People v. Rojas, Cr. 12278
| Decision Date | 30 January 1975 |
| Docket Number | Cr. 12278 |
| Citation | 44 Cal.App.3d 978,119 Cal.Rptr. 144 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Abel Magleno ROJAS and Arthur Nester Ramirez, Defendants and Appellants. |
William F. Bryan, Pioda, Bryan & Ames, Salinas, for defendant and appellant Rojos.
F. Thomas Huster, San Francisco, for defendant and appellant Ramirez.
Evelle J. Younger, Atty. Gen., of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci J. Patrick Collins, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
Defendants were convicted of assault with a deadly weapon in violation of Penal Code section 245. Defendant Rojas appeals from the judgment. Defendant Ramirez appeals from the judgment and sentence. Rojas contends the court erred in denying his motions to enter a plea of once in jeopardy and to dismiss the charges against him, due to the discharge of a jury in a prior trial, and both defendants contend prejudicial error was committed in admitting the preliminary hearing and prior trial testimony of the prosecution's chief witness after he refused to testify at the second trial.
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 counter-affidavits 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, 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 a 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, 66 Cal.2d 459, 464, 58 Cal.Rptr. 107, 426 P.2d 507; Paulson v. Superior Court, 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. 6, 22 Cal.Rptr. 649, 372 P.2d 641; People v. Carter, 68 Cal.2d 810, 815, 69 Cal.Rptr. 297, 442 P.2d 353; People v. Huff, 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 9 to 3. 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, 16 Cal.App.3d 196, 202-203, 93 Cal.Rptr. 805.) 1 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, 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, 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.
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. When Navarrette was called as a witness he refused to testify. An in-camera hearing was then held at which Navarrette stated that he had received threats by letter and telephone, that bottles had been thrown at his car, that 'things' on his father's car had been broken, that he was called names at school such as 'snitch,' that he was struck physically on one occasion and that he feared for his life and that of his family.
Notwithstanding that it was explained to him that he had been granted immunity and would be in contempt of court if he did not testify, Navarrette persisted in his refusal. He was found in contempt of court and sent to juvenile hall for the duration of the trial.
Navarrette's prior preliminary hearing and first trial testimony were read to the jury over defendants' objection. In ruling such testimony admissible the court indicated that it did so on two grounds: That it constituted a prior inconsistent statement under Evidence Code section 1235, 2 in that Navarrette's refusal to testify was an implied denial of his former testimony, and that it was former testimony under section 1291, subdivision (a)(2), in that Navarrette's refusal to testify made him unavailable as a witness.
At the conclusion of the trial the jury was instructed, at the request of the People, that the testimony given by a witness at a prior proceeding is to be considered in the same light and in accordance with the same rules which relate to testimony given by witnesses in court.
Defendants argue that it was error to admit Navarrette's prior testimony because it was hearsay and not within any statutory exception. They argue that the witness was not 'unavailable' to testify as required by section 240, subdivision (a), nor was the failure to testify the equivalent of a statement inconsistent with a prior statement so as to make section 1235 applicable. They assert that the error was prejudicial as Navarrette's testimony was crucial to the prosecution's case.
We think it is clear that the testimony was not admissible under section 1235. That statute provides: 'Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.' (Emphasis added.) "The hearing' means the hearing at which a question under this code arises, and not some earlier or later hearing.' (§ 145.) Accordingly, whether Navarrette's refusal to testify at all is in effect a 'statement' inconsistent with earlier statements is irrelevant in view of the fact that Navarrette did not testify at the hearing at which the question of admissibility of the testimony arose.
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