PEOPLE v. HEDGECOCK (1988)

On October 9, 1985, a jury found Roger Hedgecock, then the mayor of San Diego, guilty on a single count of conspiracy and 12 counts of perjury.   The offenses involved violations of local election ordinances and the state Political Reform Act of 1974 (Gov.Code, § 81000 et seq.) restricting campaign contributions and requiring complete and accurate personal and campaign accounting.

Money—“the mother's milk of politics” ¹ —is the root of this case.   Hedgecock's source was the “financial empire” known as J. David and Company presided over by J. David “Jerry” Dominelli and Nancy Hoover, later pejoratively referred to as Captain Money and the Golden Girl.²  Although it is tempting to pursue this intriguing background, the lengthy opinion which follows avoids chronicling the San Diego political and social scene in which Dominelli and Hoover succeeded in capturing the hearts and pocketbooks of many well-known and influential San Diegans.   We defer to others to fully describe the events of that period and explain how and why they occurred.   There is obviously ample source material in the voluminous court records containing the details of J. David's still-pending bankruptcy, the criminal prosecutions both state and federal against several of the principals, and the various civil cases against lawyers, accountants, directors and others seeking damages to recoup lost investments.   We mention these events only briefly as a backdrop to the political world of 1982 in which Hedgecock was seeking to become Mayor of San Diego.

To a great extent, the legal proceedings in this case mirror the turbulent events which preceded the September 19, 1984, indictment charging Hedgecock, Dominelli, Hoover and Hedgecock's long-time political confidant Tom Shepard with conspiracy to violate numerous election laws and multiple counts of perjury.   Hedgecock's trial was severed from that of his codefendants.   His first trial, interspersed with occasional requests for appellate intervention, resulted in a hung jury.   The second trial, resulting in the convictions under review here, concluded on what can only be described as a bizarre note when two jurors came forward with allegations of misconduct by the bailiff.

For the sake of convenience and clarity, we depart from the traditional form of an appellate court opinion and begin by discussing the allegations of juror and bailiff misconduct, an understanding of which is not dependent on the facts underlying the criminal charges against Hedgecock.   We explain why we conclude the judgment must be reversed for the sole purpose of allowing the trial court to conduct an evidentiary hearing to determine whether Hedgecock is entitled to a new trial.   The formal statement of facts follows in Section II of the opinion, describing the evidence presented at trial.   We then address Hedgecock's remaining contentions of legal error, explaining why we do not find them persuasive or, if meritorious, why they nonetheless do not require reversal of his convictions.   Thus, Hedgecock's convictions shall be reinstated if following the evidentiary hearing on remand the trial court concludes that Hedgecock's motion for new trial should be denied.

I. JUROR/BAILIFF MISCONDUCT ISSUES

Given the extensive publicity surrounding this case, the jury was sequestered from Wednesday, October 2, 1985—the day before deliberations began—until the verdict was taken on the afternoon of October 9.   Bailiffs Allen Burroughs and Holly Murlin were charged with supervising the jurors during this period.   Several of Hedgecock's contentions on this appeal involve allegations which surfaced following the verdict that at least one of the bailiffs committed misconduct during the sequestration period.   Hedgecock argues that bailiff Burroughs engaged in improper communications with one or more of the jurors regarding the status of jury deliberations, the conduct of the hold-outs, the cost of the sequestration and concomitant need for a speedy verdict.   He also alleges Burroughs misrepresented to another juror that there could be no hung jury and told jurors a story about a green hat which involved the concept of reasonable doubt and implied that hold-out jurors were being unreasonable.   These same allegations formed the basis for Hedgecock's motion for a new trial.   Additionally, in a consolidated petition for writ of habeas corpus, Hedgecock contends he is entitled to an evidentiary hearing on the question of whether the consumption of alcoholic beverages provided members of the jury by one of the bailiffs the night before the final day of deliberations incapacitated one or more of the jurors.

We begin by describing the facts and procedural background which underlie Hedgecock's arguments.   While we reject his suggestion that the declarations submitted in support of the motion for new trial establish prejudicial bailiff misconduct as a matter of law, we nonetheless conclude that the lack of an evidentiary hearing as well as several other procedural errors in the resolution of the new trial motion denied Hedgecock a fair and complete opportunity to have his serious allegations of misconduct properly considered.   We also conclude that an alternative writ must issue so that the questions regarding juror consumption of alcohol may be explored.   Accordingly, we will remand for an evidentiary hearing on Hedgecock's motion for new trial and order that the issue on the alternative writ be heard concurrently by the superior court.

Factual Record at the Motion for New Trial 3

In support of his new trial motion, Hedgecock submitted declarations from jurors Stanley Bohensky and Kathleen Saxton–Calderwood.⁴  According to Bohensky, Burroughs had struck up a relationship with him by the second day of deliberations.   Burroughs asked Bohensky to mention to the other jurors that the sequestration process was costing a lot of money, they did not have to be treated this nicely and they should reach a speedy verdict.   He also indicated that Judge Todd wanted to know if the jury was getting along and making progress.   Bohensky replied that one of the jurors, Delores “Di” Pickering, was causing problems by expressing concern that the prosecution was a “paper case.”   Burroughs told Bohensky he should take notes on what any unreasonable jurors were saying.⁵

According to Bohensky, Burroughs' inquiries regarding hold-outs and the status of deliberations continued over the next several days.   Bohensky described one conversation in his room which included Burroughs and the second bailiff, Holly Murlin.   Burroughs and Murlin explained how they could predict which prospective jurors the attorneys would excuse and how the jurors actually selected would ultimately vote.   The bailiffs told Bohensky, “Don't worry about Di Pickering, she'll come around, it's Kathy that you guys are going to have trouble with.”   Bohensky also described a conversation he had with Burroughs and foreman Richard Stark in which Burroughs told the two jurors, “Listen, I trust you guys.   Me and the Judge have sat through this case twice now.   We've heard all the testimony and have seen the evidence.   We don't care how it comes out as long as it's all one way or the other.”

On Sunday evening following deliberations, Bohensky recalled that the bailiffs arranged for pizza to be delivered along with beer and wine.   Burroughs told a story to several of the jurors about a jury's deliberations in another case in which one of the witnesses disagreed with others in testifying that the defendant wore a green hat.   One of the jurors expressed his opinion that the disagreement in the testimony caused him to entertain a reasonable doubt regarding the defendant's guilt.   A fist fight broke out between this hold-out juror and the foreman which required summoning the bailiff.   According to Bohensky, Burroughs editorialized, “That shouldn't have been a hung jury;  that was not reasonable doubt.”   Several of the jurors later mentioned the “green hat story” during deliberations in discussions about reasonable doubt.

Saxton–Calderwood's declaration also described the telling of the “green hat story” in a manner consistent with Bohensky's declaration.   She confirmed that the jurors referred to the story in deliberations relating to reasonable doubt and asked Burroughs to repeat it on other occasions.

Saxton–Calderwood also commented on other conduct by Burroughs.   She explained how in one conversation, Burroughs told her and the other jurors that there were only two possible verdicts, guilty and not guilty.  “He stated that all of the evidence was before us, and emphasized that we use our common sense.”   Concerned about the accuracy and appropriateness of these comments, Saxton–Calderwood approached Murlin.   Murlin told her to remember they were there to reach a verdict.   Later, Murlin told her “there were other choices regarding the verdict.”   Bohensky corroborated Saxton–Calderwood's story, explaining that Burroughs related to him that “ ‘Kathy complained to Holly that last night I told her there couldn't be a third alternative, or split vote.   Watch out what you say to Kathy.’ ”

On another occasion, Saxton–Calderwood overheard portions of a conversation between Burroughs and Bohensky in which the two men referred to her and fellow juror Renee Ranck as “holding up” the deliberations.   She also stated that foreman Richard Stark informed the jurors Burroughs was “pumping” him for information.

Both Bohensky and Saxton–Calderwood described how Burroughs provided beer, wine and hard liquor for the jurors and drank with them while they were not deliberating.   According to Saxton–Calderwood, Burroughs furnished alcohol to an underage juror, Bryce Bulman.   Bohensky related that on the evening of Tuesday, October 8, the jurors and bailiffs had a party to celebrate Murlin's birthday.   When Bohensky went to his room between 10:30 and 11:00, he still heard voices in the deliberation room.   He knocked and found Burroughs inside drinking and socializing with three of the jurors, Marian Pierce, Ann Rogers and Karon Dyer.   Burroughs told Bohensky that “they already drank the Kalua [sic] but he had Vodka and grapefruit juice.”   Burroughs then produced a half-gallon bottle of vodka and a six-pack of grapefruit juice and the four jurors and Burroughs proceeded to share several rounds of drinks.   Bohensky stated that the next day—which was the last day of deliberations—Karon Dyer “was so hung over, she had to go to the bathroom every fifteen minutes to throw up.”

Declarations of the remaining 10 jurors supported portions of Bohensky's and Saxton–Calderwood's statements and contradicted others.   A number of jurors confirmed the telling of the “green hat story.”   Others who were not present when it was initially told recalled hearing about it at a later time.   The jurors generally agreed the story was part of a conversation regarding members of the jury getting along and was apparently told in response to questions about a panel of emergency buttons for summoning assistance in the normal courthouse jury deliberation rooms.   Several recalled that the subject of the story had something to do with juror disagreement over reasonable doubt and that it was discussed during later deliberations.   They denied, however, hearing Burroughs make any specific comments about the reasonable doubt concept.

Foreman Richard Stark confirmed that on one occasion, Burroughs had told him “that sequestering the jury was expensive and that the jurors were expected to reach a decision.”⁶  He specifically denied being asked to keep a list of unreasonable jurors or hearing that Judge Todd knew the identities of the “hold-outs.” ⁷  Several of the jurors admitted that members of the jury consumed alcoholic beverages furnished by Burroughs, characterizing the quantities as “small amounts.”   Karon Dyer denied being “hung over” during the deliberations on Wednesday, October 9, 1984, attributing her condition to nervous tension.

Both bailiffs filed responsive declarations.   Burroughs expressly denied Bohensky's allegations regarding comments made to him about the costs of sequestration, the need to reach a verdict, the status of deliberations and the advisability of keeping notes on the “hold-out” jurors.   He did not deny making a comment regarding the sequestration expense to Richard Stark.   Burroughs denied having any conversations with Kathy Saxton–Calderwood about possible verdicts in the case.   He admitted telling the “green hat story” on Sunday evening after deliberations were complete.   Burroughs told the story in response to juror questions regarding the emergency buttons in downtown courtrooms and whether he knew of any instances of violence among jurors.   After he finished, one juror asked Burroughs if he believed there was a reasonable doubt in the “green hat” case.   According to Burroughs, he replied that any questions on the law would have to be addressed to Judge Todd.

Murlin's declaration denied that she and Burroughs had discussed with Bohensky how they could predict which prospective jurors would be seated in a case and how they would vote.   She also denied she had ever discussed with Bohensky the role of jurors Di Pickering and Kathy Saxton–Calderwood in the deliberations.   Murlin confirmed that Saxton–Calderwood had approached her at one point during the deliberations, concerned that Burroughs had told her there were only two possible verdicts.   According to Murlin, she told Saxton–Calderwood she could not discuss the issue and instructed her to address any legal questions she might have to Judge Todd.   When Murlin later mentioned this conversation to Burroughs, Burroughs replied that Saxton–Calderwood's statements were “ridiculous.”

Murlin also recounted an incident which occurred in the early morning hours of Wednesday, October 9.   Murlin was awakened by Bohensky loudly knocking at her door and asking to be let in.   She called Burroughs who promptly escorted Bohensky back to his room.   Bohensky later appeared upset that Murlin had called Burroughs.   Burroughs' declaration confirmed Murlin's story.

The Hearing on the Motion for New Trial

In support of his motion for new trial, Hedgecock sought to subpoena each of the 12 trial jurors to testify regarding the alleged misconduct by bailiff Burroughs.   In addition, a subpoena duces tecum was served on the Attorney General seeking production of the transcripts of the interviews with the jurors and bailiffs conducted as part of his formal investigation.   Finally, Hedgecock served a subpoena on Judge Todd seeking the judge's testimony regarding his conversations with Burroughs during and after deliberations.   In conjunction with the subpoena, Hedgecock sought to have the judge disqualify himself from presiding over the hearing on the motion for new trial.   Although the formal motion to recuse ⁸ cited a single ground—that Judge Todd was to be called as a witness (see Code Civ.Proc., § 170.1, subd. (a)(1);  Evid.Code, § 703, subd. (b))—an accompanying declaration by defense counsel added an additional reason:  that disqualification was necessary “to preserve the appearance of propriety” (see Code Civ. Proc., § 170.1, subd. (a)(6)(C)).

The hearing on the new trial motion was scheduled for November 4, 1985.   On October 28, Judge Todd ordered the statement of disqualification (see ante, fn. 8) stricken pursuant to Code of Civil Procedure section 170.4, subdivision (b), effectively eliminating the recusal issue.   He also quashed the subpoena for his testimony.   On October 30, Judge Todd issued another order providing that “[t]he hearing will be conducted upon the declarations of the twelve trial jurors and whatever other evidence is submitted by the parties at the time of the hearing.   The Court will not hear testimony from any of the trial jurors․”

The November 4 hearing date was postponed until December 10.   On that date, the trial court first took up the Attorney General's motion to quash the subpoena duces tecum, which had been filed on December 9.   During argument on the motion, defense counsel pointed out that two of the jurors (Delores Pickering and Leslie Doherty) had refused to speak to defense counsel and another (Bryce Bulman) had indicated he was reluctant to discuss the subject.   Judge Todd then reviewed the transcripts of the Pickering and Doherty interviews in camera.   He then announced his conclusion that there was “nothing in the documents that is properly the subject of discovery pertaining to the issues before us” and granted the motion to quash.

Following additional argument by the parties, the court orally denied Hedgecock's motion for a new trial.   As to the “green hat story”, Judge Todd stated that no reasonable juror could have interpreted Burroughs' recitation as an instruction on reasonable doubt.   As to Saxton–Calderwood's allegations that Burroughs had told her there were only two possible verdicts, the court noted that this was technically a correct statement of the law, since a hung jury is not a “verdict.”   In any event, according to Judge Todd, the comment was “not likely to have influenced the jury verdict improperly” because the jurors during voir dire—particularly Saxton–Calderwood—“testified to their willingness to stick to their honest belief, even though in a minority position among the jurors․”  Finally, as to the alleged statements regarding the costs of sequestration and the expectation that the jury reach a verdict, the court concluded that Burroughs' comments to foreman Richard Stark were not “likely to have influenced the jury improperly.”   Judge Todd did not believe Bohensky's testimony on the same subject, finding his credibility “seriously impeached” by evidence of his nocturnal visit to bailiff Murlin's room.   But even assuming the truth of Bohensky's allegations, Judge Todd found that any presumption of prejudice arising from Burroughs' alleged remarks had been rebutted by the fact that the jury deliberated for a total of nearly 70 hours, hardly indicative of a jury pressured into returning a speedy verdict.   The court concluded:  “[E]ven if this court had ruled otherwise on any of the alleged statements, this court is convinced beyond any doubt that no prejudice resulted from any of the alleged improper statements.   The weight of the evidence against the defendant in this case, in this court's view, was overwhelming.   The strength of the case against defendant was so great that no prejudice could have resulted from any of the matters asserted.   The motion for new trial is denied.” ⁹

The Consolidated Writ Petition

In a petition for writ of habeas corpus filed after the appeal was filed and consolidated with the appeal for hearing, Hedgecock presents additional evidence on the question of juror consumption of alcohol and the effect it may have had on the deliberations.   Both Bohensky and Saxton–Calderwood filed supplemental declarations in which they give further details of the party on Tuesday night and the deliberations which followed on Wednesday morning.¹⁰  Bohensky explains that the drinking in which he participated went on until 2:30 Wednesday morning and the jurors were awakened shortly after 6:00 a.m. to get ready for the deliberations which began between 7:30 and 8:00 a.m.   Bohensky also states that when she was not in the bathroom vomiting, Karon Dyer spent most of Wednesday morning “on the sofa, lying on her back, with a pillow over her head.”   Saxton–Calderwood corroborates Bohensky's recitation.   She adds that, in contrast to previous days, Dyer “took little active participation” in the final day's deliberations.

The writ petition also includes the declaration of Hedgecock's appellate defense counsel, Charles Sevilla, who describes an interview he conducted with an unnamed juror.   According to Sevilla, this juror admitted being “hung over” during deliberations on Wednesday morning, October 9, 1985, but would not execute a declaration to that effect because of embarassment.

Discussion

A

The picture which emerges from a careful review of the declarations submitted in support of and opposition to Hedgecock's motion for new trial is less than enlightening.   It is reasonably clear that at times bailiff Burroughs conducted himself improperly.   Burroughs himself did not dispute that he provided members of the jury with significant amounts of alcoholic beverages which they consumed after deliberations, that these same beverages were furnished to one juror who was not legally old enough to drink and that at least on one occasion the drinking continued into the early morning hours of a day on which deliberations began shortly after breakfast.   This was all occurring only two months after the California Supreme Court made the following comments about juror drinking:  “Juror consumption of alcoholic beverages should be strongly discouraged by the courts.   The deliberative process, made all the more demanding by the tense atmosphere of the juryroom, requires jurors to perform their duties diligently and to the best of their ability.   Any activity, like drinking, which may tend to impede juror performance and perception, should be shunned.   Trial courts must exercise care to avoid even tacit approval of such activities.”  (People v. Trevino (1985) 39 Cal.3d 667, 693, fn. 27, 217 Cal.Rptr. 652, 704 P.2d 719.)   Obviously trial court discouragement of juror drinking will have little effect if bailiffs, the only means of contact between a sequestered jury and the outside world, are providing jurors with copious amounts of liquor and hosting all-night drinking parties.

Perhaps even more troubling are Burroughs' comments to foreman Richard Stark regarding the costs of sequestering the jury.   It is not so much that such comments conveyed to the jurors any information they did not already have.   None of the jurors were asked to pay for their own meals and lodging;  they knew the county was responsible.   That the cost of meals and hotel rooms for twelve jurors, three alternates and two bailiffs for seven days would be significant is, to say the least, self-evident.   But by the mere fact of mentioning expense, Burroughs was implying it was a relevant consideration for the jury.   A defendant whose jury has been sequestered should have no cause to wonder whether the deliberations over his guilt or innocence were less thorough because the jurors were reminded by a court functionary that their thoroughness had a price which was being borne by the taxpayers.

 Beyond these admitted improprieties, however, the picture gets considerably more obscure.   On one hand, the declarations are susceptible of the interpretation that this was fundamentally a conscientious jury.   Although Burroughs' furnishing alcoholic beverages and chumming with the some of the jurors undoubtedly contributed to a less-than-exemplary atmosphere outside of the deliberations, it may be that the deliberations themselves were largely unaffected.¹¹  On the other hand, Burroughs' undisputed dislike of Hedgecock (ante, fn. 4) supports the suggestion that he may have consciously or unconsciously approached members of the jury he concluded would not be sympathetic to Hedgecock, taking them into his confidence by providing information and telling “funny stories” which had the effect of cementing their view of Hedgecock's guilt.

The principal issue we must confront is whether the trial court erred in refusing to permit an evidentiary hearing on the motion for new trial at which the jurors and bailiffs could have testified regarding the circumstances which led to the allegations of bailiff misconduct.   Hedgecock contends the trial court abused its discretion in restricting the presentation of evidence at the hearing to declarations.   As we shall explain, consistent with California Supreme Court precedent and virtually universal authority from other states and the federal courts, we believe he is correct.

