People v. Satchell

• Decision Date: 17 February 1971
• Docket Number: Cr. 8530
• Citation: 93 Cal.Rptr. 69,15 Cal.App.3d 330
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John M. SATCHELL, Defendant and Appellant.

Page 69

93 Cal.Rptr. 69

15 Cal.App.3d 330

The PEOPLE of the State of California, Plaintiff and Respondent, v. John M. SATCHELL, Defendant and Appellant.

Cr. 8530.

Court of Appeal, First District, Division 4, California.

Feb. 17, 1971.

Hearing Granted April 14, 1971.

Gregory S. Jensen, Berrett, Meadows, Lawrence, & Jensen, Redwood City for defendant-appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Michael J. Phelan, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

RATTIGAN, Associate Justice.

Count One of an indictment charged appellant John M. Satchell with the murder (Pen.Code, § 187) of James Earl Jordan; Count Two, with assault with a deadly weapon upon the person of James Molinari, with knowledge that the victim was a peace officer engaged in the performance of his duties. (Id., § 245(b)) By amendment, the indictment further alleged four prior felony convictions. Appellant entered pleas of not guilty to both counts. A jury acquitted him under Count Two, but found him guilty of murder in the second degree under Count One. On appeal from the consequent judgment of conviction, he claims prejudicial error by reason as an irregularity in the conduct of the jury and in the instructions given by the trial court. We uphold his contentions in these respects, and reverse the judgment on both grounds.

The principal point raised on the appeal has to do with the undisputed fact that the single alternate juror was permitted to, and did, enter and remain in the jury room for a period of time during which the regular jury was deliberating. Although the record does not show the the trial court received any sworn or other evidence concerning this episode and all the circumstances surrounding it, it and its effect were discussed at a chambers conference called by the judge after the irregularity had been discovered and corrected. Because this discussion is pertinent to the point raised on the appeal, we set forth portions thereof in full, as follows:

'THE COURT: Let the record indicate that we are in Chambers with the defendant present, and his Counsel, Mr. Smith, and the District Attorney, Mr. Collins. It has been called to the Court's attention that the 13th juror was escorted, or allowed to go to the jury room, and was in with the jury for some period of time. I think it's about at least close to an hour, well, just a little short of an hour, that is, that the 13th juror--that is not the Judge--the 13th juror was in the jury room at the time they were deliberating.

'MR. SMITH: Maybe you should call it the alternate juror.

'THE COURT: The alternate juror, yes, and when the Court was made aware of that fact, the Court Ordered the alternate juror removed, and so advised Counsel, and the Court has discussed with Counsel the irregularity in the proceedings. The Court feels it was very much irregular for the alternate juror to be in the jury room. The Court has advised the--particularly the Public Defender, who is Counsel for the defendant, has asked him to consult with his client to see whether there would be a waiver as to the irregularity, whether any Motions for Mistrial would be made, and the record will indicate that the Public Defender has consulted with the defendant, and we are now in Chambers, and the Court will entertain any Motions that are to be made in connection with the irregularity of the proceedings, as far as the alternate juror being in the jury box at the time--in the jury room at the time the jury was deliberating. Mr. Smith, are you going to make a Motion for Mistrial?

'MR. SMITH: At this time we are not going to make a Motion for Mistrial.

'* * *

'THE COURT: * * * Now, your failure to make a Motion for Mistrial leaves the Court in somewhat of a quandary. If there is an acquittal, of course, that is the end of the case. If there is a conviction, the Court just wonders whether, without an express waiver as to the irregularity, whether the question of irregularity can be raised on appeal, which means there is an element of a gamble here, where you are still attempting to retain a point to be raised on appeal, playing it against the possibilities you might get an acquittal. Of course, your failure to make a Motion for Mistrial might well be construed as an implied waiver. Of course, the Court on its own Motion could declare a mistrial. Does the District Attorney have anything?

'MR. COLLINS: Well, Your Honor, it is a case of first impression to me. I think certainly the defendant and his Counsel are fully cognizant of the situation at this time. They are well aware of the situation, and Mr. Smith, the defendant's Counsel, has had the opportunity here to reflect upon the consequences, if any, of this situation, and I would think that his failure to move for a mistrial after consultation with his client, the record should show, I believe, that he has conferred with his client, the defendant, for a period of five or 10 minutes just prior to our going on the record here, I think that it could well be said that his failure to move for a mistrial does constitute an imlied waiver of any irregularity.

