicle after it went off the road. An officer, responding to a call from the scene of the shootings, stopped at the abandoned car where he found Robert Navarrette, age 16, nearby.

Navarrette's testimony at the preliminary hearing and the prior trial when considered together was to the effect that he had been offered immunity from prosecution; that in response to a request from defendant Rojas, whose car was then inoperable, he had driven defendants and a companion to the fairgrounds on the night of the shootings; that Rojas had stated that he wished to be taken to that location as one of his friends had received a stab wound earlier in the evening; that at the fairgrounds Rojas had suggested Navarrette seat himself in the rear of the car and Rojas took the driver's seat; that he, Navarrette, had consumed seven or eight tall cans of beer and some wine earlier in the evening and was feeling 'high'; that while sitting in the back seat of his car he heard a gunshot and saw Ramirez in the front seat of the car with a gun in his hand; that he saw a man lying on the ground outside the car; that he saw Ramirez aim and fire a second shot out the side window of the car; that Rojas then drove away; that the car later went off the road and all his companions ran off.

After having made a thorough examination of the issues and the contentions of the parties we have concluded that the opinion of the Court of Appeal, First Appellate District, Division One, prepared by Presiding Justice Molinari and concurred in by Justice Elkington correctly treats and disposes of the issues involved and we adopt that opinion as and for the opinion of this court. Such opinion with appropriate deletions and additions is as follows: ² ( )

The Plea of Once in Jeopardy

Following the declaration of a mistrial on the ground that the jury was unable to agree upon a verdict a hearing was held on defendant Rojas' motion that he be permitted to enter a plea of once in jeopardy and for a dismissal of the charges against him. At the beginning of the hearing it was stipulated that following the statement by the foreman at the previous trial that the jurors were unable to agree, the individual jurors were not polled and that no specific statement or inquiry was made with respect to the individual defendants. Rojas presented the affidavits of six of the jurors to the effect that during the jury's deliberations the matter of Rojas' guilt or innocence was not discussed and they had not taken a vote as to the guilt or innocence prior to their dismissal. No counteraffidavits were presented. It was established that the jury had taken a vote on the guilt or innocence of defendant Ramirez and that it stood nine to three.

Under article I, section 13, of the California Constitution and Penal Code section 1023, the discharge of a duly impaneled and sworn jury without a verdict bars a retrial unless the defendant consented to the discharge or legal necessity required it under Penal Code section 1140. (Curry v. Superior Court (1970) 2 Cal.3d 707, 712--713, 87 Cal.Rptr. 361, 470 P.2d 345.) Penal Code section 1140 provides: 'Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.'

In the present case no claim is made by the People that Rojas in any way consented to the discharge of the jury. Accordingly, jeopardy would attach unless there was legal necessity for the discharge. Such a legal necessity exists if, at the conclusion of such time as the court deems proper, it satisfactorily appears to the court that there is no reasonable probability that the jury can resolve its differences and render a verdict. Under these circumstances the court may properly discharge the jury and reset for trial. (People v. Griffin (1967) 66 Cal.2d 459, 464, 58 Cal.Rptr. 107, 426 P.2d 507; Paulson v. Superior Court (1962) 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641.) The determination, in each instance, rests in the sound discretion of the trial judge, exercisable on reference to and consideration of all the factors before him. (Paulson v. Superior Court, supra, at p. 66, 22 Cal.Rptr. 649, 372 P.2d 641; People v. Carter (1968) 68 Cal.2d 810, 815, 69 Cal.Rptr. 297, 442 P.2d 353; People v. Huff (1967) 255 Cal.App.2d 443, 447, 63 Cal.Rptr. 317.)

In the present case the discharging court asked the jury forelady, after about five and one-half hours of deliberations, whether a verdict had been reached, and if not, what the vote count was. She said no verdict had been reached and the count was nine to three. The court inquired of her whether she felt further deliberations would be of value, and she replied that she did not. The court then asked: 'Does anybody on the jury think so?' The record indicates that various jury members shook their heads negatively. Under these circumstances it cannot be said that the court abused its discretion in discharging the jury as it properly determined that there was no reasonable probability that a verdict could be reached.

We observe that the inquiry here made of the forelady individually and of the jury as a whole was an inquiry addressed individually to the jury panel of the probability or otherwise of reaching a verdict and, as such, was a proper inquiry. (People v. Lovely (1971) 16 Cal.App.3d 196, 202--203, 93 Cal.Rptr. 805.) ³ There is no merit, accordingly, to the contention that the court in the instant case was required to poll each juror individually in order to determine whether the jury was deadlocked.

Adverting to the contention that there was no showing that the jury was deadlocked as to Rojas because his guilt or innocence was never discussed, (we find that) the record made at the special hearing on this issue contains sufficient evidence to support the determination that under the facts of this case the jury's inability to reach a verdict as to defendant Ramirez's guilt or innocence precluded a verdict as to Rojas' guilt or innocence. There was ample evidence to indicate that the evidence was so intertwined as to both defendants that a verdict regarding one of them would inculpate or exculpate the other as well and that the jury's deadlock as to Ramirez also meant a deadlock as to Rojas.

Moreover, as observed by the trial court, common sense dictates that if the jury forelady and the jury believed a verdict was possible as to one defendant, but not the other, they would not have responded negatively when asked by the court if a verdict was possible. The fact that the jury did not vote on Rojas' guilt or innocence is immaterial. (See People v. Demes (1963) 220 Cal.App.2d 423, 434, 33 Cal.Rptr. 896, cert. den. 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 308.) There is no authority for the proposition that a formal vote is a prerequisite to a determination, after inquiry of the jury, that a verdict cannot be reached. (People v. Demes, supra.)

It was properly determined, therefore, that a reasonable probability existed that a verdict could not be reached as to Rojas and, accordingly, the jury was validly discharged for legal necessity. Consequently, the motions to enter a plea of once in jeopardy and to dismiss the charges were properly denied.

Navarrette's Testimony

At the beginning of the second trial, the court was informed that Robert Navarrette, the chief prosecution witness who had testified at the preliminary hearing and at the first trial, had indicated he was going to refuse to testify....