In Linhart v. Nelson (1976) 18 Cal.3d 641, 134 Cal.Rptr. 813, 557 P.2d 104, a unanimous California Supreme Court established the rule in civil cases that a motion for new trial on the ground of juror misconduct should be heard solely on the affidavits or declarations of the affected jurors and that the parties are not permitted to subpoena trial jurors to testify in support or opposition to the motion.   The court relied on the express language of Code of Civil Procedure section 658 and expressed concern that a contrary rule would undermine “the integrity of our venerable jury process” by causing jurors to seek excuse from jury service and stifling independent thought and debate during jury deliberations.  (Id. at pp. 644–645, 134 Cal.Rptr. 813, 557 P.2d 104.)   Several years later in People v. Pierce (1979) 24 Cal.3d 199, 155 Cal.Rptr. 657, 595 P.2d 91, however, the Supreme Court—again unanimously—indicated that a different rule was applicable in criminal cases.  Pierce involved misconduct by a juror (Seymour) who during the course of the trial had discussed the case with a police officer (Case) who had testified for the prosecution.   Rather than hold an evidentiary hearing on defendant's motion for new trial, the trial court “relied exclusively on the investigatory reports prepared by the police and the district attorney.”  (Id. at p. 206, 155 Cal.Rptr. 657, 595 P.2d 91.)   Responding to this procedure, the Supreme Court commented as follows:  “[W]e strongly disapprove of the substitution of unsworn police reports and summaries for affidavits or testimony of the percipient witnesses.   A hearing in open court would have been particularly appropriate to ascertain the relevant facts in this matter, because both Seymour and Case were initially evasive about the scope and content of their conversation.  (But cf. Linhart v. Nelson (1976) 18 Cal.3d 641 [134 Cal.Rptr. 813, 557 P.2d 104] [stating the rule in civil cases].)”  (Id. at p. 206, fn. 3, 155 Cal.Rptr. 657, 595 P.2d 91.)

One Court of Appeal decision since Pierce has addressed the extent to which Pierce articulated a different rule applicable to criminal cases.   Surprisingly, the majority of a divided court in People v. Scott (1982) 129 Cal.App.3d 301, 180 Cal.Rptr. 891 concluded that the rule of Linhart v. Nelson applied to criminal as well as civil cases, precluding a defendant alleging juror misconduct from ever subpoenaing jurors to testify at a new trial motion.   The Scott majority characterized the Pierce discussion as “not a holding that jurors may be compelled to testify at a motion for new trial in a criminal case.   The facts in Pierce were such that the misconduct of the juror could be proved by the affidavit or testimony of a nonjuror.”  (Id. at p. 309, 180 Cal.Rptr. 891.)   The majority drew a sharp dissent from Justice Stephens.¹²

We believe Pierce cannot reasonably be read in the manner advocated in Scott.   Although perhaps technically “dicta” in that the Supreme Court was able to conclude that Seymour was guilty of misconduct even without resort to an evidentiary hearing, Pierce quite clearly states that live testimony by jurors in open court may sometimes be necessary to accurately establish the underlying facts.   Had the footnote been only intended to indicate that Case (the nonjuror) should have been called as a live witness, there was no need to refer to Seymour or to contrast the “rule in civil cases” by citing Linhart.   And while we agree that the policy considerations against requiring juror testimony which are discussed in Linhart are also applicable to criminal cases, we share Justice Stephens' view that such considerations, when measured against the different interests at stake in criminal and civil trials, could easily lead the Legislature to conclude that different rules should apply.   Because there is no statute similar to Code of Civil Procedure section 658 which requires that motions for new trial in criminal cases based on juror misconduct “must be made upon affidavits,” ¹³ the Supreme Court in Pierce quite understandably concluded that juror testimony might be necessary and appropriate in some criminal cases.   (Accord People v. Jenkins (1987) 196 Cal.App.3d 394, 402, 241 Cal.Rptr. 827.) ¹⁴

Support by analogy is provided by the recent Supreme Court decision in People v. Burgener (1986) 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251.   There, the jury foreman contacted the judge during deliberations and expressed his concern that one of the jurors was intoxicated.   The judge, with the concurrence of defense counsel, admonished the jury to avoid using intoxicants and allowed the deliberations to continue.   The Supreme Court held that the trial judge erred in failing to conduct an adequate investigation of the foreman's allegation, noting that “an inquiry sufficient to determine the facts is required whenever the court is put on notice that good cause to discharge a juror may exist.”  (Id. at p. 519, 224 Cal.Rptr. 112, 714 P.2d 1251.)  “[O]nce a juror's competence is called into question, a hearing to determine the facts is clearly contemplated.   [Citations.]  Failure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion subject to appellate review.”  (Id. at pp. 519–520, 224 Cal.Rptr. 112, 714 P.2d 1251.)

Because the record in Burgener was insufficient to conclusively demonstrate that juror misconduct had in fact occurred, the court held that reversal of defendant's conviction was inappropriate.¹⁵  (Id. at pp. 521–522, 224 Cal.Rptr. 112, 714 P.2d 1251.)   Instead, the court affirmed the conviction without prejudice to the defendant's right to file a petition for habeas corpus raising the jury misconduct issue.   In such a proceeding, the court noted, “the opportunity for an evidentiary hearing will allow defendant's allegations to be more fully explored.”  (Id. at p. 522, 224 Cal.Rptr. 112, 714 P.2d 1251, emphasis added.)

The procedural posture of Burgener differs somewhat from this case in that the evidence of juror misconduct there surfaced before deliberations were complete.   Nonetheless, the defendant's right to an evidentiary hearing cannot rationally turn on when a juror decides to alert the court or counsel to a possible impropriety.  Burgener fairly read supports the proposition that where allegations of jury misconduct or tampering cannot be otherwise adequately evaluated, the trial court abuses its discretion where it fails to conduct an evidentiary hearing.

An added benefit of our conclusion is that it brings California law into conformity with federal law and that of virtually every other state as well.   The rule in the federal courts has long been that where a defendant alleges facts in a motion for new trial which raise the possibility of juror misconduct or tampering, the trial court may order an evidentiary hearing to ascertain what happened and whether it resulted in prejudice to the defendant.   As one prominent federal commentator has summarized:  “A party who makes a proper preliminary showing is entitled to an evidentiary hearing, and in criminal cases the entitlement is of constitutional dimension․  Occasionally the matter has been resolved in camera but usually a hearing is conducted in court with counsel for both parties present, as well as juror-witnesses.”   (Mueller, Jurors' Impeachment of Verdicts and Indictments in Federal Court Under Rule 606(b) (1978) 57 Neb.L.Rev. 920, 962–963, fns. omitted;  accord 3 Louisell & Mueller, Federal Evidence (1979) § 291, pp. 157–159.)

The leading case on the subject is Remmer v. United States (1954) 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 in which someone approached one of the jurors during trial and suggested “he could profit by bringing in a verdict favorable to the [defendant].”  (Id. at p. 228, 74 S.Ct. at pp. 450–451;  see also Remmer v. United States (Remmer II ) 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435.)   The matter was brought to the attention of the judge and prosecutors who investigated the matter and apparently concluded the statement had been made in jest.   Defense counsel was not informed about the matter until after the verdict, at which point he filed a motion for new trial on grounds of jury tampering.   The trial court denied the motion without an evidentiary hearing.   Reversing, the Supreme Court explained that “[t]he trial court should not decide and take final action ex parte on information such as was received in this case, but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.”  (347 U.S. at pp. 229–230, 74 S.Ct. at p. 451, second emphasis added.)

The importance of a Remmer -type evidentiary hearing was recently reaffirmed in Smith v. Phillips (1982) 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78.   Rejecting the need to conclusively impute bias to a juror who had engaged in facially suspect conduct, the Court expressed confidence that evidentiary hearings can provide an accurate depiction of the facts:  “[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation.   Were that the rule, few trials would be constitutionally acceptable․  Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.   Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case.”  (Id. at p. 217, 102 S.Ct. at p. 946, fn. omitted;  see also id. at p. 222, 102 S.Ct. at p. 948 (conc. opn. of O'Connor, J.).)

Following Remmer and Smith v. Phillips, federal courts consistently use evidentiary hearings to explore claims of jury misconduct and tampering.   (E.g., United States v. Madrid (9th Cir.1988) 842 F.2d 1090, 1092;  United States v. Bagnariol (9th Cir.1981) 665 F.2d 877, 884;  United States v. Mirkin (1st Cir.1981) 649 F.2d 78, 80;  Port Terminal & Warehousing v. John S. James Co. (11th Cir.1983) 695 F.2d 1328;  Morgan v. United States (5th Cir.1967) 380 F.2d 915.)  “If the use of affidavits be thought a doubtful method for getting at the facts [citations], hearing witnesses on examination and cross-examination is free of such doubt.”  (Ryan v. United States (D.C.Cir.1951) 191 F.2d 779, 781.)   As one circuit court recently summarized, “ ‘A party claiming that an improperly influenced jury returned a verdict against him must be given an opportunity to prove that claim.’  [Citation.]  In response to such an allegation, the trial judge ‘must conduct a full investigation to ascertain whether the alleged jury misconduct actually occurred;  if it occurred, he must determine whether or not it was prejudicial.’  [Citation, emphasis added.]”   (United States v. Brantley (11th Cir.1984) 733 F.2d 1429, 1439;  accord United States v. Bagnariol, supra, 665 F.2d at p. 885 (“The trial court, upon learning of a possible incident of juror misconduct, must hold an evidentiary hearing to determine the precise nature of the extraneous information.”);  Haley v. Blue Ridge Transfer Co., Inc. (4th Cir.1986) 802 F.2d 1532, 1535, fn. 1 (“[P]ost-verdict allegations of juror prejudice caused by unauthorized, extraneous communications during trial raise serious questions about the fairness of the result, and in most cases require a probing factual inquiry into the substance of the allegations—an inquiry that is reviewable on appeal.”);   see also United States v. Corbin (1st Cir.1979) 590 F.2d 398, 400.)   While it is true some circuit courts have emphasized that district courts have discretion to decide whether and how to conduct evidentiary hearings dealing with allegations of jury misconduct and tampering (e.g., United States v. Bradshaw (10th Cir.1986) 787 F.2d 1385, 1390;  United States v. Phillips (5th Cir.1981) 664 F.2d 971, 998;  United States v. Hendrix (9th Cir.1977) 549 F.2d 1225, 1227), there is no question such discretion may be abused and cases will be remanded to the trial court where an evidentiary hearing is necessary to fairly and adequately determine the extent to which the allegations of misconduct and/or tampering are true.  (See, e.g., Remmer v. United States, supra, 347 U.S. at p. 230, 74 S.Ct. at p. 451;  United States v. Brantley, supra, 733 F.2d at p. 1441;  Richardson v. United States (5th Cir.1966) 360 F.2d 366, 369;  Wheaton v. United States (8th Cir.1943) 133 F.2d 522, 527.) ¹⁶

Wheaton v. United States, supra, is particularly interesting because of the similarity it bears to the facts of this case.   In support of defendant's motion for new trial, several jurors submitted affidavits explaining that at one point in the deliberations, they viewed themselves as hopelessly deadlocked.   They gave that message to the bailiff and asked him to inform the judge.   The bailiff soon returned with the judge's response that the jury should continue deliberating.   The affidavits added that the bailiff then explained to the jurors that they should approach each count of the indictment separately and return verdicts on as many as they could agree about.   A short time later, the jury returned verdicts of guilty on several of the counts.

After considering the affidavits of the jurors and the bailiff, the trial judge denied defendant's new trial motion without holding an evidentiary hearing.   The Court of Appeals found this procedure impermissible.   Because of the pertinence of its conclusions, we quote at some length:

“In the instant case, there was no trial of the issues, but merely a submission of the motion upon affidavits, and the only basis for the court's denial of the appellant's motion is the affidavit of the bailiff, with such corroboration as is found in some of the jurors' affidavits submitted by the appellant.   The Government, having admitted that a communication between the bailiff and the jury had taken place, had the burden of establishing by competent evidence that the communication was in fact harmless.   The affidavit of the bailiff was not competent proof that the communication was harmless, and was not a sufficient basis for the determination of the trial court that no prejudice had resulted.   We think that the denial of the motion was, under the circumstances, an abuse of discretion.

The motion and affidavits presented by the appellant cast suspicion upon the fairness of the trial.   If the truth is that the challenged conduct of the bailiff was or may have been prejudicial, a new trial should be granted.   On the other hand, if the bailiff only repeated to the jury what the jury had already been told six times by the court, the Government should not be subjected to the trouble and expense of retrying this case.

The issues arising upon the motion for a new trial have not yet been competently tried.   It is apparent that the parties and the trial court did not realize the necessity of having evidence adduced․  To afford that court an opportunity to exercise a proper discretion, it is ordered that the judgment entered upon the verdict of the jury be vacated and that the case be remanded to the district court with directions to set aside the order denying a new trial, to rehear the appellant's motion, and, after a rehearing, to determine whether a new trial should be granted, ․” (Id. at p. 527.)

The concern of the federal judiciary with the need for a full and fair hearing to resolve allegations of jury misconduct or tampering is not limited to federal criminal trials.   Because such claims implicate a defendant's right to an impartial jury under the Sixth and Fourteenth Amendments (Irvin v. Dowd (1961) 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751;  see Parker v. Gladden (1966) 385 U.S. 363, 364, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (“statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment”)), federal courts are regularly confronted with similar issues in the context of their jurisdiction to entertain petitions for writs of habeas corpus on matters within the original jurisdiction of state courts.   In considering such petitions, federal courts are normally bound by factual findings made by state trial judges, which are subject to a statutory presumption of correctness.  (28 U.S.C. § 2254(d);  see Rushen v. Spain, supra, 464 U.S. 114, 120, 104 S.Ct. 453, 456.)   This presumption evaporates, however, if the defendant “did not receive a full and fair evidentiary hearing in a state court․”  (Townsend v. Sain (1963) 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770.)   In such cases, “the federal court in habeas corpus must hold an evidentiary hearing․”  (Ibid., emphasis added.)

Thus, where state proceedings fail to provide an evidentiary hearing on allegations of jury misconduct or tampering sufficient to satisfy federal due process requirements, the federal district court may be obligated to do so.   Such was the situation in Bulger v. McClay (2d Cir.1978) 575 F.2d 407.   Following the verdict, defense counsel filed an affidavit in support of a motion for new trial indicating he had learned from one of the jurors that the defendant's address gleaned from a recent newspaper article had been discussed during deliberations.   The state court trial judge, Justice Barlow, questioned the juror with whom defense counsel had spoken.   The juror denied that the address had been mentioned.   Justice Barlow then denied the motion for new trial.   On defendant's petition for writ of habeas corpus in the New York federal district court, Judge Weinstein held an evidentiary hearing at which other jurors were permitted to testify.   Writing for the Second Circuit, Judge Kaufman affirmed Judge Weinstein's decision to conduct a full hearing, citing many of the same deficiencies present in this case:

“Certainly, there is little doubt that the hearing conducted by Justice Barlow was neither full nor fair.   See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963);  Suggs v. LaVallee, 570 F.2d 1092 at 1111 (2d Cir.1978).   Justice Barlow's examination of juror Moran was, at best, cursory, particularly in light of the serious questions raised by the affidavit of Bulger's defense counsel.   And the refusal of Justice Barlow to allow any cross-examination only exacerbated the inadequacy of his own examination.   Moreover, Justice Barlow did not make any effort whatsoever to determine which of Moran's representations were credible by questioning other jurors.”

“․”

“Finally, Judge Weinstein gave the state a second opportunity to hold an adequate hearing, but Justice Barlow remained adamant in his refusal to do so.   Instead, he merely reiterated his earlier findings, going so far as to pass upon the credibility of a witness who had never appeared before him.   Under these circumstances, the state procedures were so defective as to warrant federal intervention.”  (Bulger, supra, 575 F.2d at pp. 410–411.)

Other federal courts considering habeas petitions at both the trial and appellate levels have reached similar conclusions.¹⁷  (See Dickerson v. State of Ala. (11th Cir.1982) 667 F.2d 1364, 1371;  Gafford v. Warden, supra, 434 F.2d at p. 321;  Simon v. Kuhlman (S.D.N.Y.1979) 488 F.Supp. 59, 67–68;  Tobias v. Smith, supra, 468 F.Supp. at p. 1291.)

Where issues of a constitutional magnitude are involved, state courts in the interests of both comity and efficiency should attempt to properly resolve concerns before they become a burden on the federal courts.   It is, therefore, hardly surprising that post-trial evidentiary hearings at which jurors are permitted to testify regarding allegations of jury misconduct or tampering are a common-if-not-routine occurrence in virtually every state.  (E.g., People v. Collins (Colo.1986) 730 P.2d 293, 302;  State v. Asherman (1984) 193 Conn. 695, 478 A.2d 227, 253;  Wilson v. United States (D.C.1977) 380 A.2d 1001, 1004;  Amazon v. State (Fla.1986) 487 So.2d 8, 11;  Commonwealth v. Fidler (1979) 377 Mass. 192, 385 N.E.2d 513, 519–520;  People v. Brown (1979) 48 N.Y.2d 388, 423 N.Y.S.2d 461, 462, 399 N.E.2d 51, 52;  Commonwealth v. Syre (1986) 513 Pa. 1, 518 A.2d 535;  State v. Blackwell (Tenn.1984) 664 S.W.2d 686, 688;  State v. Murphy (1986) 44 Wash.App. 290, 721 P.2d 30, 33, 34;  State v. Poh (1984) 116 Wis.2d 510, 343 N.W.2d 108, 114;  see also People v. Porter (1986) 111 Ill.2d 386, 95 Ill.Dec. 465, 472, 489 N.E.2d 1329, 1336;  State v. Jenkins (1984) 15 Ohio St.3d 164, 473 N.E.2d 264, 325.)   So far as we are aware, no state prohibits evidentiary hearings to inquire into charges of irregularities in criminal jury proceedings.

 Needless to say, this consistent authority from sister states and the federal courts does not indicate that a criminal defendant is entitled to the subpoenaed testimony of trial jurors every time he makes a motion for new trial based on allegations of misconduct by or relating to the jury.   It is for the trial court to first determine whether the declarations submitted by the parties raise significant disputed factual issues whose determination would benefit from the enhanced evidentiary presentation which an in-court hearing with live testimony would provide.   It must then balance against any such benefit the policy considerations articulated in Linhart v. Nelson, supra, 18 Cal.3d at pages 644–645, 134 Cal.Rptr. 813, 557 P.2d 104 with respect to shielding jurors from unnecessary harassment following a trial.  (See Port Terminal & Warehousing v. John S. James Co., supra, 695 F.2d at p. 1340.)   Where the trial court engages in such a balancing process and reasonable minds can differ as to whether a formal evidentiary hearing is necessary, we will normally defer to the trial court's decision denying a hearing.

 As Remmer v. United States and its progeny demonstrate, however, there are situations in which the defendant's right to a fair trial may require a comprehensive inquiry into the facts underlying the claim of jury tampering or jury misconduct.   The circumstances of this case present such a situation.   The trial court was besieged with a welter of conflicting declarations, most of which raised more questions than they answered.   How was the trial court to judge the credibility of witnesses whose demeanor he had no opportunity to observe and who were never subjected to cross-examination?   Assuming the trial court was correct that Bohensky's credibility was damaged by his nocturnal visit to Murlin's door, Saxton–Calderwood's testimony suffered from no similar defect.   In fact, it was corroborated by both Bohensky and, to a certain extent, Murlin.   Yet Burroughs categorically denied Saxton–Calderwood's allegations.   Does this suggest something about Burroughs' credibility and indirectly support Bohensky's story?   Why does Stark's declaration deny having knowledge Bohensky never attributed to him?   Would Stark's in-court testimony expand on his declaration as the interview with defense attorney Pancer suggested it would?   As to the “green hat story,” regardless of what Burroughs actually intended, the key question is whether the story, given the context in which it was told, was reasonably susceptible of the interpretation that minority holdout jurors were being criticized.¹⁸  Resolution of that question depends on a thorough inquiry into all the circumstances surrounding the telling of the story.   Obviously, the extent to which jurors later referred to the “green hat story” while discussing reasonable doubt would be significant on this issue.  (See, e.g., post, fn. 17.)