'THE COURT: Well, maybe, I think, for the record, he [sic] should get an answer from the defendant himself. Mr. Satchel, the fact is that the matters we have discussed here in your presence has been discussed privately with your Counsel, is that correct?

'THE DEFENDANT: Yes, and I leave the decision of it to my Counsel, he is doing the talking for me.

'THE COURT: Yes, but I want the record to indicate that everything we have discussed here publicly for the record has been discussed by your Counsel with you. He's advised you of the fact that the alternate juror was in the jury room for some period of time while the jury was deliberating, and that that was improper. Is that correct?

'THE DEFENDANT: He advised me of that.

'THE COURT: And what legal Motions should be made you are leaving entirely to your legal adviser, your attorney in this case?

'THE DEFENDANT: Right.

'MR. COLLINS: Could it be said, then, by the defendant that his Counsel's failure to move for a mistrial is----

'MR. SMITH [interrupting]: I will object to anything the District Attorney would ask the defendant at this time, may it please the Court.

'MR. COLLINS: I am not asking the defendant anything. * * * I think what has been said by the defendant establishes that the failure by his Counsel to move for a mistrial is with the consent of the defendant.

'THE COURT: Well, that is--yes,--well, let me go one step further. You [addressing appellant] realize that there could be a Motion to--what we call a mistrial, and have a new--complete new trial of this case, that can be made by your legal Counsel, is that correct?

'THE DEFENDANT: Yes.

'THE COURT: Your answer is--speak up loudly.

'THE DEFENDANT: Yes, yes.

'THE COURT: And whether that Motion is made or not, you are placing entirely in the hands of your Counsel, your attorney?

'THE DEFENDANT: Right, yes, sir.

'THE COURT: All right. Well, I think--the Court feels that while there is no express waiver of irregularity, that the defendant has had the opportunity to make a Motion for Mistrial, and the lack of any such Motion being made, the Court construes as an implied waiver, so the Court will allow the jury to continue its deliberations, and that will be--[interrupted] * * *'

The judge then responded to a request for exhibits as received from the regular jurors, and permitted them to continue their deliberations.

The irregularity mentioned, and the above-quoted proceedings which followed its discovery, raise three questions which we state--and answer--as follows:

(1) Did the irregularity constitute trial error? Yes. It amounted to an invasion of appellant's right of trial by jury. (People v. Bruneman (1935) 4 Cal.App.2d 75, 79-81, 40 P.2d 891, approved in People v. Britton (1935) 4 Cal.2d 622, 623, 52 P.2d 217. See Pen.Code, § 1128.)

We are not persuaded to the contrary by the decision cited by the Attorney General for an opposite result. (People v. French (1939) 12 Cal.2d 720, 87 P.2d 1014.) In that case, a similar assignment of error was rejected because, as was shown by uncontradicted affidavit (id., at pp. 770-771, 87 P.2d 1014), the two alternate jurors had been permitted to remain in the jury room with the 'twelve regulars' for only 'a few minutes while the room was being put in order but no deliberations or discussion of the case was had in their presence.' (Id., at p. 770, 87 P.2d at p. 1040 [emphasis added].) In the present case the intruding alternate was with the 'twelve regulars' for a full hour, during which the twelve were deliberating upon a verdict. We must assume the fact last stated, because the present record does not show to the contrary (compare People v. French, supra, at pp. 770-771, 87 P.2d 1014), because each juror--including the alternate--had been instructed to 'freely and fairly discuss with his fellow jurors the evidence and the deductions to be drawn therefrom,' and because various other instructions on the deliberative process had been addressed to the regular jurors without exclusion of the alternate. The French decision is accordingly distinguishable. (See also [as also distinguishable on its facts] People v. Love (1937) 21 Cal.App.2d 623, 628-629, 70 P.2d 202.)

(2) Was the error prejudicial? Yes. The Bruneman decision explicitly points out that 'this was an error so far destructive to the invaded right that the error could not by mere consent be rendered harmless.' (People v. Bruneman, supra, 4 Cal.App.2d 75 at p. 81, 40 P.2d 891 at p. 894. Cf. People v. Britton, supra, 4 Cal.2d 622 at p. 623, 52 P.2d 217.) A critic of the Bruneman-Britton rule would find 'at most harmless error' where the only irregularity has been the 'mere presence' of alternate jurors during the deliberations of the regular jury. (See Note (1936) 24 Cal.L.Rev. 735, 738-739.) However, for the same reasons cited above as distinguishing Bruneman...