People v. Sparks

• Decision Date: 21 December 1967
• Docket Number: Cr. 351
• Citation: 257 Cal.App.2d 306,64 Cal.Rptr. 682
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John Lee SPARKS, Jr., Defendant and Appellant.

Page 682

64 Cal.Rptr. 682

257 Cal.App.2d 306

PEOPLE of the State of California, Plaintiff and Respondent, v. John Lee SPARKS, Jr., Defendant and Appellant.

Cr. 351.

Court of Appeal, Fifth District, California.

Dec. 21, 1967.

Hearing Denied Feb. 14, 1968.

[257 Cal.App.2d 307] Barbara A. Sena, Madera, under appointment by Court of Appeal, for appellant.

[257 Cal.App.2d 308] Thomas C. Lynch, Atty. Gen., by Daniel J. Kremer and Robert J. Sullivan, Deputy Attys. Gen., Sacramento, for defendant.

OPINION

STONE, Associate Justice.

Defendant was found guilty, after trial by a jury, of count one, robbery of the first degree, count two, assault by means of force likely to produce great bodily injury, and count three, burglary. He has taken this appeal from the judgment and sentence as to each of the three counts.

Although defendant does not question the sufficiency of the evidence to support the judgment, having appealed on procedural and constitutional grounds, the facts are briefly stated to provide a framework for discussion of the points raised on this appeal.

On July 7, 1966, defendant and an accomplice, wearing nylon stockings over their heads and faces, forcibly entered the home of Mrs. Connie Walton between 10 and 12 p.m. Defendant knocked Mrs. Walton to the floor, beat her with a heavy object, demanded money, and held her to the floor with his foot while rummaging through a chiffonier. His accomplice slapped and pushed Mrs. Walton's 9-year-old niece upon a bed in the same room, taped her mouth, pointed a shotgun at her and asked defendant if he should kill the child. Defendant said 'No.' The men took Mrs. Walton's purse, a gun and other personal belongings, and left.

Mrs. Walton had known defendant for some time, as he had resided across the street from her house. In fact, he had been in her home several times, the last time shortly before the robbery. Mrs. Walton recognized him as he entered the door, and Shirley, the 9-year-old niece who was acquainted with defendant, picked his picture out of seven photographs shown to her by the police. Both Mrs. Walton and Shirley identified defendant during the course of the trial.

Defendant contends the court erred in the manner in which possible forms of verdict were explained to the jury before the jurors were taken to the jury room for deliberations. The court first read in full the form of verdict to be used if the jury should find defendant guilty of first degree robbery. The court then said:

'The next verdict is the same, only it charges 'Second Degree Robbery.' The next verdict relates to Count Two, which has to do with Assault With Great Bodily Harm. One verdict is 'Guilty' and one is 'Not Guilty.' And there is one verdict reading the same as the others, in which the Defendant is found guilty of First Degree Murder as charged in Count Three.'

The court reporter, realizing that the judge had inadvertently said 'first degree Murder' rather than 'first degree burglary' said: 'Your Honor, will you please read that last verdict again.' The court then correctly read the verdict in full.

Defendant places great emphasis on the court's inadvertent language, 'first degree murder,' arguing that this slip of the tongue undoubtedly influenced the jury and prevented defendant from having a fair trial. We cannot believe this inadvertent misstatement, which was rectified immediately, gave the jurors any idea that the court thought defendant was guilty of murder or of any other particular crime. The jury had heard the entire case--the evidence, the argument and the instructions--before the verdict forms were presented. If a slip of the tongue of this character influenced the jurors and caused them to find defendant guilty rather than not guilty, our whole jury system must fail as this would be tantamount to a holding on our part that the average juror lacks the necessary intelligence and common sense to act as a trier of fact.

Defendant also alleges prejudicial error because the trial judge read the 'guilty' verdicts before reading the 'not guilty' verdicts. Perhaps it would have been better had the trial judge read the pertinent 'not guilty' verdict after each 'guilty' verdict, but we do not deem it reversible error to follow a different order. It is even possible that jurors have a better understanding of the distinction between degrees of a crime when verdicts of first and second degree are explained one immediately following the other. Moreover, it can be argued with equal strength that a jury is more likely to remember the last verdict read, particularly where, as here, it is a clear and concise 'Not guilty as charged.' In any event, the court instructed the jury:

'Now, the order in which I have read or referred to these verdicts has no significance in itself. These verdicts have been prepared for the convenience of the Jury. Use such of them as your final deliberations dictate.'

It is well settled in California that:

'It will be presumed that the jurors were true to their oaths and followed the various admonitions and instructions of the court.' (People v. Burkhart, 211 Cal. 726, 733, 297 P. 11, 14; People v. Isby, 30 Cal.2d 879, 896--897, 186 P.2d 405.)

In considering the question of error, it is significant that defendant neither voiced objection nor asked for an admonition when the verdict forms were presented to the jury. If a party deems prejudicial an act or statement of the presiding judge, of opposing counsel, or of any official of the court, it is essential that he call the matter to the attention of the judge when the event occurs, so the error may be corrected. The reason for the rule is well expressed in Sommer v. Martin, 55 Cal.App. 603, 610, 204 P. 33, 36, as follows:

"In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would, in most cases, be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.' (Citation.)'

Defendant's failure to raise the point in the lower court leads us to another assignment of error that was not raised below. Defendant asserts the jury that tried him was selected from a panel which included fewer Negroes than non-Negroes in proportion to the general population, in violation of the due process and equal protection clause of the Fourteenth Amendment to the Federal Constitution. Although defendant concedes that no challenge was taken to the panel before a juror was sworn, as required by Penal Code,...