 The answers to these questions and others like them are impossible to ascertain from conclusionary declarations of the type we see here which are often drafted by partisan advocates intent on buttressing predefined positions.   As Justice O'Connor has commented, “A hearing permits counsel to probe the juror's memory, his reasons for acting as he did, and his understanding of the consequences of his actions.   A hearing also permits the trial judge to observe the juror's demeanor under cross-examination and to evaluate his answers in light of the particular circumstances of the case.”   (Smith v. Phillips, supra, 455 U.S. at p. 222, 102 S.Ct. at p. 948 (conc. opn. of O'Connor, J.).)   We conclude the facts required such a hearing here and the court erred in refusing to permit juror testimony.¹⁹

B

An evidentiary hearing on the factual issues raised by Hegdecock's new trial motion takes on added significance when two additional arguments raised by Hedgecock are considered.

When the allegations of misconduct surfaced shortly after the jury rendered its verdict, both Hedgecock and the San Diego County District Attorney asked the Attorney General to investigate the possibility of jury tampering.   As part of this investigation, representatives of the Attorney General's office conducted extensive interviews of all twelve jurors, the three alternates and the two bailiffs.²⁰  Hedgecock asserts he is entitled to review these transcripts in preparing for the evidentiary hearing on the motion for new trial.

 We conclude Hedgecock has satisfied the “plausible justification” standard of Hill v. Superior Court (1974) 10 Cal.3d 812, 817, 112 Cal.Rptr. 257, 518 P.2d 1353 ²¹ which requires that the interviews be made available to the defense.   Such material will prove helpful to defense counsel in preparing to question the jurors regarding the allegations of misconduct by bailiff Burroughs.   The interview transcripts are particularly important now, since the renewed new trial hearing will be held more than two years after the events at issue and the interviews provide the most in-depth contemporaneous discussion with the jurors about the relevant facts.   Obviously, the Attorney General has no interest in withholding evidence which might suggest bailiff misconduct or in protecting a conviction which is subject to a proper challenge.   The suggestion that Hedgecock had equal access to this information because defense counsel was allowed to and did contact the jurors after the verdict overlooks the fact that two of the jurors refused to talk to defense counsel.²²  Furthermore, we would be ignoring reality if we did not acknowledge that many jurors would be reticent about fully disclosing information to defense representatives openly seeking to invalidate their verdict but would tend to be more forthcoming when questioned by representatives of the Attorney General's office.

Although Hedgecock's initial subpoena to the Attorney General was broadly worded to include all documents and recordings which related to the investigation of the Hedgecock jury, we interpret his brief on appeal to limit his request to the transcripts of the interviews themselves.   To the extent it is later shown that the Attorney General is in possession of other relevant information, the trial court retains discretion to order further disclosures.   In addition, the Attorney General has expressed concern that certain portions of the interviews may compromise the privacy interests of the jurors and bailiffs.   While we are sensitive to these privacy concerns, they must be balanced against Hedgecock's right to a fair trial.   We leave it to the trial court to make such orders as are necessary and appropriate to resolve these competing concerns.  (See e.g., Rider v. Superior Court (1988) 199 Cal.App.3d 278, 286, 244 Cal.Rptr. 770;  see generally Millaud v. Superior Court (1986) 182 Cal.App.3d 471, 476, 227 Cal.Rptr. 222.)

C

 We have also concluded that Hedgecock's petition for writ of habeas corpus makes a sufficient prima facie showing to warrant an evidentiary hearing on the issue of consumption of alcohol by the trial jurors.   Whether the issue is framed as one of newly discovered evidence or ineffective assistance of counsel, it is clear that the effect of the jurors' liquor consumption was not adequately addressed in Hedgecock's motion for new trial.   The Attorney General represents that review of the juror interview transcripts will not substantiate Hedgecock's claim of juror misconduct.   While we have no reason to doubt the accuracy of this representation, our adversary system of justice—which presumes that a defendant's lawyer will zealously advocate the interests of his client—does not require a defendant or his counsel to accept a deputy attorney general's evaluation of the probative value of evidence.   In any event, the issues raised by the writ proceeding may be conveniently explored in the evidentiary hearing on the new trial motion which will follow remand of this case.

Accordingly, we will issue an alternative writ returnable before the superior court and order that the hearing on the writ be consolidated with the hearing on the motion for new trial following remand of this case.

D

Finally, Hedgecock also argues that Judge Todd erred in refusing to disqualify himself from ruling on the motion for new trial and in quashing his own subpoena.   Although now-Justice Todd will obviously not preside over the evidentiary hearing mandated by this opinion, we believe it advisable to briefly comment on this issue because of its importance and the possibility that Hedgecock will again seek to have Judge Todd testify.

Code of Civil Procedure sections 170 et seq.²³ establish standards and a comprehensive procedure for determining when trial court judges should be disqualified.   After a statement of disqualification has been filed by a party, the challenged judge has three options:  (1) “Without conceding his or her disqualification,” the judge may agree to let another judge hear the matter (§ 170.3(c)(2));  (2) the judge may consent to disqualification (§ 170.3(c)(3));  or (3) the judge may file an answer to the disqualification admitting or denying the specific allegations and setting forth additional relevant facts (§ 170.3(c)(3)).   If the judge answers the party's challenge, the statute provides that the disqualification issue must be heard by another judge:  “No judge who refuses to recuse himself or herself shall pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party.   In every such case, the question of disqualification shall be heard and determined by another judge․”  (§ 170.3(c)(5).)

In this case, Judge Todd never answered Hedgecock's statement of disqualification.   Instead, relying on section 170.4(b), he ordered the statement of disqualification stricken based on his conclusions that the material contained in supporting declarations filed by two defense counsel, juror Saxton–Calderwood and the attorney for juror Bohensky was either “irrelevant”, “conclusionary” or “inadmissible hearsay”.   He then “found” that the subpoena for his testimony had been “issued in support of the Statement of Disqualification.”   Because “no legal ground for disqualification [had] been shown”, Judge Todd then quashed the subpoena.

 Section 170.4(b) provides, “Notwithstanding paragraph (5) of subdivision (c) of Section 170.3, if a statement of disqualification is untimely filed or if on its face it discloses no legal grounds for disqualification, the trial judge against whom it was filed may order it stricken.”   Although the statute was intended to apply “[n]otwithstanding paragraph (5) of subdivision (c) of Section 170.3,” it must be interpreted in such a way that the purposes of both sections are given effect.   Obviously if a party filed a statement of disqualification seeking to recuse a judge because he had red hair or belonged to the same political party as the opposing party, such a challenge on its face would “disclose[ ] no legal grounds for disqualification” and could be ordered stricken pursuant to section 170.4(b).   Here, however, Hedgecock's statement on its face alleged two proper grounds for disqualification, i.e., that Judge Todd was to be called as a witness (§ 170.1(a)(1)) and that disqualification was necessary to preserve the appearance of propriety (§ 170.1(a)(6)(C)).  Striking the statement of disqualification was therefore unjustified.   Because on remand this case will be assigned to a different trial judge for the purposes of the hearing on the motion for new trial, it is unnecessary for us to determine whether Hedgecock's statement of disqualification established adequate grounds as a matter of law for the disqualification of Judge Todd.

 As to the propriety of the subpoena served on Judge Todd, we recognize that a criminal defendant has a constitutional right to compel the attendance of witnesses on his behalf.  (Cal. Const., art. 1, § 15;  see also Pen.Code, § 686, subd. 3.)   We see no reason why this right does not extend to post-conviction proceedings in which the defendant seeks to establish he was denied a fair trial.  (Cf. Pen.Code § 1484 [authorizing subpoenas in habeas corpus proceedings].)   The right, of course, is not without its qualifications.   A subpoena will be quashed where the defendant makes no showing that the subpoenaed witness can offer relevant testimony.  (See In re Finn (1960) 54 Cal.2d 807, 813, 8 Cal.Rptr. 741, 356 P.2d 685.)   Courts have realistically recognized, however, that the nature and extent of this showing will vary depending on the defendant's access to information.  (See People v. Singletary (1969) 276 Cal.App.2d 601, 604, 81 Cal.Rptr. 79.)   Here, for instance, when Hedgecock sought to subpoena Judge Todd, he had no realistic way of determining in advance whether the judge could contribute relevant testimony on the disputed issues.   Judge Todd was, of course, precluded from discussing the case with the participants ex parte.   The best defense counsel could do under the circumstances was attempt to establish the basis for their reasonable belief that Judge Todd might have said something to bailiff Burroughs or heard something in conversations with him which would prove relevant in determining whether Burroughs committed misconduct.²⁴

Given that Judge Todd will no longer be presiding over the hearing on remand, the circumstances may be different.   We need not speculate on whether defense counsel will now be able to informally obtain information regarding Judge Todd's anticipated testimony.   In the event Hedgecock again elects to subpoena Judge Todd and if a motion to quash is filed, Hedgecock will be obligated to demonstrate what relevant facts he expects Judge Todd will testify to or explain why he has been unable to ascertain what that testimony will be.

II. STATEMENT OF EVIDENTIARY FACTS

As previously indicated, we now set forth the underlying facts in this case which are relevant to the remaining issues in Hedgecock's appeal.

Pre–1982:  Mayoral Campaign Preliminaries and the Origins of Tom Shepard and Associates

Shortly after his convincing reelection to the San Diego County Board of Supervisors in June 1980, Roger Hedgecock began meeting with supporters to discuss his political future.   Hedgecock was particularly interested in running for mayor of San Diego in the event incumbent Pete Wilson decided to run for higher office.   During this period of time, the City of San Diego had a stringent campaign finance ordinance which limited individual contributions to $250 per person and prohibited donations to a candidate by business entities.

At various points in time, Hedgecock's staff at the Board of Supervisors included two of his closest political confidants, Mike McDade and Tom Shepard.   McDade, a lawyer, headed up Hedgecock's staff between 1978 and 1979.   Hedgecock and McDade remained close even after McDade left the staff.   Shepard temporarily left the supervisorial staff to run Hedgecock's successful 1980 reelection campaign.   He returned after the campaign as an administrative assistant.

In the spring of 1981, Hedgecock talked with fellow supervisor Jim Bates about the possibility of merging their respective lists of campaign supporters and combining it with information from the Registrar of Voters' lists to create a master computer file from which information could be retrieved on a variety of bases.   Shepard met with one of Bates' aides in May 1981 and drafted a tentative agreement regarding the creation of such a master file.   Basically, Hedgecock and Bates agreed to evenly divide the cost of preparing the file.   They also agreed that neither could sell the material without the other's approval.

Nancy Hoover and her former husband, George, were old friends of Roger and Cindy Hedgecock.   In 1974 Hedgecock served as City Attorney of Del Mar at a time when Hoover was on the City Council.   The two couples had invested in a Colorado condominium together.   The Hoovers separated in 1979 after Nancy Hoover developed a relationship with Jerry Dominelli, a stockbroker with whom she worked at Bache and Company.   Roger Hedgecock sided with George Hoover in the divorce and publicly stated his disgust with Nancy Hoover's behavior.

In 1980 Dominelli and Hoover left Bache to form J. David and Company, purportedly a foreign currency trading firm.   In September 1981, Dominelli and Hoover hired George Mitrovitch as J. David's “Director of Public Affairs.”   Mitrovitch was well known in San Diego civic activities.   He ran the City Club, a forum in which prominent speakers discussed topics of civic interest.   He also participated in various charitable ventures.   J. David paid Mitrovitch a $3,000 monthly salary, later increased to $5,000.   Mitrovitch was also given use of a four bedroom Del Mar residence with a guest house, a company car and a company credit card.   His duties were to continue his civic activities and, in doing so, to assist J. David with its charitable contributions.

On November 12, 1981, Mitrovitch arranged to have lunch with Hedgecock and Al O'Brien, a stockbroker associated with a J. David subsidiary who handled Hedgecock's personal account.   During the lunch, Mitrovitch urged Hedgecock to reconcile with Hoover.   Mitrovitch suggested Hedgecock's political future was at least in part dependent on such a reconciliation.   He described how generous Hoover and Dominelli had been to him personally and intimated that Hedgecock could expect similar beneficence if he stopped maligning Hoover.

Jean Kauth and Harvey Schuster were business partners and Hedgecock supporters.   Kauth had been a part of Hedgecock's inner circle of advisors since 1980, developing plans for precinct organization in future campaigns.   By late 1981, Hedgecock was encountering serious personal financial difficulties.   Concerned about the possibility of foreclosures on his real estate investments and the effect they might have on his political future, Hedgecock asked Schuster for advice.   Schuster scheduled a meeting for November 16, 1981, with Los Angeles attorney Ronald Blanc, an expert in real estate matters.   Schuster arranged to pay Blanc's $500 bill for legal services.   There was conflicting testimony whether Hedgecock was present when this arrangement was made.   Schuster also paid for all expenses on the trip to and from Los Angeles.

Returning from Los Angeles, Hedgecock told Schuster that Tom Shepard was going to be leaving his supervisorial staff in order to set up a political consulting firm, Tom Shepard & Associates.   The firm would handle Hedgecock's planned campaign for mayor.   When Schuster inquired how this firm was going to be financed, Hedgecock replied that Jerry Dominelli was going to fund the firm.   He explained that “Jerry was like putty in Nancy Hoover's hands.”

By December 1981, Shepard had generally agreed to form a political consulting firm with journalist Greg Dennis and pollsters Robert Meadow and Robin Franck.   In early to mid December, Shepard and Dennis met with Dominelli and Hoover at J. David's La Jolla offices to discuss financing the firm.   Dominelli said he “would prefer ․ if the financing were through Ms. Hoover.”   As a result, Nancy Hoover became a limited partner in Tom Shepard & Associates (TS & A).   Shepard, Dennis, Meadow and Franck were all general partners.   The partnership documents provided that Hoover was to contribute $120,000.   None of the other partners contributed any cash to the partnership.

On December 4, 1981, FraSuMi Computer Systems notified Hedgecock that it had completed the first stage of work on the Hedgecock–Bates computer list and approximately $2700 was then due from Hedgecock.   On December 21, Hedgecock received a J. David check in the amount of $3,000 signed by Jerry Dominelli.   After depositing the money in his checking account, Hedgecock immediately wrote a check for $3,000 to the Roger Hedgecock Election Committee.   The Committee, which had no other funds to speak of, then used this money to pay the FraSuMi bill.   Hedgecock's 1981 campaign disclosure statement filed with the State of California reflects a $3,000 “loan” to his campaign committee but neither that document nor his 1981 statement of economic interests discloses that he received any money from J. David or Jerry Dominelli.   At about the same time, Hedgecock told McDade that he had sold his computer list to Shepard for $3,000.   As part of the agreement, Shepard would maintain and update the list for a future Hedgecock campaign, but could also use the list for the benefit of other clients of his political consulting firm.²⁵

January–July 1982:  The Unofficial Campaign for Mayor

In January 1982 Shepard formally left Hedgecock's supervisorial staff and TS & A opened for business in offices leased by J. David sharing a J. David receptionist, conference room, and word processor.   Later in March 1982, TS & A moved downstairs to another office and installed a separate phone system.

During the first six months of 1982, in addition to the four general partners, TS & A had two other employees.   One of these employees spent 75 percent of her time in January and 98 percent thereafter working on the Hedgecock campaign, including coordinating volunteers and precinct work in the TS & A offices and telephoning supporters to request that they hold functions for Hedgecock.   Although there was no client account for Hedgecock during this period, TS & A incurred costs printing pledge/endorsement cards for a Hedgecock mayoral campaign and sent out a letter soliciting a new client which represented that Hedgecock was a TS & A account.

Before Shepard left Hedgecock's supervisorial staff, he had arranged a series of training sessions for Hedgecock with media consultant Tom Lawrence aimed at polishing Hedgecock's media image.   The first session was held in December, 1981.   A follow-up session was held on March 15, 1982, at Nancy Hoover's home in Del Mar.   Lawrence's bill for $2,000 was sent to Hedgecock in care of TS & A.   TS & A paid the bill.

TS & A's offices also served as the headquarters for activities of Hedgecock's election committee during the first six months of 1982.   The Executive Committee, including Hedgecock, met on Saturdays at TS & A.   They formulated plans for a mayoral campaign including precinct organization and the need for $250,000 in contribution pledges and 1,000 endorsements.   In addition, Jean Kauth used the TS & A offices to educate volunteers about precinct work.   During this period, Hedgecock was constantly in touch with Shepard and would call the TS & A offices several times a week and sometimes more than once a day.   Shepard also continued to attend meetings of Hedgecock's supervisorial staff, but with decreasing frequency as the pace of campaign preparations picked up.

Hedgecock's financial problems worsened in early 1982.   Hedgecock and Schuster discussed the possibility of Schuster's purchasing the condominiums to which the overdue loans were attributable.   Both agreed it would be better if Schuster purchased the condominiums in other than his own name.   In March 1982 a very distressed Hedgecock contacted Schuster.   Hedgecock said the bank was threatening immediate foreclosure.   Hedgecock told Schuster that he could not go through with the sale of the condominiums because “it just wouldn't look right.”   Instead, Hedgecock asked Schuster for a $24,000 loan.   After further discussion and reflection, Schuster agreed.   Hedgecock asked Schuster to make the check payable to Cindy Hedgecock's property management company.   He said that if the check were made payable directly to him, “it would be a disclosure problem.”   Hedgecock also insisted that the loan be kept confidential.   Ultimately Hedgecock never picked up the check after Schuster informed him it was ready.

Also in March 1982, Dominelli and Hoover were considering becoming involved in the funding of a small community newspaper, “Newsline.”   Shepard was also involved in the discussions, but a March 29 memo from Mitrovitch cautioned Dominelli and Hoover on Shepard's role:  “If Tom is going to be involved, then I see great difficulty.   How can Tom be a part of NEWSLINE'S operation when he is at the same time a political consultant?   I know of no greater conflict.   Do you want stories in the major dailies—stories that I assure will come—about J. David funding a political consulting operation and a newspaper as well?   Do you want Newsline thought of as a propaganda organ for Roger Hedgecock?   How long, under such a relationship, do you think either Hedgecock, NEWSLINE, or J. David would continue having any credibility?”   Thereafter, although Hoover was advised that Newsline was a financial loser, she agreed to enter into a limited partnership with Newsline's publisher, Larry Remer, in order to fund the newspaper.   She structured the partnership using a trust account in order to conceal her involvement.   At some point thereafter, TS & A's limited partnership agreement was redrawn to reflect Cheyney Associates as the limited partner rather than Nancy Hoover.   Although Cheyney Associates was a fictitious business name for Nancy Hoover, she never recorded a fictitious name statement reflecting that fact.

August 1982—May 1983:  The Official Campaign

In June 1982, Pete Wilson won the Republican primary for the United States Senate race.   Anticipating a vacancy in the mayor's office, a Roger Hedgecock for Mayor Committee was formed in August with McDade as chair.   The committee agreed to pay TS & A a retainer of $750 “for each month until Roger Hedgecock formally announces his candidacy for mayor of San Diego.”   TS & A agreed to “provide political consultation services in the areas of campaign management, direct mail, precinct targeting, media design, fundraising, opinion research, accounting and such other services as the two parties shall mutually approve from time to time.”   The retainer fee was to “cover the cost of all professional services” provided by TS & A, but it excluded all direct costs which were to be paid for by the Hedgecock for Mayor Committee.   Concurrent with the signing of the agreement, TS & A began paying monthly salaries of $600 to Robin Franck and $750 to Robert Meadow.

In November 1982 Pete Wilson was elected to the United States Senate and Hedgecock formally announced his candidacy for mayor.   TS & A's consulting contract was orally modified to provide the firm with a 15 percent commission on all media advertising placed during the campaign plus reimbursement for all direct costs.   In order to staff the campaign, TS & A hired four new employees and a campaign consultant.   The consultant worked virtually full time on the Hedgecock campaign.   Bob Meadow estimated that for the period from November through the mayoral election in May of 1983, 80 percent of TS & A's staff resources were devoted to the Hedgecock campaign.   During this period, Hedgecock and Shepard were extremely close.   Hedgecock kept himself apprised of all the details of the campaign.   They discussed TS & A's financial status and Shepard told Hedgecock “he was willing to go into bankruptcy if necessary.”

Also in November 1982 at Hedgecock's request, Shepard obtained a car telephone from Nancy Hoover and arranged to have it installed in Hedgecock's car.   TS & A paid for the installation and all subsequent repairs to the phone.

Prior to November, Hoover made capital contributions to TS & A at the rate of about $10,000 per month.   With the mounting expenses due to the Hedgecock campaign, Shepard asked Hoover to increase her capital contributions to $20,000 per month.   Hoover did so.   Dominelli signed many of the monthly checks.   In fact, one of the contribution checks was a cashier's check which Dominelli personally obtained from the bank.   After December 1982, Dominelli signed all the checks except one.   Although the original partnership agreement had limited Hoover's capital contributions to $120,000 between January 1982—December 1983 Hoover and Dominelli wrote checks to TS & A in excess of $352,000 between January 1982 and December 1983.   Hoover's lawyer testified that under such circumstances, the customary practice would have been to file an amended partnership statement to reflect the greater contribution by the limited partner.   No such statement was filed by TS & A.

One of the major events of the Hedgecock mayoral campaign was a Valentine's dinner-dance fundraiser held on February 8, 1983.²⁶  Hedgecock supporters who had already made the maximum $250 contribution were invited to the event by means of a personally signed invitation from Hedgecock.   At the bottom of Nancy Hoover's invitation, Hedgecock penned a personal message:  “Thanks for all your support!”  (Emphasis in original.)

The primary election on March 15, 1983, determined that Hedgecock would face Maureen O'Connor in the runoff election for mayor to be held in May.   On the morning following the primary, Hedgecock went to the J. David offices.   Hoover and Dominelli were meeting with Mitrovitch and other J. David personnel.   When Hedgecock arrived, he was welcomed by Hoover and Dominelli and congratulated by all the meeting participants.   Hedgecock thanked Hoover and Dominelli “for their support, and ․ for all they had done for his campaign, ․”  Dominelli said he was excited about being involved in “a good, old-fashioned dog fight campaign.”   Later, the subject of conversation turned to campaign finances.   Hedgecock thought the runoff would be expensive.   Hoover stated “she wanted to do what she could ․ to help the campaign.”

On May 3, 1983, Hedgecock was elected Mayor of San Diego.   That evening, Hedgecock watched the returns from a small private anteroom adjacent to the main hall at “election central.”   Present with Hedgecock were Hoover, Dominelli, Robert Meadow and probably Mike McDade.

Accounting Professor Arthur Brodshatzer of San Diego State University reviewed TS & A's books for the years 1982 and 1983.   He determined Hoover and Dominelli had contributed $361,859.35 to TS & A.   Using two different methods of allocating overhead expenses between Hedgecock and TS & A's other clients, Brodshatzer calculated that for the period between August 1, 1982, and May 31, 1983, TS & A suffered a loss on the Hedgecock account of between $137,887 and $157,386 while making a profit on its other clients of between $19,958 and $39,457.   During this period, the Hedgecock account constituted nearly 85% of the firm's revenue.²⁷

November 1982:  The Inabinett Note

In March of 1982, the Hedgecocks began collecting monthly payments on a promissory note secured by a third deed of trust on a home owned by David and Linda Inabinett.   The note required interest-only payments for five years followed by a balloon payment of the $22,500 principal amount.   Later that same year, Hedgecock spoke with Nancy Hoover about selling the trust deed to her for $16,000.   On November 8, 1982, Hoover instructed her attorney Jack Kaufman to prepare the necessary legal documents for the transfer.   On November 17, Hedgecock told Kaufman not to record the assignment of the trust deed until June 23, 1983.²⁸  Hedgecock wanted to realize a tax benefit by postponing recognition of his gain on the sale of the asset.   Hedgecock stated he would collect the interest payments and forward them to Hoover.   On December 17, Hoover arranged for payment of the $16,000 to Hedgecock by a check drawn on the trust account she used to fund the “Newsline” newspaper.  (See ante, p. 429.)   Immediately after receiving the $16,000, Hedgecock invested $10,000 in a J. David account.   The Inabinetts were never told of the transfer or informed they should make the interest payments to someone other than the Hedgecocks.

Sometime in December, the Inabinetts approached the Hedgecocks about paying off the note.   The Hedgecocks rejected the Inabinetts' suggestion of discounting the note to $16,000 and demanded full payment.   At approximately the same time, Hoover and Hedgecock notified Kaufman that they were modifying their agreement regarding the note to provide that in the event the Hedgecocks could obtain full value on the note, Hoover would return the note to Hedgecock in exchange for $16,000 plus interest.   In fact, the Inabinetts did not pay off the note but sold the property.   The new buyers, the Silvias, assumed the old loans including the Hedgecock note.   When asked to evaluate the transaction, including the modification, the lack of recording and the Hedgecocks' continued receipt of interest payments after the transfer to Hoover, Kaufman characterized the terms as unusual and at variance with “good legal practice.”

June 1983—February 1984:  Renovation of the Hedgecock Home

In the spring of 1983 Hoover talked with Hedgecock about renovating the Hedgecock home on State Street to make it more suitable for official entertaining.   Because the Hedgecocks could not afford to do so, Hoover contacted one of her attorneys, Clyde Greco, about the possibility that she and Jerry Dominelli would purchase the residence, complete the renovation and then lease the house back to the Hedgecocks.   In a meeting at the J. David offices on June 8, attended by Hoover, Greco, Cindy Hedgecock and Jerry Dominelli, Hoover suggested a sales price of $295,000.   After researching the election laws, Greco concluded the proposed transaction would be legal if the house were sold for fair market value.   Accordingly, Greco arranged for a “drive-by” appraisal which placed the value of the property at between $250,000 and $265,000 and suggested that improvements should not exceed $50,000.

On June 22, Hoover, Greco and J. David contractor Parin Columna met with Hedgecock in the mayor's office.   Columna estimated the planned renovations would cost $250,000.   Hoover responded Columna should revise the plans so that the renovation could be accomplished at a more moderate cost.   She also said that the sale/leaseback arrangement was too complicated and suggested the transaction be restructured as a straight equity loan secured by a deed of trust.   In any event, she explained to Greco that she did not want publicity and accordingly, did not want her name or the amount of the loan to appear in the transaction documents.   She asked whether a title-holding trust could be used.   Greco advised that it could.

Greco's partner Richard Kinney drafted the necessary documents.   In a memo to Kinney dated June 23, 1983, Greco wrote that “Mayor Hedgecock realizes that he must report the fact of the prospective loan to the election authorities, and he is going to do so.”   Greco forwarded the documents to Hoover on August 30.

Within the next month, Hoover responded to Greco with a handwritten note as follows:  “I'm sorry you did all this work for nothing.   I decided to keep it simple and just do a straight loan to the Hedgecocks as they need money.   So far they have borrowed $50,000 and intend to borrow another $50,000.   They cut back their plans to a bare bones approach.”   On October 4, Greco wrote to Hoover recommending there be some documentation for the loan “consisting of at least a promissory note.”   Hoover responded that Hedgecock was going to turn over to her his original $10,000 J. David investment, now an interbank account worth in excess of $48,000, and that she expected it to grow.   Hoover ignored Greco's later request for documentation on the interbank account.

At Hoover's request, renovation work by Parin Columna Contractors, Inc. began in July 1983.   Parin Columna Contractors, Inc. had been incorporated in June 1983.   Hoover owned 90% of the stock;  Columna 10%.   Columna's first two biweekly billings were sent to and paid by Cindy Hedgecock.   The remaining bills were paid directly by Hoover or Dominelli.   Shortly after the direct payment system began, Columna told the Hedgecocks it was going to cost more than $100,000 to complete the renovation.   It was decided Columna would not charge for his profit while he was on the job.   Instead he would charge a flat 10% upon completion.

By February 1984 J. David's business empire had begun to collapse in the wake of disclosures that Dominelli was operating an elaborate Ponzi scheme.   J. David checks were being routinely returned because of insufficiency of funds.   Columna pulled off the Hedgecock job.   Subcontractors were threatening to file mechanics' liens.   On February 12 Hedgecock called a meeting of some of his close supporters to discuss the loan from Hoover and the threatened mechanics' liens.   Those present included Mike McDade, Tom Shepard and attorney Peter Aylward.   Hedgecock told the group he had a $130,000 loan from Hoover.   McDade and Aylward drafted documents at the meeting documenting the Hoover loan.   Shepard then took the draft to Hoover for her signature.

Lawrence Cushman, a wealthy long-time supporter of Hedgecock, was also present at the meeting.   Cushman had previously expressed interest in buying some property owned by the Hedgecocks in La Jolla Valley.   Hedgecock asked Cushman if he were still interested in the property.   Cushman replied he was.   Cushman then agreed to buy the property and to guarantee an $80,000 loan to Hedgecock in lieu of putting the purchase price in escrow.   He arranged for the loan to Hedgecock the following day, telling bank officials Hedgecock needed the money to repay a home improvement loan owing to J. David & Company.   As a result, the mechanics' liens were avoided.

Political Reform Act Requirements and the Theory of the Prosecution Case

Under the Political Reform Act, public officials running for office are required to file two different sets of disclosure forms.   Generally, all public officials must file annual Statements of Economic Interests (SEIs) disclosing financial interests such as income investments, loans, gifts, etc.   (See Gov.Code, §§ 87200, 87203.)   In addition, candidates, campaign committees and elected officials are required to file periodic campaign disclosure statements (CDSs) detailing a variety of information regarding contributions received and expenditures made by the filer.  (See Govt.Code, §§ 4200, 84211.)

Peter Aylward, a volunteer attorney for the Hedgecock for Mayor Committee, usually prepared Hedgecock's CDSs.   The statements were then reviewed by campaign treasurer Peter Davis and Mike McDade.   Davis reviewed the amounts of contributions and expenditures disclosed on the CDS and compared the net total with the checking account balance.   He also made some inquiries about the source of in-kind contributions but did not verify that the persons identified or contribution checks were in fact the source of the donated funds.   Often, the forms were presented to Hedgecock for his signature within 30 minutes of the filing deadline.

The central element in the prosecution's case is found in Count 1's allegation of a single overall conspiracy between Hedgecock, Shepard, Hoover and Dominelli by which Hoover and Dominelli would funnel large amounts of money to Hedgecock for personal as well as political purposes, in violation of both local campaign finance laws and state disclosure laws.   Of the remaining twelve perjury counts of which Hedgecock was found guilty, seven involve allegedly incomplete CDSs and the remaining five involve alleged omissions from SEIs.

The first two CDS counts (Counts 4 and 5) involve statements which include periods of time (before August 1982) during which there was no contract in existence between TS & A and the Hedgecock for Mayor Committee.   During this period, the prosecution alleged that TS & A employees performed numerous services for Hedgecock's nascent mayoral campaign for which they were compensated by TS & A.   As a result, these services are considered to be in-kind contributions made by TS & A to Hedgecock's campaign committee which were never reported on the relevant CDSs.   In addition during this period, TS & A paid for the printing of the Hedgecock endorsement cards and for the Tom Lawrence video consulting sessions which also constituted unreported contributions.   As with all the perjury counts, the prosecution's theory was that Hedgecock intentionally failed to disclose these amounts knowing they constituted reportable contributions under the law.

The remaining CDS counts (Counts 6, 7, 8, 10 and 12) all involve time periods during which there was some contract in force between TS & A and the Hedgecock for Mayor Committee.   The prosecution argued that both the original contract in August and the oral modification in December were sham agreements supported by inadequate consideration used as a device to camouflage Hoover and Dominelli's campaign contributions made in the form of capital contributions to TS & A which covered the firm's enormous losses on the Hedgecock account.   In addition, Count 6 is based on the direct payment by TS & A of the installation and repair bills on Hedgecock's car telephone.

Hedgecock filed annual SEIs for 1981 and 1982 while he was still a member of the board of supervisors.   The 1981 perjury count (Count 3) was based on Hedgecock's failure to disclose Harvey Schuster's $500 payment for legal services rendered to Hedgecock and the $3,000 check received from Jerry Dominelli in December 1981.   The 1982 perjury count (Count 9) was based on Hedgecock's failure to disclose the $16,000 Hedgecock received from Hoover in payment for the Inabinett note and his subsequent $10,000 investment in a J. David interbank account.

Hedgecock filed three SEIs in 1983.   The first covered the period through May 19 and was required because he was leaving office as a county supervisor.   (See Govt.Code, § 87204.)   The prosecution alleged in Count 11 that the statement was false because Hedgecock failed to disclose the interest income he continued to receive from the Inabinetts even after he purportedly sold the note to Hoover.   Count 14 involves the SEI which covers the full year 1983 filed by Hedgecock on March 6, 1984.   It was alleged to be false because of Hedgecock's failure to disclose the Inabinett interest payments.   In addition, although Hedgecock disclosed a loan from Nancy Hoover for the renovation of his residence, the prosecution argued the statement was false because it failed to include Jerry Dominelli and/or J. David as an additional source of the loan.   On March 9, 1984, Hedgecock amended his 1983 SEI, making corrections on items not relevant for the purposes of this case.   Count 15, which is based on this amended SEI, alleges the statement was false for the identical reasons as Count 14.

III. JURY INSTRUCTION ISSUES

Directed Verdict on the Issue of Materiality

The jury was instructed on the elements of perjury pursuant to CALJIC No. 7.21 which states in part:  “Every person who declares under penalty of perjury, and willfully states as true any material matter which is false, and which he knows to be false, or when he is aware that he is ignorant of the truth or falsity of his statement, is guilty of the crime of perjury.  [¶] ․ If you find that the defendant made one or more of the statements as charged, such statements were material matter within the definition of perjury read to you.”  (emphasis added.)   The issue presented is whether the last sentence of the quoted instruction impermissibly directed a verdict on an element of the offense contrary to the principles enunciated in People v. Figueroa (1986) 41 Cal.3d 714, 224 Cal.Rptr. 719, 715 P.2d 680.

Figueroa concerned a prosecution of a defendant for selling unqualified securities.   The trial court instructed the jury that the promissory notes involved in the case were “securities” as a matter of law.   Relying on a series of relatively recent United States Supreme Court decisions (see In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368;  United States v. Martin Linen Supply Co. (1977) 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642;  Connecticut v. Johnson (1983) 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823;  Cabaña v. Bullock (1986) 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704), the California Supreme Court held that such an instruction amounted to a directed verdict on an element of the offense and thus violated the defendant's constitutional right to a trial by jury.  (41 Cal.3d at pp. 724–726, 734, 224 Cal.Rptr. 719, 715 P.2d 680.)   In a footnote, the court noted a “historical exception” that a defendant “facing a perjury charge for testifying falsely as to a ‘material’ matter (cf. Pen.Code, § 118) is not entitled to have the question of ‘materiality’ decided by the jury.   [Citations.]”  (41 Cal.3d at p. 733, fn. 22, 224 Cal.Rptr. 719, 715 P.2d 680.)   The court went on to observe that “the continuing validity of [this rule] may be doubtful in light of In re Winship, supra, 397 U.S. 358 [90 S.Ct. 1068], and Connecticut v. Johnson, supra, 460 U.S. 73 [103 S.Ct. 969].”  (Ibid.)

 Curiously, the Figueroa footnote does not refer to People v. Pierce (1967) 66 Cal.2d 53, 56 Cal.Rptr. 817, 423 P.2d 969 in which the Supreme Court held, “The question of materiality is one of law to be determined by the court which tries the perjury charge.”  (Id. at p. 61, 56 Cal.Rptr. 817, 423 P.2d 969.)   Notwithstanding Pierce, however, we think the rationale underlying Figueroa compels the conclusion that a trial court may no more direct a verdict on the issue of materiality in a perjury prosecution than it may instruct the jury in an unregistered securities case that certain instruments are “securities” as a matter of law.   In our view, then, Figueroa impliedly overrules Pierce.

We are aware that although courts in sister states have reached different conclusions on this issue, the rule in the vast majority of jurisdictions remains that “materiality” is a question of law reserved for the trial judge.   (See, e.g., People v. Hoag (1982) 113 Mich.App. 789, 318 N.W.2d 579, 583;  State v. Sands (1983) 123 N.H. 570, 467 A.2d 202, 215–216;  Yarbrough v. State (Tex.Cr.App.1981) 617 S.W.2d 221, 228;  State v. Strand (Utah 1986) 720 P.2d 425, 431;  contra Commonwealth v. McDuffee (1979) 379 Mass. 353, 398 N.E.2d 463, 467–470;  People v. Clemente (1954) 285 A.D. 258, 136 N.Y.S.2d 202, 205–206, affd. (1955) 309 N.Y. 890, 131 N.E.2d 294.)   Most of these cases, however, simply do not discuss the federal constitutional issues highlighted in Figueroa.  (See, e.g., Hoag, supra;  Yarbrough, supra.)   The New Hampshire Supreme Court's opinion in Sands is significant because it does address the constitutional issues.   Its conclusion that the trial judge may determine the issue of materiality without submitting it to the jury, however, is based squarely on the question-of-law/question-of-fact distinction rejected by our Supreme Court in Figueroa.  (Compare Sands, supra, 467 A.2d at p. 216 with Figueroa, supra, 41 Cal.3d at pp. 730–734, 224 Cal.Rptr. 719, 715 P.2d 680.)

The trial in this case, however, occurred before Figueroa was decided.   We are thus confronted with the question whether Figueroa applies retroactively.   That issue was addressed recently by the court in People v. Lawson (1987) 189 Cal.App.3d 741, 234 Cal.Rptr. 557.   Like Figueroa, Lawson involved a trial court instruction that certain financial instruments were “securities” as a matter of law.   Relying on the Supreme Court's extensive retroactivity discussion in People v. Guerra (1984) 37 Cal.3d 385, 208 Cal.Rptr. 162, 690 P.2d 635, the Lawson court assumed that Figueroa established a new rule of law and went on to consider whether the new rule represented “a clear break with the past.”  (See United States v. Johnson (1982) 457 U.S. 537, 551, 102 S.Ct. 2579, 2588, 73 L.Ed.2d 202;  Donaldson v. Superior Court (1983) 35 Cal.3d 24, 37, 196 Cal.Rptr. 704, 672 P.2d 110.)   Because Figueroa did not overrule a prior California Supreme Court decision which expressly or impliedly approved the trial court practice of instructing on securities as a matter of law, Lawson was forced to determine whether it “disapprove[d] a long-standing and widespread practice expressly approved by a near-unanimous body of lower-court authorities․”  (Guerra, supra, 37 Cal.3d at p. 401, 208 Cal.Rptr. 162, 690 P.2d 635;  see Lawson, supra, 189 Cal.App.3d at p. 749, 234 Cal.Rptr. 557.)   After reviewing Figueroa 's discussion of the four Court of Appeal decisions which had held that it was for the trial court to determine what constituted a “security”, Lawson concluded the Supreme Court's criticism indicated that reliance on them could not be justified.   Accordingly, Lawson held that Figueroa was to be applied retroactively.  (189 Cal.App.3d at pp. 750–751, 234 Cal.Rptr. 557.)

Initially we question whether the Supreme Court's comments in Figueroa necessarily indicate that trial courts and prosecutors could not justifiably rely on the unbroken line of Court of Appeal cases holding that what constitutes a “security” was a question of law to be decided by the trial judge.   Although the Supreme Court criticized the four Court of Appeal decisions, it was in the context of deciding whether to accept their analysis.   From the trial court's perspective under the doctrine of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, it makes no difference whether the controlling decision emanates from the California Supreme Court or the Court of Appeal;  the trial court has no jurisdiction not to “accept the law declared by courts of superior jurisdiction.”  (Ibid.)  In our view, if a Supreme Court decision represents a “clear break with the past” either because it overturns an earlier Supreme Court case or “disapproves ․ a near-unanimous body of lower-court authorities” (Guerra, supra, 37 Cal.3d at p. 401, 208 Cal.Rptr. 162, 690 P.2d 635), there was by definition “justifiable reliance” on the old rule.

In any event, Lawson does not control our decision here.   Because it concerned the direct holding of Figueroa—whether a trial court could instruct the jury that certain instruments were securities as a matter of law—Lawson did not have to concern itself with the overruling of a prior Supreme Court decision.   In contrast, Figueroa applied to the “materiality” issue in a perjury case impliedly overrules People v. Pierce, supra, 66 Cal.2d at page 61, 56 Cal.Rptr. 817, 423 P.2d 969 and this necessarily represents a “clear break with the past.”  (See Guerra, supra, 37 Cal.3d at p. 401, 208 Cal.Rptr. 162, 690 P.2d 635;  see also Solem v. Stumes (1984) 465 U.S. 638, 646, fn. 6, 104 S.Ct. 1338, 1343, fn. 6, 79 L.Ed.2d 579.)   We are accordingly forced to consider whether the purposes served by the new rule enunciated in Figueroa would be substantially furthered by retroactive application.  (Guerra, supra, 37 Cal.3d at p. 402, 208 Cal.Rptr. 162, 690 P.2d 635.)

“Perhaps the most consistent application of [the retroactivity] principle has been in cases in which the primary purpose of the new rule is to promote reliable determinations of guilt or innocence.   The United States Supreme Court has aptly characterized its operation in that event:  ‘Where the major purpose of the new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect.’ ”   (Guerra, supra, 37 Cal.3d at p. 402, 208 Cal.Rptr. 162, 690 P.2d 635, quoting Williams v. United States (1971) 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388.)   Because the Figueroa decision finds its roots in the constitutional principle that a jury must determine the prosecution has established each element of a charged crime beyond a reasonable doubt (In re Winship, supra, 397 U.S. at p. 364, 90 S.Ct. at p. 1072), it is tempting to view Figueroa as central to the trial's “truth-finding function.”  (See Ivan V. v. City of New York (1972) 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (holding Winship retroactive).)   Yet Figueroa really has little to do with the standard by which determinations of guilt or innocence are made.   Instead, the issue in Figueroa was who should be the decision-maker:  judge or jury?   Transfering the responsibility for determining the “materiality” of perjured statements does not, in our view, “raise [ ] serious questions about guilty verdicts in past trials․”  (Williams v. United States, supra, 401 U.S. at p. 653, 91 S.Ct. at p. 1152.)

The United States Supreme Court has reached a similar conclusion in a somewhat different context.   In Parklane Hosiery Co. v. Shore (1979) 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552, plaintiff in a shareholders' class action obtained partial summary judgment against the corporate defendant, applying collateral estoppel to issues which had been resolved against the defendant in an earlier injunction proceeding brought by the S.E.C.   In rejecting the defendant's argument that it would not be fair to permit the application of collateral estoppel, the court considered the fact that defendant had not been afforded a jury trial in the earlier injunction proceeding.   Nonetheless, the Supreme Court concluded, “[T]here will in the [later] action be no procedural opportunities available to the [defendant] that were unavailable in the first action of a kind that might be likely to cause a different result.”  (Id. at p. 332, 99 S.Ct. at p. 652, emphasis added.)   A footnote reference then expands on the thought:  “It is true, of course, that the petitioners in the present action would be entitled to a jury trial of the issues bearing on whether the proxy statement was materially false and misleading․  But the presence or absence of a jury as factfinder is basically neutral,․”  (Id. at p. 332, fn. 19, 99 S.Ct. at p. 652, fn. 19.)

 Where the difference between a judge and a jury as decision-maker is “basically neutral” in that it is not “likely to cause a different result,” we are hard-pressed to conclude that a new rule replacing a judge with a jury is central to the “truth-finding function” of the trial.  (Williams v. United States, supra, 401 U.S. at p. 653, 91 S.Ct. at p. 1152;  Guerra, supra, 37 Cal.3d at p. 402, 208 Cal.Rptr. 162, 690 P.2d 635.)   Accordingly, we decline to apply Figueroa retroactively in the context of this case.

Juror Unanimity

As we have noted previously, each perjury count was based on a single CDS or SEI document which the People alleged was false and incomplete.   As to a number of the counts, the People relied on and sought to prove more than one item Hedgecock failed to disclose.   Hedgecock asked the court to instruct the jury it must unanimously agree on at least one of the items he omitted from these reports before it could convict him of perjury.   Because each count was limited to a single CDS or SEI, the prosecutor argued that so long as the jurors agreed a particular disclosure statement was false and incomplete, they need not agree on the reason why it was incomplete.   Although initially expressing concern with the prosecutor's argument (19 RT 2908), the trial court eventually determined not to give the specific unanimity instruction requested by Hedgecock.

 Where a single count of perjury is based on allegations that a defendant testified to more than one falsehood, the prosecution need not prove each false statement as proof of any one or more is sufficient.   (People v. Gamble (1970) 8 Cal.App.3d 142, 148, 87 Cal.Rptr. 333;  People v. Follette (1925) 74 Cal.App. 178, 191, 240 P. 502.)   Under such circumstances, the jury should be instructed it must unanimously agree on at least one of the false statements.²⁹  (People v. McRae (1967) 256 Cal.App.2d 95, 120–121, 63 Cal.Rptr. 854;  United States v. O'Neill (E.D.Pa.1979) 463 F.Supp. 1200, 1205;  see CALJIC No. 7.25 (4th ed. 1979).) ³⁰

It is not clear whether this same requirement is applicable where a document is alleged to be perjured as a result of more than one material omission.   On one hand, our decision in People v. Smith (1984) 155 Cal.App.3d 1103, 1186–1187, 203 Cal.Rptr. 196, suggests in dicta that unanimity may not be required;  as long as the jurors can agree that a particular statement is false, they need not agree on why it was false.   On the other hand, a principled way to distinguish the two situations is difficult to discern.   At least one court has indicated in the perjury context that not only is juror unanimity required as to which false statement the defendant made, it is also required as to the state of facts which makes the statement false.  (United States v. Remington (2d Cir.1951) 191 F.2d 246, 250.)   As the court explained in United States v. Gipson (5th Cir.1977) 553 F.2d 453, 457, 458, these concerns have a constitutional dimension.  “Like the ‘reasonable doubt’ standard, which was found to be an indispensable element in all criminal trials in In re Winship, 1970, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, the unanimous jury requirement ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue’.  397 U.S. at 364, 90 S.Ct. at 1072, 25 L.Ed.2d at 375.   The unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether defendant is guilty of the crime charged.   Requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless this prerequisite of jury consensus as to the defendant's course of action is also required.”  (Fns. omitted.)

Especially given these constitutional implications, we think trial courts would be well-advised to err on the side of giving a unanimity instruction where one is requested.   For a variety of reasons, however, we have concluded that even if such an instruction were required, the failure to give it on the facts of this case was harmless beyond a reasonable doubt.  (See Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705;  People v. Gordon (1985) 165 Cal.App.3d 839, 855, 212 Cal.Rptr. 174.)

 According to Hedgecock, 10 of the 12 perjury counts of which he was convicted were based on multiple omissions.  (Counts 3–8, 10, 12, 14 and 15.)   There are several general factors applicable to all the counts which support our conclusion that any error was harmless.   First of all, the jury was given a general unanimity instruction.³¹  Where more than one false statement is alleged as the basis for a single count of perjury, federal courts routinely hold that such an instruction is sufficient to inform the jury they must unanimously agree on at least one false statement.  (E.g., United States v. Mangieri;  (D.C.Cir.1982) 694 F.2d 1270, 1280;  Vitello v. United States (9th Cir.1970) 425 F.2d 416, 422–423.)   Equally or more important in the context of this case, although the trial court refused Hedgecock's requested instruction, it never suggested unanimity as to each omission was not required nor did the prosecutor make that contention in his argument to the jury.   Finally the trial court did instruct the jury that unanimity was required as to the two omissions on which Counts 14 and 15 were based.³²  Not only does this fact eliminate Counts 14 and 15 from Hedgecock's argument;  it also reinforces the conclusion that absent any indication from the trial judge or argument by counsel, the jurors likely assumed that unanimity was required.

Our analysis of the specific counts confirms our conclusion that any error was harmless.   To begin with, we take issue with Hedgecock's characterization of Counts 7, 8, 10 and 12 as being based on multiple omissions.   As we have indicated previously (ante, pp. 433–434), the sole prosecution theory on these counts was that the contract between TS & A and the Hedgecock for Mayor Committee was not supported by full and adequate consideration.³³  While it is true there were numerous expenditures made by TS & A during the period covered by these counts which in one sense should have been reported as contributions by TS & A, Hoover and/or Dominelli, the counts necessarily stand or fall on the adequacy-of-consideration issue.   Because they are in reality single-issue counts, the perceived unanimity problem is non-existent.

It may be argued that Count 6 is different because the prosecution also sought to prove that Hedgecock should have reported TS & A's installation and repair of Hedgecock's car phone.   In reality, however, because the jurors necessarily and unanimously resolved the adequacy-of-consideration issue against Hedgecock as to Counts 7, 8, 10 and 12, it is inconceivable they would not have similarly resolved the identical issue in Count 6.

Count 3 was clearly based on two unrelated omissions from Hedgecock's 1981 SEI:  Harvey Schuster's $500 payment to attorney Ronald Blanc which covered legal services rendered to Hedgecock in November;  and the $3,000 check Hedgecock received from Dominelli in December.   Both omissions were identified on the consolidated indictment and information which referred to them in the conjunctive rather than disjunctive.   In People v. McRae, supra, 256 Cal.App.2d 95, 63 Cal.Rptr. 854, relied on heavily by Hedgecock, the court indicated that a unanimity instruction was warranted but found the error not prejudicial because the jurors found the defendant guilty “as charged,” implying they all agreed as to each of the seven assignments under one perjury count and three under another.  (Id. at pp. 120–121, 63 Cal.Rptr. 854;  accord People v. Mizer (1940) 37 Cal.App.2d 148, 152–153, 99 P.2d 333.)   Similarly here, the verdict form on Count 3 states the jury found Hedgecock guilty “as charged in Count Three of the Consolidated Indictment and Information.”   Because the two omissions were charged in the conjunctive, the verdict implies agreement by the jurors as to each of the omissions.

In addition, our review of the evidence pertaining to Count 3 convinces us that the lack of a unanimity instruction could not possibly have prejudiced Hedgecock because the jury must have found he knowingly failed to report the $3000 Dominelli payment.   Hedgecock's position on this issue was that the $3000 represented TS & A's payment for the right to use the FraSuMi computer list, which was paid for with a J. David check because TS & A had not yet opened a checking account.   Even accepting this as true, the payment represented income to Hedgecock which should have been reported on the SEI.

As to the remaining counts (4 and 5), which involved Hedgecock's campaign finances before any contract had been entered into with TS & A, the prosecution relied on a number of expenditures made by TS & A which were not disclosed in the CDS forms as contributions.   The consolidated indictment and information, however, did not specify these alleged non-disclosures as it did those pertaining to Count 3.   Thus, McRae 's harmless error analysis is inapplicable.   Nonetheless, after reviewing the evidence presented on these counts and application of the general factors noted earlier (ante, pp. –––– – ––––), we are persuaded that any error in failing to give a unanimity instruction was similarly harmless beyond a reasonable doubt.   While several of the items relied on by the prosecution are less than compelling, other evidence pertaining to the pre-contract period is virtually incontrovertible.   There is no question Hedgecock knew that personnel employed by TS & A were performing significant amounts of work on behalf of his campaign.   The pledge/endorsement cards paid for by TS & A were preprinted with Hedgecock's address and distributed at functions where Hedgecock spoke.   Hedgecock knew he had not paid for the cards either directly or through his supervisorial committee.   It strains credulity to believe he was unaware of his obligation to report the cards as a contribution.   For similar reasons, Hedgecock must have known about the Tom Lawrence video seminars.   We have no doubt the jury was unanimous at least as to these items.

For all the foregoing reasons, we are comfortable in the conclusion that the lack of a unanimity instruction did not prejudice Hedgecock because any error was harmless beyond a reasonable doubt.

Reliance on McDade

 Pointing to the fact that the prosecution did not contend Mike McDade was a coconspirator, Hedgecock emphasizes the nature and extent of McDade's knowledge of the campaign and argues that the jury should have been instructed it could consider his good faith reliance on campaign finance experts such as McDade who prepared the CDS forms as tending to show he did not fraudulently omit material information from the disclosure statements.   Hedgecock's position is essentially as follows:  McDade knew as much about campaign finances and the capitalization of TS & A as Hedgecock.   He knew Nancy Hoover was investing in Shepard's consulting firm.   He knew about Shepard's involvement in the early stages of the campaign.   He knew about the terms of the consulting contracts between TS & A and the campaign committee.   Despite this knowledge, McDade reviewed Hedgecock's CDS forms, which were generally prepared by volunteer attorney Peter Aylward, and advised Hedgecock to sign them.   McDade repeatedly testified he believed the information contained in the forms satisfied Hedgecock's reporting obligations under the Political Reform Act.   Hedgecock thus concludes:  If McDade, a conceded expert in matters of campaign finance law, believed the CDSs were complete and accurate, and if I relied on McDade's advice in signing the reports, how can I be guilty of perjury?   He argues he was entitled to a jury instruction highlighting his theory that if he relied on McDade, he should have been acquitted.³⁴

Hedgecock's theory founders on several faulty premises.   To begin with, it was seriously disputed whether McDade knew as much as Hedgecock with respect to the activities and organization of TS & A.   Certainly McDade was not as close to Shepard as Hedgecock and he did not have the relationship with Hoover that Hedgecock did.   Secondly, although it is true McDade was not charged as a coconspirator, the jurors were hardly obligated to believe everything he said.   In particular, they need not have accepted his conclusion that the contracts between TS & A and the Hedgecock campaign committee were for fair and adequate consideration.³⁵

Hedgecock's requested instruction, although probably not objectionable, added little to the instructions already given by the trial court.   The jurors were instructed pursuant to CALJIC No. 7.24 that “[a]n essential element of perjury is that a statement be made willfully by a person who knows that the statement is being made under penalty of perjury, and who knows or believes that the statement was false, or is aware that he is ignorant of the truth [or] falsity of his statement.   A statement made under an honest mistake and in a belief that it is true is not perjury, even though the statement is false.”   Obviously if Hedgecock's reliance on McDade had caused him to honestly but incorrectly believe he was fully and accurately complying with the legal reporting requirements, he could not have been convicted under this instruction.

Perhaps more important, with respect to the CDS counts other than 4 and 5, the jury was told it could not convict Hedgecock based on his failure to report as contributions the operating losses of TS & A which were covered by Hoover and Dominelli (ante, pp. 433–434) if it concluded Hedgecock believed the contract between his campaign committee and TS & A “was supported by full and adequate consideration․” ³⁶  McDade repeatedly testified he believed the contracts between TS & A and the Hedgecock committee were fair and adequate.³⁷  Thus, either the jury did not believe McDade or it concluded Hedgecock did not rely on McDade.   The lack of the requested instruction could not possibly have prejudiced Hedgecock.

Amended Statements as Evidence of Good Faith

Hedgecock also contends the jury should have been instructed it could consider amendments to his CDSs and SEIs as evidence of his good faith which would defeat the charges of perjury.   His proposed instruction closely tracked the language of Government Code section 81004.5.³⁸

Here, the jury was properly instructed Hedgecock could not be found guilty of perjury if he honestly and in good faith believed the statements he was signing were accurate.   Nonetheless, a defendant is entitled to request “pinpoint” instructions which “direct attention to evidence or amplify legal principles from which the jury may conclude that his guilt has not been established beyond a reasonable doubt.”  (People v. Thompkins (1987) 195 Cal.App.3d 244, 257, 240 Cal.Rptr. 516.)

We have no quarrel with Hedgecock's proposed instruction as a matter of theory.   Obviously there will be many circumstances in which the amendment of a CDS or SEI promptly after the filer discovers an error will strongly suggest that the error was not an intentional one.   Here, however the record reflects but a single amended filing attempting to correct an error which forms the basis for one of the perjury charges.   On February 27, 1984, Hedgecock amended his 1982 SEI to disclose his J. David interbank account investment.   The cover letter accompanying the amendment admits the “recent publicity which has been given to this investment.”   In reality, the disclosure in the amended statement amounts to little disclosure at all.

 We think it extremely unlikely the jury would have viewed the amended 1982 filing as evidence of Hedgecock's good faith.   The “disclosure” was virtually compelled by contemporaneous publicity;  it was hardly prompt.   Moreover, the failure to list the interbank account was a relatively minor transgression.   The record reflects no amendments concerning the far more serious non-disclosures which formed the heart of the prosecution's case.   Under these circumstances, any error in failing to give the requested instruction was clearly harmless.³⁹

CALJIC No. 2.50

Focusing on the evidence of the aborted condo sale to and/or loan from Harvey Schuster in March 1982, the trial court instructed the jury pursuant to CALJIC No. 2.50 that such evidence was admitted for a limited purpose and was to be considered only to the extent it showed Hedgecock's intent, motive or knowledge, corroborated the testimony of prosecution witnesses or demonstrated the existence of a conspiracy.   Although Hedgecock attacks the instruction as permitting consideration of the evidence for inappropriate purposes, he essentially contends Schuster's testimony was irrelevant and inadmissible for any purpose.

 As we explain later, Schuster's testimony was clearly admissible to show Hedgecock's willingness to subvert the intent of the disclosure laws, i.e., his intent to file false disclosure statements.  (See post, p. 453.)   Hedgecock is correct that the trial court should have modified the language of CALJIC No. 2.50 to eliminate reference to purposes other than intent.  (See People v. Swearington (1977) 71 Cal.App.3d 935, 949, 140 Cal.Rptr. 5.)   Schuster's testimony did not tend to prove Hedgecock's motive for the crime or knowledge necessary to commit the crime, nor did it corroborate anyone's testimony or establish the existence of the alleged conspiracy between Hedgecock, Hoover, Dominelli and Shepard.   We cannot conclude, however, that the giving of the unrestricted CALJIC No. 2.50 was prejudicial.   The permissible thrust of the evidence was obvious.   The overly broad instruction did not suggest a logical but inappropriate set of inferences.   Especially given the strength of the evidence, we do not think a different result is reasonably probable.  (See generally People v. Rollo (1977) 20 Cal.3d 109, 123, 141 Cal.Rptr. 177, 569 P.2d 771.)

IV. PERJURY–RELATED ISSUES

Perjury:  Felony or Misdemeanor?

Government Code section 81004(a) ⁴⁰ provides that “[a]ll reports and statements filed under this title shall be signed under penalty of perjury and verified by the filer.”   Subdivision (b) adds:  “Every person who signs and verifies any report or statement required to be filed under this title which contains material matter which he knows to be false is guilty of perjury.”   Section 91000(a) states that “[a]ny person who knowingly or willfully violates any provision of this title is guilty of a misdemeanor.” ⁴¹  Relying on the latter provision, Hedgecock contends that the crime of perjury referred to in section 81004 is necessarily a misdemeanor violation.

In support of his argument, Hedgecock refers us to People v. Jenkins (1980) 28 Cal.3d 494, 170 Cal.Rptr. 1, 620 P.2d 587, in which the Supreme Court was confronted with the issue of whether an individual who committed welfare fraud under Welfare and Institutions Code section 11483 could also be prosecuted for perjury under Penal Code section 118.   Although Welfare and Institutions Code section 11483 did not on its face require as an element of the offense false statements sworn to under penalty of perjury, the Jenkins court referred to related statutes and had little trouble concluding that “there are no situations in which an individual can violate section 11483 without also committing perjury.”  (Id. at p. 505, 170 Cal.Rptr. 1, 620 P.2d 587.)   The court then referred to the usual rule that specific statutes (Welf. & Inst.Code, § 11483) will control over ones of more general application (Penal Code, § 118) (see, e.g., In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593), but concluded that “unique circumstances” indicated the Legislature's intent that perjury prosecutions be permitted in the welfare fraud context.  (Jenkins, supra, 28 Cal.3d at p. 505, 170 Cal.Rptr. 1, 620 P.2d 587.)   Chief among these indications was the language of Welfare and Institutions Code section 11054 which required AFDC applicants to file an “affirmation of eligibility” containing “a written declaration that the affirmation is made under penalty of perjury.   Any person signing a statement containing such declaration, who willfully and knowingly with intent to deceive states as true any material matter which he knows to be false, is subject to the penalty prescribed for perjury in the Penal Code.”   The court stated:  “The conclusion is unavoidable that section 118 has been incorporated into the AFDC program by virtue of section 11054, ․” (28 Cal.3d at p. 506, 170 Cal.Rptr. 1, 620 P.2d 587.)

Initially, we question whether Jenkins applies to this situation.   Hedgecock does not explain why he assumes “there are no situations in which an individual can violate section [91000(a) ] without also committing perjury.”   (Jenkins, supra, 28 Cal.3d at p. 505, 170 Cal.Rptr. 1, 620 P.2d 587.)   Such is plainly not the case.   For instance, section 87100 prohibits a public official from attempting to use his official position to influence a governmental decision in which he has a financial interest.   Violation of this provision may result in a misdemeanor prosecution under section 91000(a) without the official ever having filed a false disclosure statement under penalty of perjury.   Similarly, section 86205 contains numerous prohibitions on the activities of lobbyists, all of which can give rise to misdemeanor prosecutions under section 91000(a) and none of which involve disclosure violations.

Beyond that, however, we read Jenkins as defeating rather than buttressing Hedgecock's argument here.   We view section 81004 as the functional equivalent of Welfare and Institutions Code section 11054 in Jenkins.  Section 81004 does more than simply require disclosure forms to be signed under penalty of perjury.   It goes on to provide that the filer of a disclosure statement “is guilty of perjury” if he knows the statement is false.   It is true that section 11054 is more specific in that it refers to Penal Code section 118.   But since section 118 is the only perjury statute in the California codes, the intent of the electorate in adopting the Political Reform Act by initiative seems patently obvious.⁴²

The correctness of this conclusion is confirmed when one considers that the practical effect of accepting Hedgecock's argument would be to render the language of section 81004 surplusage.  “It is an established rule of statutory construction that every word, phrase, and provision employed in a statute is intended to have meaning and to perform a useful function.”   (County of Humboldt v. Workers' Comp. Appeals Bd. (1983) 147 Cal.App.3d 595, 602, 195 Cal.Rptr. 181;  see also J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 36–37, 160 Cal.Rptr. 710, 603 P.2d 1306.)   A disclosure violation under the Act (see, e.g., §§ 84211, 87206, 87207) would have been subject to misdemeanor prosecution under section 91000(a) without any verification under penalty of perjury.   It is unlikely the drafters of the initiative have included the verification requirement found in section 81004(a) if they did not intend it to subject the filer to more serious consequences in the event he knowingly and under oath failed to disclose required information.   In fact, under Hedgecock's interpretation, addition of the verification requirement actually lessens the penalties for nondisclosure because multiple omissions in a single disclosure document which would result in multiple misdemeanors without a verification become a single misdemeanor when based on the false verification.   In any event, even if the verification requirement can be construed consistent with Hedgecock's theory to have a legitimate purpose in facilitating the proof of a knowing misdemeanor violation, there would have been no need to include the additional language in subdivision (b) of the statute specifying that any person who falsely verifies a report “is guilty of perjury.”

It is also interesting to note that there is legislative precedent in this state and elsewhere for the design of a statutory scheme in which a wilfull omission may be charged as a misdemeanor but the false verification of a document containing the omissions is chargeable as perjury.   In People v. Platt (1885) 67 Cal. 21, 7 P. 1, the Supreme Court addressed a defendant's argument that a misdemeanor statute enacted as part of a since-repealed state insolvency act took precedence over the older and more general perjury statute.   The court's opinion begins with a statement of premise:  “It seems to be conceded that a petitioner in insolvency who should wilfully omit from his schedule any of his property, and then verify his petition, schedule, and inventory in the form and manner prescribed by law, would be guilty of perjury, were it not for a provision in the insolvent act which makes such omission a misdemeanor.”  (Id. at p. 22, 7 P. 1.)   The court goes on to explain, however, that “the latter act does not make the verification of a schedule by a petitioner from which he has wilfully omitted some of his property a misdemeanor.   If he ‘fraudulently or designedly omits from his schedule any property or effects whatsoever ․ he shall be deemed guilty of a misdemeanor.’   We cannot discover any repugnancy or inconsistency between that and a statute which makes the verification of a false schedule by a petitioner who knows it to be false, a felony.”  (Ibid.)

A similar issue of statutory construction confronted the court in Siravo v. United States (1st Cir.1967) 377 F.2d 469.  26 United States Code section 7203 makes it a misdemeanor to wilfully fail to supply required information on a tax return.   The defendant in Siravo argued that in light of this particular statute, the more general income tax perjury statute (26 U.S.C. § 7206(1)) should not be interpreted to apply to tax returns which are false only by reference to omitted information.   Rejecting this argument, the court explained that “the fact that Congress has seen fit to classify wilful failure to supply information as a misdemeanor quite clearly does not preclude it from establishing a felony for falsely swearing under the penalties of perjury that a partial return is a whole one.”  (Id. at p. 473.)

 Based on all the foregoing reasoning and precedent, we are persuaded that in enacting the Political Reform Act of 1974, the voters intended that any person who knowingly files a false statement under penalty of perjury be subject to felony prosecution under Penal Code section 118.⁴³

Omissions as a Basis for Perjury

Relying primarily on People v. French (1933) 134 Cal.App. 694, 699, 26 P.2d 310, Hedgecock contends that omissions cannot form the basis for a perjury conviction.   He argues the prosecution must be able to prove he made an affirmative statement which was false, pointing to the general rule that a statement literally true but misleading because it fails to add pertinent facts will not support a charge of perjury.  (See In re Rosoto (1974) 10 Cal.3d 939, 949, 112 Cal.Rptr. 641, 519 P.2d 1065;  Bronston v. United States (1973) 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568.)

 The drafters of the Political Reform Act quite clearly contemplated that a filer could be charged with perjury if he knowingly failed to disclose required information.   In section 81004(a), they modified the standard verification under penalty of perjury (see Code Civ.Proc., § 2015.5) ⁴⁴ to incorporate two additional elements:  “The verification shall state that the filer has used all reasonable diligence in [the statement's] preparation, and that to the best of his knowledge it is true and complete.”  (Emphasis added.)   Thus, by signing this verification, Hedgecock affirmatively stated he had included all required information and the statement was complete.   Where the prosecution demonstrated to the jury's satisfaction that Hedgecock knowingly failed to disclose required information, they necessarily demonstrated that this verification was a false statement which subjected Hedgecock to liability for perjury.

The situation is complicated somewhat by the fact that not all of the forms signed by Hedgecock which serve as the basis for the perjury counts contained the proper verification as prescribed by section 81004.   For reasons which are not apparent, the forms provided by the Fair Political Practices Commission which Hedgecock used to complete his 1982 SEI (Count 9) and his three 1983 SEIs (Counts 11, 14 and 15) contained the following verification:  “I declare under penalty of perjury that I have used all reasonable diligence in preparing this Statement, that I have reviewed the attached schedules and to the best of my knowledge the information provided in this Statement is true and correct.”  (emphasis added.)   Hedgecock argues that at least as to the counts which are based on this faulty verification, his conviction must be reversed because the evidence showed no false affirmative statement which can give rise to perjury.

Hedgecock's argument is premised on an overly technical reading of the verification.   Nearly one hundred years ago, the California Supreme Court held in an analogous context that “true and correct” implies “complete” such that the verification is false if the defendant wilfully omits material information.  People v. Naylor (1890) 82 Cal. 607, 23 P. 116, involved a since-repealed state bankruptcy statute which required the bankrupt to file an inventory of creditors.   Naylor filed an incomplete inventory to which he attached an affidavit attesting that the inventory was “just and true.”   The Supreme Court concluded:  “The law required that all creditors of the insolvent should be shown by the inventory, and that the oath that it was ‘true and correct’ should be taken, annexed to, and filed with the inventory.   If, then, such an inventory was prepared which purported to show all the defendant's creditors, and it was sworn to as ‘just and true,’ annexed and filed as required, and a collusive agreement had been entered into by which the creditor was omitted from the inventory, and the oath was false, it would appear that the defendant was charged properly with perjury․”

 Similarly here, the Political Reform Act required Hedgecock to disclose various types of information on his SEI.  (See Govt.Code, §§ 87206, 87207.)   Instructions on the face of the SEI forms signed by Hedgecock made this fact clear, telling the filer that “[a]ll of the information required by this form is mandatory․”  In the face of these instructions and legal requirements, it exalts form over substance to suggest that Hedgecock's representation as to the truth and correctness of his SEI did not reasonably and necessarily imply it did not omit material information.

Courts in various contexts have reached the similar conclusion that an attestation as to truth and correctness necessarily implies completeness such as to render the verification false if the declarant wilfully omits information which is required to be disclosed.   The decision of the First Circuit Court of Appeals in Siravo v. United States, supra, 377 F.2d 469 is again instructive in this regard.   Siravo was convicted under a special income tax perjury statute (see 26 U.S.C. § 7206(1)) based on his failure to include with his return a required schedule disclosing the gross receipts from a business.  (Section 7206(1) proscribes the signing of a tax return under penalty of perjury “which [the defendant] does not believe to be true and correct as to every material matter․”  (Emphasis added.)   The First Circuit described Siravo's argument in terms quite similar to Hedgecock's position:  “Defendant's principal contention is that 26 U.S.C. § 7206(1) describes a form of perjury, that a basic requirement of perjury is a false statement of fact, and that failure to attach a separate Schedule C reporting ‘gross receipts' is [not] ․ a false statement.”  (377 F.2d at p. 472.)   Rejecting this argument, the court responded as follows:  “[W]e hold that a return that omits material items necessary to the computation of income is not ‘true and correct’ within the meaning of section 7206.   If an affirmative false statement be required, it is supplied by the taxpayer's declaration that the return is true and correct, when he knows it is not ․ [¶] If ‘true’ and ‘correct’ are not to be construed as precisely synonymous, therefore redundant, they must mean something more than that no false figures have been used and that the arithmetic is accurate.   In fact, the two terms together are commonly construed as meaning that the document is described is both accurate and complete.  [Citations.]”  (Ibid.)

Other federal decisions are in accord that the willful omission of required information from a tax return will subject the filer to liability under section 7206(1) notwithstanding that the statute only requires a verification that the return is ‘true and correct.’  (E.g., United States v. Young (8th Cir.1986) 804 F.2d 116, 119;  United States v. Cohen (5th Cir.1977) 544 F.2d 781, 783.)   In addition, state courts in other contexts have similarly concluded that a verification as to truth and correctness necessarily implies completeness.  (E.g., Norton v. Norton (1972) 289 Ala. 380, 267 So.2d 452, 456;  Collier v. Collier (1898) 150 Ind. 276, 49 N.E. 1063, 1064.)

The cases relied on by Hedgecock are either clearly distinguishable or not persuasive.   Undoubtedly the strongest support for Hedgecock's position is provided by language in People v. French, supra, 134 Cal.App. 694, 26 P.2d 310.   The defendant in French was charged with perjury for failing to disclose certain information in an affidavit filed in support of his application for work relief.   In the context of reversing the defendant's conviction, the court commented as follows:  “It would seem so clear that discussion should be unnecessary either to illustrate or to establish the point that a criminal action against a defendant for the commission by him of the crime of perjury cannot be maintained on an allegation that in making an affidavit he failed to make a statement of any fact, however relevant or material such fact, if made, might be to the subject matter in hand, or however mandatory the rule might be by which he was directed or required to make such statement as a prerequisite to the accomplishment of the object of the affidavit.”  (Id. at p. 699, 26 P.2d 310.)

Putting aside the question of whether this quoted language represents an alternative holding in French or merely suggestive dicta (see 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 786, pp. 757–758), the strength of French as precedent is considerably diluted by the fact that it provides no authority for a proposition which to the French court seemed “so clear that discussion should be unnecessary.”   Significantly, Hedgecock has provided us with no authority on this point other than French, nor have we independently encountered any.⁴⁵

Moreover, it seems quite clear that the French rationale is inconsistent with People v. Naylor, supra, 82 Cal. 607, 23 P. 116, which French does not discuss or even cite.   Thus, even were we to find French otherwise persuasive—which we do not—we would be compelled to follow Naylor and reject French.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   Interestingly, another district of the Court of Appeal has recently also declined to follow French in the context of deciding whether a juror's silence in response to a collective question on voir dire can constitute a “false statement” so as to subject the juror to prosecution for perjury.  (See People v. Meza (1987) 188 Cal.App.3d 1631, 1645, 234 Cal.Rptr. 235.)

The remaining cases cited by Hedgecock are distinguishable.  In re Rosoto, supra, 10 Cal.3d 939, 112 Cal.Rptr. 641, 519 P.2d 1065, and Bronston v. United States, supra, 409 U.S. 352, 93 S.Ct. 595 both involved cases of alleged testimonial perjury in which the witness gave answers which were literally true but misleading because they were incomplete.   As the Rosoto court explained, “[W]hen, as here, a witness' answers are literally true he may not be faulted for failing to volunteer more explicit information.   Although such testimony may cause a misleading impression due to the failure to counsel to ask more specific questions, the witness' failure to volunteer testimony to avoid the misleading impression does not constitute perjury because the crucial element of falsity is not present in his testimony.”  (10 Cal.3d at p. 949, 112 Cal.Rptr. 641, 519 P.2d 1065.)

Cases involving testimonial perjury cannot always be applied directly to cases of documentary perjury.   Here, Hedgecock is not being faulted for failing to volunteer information;  he is subject to liability for perjury because he failed to disclose that which he was required to disclose and then stated under penalty of perjury that the information contained in the document was true and correct.  Rosoto and Bronston are founded on the notion that competent counsel can always eliminate the misleading impression by asking additional more specific questions.  (See United States v. Ryan (3d Cir.1987) 828 F.2d 1010, 1014.)   In the case of documentary perjury, there is no opportunity to dissent or particularize a filer's responses.   If there is an analog in document cases for counsel's questioning, it is the instructions which describe the requirements for filling out a government reporting form.   As we have previously explained, the instructions on the face of the SEI form used by Hedgecock as well as the applicable statutory provisions make clear that complete disclosure was required.   Accordingly, the perjury charges were proper.

Effect of Government Code Section 84303

As noted previously (ante, pp. 433–434), the prosecution's central theory as to the CDS-related counts was that Hedgecock negotiated a “sweetheart” contract with TS & A, knowing that the payments called for by the contract could not possibly cover the services Shepard agreed to provide.   Hedgecock understood that whatever shortfall there was would be made up from capital contributions made by Nancy Hoover and Jerry Dominelli to TS & A.   In this way, the conspirators were able to accomplish directly what they could not do indirectly;  that is, Hedgecock was prohibited by the city campaign finance ordinance from accepting more than $250 individually from Hoover and Dominelli.   Thus, had a fair contract been negotiated with TS & A, Hedgecock would have had insufficient campaign funds to pay for it.   But by arranging for Hoover and Dominelli to bankroll TS & A, TS & A's expenses attributable to the Hedgecock campaign never became an expense for the Hedgecock campaign.

Government Code section 84303 provides in relevant part:  “No expenditure shall be made, other than overhead or normal operating expenses, by an agent ․ on behalf of or for the benefit of any candidate or committee unless it is reported by the candidate or committee․  The agent ․ shall make known to the candidate or committee all information required to be reported by this section.”  (Emphasis added.)   Hedgecock contends this section invalidates the prosecution's theory as a matter of law because it precludes liability for a candidate's failure to report an agent's (i.e., campaign consultant's) overhead or normal operating expenses even if the contract between the candidate and the agent is a sham based on inadequate consideration.   Even if that is not the case, however, Hedgecock asserts that he cannot be convicted for his failure to report amounts attributable to TS & A's overhead and operating expenses unless it is shown that TS & A provided his committee with those amounts.

 Hedgecock's first argument borders on the specious.   An implied assumption underlying section 84303 is that the candidate or committee has a valid contract with the agent for full and adequate consideration.   This is made clear by reference to section 82015 which defines “contribution” to include “the payment of compensation by any person for the personal services or expenses of any other person if such services are rendered or expenses incurred on behalf of a candidate or committee without the payment of full and adequate consideration.”   Thus, if TS & A paid the salaries of individuals who worked on the Hedgecock campaign but did not receive full and adequate consideration for those services from the Hedgecock for Mayor Committee, the salaries constitute a reportable contribution under section 82015.   It is absurd to think that the drafters of the Political Reform Act or the electorate which enacted it intended that wealthy supporters of a candidate could circumvent the disclosure laws by setting up a political consulting firm, entering into a sham contract with the candidate and then paying for substantial campaign-related expenditures without having to account for those payments as contributions.

 As to Hedgecock's second argument, the last sentence of section 84303 simply does not apply to this situation.   That provision requires an agent to report to the candidate expenditures “other than overhead or normal operating expenses.”  Such a requirement makes sense where the candidate would have no other way of finding out about the expenditures made on his behalf by the agent.   Obviously a candidate need not be informed of the agent's overhead expenses in a case such as this since, in order to be liable for failing to disclose such amounts as contributions, the candidate must already know about the sham contract based on inadequate consideration.

Propriety of the CDS Verification

Section 84213 requires that each candidate verify the CDS of “each committee subject to his or her control.   The verification shall be in accordance with the provisions of Section 81004 except that it shall state that to the best of his or her knowledge the treasurer of each controlled committee used all reasonable diligence in the preparation of the committee's statement.”   Each of the CDS perjury counts was based on Hedgecock having signed a false verification on statements filed by his campaign committee.   The CDS verifications signed by Hedgecock provided as follows:  “I declare under penalty of perjury that to the best of my knowledge this statement and its schedules are true, correct and complete and the treasurer(s) of this committee(s) has used all reasonable diligence in the preparation of this statement and its schedules.”   Hedgecock argues this verification was improper because section 84213 does not contemplate that the candidate should have to verify the truth and completeness of the CDS but only that the treasurer of the committee has used “all reasonable diligence” in the preparation of the statement.   Since the prosecution did not contend the treasurer of Hedgecock's committee was anything other than reasonably diligent, Hedgecock asserts he is not guilty of perjury as a matter of law.

 Again, we find Hedgecock's argument specious.   The purpose of section 84213 is not to eliminate the requirement that the candidate verify the truth and completeness of the CDS.   It simply recognizes that because the candidate does not personally prepare the CDS for his campaign committee, he obviously cannot verify that he “has used all reasonable diligence in its preparation․”  (§ 81004(a).)   Thus, section 84213 modifies the verification slightly so that the candidate, in addition to verifying truth and completeness, may appropriately state that “the treasurer of [his] committee used all reasonable diligence in the preparation of the committee's statement.”   Hedgecock's interpretation would allow a dishonest candidate to intentionally deceive his treasurer and then properly verify that the treasurer was reasonably diligent, all the while knowing that the statement he was signing was materially false.   Such cannot have been the intent of the electorate in enacting the Political Reform Act.

Amended Statement as a Basis for Perjury

 Hedgecock's perjury convictions on Counts 14 and 15 are based on SEIs covering the same period of time:  January through December, 1983.   Hedgecock filed his original 1983 SEI on March 7, 1984.   Three days later on March 9, Hedgecock filed an amended SEI which added information unrelated to the perjury charges.   The prosecution contended each was false and incomplete for the same reasons.   Hedgecock now contends he can be charged with but a single count of perjury based on his 1983 annual SEI.   We disagree.

“With respect to perjury, the offense is the false swearing;  each successive false swearing constitutes a separate and distinct offense.”  (People v. Keehley (1987) 193 Cal.App.3d 1381, 1384, 239 Cal.Rptr. 5.)   Here, Hedgecock signed two false verifications, one on March 6 and one on March 9.   The verification accompanying each filing constituted a separate obligation to tell the truth, an obligation the jury concluded was not fulfilled.

We view the situation as analogous to one in which a witness testifies falsely at a trial in which the jury cannot reach a verdict and a mistrial is declared.   If the witness gave the same false testimony on retrial, we have no question he could properly be convicted of two counts of perjury.   Similarly here, Hedgecock was properly charged with and convicted of two counts of perjury based on his original and amended 1983 SEIs.

V. SUFFICIENCY OF THE EVIDENCE

CDS–Related Counts

 Hedgecock challenges the sufficiency of the evidence to justify his conviction on the CDS perjury counts as well as the conspiracy charged in Count 1.   Other than unnecessarily prolonging this opinion, little purpose would be served by an exhaustive recitation of the volumnous circumstantial evidence at trial which supports the jury's guilty verdicts on each of the challenged counts.   Suffice it to say that our careful review of the evidentiary record is reflected in the Statement of Evidentiary Facts found in Section II of this opinion.

With respect to the CDS perjury counts other than Counts 4 and 5, the central theory of the prosecution case was that Hedgecock knew that the consideration provided for in the two contracts between TS & A and his campaign committee was grossly inadequate and that as a result, Hoover and Dominelli's capital contributions to the Shepard firm covering the losses on the Hedgecock account were in reality contributions to the Hedgecock campaign.   Although largely if not totally circumstantial, the evidence of Hedgecock's knowledge in this regard is compelling, particularly in view of the magnitude of the losses suffered by TS & A.  (See ante, p. 431.)

 Counts 4 and 5 do not involve any issue of full and adequate consideration because they cover time periods during which there was no contract between TS & A and the Hedgecock committee.   Nonetheless, the crucial issue with respect to those counts was the extent of Hedgecock's knowledge regarding TS & A's payment of items such as the Tom Lawrence media training sessions, the printing of the pledge/endorsement cards and the salaries paid to employees who spent a substantial portion of their time working on the Hedgecock campaign.⁴⁶  (See ante, p. 428.)   Again, the circumstantial evidence of Hedgecock's close relationship with Shepard, his habitual attention to detail and his personal knowledge concerning the Lawrence training sessions, the pledge cards and the work done by the TS & A employees allowed the jury to reasonably infer that Hedgecock must have known TS & A was paying for these campaign-related costs.

 Finally, as to the conspiracy count, it is hardly surprising that the prosecution's case was based on circumstantial evidence since few criminal conspiracies are subject to direct proof.  (See, e.g., People v. Massey (1957) 151 Cal.App.2d 623, 651–652, 312 P.2d 365.)   The circumstantial evidence here supports the inference that there was a tacit understanding among the alleged coconspirators in December 1981 that a primary purpose for TS & A's being formed was to coordinate Hedgecock's upcoming campaign for mayor.   The tacit agreement matured in mid–1982 when mounting financial difficulties for the campaign suggested the possibility of using TS & A as a vehicle for funneling significant amounts of money from Hoover and Dominelli to Hedgecock without disclosing these amounts as contributions.   The fact that Hedgecock's relationship with Hoover underwent a dramatic renaissance during this period strongly supports the inference he was aware of the significant financial burden assumed by Hoover and Dominelli.   In our view, the evidence fully supports the jury's conclusion that Hedgecock was part of a conspiracy to violate the disclosure requirements of the Political Reform Act and the local campaign finance laws.

Source of the Renovation Loan

On both his original and amended SEI for 1983 (ante, pp. 433–434), Hedgecock disclosed his home renovation loan from Nancy Hoover.   In Counts 14 and 15, the prosecution alleged these statements were incomplete because Hedgecock did not disclose J. David and/or Jerry Dominelli as an additional source of the loan.   Hedgecock contends there was insufficient evidence to show he knew the loan money came from anyone other than Nancy Hoover or, in the alternative, the difference was immaterial as a matter of law.

 The extensive evidence demonstrating the breadth of the conspiracy was plainly sufficient to show that Hedgecock knew the relationship between Hoover and Dominelli and must have known the renovation loan funds were coming from J. David.   This is especially true given the involvement of Parin Columna.

 The materiality becomes irrelevant in the context of these counts.   Counts 14 and 15 alleged that the 1983 SEIs were incomplete not only because Hedgecock failed to disclose the true source of the renovation loan;  each was also based on Hedgecock's failure to disclose his continued receipt of interest payments on the Inabinett note after he sold it to Hoover.   Count 11, based on Hedgecock's SEI covering the first five months of 1983, also alleged his failure to report the Inabinett interest payments but did not include the renovation loan issue because the loan was not made until after the May 19 cut-off date.   The jury's guilty verdict on Count 11 demonstrates it unanimously found Hedgecock intentionally failed to disclose his retention of the interest payments.   Since nothing changed after May 19, 1983 with regard to Hedgecock's receiving the interest payments, the jury must necessarily have based its Count 14 and 15 verdicts at least in part on the Inabinett note issue.   Because the evidence in that regard was sufficient on its own to support the conviction, any failure of proof with respect to the renovation loan was necessarily harmless.

VI. EVIDENTIARY ISSUES

Hedgecock raised a continuing hearsay objection to any statements attributed to Nancy Hoover, Jerry Dominelli, Tom Shepard or Robert Meadow.   He now claims a variety of evidence was erroneously introduced and should have been excluded as irrelevant or unduly prejudicial.   We conclude Hedgecock's evidentiary contentions are without merit as discussed below.

 Hedgecock ignores the general appellate rule that the admissibility of evidence will not be reviewed absent a specific and timely objection at trial on the ground sought to be urged on appeal.  (People v. De Santiago (1969) 71 Cal.2d 18, 22, 76 Cal.Rptr. 809, 453 P.2d 353.)   Failure to state the specific ground waives appellate review because the party offering the testimony may have easily cured the objection if it had been stated to the trial court.  (People v. Dorsey (1974) 43 Cal.App.3d 953, 960, 118 Cal.Rptr. 362.)   We therefore limit our review to the specific grounds for objection contained in the record.

Tamara O'Brien's Testimony Regarding Tom Shepard

 Tamara O'Brien, an employee of Tom Shepard & Associates, testified Tom Shepard returned from meetings with Hedgecock in early 1982 “․ a little bit frustrated and flustered” and said “if Roger was this bad now, he could imagine what it's going to be like once a real campaign started.”   Hedgecock objected to O'Brien's testimony as hearsay.   Hedgecock makes the common mistake of treating any out-of-court statement as hearsay, inadmissible unless saved by an exception to the hearsay rule.⁴⁷  O'Brien's testimony was offered to show the nature and extent of Hedgecock's relationship with Shepard in the early stages of the campaign.   The prosecution sought to prove Hedgecock's involvement in activities made on his behalf prior to the existence of a contract.   Because the out-of-court statement was not offered for the truth asserted (i.e. that Roger is “bad now” and by implication going to get worse) the hearsay rule simply does not apply.   Shepard's statements are relevant to Hedgecock's involvement in activities of TS & A and were properly admitted as evidence tending to show the existence of a conspiracy.

Tom Lawrence's Testimony Regarding Tom Shepard

Video consultant Tom Lawrence testified Tom Shepard contacted him to work with Hedgecock toward improving Hedgecock's presentations to the news media.   Hedgecock made no objection to Lawrence's testimony until questioned “what was the problem that Tom Shepard perceived in the defendant's personal style?”   Hedgecock claimed the question called for hearsay and would not meet the exception as evidence in furtherance of a conspiracy.⁴⁸  Lawrence said Shepard told him the purpose of working with Hedgecock was to stop Hedgecock from “shooting from the hip” without thinking and eliminate an appearance of arrogance and insensitivity.   Lawrence also testified Shepard contrasted Hedgecock's demeanor with Police Chief William Kolender, a possible mayoral candidate.

Lawrence's testimony was offered in support of the prosecution's theory the video sessions were campaign related.   Hedgecock now claims Lawrence's testimony was inadmissible bad character evidence.   Again, Hedgecock may not object on grounds distinct from his objection at trial.   In any event, the effect of the testimony was de minimus and could not have been prejudicial.

William Kruer's Testimony Regarding J. David Dominelli

William Kruer met and dined with Nancy Hoover and J. David Dominelli in early 1983.   Over Hedgecock's hearsay objection, Kruer testified to statements made by Dominelli that he did not like Maureen O'Connor “at all” and was going to work very hard to help Hedgecock win the election.   Hedgecock claimed the testimony was not in furtherance of the conspiracy.

 The law is well settled a conspiracy must be established by independent evidence before the coconspirator exception applies.  (People v. Lipinski (1976) 65 Cal.App.3d 566, 575, 135 Cal.Rptr. 451;  Evid.Code § 1223, subd. (c).)  Here because Dominelli's statements were introduced in all likelihood to show the existence and extent of the conspiracy, this exception does not render them admissible.   However, Dominelli's statements related by Kruer were admissible under another exception to the hearsay rule as statements of the declarant's then existing mental state.⁴⁹  (See generally 1 Witkin, Cal. Evidence (3d ed. 1986) § 595, pp. 567–568.)   Because Dominelli's state of mind in early 1983 is relevant to show his motive for and participation in the conspiracy, Kruer's testimony was properly allowed.

The Del Mar Ordinance

The prosecution was allowed to introduce 1975 Del Mar City Council minutes when Hedgecock was city attorney, and Hoover and Shepard were council members, concerning the adoption of a local campaign finance ordinance.   The evidence was offered to show the three individuals had knowledge and familiarity with their legal responsibilities under ordinances similar to those allegedly violated.   Hedgecock claimed the minutes were irrelevant and in any event prejudicial because they would confuse the jury with remote matters.

 Hedgecock correctly points out that knowledge of state disclosure laws and San Diego campaign ordinances was never a disputed issue.   Even if evidence of the Del Mar ordinance was irrelevant, Hedgecock does not make the required showing here that the erroneous admission prejudiced him.   (Evid.Code § 353, subd. (b), Kadelbach v. Amaral (1973) 31 Cal.App.3d 814, 819, 107 Cal.Rptr. 720.)   We conclude the introduction of Del Mar City Council minutes was harmless error and a more favorable result to Hedgecock would not have been reached absent this evidence.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853, 139 Cal.Rptr. 888.)

Harvey Schuster's Testimony

 Hedgecock claims the trial court erred in allowing Harvey Schuster's testimony regarding the aborted condominium sale/loan in March 1982 (see ante, pp. 428–429) because it was “bad character” evidence as defined under Evidence Code section 1101 subdivision (a) ⁵⁰ and should have been excluded under Evidence Code section 352 because of its prejudicial effect.   Specific instances of a person's conduct are admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”  (Evid.Code, § 1101. subd. (b).)  The only limit placed on evidence of prior acts is that the acts must be similar to the crime charged, not remote in time, and not cumulative to other evidence which the prosecution may use to prove the same issue.  (People v. Poon (1981) 125 Cal.App.3d 55, 71, 178 Cal.Rptr. 375.)   The Schuster transaction was highly probative on the issue of Hedgecock's intent to subvert the letter and spirit of the disclosure laws.   Both the Schuster transaction and the charged crime involved money funneled to Hedgecock through a third party in order to circumvent disclosure.   The transactions were related in time, and Schuster's testimony is not cumulative of other evidence.

 Hedgecock also asserts the record does not show the trial court did in fact weigh the prejudice against the probative value in response to his objection.  (See Evid.Code, § 352.)   The weighing process is required to be reflected in the record for two purposes:  to allow the appellate court to properly review for abuse of discretion and to ensure the trial court's ruling constitutes deliberation before judicial action.   (People v. Green, supra, 27 Cal.3d 1, 25, 164 Cal.Rptr. 1, 609 P.2d 468.)

 Here, when Hedgecock's counsel questioned the admissibility of Schuster's testimony, the trial court excused the jury and heard lengthy argument on the issue including the question of undue prejudice.   In response to Hedgecock's claim that People v. Guerrero (1976) 16 Cal.3d 719, 129 Cal.Rptr. 166, 548 P.2d 366 was controlling, the trial court paused to read and consider Guerrero.   The court distinguished Guerrero and overruled the objection.

We do not believe the trial court is required to articulate any set phrase to indicate a weighing process.   The Green requirement followed the rule established in People v. Ford (1964) 60 Cal.2d 772, 801, 36 Cal.Rptr. 620, 388 P.2d 892 that a trial judge must weigh probative value against prejudicial effect and “make the fact apparent in the record.”   It is insufficient for a trial judge to simply state “objection overruled” or “motion denied.”  (See 1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 22.1, p. 619.)   However, here the totality of the record shows the trial court carefully deliberated over a lengthy period and after exhaustive argument by both counsel, thus sufficient weighing is inferred.   Here the trial court made no snap decision on the admissibility of Schuster's testimony.

 In any event, while the evidence was undoubtedly harmful to Hedgecock, we are unable to discern any undue prejudice within the meaning of Evidence Code section 352.   The prejudice about which Hedgecock complains—the inference he was willing to subvert the intent of the disclosure laws—was precisely the reason why the evidence was admissible.   There was no error.

VII. MISCELLANEOUS CONTENTIONS

One or Two Conspiracies?/Severance of Counts

In two related arguments, Hedgecock asserts the prosecution improperly charged one overall conspiracy rather than two more limited conspiracies.   He argues that the prosecution's evidence at best showed one conspiracy involving all the charged coconspirators but with the limited purpose of circumventing campaign finance laws and a separate smaller conspiracy involving only Hoover and himself (and possibly Dominelli) aimed at supplementing his own personal finances.   Hedgecock goes on to contend that trial on charges of these two conspiracies should have been severed along with the related substantive counts such that the CDS perjury counts would have been tried with the campaign finance conspiracy and the SEI perjury counts would have been tried with the personal finance conspiracy.   He argues he was prejudiced by the lack of a severance because the prosecution was allowed the “spillover” benefit of evidence which would only have been admissible in one of the two separate trials.   He points particularly to the extensive and complex evidence related to the CDS counts and the relative dearth of evidence on the Inabinett note and renovation loan transactions.   Hedgecock also asserts he would have testified regarding the SEI omissions had that issue been severed.

Hedgecock's argument and the facts of this case raise the question of how the criminal law should deal with a situation in which some coconspirators envision a broader purpose to the conspiracy than others.   Here, the evidence is fully sufficient to support the conclusion that Hedgecock, Hoover and Dominelli understood their “arrangement” as one of influence peddling on a grand scale.   Hedgecock needed money, both personally and professionally, and Hoover and Dominelli needed influence and legitimacy for their financial house of cards.   It made no difference to Hoover and Dominelli whether they provided money to Hedgecock directly or used TS & A as a conduit.

 Robert Meadow (the unindicted coconspirator) and perhaps Tom Shepard knew much less about Hoover's personal relationship with Hedgecock as manifested in the Inabinett note transaction and the renovation of the State Street residence.   They may have understood the conspiracy as being limited to Hedgecock's campaign finances.   In such circumstances, it has been suggested it should be “possible to find each of the members of a criminal enterprise guilty of a different conspiracy, depending upon what he individually agreed to do.” ⁵¹  (Johnson, The Unnecessary Crime of Conspiracy (1973) 61 Cal.L.Rev. 1137, 1149, emphasis in original, fn. omitted.)   In any event, Hedgecock can claim no prejudice from being charged with a single conspiracy since that is what he plainly understood it to be.  (See People v. Skelton (1980) 109 Cal.App.3d 691, 718–719, 167 Cal.Rptr. 636, overruled on other grounds in People v. Figueroa, supra, 41 Cal.3d 714, 733, 224 Cal.Rptr. 719, 715 P.2d 680.)

 If Hedgecock was properly subject to a single conspiracy charge, it is difficult to see how one group of substantive crimes committed pursuant to the conspiracy could have properly been severed for a separate trial.   Even if the SEI counts could have been severed, thus allowing Hedgecock to testify separately as to them, he incorrectly assumes that the evidence of his misdeeds regarding the campaign finance charges would not have been admissible in such a trial.   On the issue of whether Hoover made an unreported gift to Hedgecock of the Inabinett note interest payments, the parties' prior course of dealing with respect to financing Hedgecock's mayoral campaign would certainly have been relevant.   Similarly, to the extent that the source of the renovation loan was an issue properly before the jury (see ante, p. 450), the parties' past financial relationship would have constituted key evidence in establishing that Hedgecock must have known the money came from J. David and was part of Hoover and Dominelli's overall desire to gain influence.   As the Supreme Court recently explained, the cross-admissibility of evidence normally dispels any possibility of prejudice from the denial of a motion to sever.   (Williams v. Superior Court (1984) 36 Cal.3d 441, 448, 204 Cal.Rptr. 700, 683 P.2d 699.)   Even the federal cases on which Hedgecock relies in support of the notion that a severance should be granted to allow the defendant to testify as to a limited portion of the case (see Cross v. United States (D.C.Cir.1964) 335 F.2d 987;  United States v. Bronco (9th Cir.1979) 597 F.2d 1300) are premised on there being little or no overlap in the evidence admissible as to the two portions.  (Cross, supra, 335 F.2d at p. 989;  Bronco, supra, 597 F.2d at pp. 1302–1303.)   Accordingly, there was no error in denying Hedgecock's motion for a severance.

Peremptory Challenge to Judge Todd

Shortly after Hedgecock's first trial began, the grand jury returned a second indictment adding two additional counts of perjury.   After the mistrial was declared and as preparations for the second trial began, the prosecution moved to consolidate the additional counts.   The parties stipulated the superior court could calendar the hearing anytime between June 10 and 13, 1985 before any judge and that the parties could be notified of the date by written order.   Instead, on May 2, an order signed by the criminal supervising judge was filed assigning both cases to Judge Todd “for all purposes” and ordering the parties to communicate directly with Judge Todd with regard to scheduling hearings on motions.   The hearing on the motion to consolidate was scheduled for June 12.   On that date, Hedgecock filed a motion seeking to peremptorily disqualify Judge Todd pursuant to Code of Civil Procedure section 170.6.⁵²  After Judge Todd denied the motion as untimely, Hedgecock successfully sought a continuance of the hearing on the motion to consolidate to enable him to seek writ review.   Following this court's summary denial of the writ, Judge Todd granted the motion to consolidate.

The two added perjury charges became Counts 2 and 3 at trial.   Hedgecock was acquitted on Count 2.   He now argues that Count 3 must be reversed because his peremptory challenge to Judge Todd was improperly refused.

In Augustyn v. Superior Court (1986) 186 Cal.App.3d 1221, 231 Cal.Rptr. 298, this court recently had occasion to consider the time limitations applicable to a party's section 170.6 motion where the challenged judge has been assigned “for all purposes.”   We noted the general rule that a 170.6 motion may be filed any time prior to five days before the judge has ruled on a “contested issue of fact going to the merits” ⁵³ (id. at pp. 1226–1227, 231 Cal.Rptr. 298) and expressed our view of the purpose of the rule:  “The litigant is not required to exhaust his one peremptory challenge against a judge who makes early rulings in the matter but may not sit on the actual fact-finding decision;  rather, the idea is to permit challenge to the crucial fact finder when his identity is known.”  (Id. at p. 1228, 231 Cal.Rptr. 298.)   We went on to explain that where a judge is assigned for all purposes, the prospect of piecemeal disposition of preliminary non-merits matters by a host of different judges is eliminated.  “In the case of an all purpose assignment, that assignment instantly pinpoints and establishes for all purposes the identity of the judge in the matter.   The litigant does not need any further information to know who will try the case.   There is no policy reason to allow further postponement of the decision whether to challenge.”  (Ibid.;  accord Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 419, 241 Cal.Rptr. 818.)

In Augustyn we referred to and relied on People v. Jarvis (1982) 135 Cal.App.3d 154, 185 Cal.Rptr. 16 in which the court held that all post-plea proceedings in a criminal case were tantamount to a single “hearing” within the meaning of section 170.6, which required the defendant to file his challenge at least five days before the first hearing.  “By analogy here, in an all purpose assignment, all proceedings after the assignment constitute one matter, or ‘hearing,’ because they are all part of the protracted decisional resolution of the cause by the particular judge․  From [the point of the judge's assignment], his related decisions in the matter constitute an extended decision-making process, or ‘hearing,’ progressively determining the matter.   Accordingly, to be consistent with Jarvis, ․ the all purpose assignment should also be challenged at the earliest reasonable opportunity, namely, when the judge's identity is known.”  (Augustyn, supra, 186 Cal.App.3d at pp. 1228–1229, 231 Cal.Rptr. 298.)

 Fairly read, Augustyn stands for the proposition that for the purposes of applying the time limitations of section 170.6, the first hearing following an assignment of a judge “for all purposes” constitutes a hearing going to the merits of the action.   Where the all-purpose assignment is made more than 10 days before the first hearing, the 10–day–5–day rule applies such that a party must exercise his peremptory challenge at least five days before the hearing.   Here, Judge Todd's identity as the judge assigned for all purposes was known more than a month before the June 12, 1985, hearing on the motion to consolidate, yet Hedgecock's motion to disqualify him was filed on the same date as the hearing.   Accordingly, it was properly denied as untimely.

Motion for Discovery on Issue of Selective Prosecution

Hedgecock moved to dismiss the indictment on grounds of selective prosecution alleging he was arbitrarily singled out for prosecution because of the personal animosity between him and District Attorney Ed Miller.   To obtain information to support his motion to dismiss, Hedgecock sought discovery of prosecution records relating to charges in the Hedgecock matter and instances of possible Election Code violation by others since 1976.⁵⁴

The court denied the motion for discovery on grounds Hedgecock failed to make a prima facie showing.   It also found the request to be overbroad.   Hedgecock filed a petition for writ of mandate and/or prohibition in this court which was summarily denied.  (Hedgecock v. Superior Court D003103, order filed May 24, 1985.)   The California Supreme Court also denied his petition for review.

 In a criminal prosecution a defendant is generally entitled to discover all relevant and material information in the possession of the prosecution that will assist in the preparation and presentation of his defense.  (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 293, 124 Cal.Rptr. 204, 540 P.2d 44.)   To set aside a trial court's discovery order, the appellate court must find an abuse of discretion.  (People v. Moya (1986) 184 Cal.App.3d 1307, 1312, 229 Cal.Rptr. 402.)   Where, as here, the defendant raises the defense of selective prosecution, any discovery request must be supported by a showing of “plausible justification.”   (Bortin v. Superior Court (1976) 64 Cal.App.3d 873, 878, 135 Cal.Rptr. 30.)   In cases where the required “plausible justification” for criminal discovery is not readily apparent, “the defendant will be required to make some ‘prima facie’ (i.e., ‘plausible’) showing in aid of his motion.   The showing, as indicated, need not be strong, but without it the motion for discovery will properly be denied.”  (Ibid.)

 To prevail under a defense of selective prosecution the defendant must show (1) he was deliberately singled out for prosecution based upon an invidious or unjustifiable standard and (2) he would not have been singled out except for the discriminatory design of the prosecutor.  (People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 348, 138 Cal.Rptr. 66, 562 P.2d 1315;  People v. Murgia, supra, 15 Cal.3d at p. 293, 124 Cal.Rptr. 204, 540 P.2d 44.)   Thus, to obtain discovery, the defendant must show there is, at minimum, plausible justification for these claims.   As we explain, the court did not abuse its discretion in denying Hedgecock's request for prosecution records because he failed to make the required showing.

Hedgecock attempts to establish three interrelated theories to justify his defense of selective prosecution.   In support of his claim there was long-standing personal animosity between him and Ed Miller Hedgecock relies on the newspaper articles, letters and other documents submitted with the recusal motion.   This material is largely undocumented hearsay from unspecified sources and of questionable relevance.   The court was justified in according it little weight.

Hedgecock next claims no other candidate filing an amendment to statements of economic interest and campaign disclosure statements has been prosecuted and submits a listing of local candidates who filed amendments in 1983 and 1984.   This showing falls far short of the documentation supplied in People v. Murgia, supra, 15 Cal.3d at page 291, 124 Cal.Rptr. 204, 540 P.2d 44 (more than 100 affidavits detailing numerous incidents of alleged discriminatory conduct toward union members and supporters) and Griffin v. Municipal Court (1977) 20 Cal.3d 300, 302–303 and footnote 3, 142 Cal.Rptr. 286, 571 P.2d 997 (defendants' declarations on information and belief giving names, dates and details of incidents occurring in the preceding 10 years where white deputies acting alone or in concert had committed acts of inhumanity without legal sanction).   Furthermore, candidates may amend reports to correct either intentional or inadvertent errors.   Only intentional errors are subject to prosecution.

Hedgecock also bases his claim of selective prosecution on declarations filed by Congressman Jim Bates, City Councilman Bill Mitchell and Bruce Henderson arguing that the prosecution against him violated the district attorney's standing policy of not filing charges during an election campaign.   The prosecutor successfully rebutted Hedgecock's contention by explaining the policy only related to misdemeanor charges relating to the current election and that Hedgecock was charged with felonies arising out of a prior election.

 Hedgecock takes issue with the “prima facie” standard applied by the court in ruling on the discovery motion.   We conclude in this context there is no meaningful difference between “plausible justification,” and “prima facie showing” (see Bortin v. Superior Court, supra, 64 Cal.App.3d at p. 878, 135 Cal.Rptr. 30) and the court correctly found Hedgecock's showing to be insufficient.   By focusing on the history of personal friction between he and Miller, Hedgecock seems to ignore his burden of establishing that but for the alleged discriminatory motive, he would not have been prosecuted.  (People v. Superior Court (Hartway), supra, 19 Cal.3d at p. 348, 138 Cal.Rptr. 66, 562 P.2d 1315.)   For this reason, the court could properly consider the scope of the evidence supporting the grand jury indictment and the large amounts of time and money involved in the crimes alleged.   Deputy District Attorney Hamilton stated, “There has been no matter brought to my attention during the past 9 years that has even approached the magnitude of the present offenses․”  While reasonable persons may disagree as to the inferences to be drawn from the evidence, as a practical matter there was no way the district attorney could not have prosecuted the Hedgecock case.

Motion to Recuse the District Attorney

Although based largely on the same evidence as his selective prosecution claim, Hedgecock's motion to recuse the district attorney's office presented different issues for the trial court and requires the application of different standards on appeal.

 A fair and impartial trial is a fundamental component of the accused's right not to be deprived of liberty without due process of law.   (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266, 137 Cal.Rptr. 476, 561 P.2d 1164.)   Regardless of how strong evidence might be in a particular case, the right to a fair trial includes the right to be charged and prosecuted by a district attorney who is free “from any personal or emotional involvement in a controversy which might bias his objective exercise of judgment.”  (Id. at p. 267 fn. 8, 137 Cal.Rptr. 476, 561 P.2d 1164.)   Relying on this principle, Hedgecock argues he could not get a fair trial with the district attorney's office as prosecutor because of the long-standing animosity existing between him and District Attorney Ed Miller.

More specifically Hedgecock contends the court erred in denying his motion to recuse the district attorney's office and his request for an evidentiary hearing on the matter.   He asserts the court based its ruling on an erroneous legal standard.   We previously considered Hedgecock's contentions in a petition for writ of mandate and/or prohibition which was summarily denied.  (Hedgecock v. Superior Court, D003103, order filed May 24, 1985.)   The Supreme Court also denied Hedgecock's petition for review.

 Recusal motions are governed by Penal Code section 1424 ⁵⁵ which provides in part:  “The motion shall not be granted unless it is shown by the evidence that a conflict of interest exists such as would render unlikely that the defendant would receive a fair trial.”   A defendant seeking to disqualify the prosecutor's entire office has the burden of proving there is a conflict of interest which, under the circumstances of the case, shows “a reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner.”  (People v. Conner (1983) 34 Cal.3d 141, 148, 193 Cal.Rptr. 148, 666 P.2d 5.)

Hedgecock filed approximately 80 pages of newspaper clippings, campaign documents, letters, news releases and declarations by Congressman Jim Bates, City Councilman Bill Mitchell, Bruce Henderson, and defense counsel Michael Pancer in support of the motion to recuse.⁵⁶  A May 23, 1984 Los Angeles Times article entitled “Bad Blood Blamed in Suit Against Mayor” included the following reference:

“Logan McKechnie, former press spokesman for the district attorney's office, said that the friction between Hedgecock and Miller began when Hedgecock was running for supervisor in 1975 and ‘erroneously’ accused Miller of supporting and releasing confidential information to Hedgecock's opponent, Supervisor Lou Conde.

“ ‘I think anyone who believes he has high morals and doesn't stoop gets irritated when he's accused, as he (Miller) was, over and over again ․’ McKechnie said.  ‘Here's a guy (Miller) who had plenty of political power and he's never used it.   If you talked about what the political ramifications (of a case) were, he didn't want to hear it.   But ․ with Roger he sees red.’ ”

The prosecution filed declarations by Deputy District Attorneys Richard Huffman and James Hamilton in opposition to the recusal motion.

Defense counsel argued Hedgecock's motion papers supplied the court with an “outline” of reasons the alleged conflict of interest required recusal.  “Now we want to go back and provide the substance of that outline through [our] witnesses.”   McKechnie was in court presumably ready to testify.⁵⁷

The prosecution argued Hedgecock had not established a basis for recusal “even with all of the scurrilous material that they put in there by newspaper articles, by conclusionary declarations, even if you took everything they put in there ․” and “the court should not at this time hold an evidentiary hearing so that we can explore and see if they can find some other alternative ground.”

The court agreed Hedgecock's “outline” was not enough and found he had made an insufficient showing as a matter of law.   The court stated:  “I've reviewed the motion papers, carefully.   I've reviewed the transcript carefully, and in my view the circumstances that you set forth do not evidence a reasonable probability that the District Attorney's Office may not exercise its discretionary function in an evenhanded manner, so this motion is denied.”

Section 1424 was the Legislature's response to People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164 and other cases which focused on the appearance of impropriety.  (People v. Lopez (1984) 155 Cal.App.3d 813, 824, 202 Cal.Rptr. 333.)   On the other hand, we observed in Lopez that in drafting section 1424, the Legislature had a reason for selecting the words “unlikely” and “fair” instead of the familiar “miscarriage of justice” standard.  “The legislative decision to adopt a different standard based on the likelihood of a fair trial suggests a more expansive view concerned not only with the prospective result but also with the fairness of a defendant's trial.”  (Id. at p. 822, 202 Cal.Rptr. 333.)

We can understand why the trial court believed the request for an evidentiary hearing was unsupported.   Much of the documentary evidence submitted was hearsay.   Moreover, reported disputes between political foes more often than not simply exemplify the more robust aspects of our democratic society.   In People v. Battin (1978) 77 Cal.App.3d 635, 143 Cal.Rptr. 731, a county supervisor charged with misuse of public funds claimed that “animosity between himself and [the district attorney]” arising from past political feuds required that the district attorney's office be disqualified from prosecuting the case.   Rejecting the defendant's argument, the court commented that “[s]uch confrontations can be expected when one person or body holds the purse-strings of another.”  (Id. at p. 672, 143 Cal.Rptr. 731.)   While public officials may raise their voices in heated debate, even to the point of exchanging personal insults, it does not necessarily follow that the same public officials are unable to exercise their public duty in a lawful, evenhanded manner.

 Nonetheless, section 1424 should be implemented in a rational way and the defendant afforded the opportunity to present witnesses if the required showing is met.   Here, a potential witness close to the district attorney's office was quoted as saying the Ed Miller “sees red” where the defendant is concerned.   The statement at least suggests that the district attorney might act irrationally, which is the same as saying it is possible the district attorney will fail to act in an evenhanded manner in prosecuting the case.   At a minimum, therefore, the court erred in denying Hedgecock's request for an evidentiary hearing at which McKechnie could be questioned regarding the meaning of his statement.

 This does not end our inquiry, however.   Hedgecock acknowledges he has no “right” to an evidentiary hearing on the recusal motion.   While section 1424 and the recusal question relate to a defendant's right to a fair trial in the broad sense, any error in assessing the possibility the defendant will be denied a fair trial does not impair the court's jurisdiction to act, mindful always of its duty to protect the defendant's right to a fair trial.   The error is no more significant than any other error in procedure before trial.   For this reason, Hedgecock is required to show the irregularities in the pretrial recusal motion resulted in actual prejudice in order to obtain reversal of his criminal conviction on appeal.   (See People v. Aston (1985) 39 Cal.3d 481, 216 Cal.Rptr. 771, 703 P.2d 111) (erroneous denial of request for disclosure of address of paid narcotics assistant);  People v. Pompa–Ortiz (1980) 27 Cal.3d 519, 529, 165 Cal.Rptr. 851, 612 P.2d 941 (erroneous denial of 995 motion challenging closed preliminary hearing);  People v. Wilson (1963) 60 Cal.2d 139, 151–153, 32 Cal.Rptr. 44, 383 P.2d 452 (erroneous denial of speedy trial rights);  People v. Chambers (1980) 108 Cal.App.3d 985, 990–991, 166 Cal.Rptr. 815 (erroneous denial of 995 motion based on insufficiency of evidence to establish probable cause at preliminary hearing.)   This standard applies even where, as here, the defendant unsuccessfully sought relief from the erroneous order by petition for writ of mandate or prohibition.  (See, e.g., People v. Wilson, supra, 60 Cal.2d 139, 32 Cal.Rptr. 44, 383 P.2d 452.)   Courts will not undo a fair trial because of an erroneous pretrial legal ruling which had no effect on the outcome.

 Hedgecock sought and was denied pretrial relief from the court's erroneous order.   He was subsequently tried and convicted.   It is too late for him to be relieved of the “reasonable possibility” the district attorney's office might not act impartially in its conduct of the trial and related proceedings.   Simply put, we cannot reverse where the “reasonable possibility” never came to fruition.   Hedgecock properly has the burden of demonstrating prejudice because, as a party to the trial proceedings, he had full access to any direct or circumstantial evidence that might show the district attorney treated him differently from other defendants similarly situated.   Hedgecock neither claims nor demonstrates that the court's rulings on the recusal motion in fact deprived him of a fair trial.   We therefore conclude the error in denying the request for evidentiary hearing and the error, if any, in denying the motion to recuse the district attorney's office do not require reversal.

Failure to Continue the Sentencing Hearing

As noted previously, the hearing on the motion for new trial took place on December 10, 1985.  (See ante, p. 414.)   On December 9, defense counsel Oscar Goodman and the prosecutor participated in a conference telephone call with Judge Todd during which Goodman asked the judge whether his order scheduling the new trial hearing “sa[id] anything about sentencing.”   Judge Todd apparently responded, “[N]o, it doesn't.”

Nonetheless, following his denial of Hedgecock's new trial motion at approximately 3 p.m., Judge Todd announced his intention to sentence Hedgecock at 3:30 that same afternoon.   Goodman objected, stating, “[A]fter our conversation yesterday on the phone, I was of the mind that we would not have sentencing today, and I do have material which I wanted to present to the court.   It's not available for presentation at this point in time.”   An out-of-state attorney, Goodman admitted to Judge Todd he was not sure “what takes place at a sentencing hearing” and explained that “in anticipation of another time for sentencing,” he had retained a private sentencing consultant “for the purpose of providing this court with background concerning my client, and I've been unable to reach him, and don't have that report to give to the court at this time.”   Goodman also noted he had just received the prosecutor's sentencing brief on December 9 and wished an opportunity to respond in writing.

Goodman concluded as follows:  “Now, I may have misunderstood what happened in that conversation yesterday, and I'll take full blame for it, but at the same time, I don't think that that should inure to my client's detriment in not being prepared to go forward today, and be able to provide the court with as much information as possible about my client in mitigation of the sentence.”   Judge Todd responded, “Well, we are going to proceed.   I'm happy to hear whatever you would offer at this time.”   Goodman then made a short statement supporting the probation report's recommendation of 180 days in a work furlough program as a condition of probation and briefly responded to the prosecutor's argument in favor of a state prison term, noting that the argument appeared to be taken directly from the sentencing brief he had had little chance to review and no opportunity to respond to.   After Hedgecock made a short statement, Judge Todd imposed a suspended sentence on condition that Hedgecock serve one year in local custody.   He made no order with respect to the terms of that confinement, noting only that he had no objection to the sheriff utilizing an honor camp or other program which might be available.

Hedgecock contends the trial court's refusal to continue the sentencing was arbitrary, effectively denying him the assistance of counsel at that point in the hearing.   The People do not seek to justify the refusal to grant a continuance.   Instead, they assert Hedgecock has not demonstrated he was prejudiced by the immediate sentencing and that, in any event, the trial court always retains jurisdiction to modify conditions of probation if Hedgecock presented new evidence which warranted such a modification.  (See, e.g., People v. Marin (1957) 147 Cal.App.2d 625, 627, 305 P.2d 659.)

 It is well-established that sentencing is a critical stage of the proceedings at which the accused is constitutionally guaranteed the right to effective assistance of counsel.  (In re Perez (1966) 65 Cal.2d 224, 229–230, 53 Cal.Rptr. 414, 418 P.2d 6.)   The trial court possesses considerable discretion in ruling on motions for continuances because of its ability to assess the myriad of factors which must be balanced in determining whether such a request is justified.  (See Morris v. Slappy (1983) 461 U.S. 1, 11–12, 103 S.Ct. 1610, 1616–1617, 75 L.Ed.2d 610;  see also Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1025, 213 Cal.Rptr. 712.)   Nonetheless, as the People implicitly recognize, there is no question here that the trial court abused the broad latitude accorded it when it refused to continue the sentencing hearing.   Defense counsel's reasonable belief that sentencing would not occur on the same day as the new trial hearing was corroborated by the prosecutor's recollection of the telephone conference with the judge on the day before the hearing.   Defense counsel pointed to specific material he wished to present at sentencing and explained he wished to file a written response to the prosecutor's sentencing brief.   While the trial court's desire to put an end to a lengthy and complex case such as this is more than understandable, the defendant's constitutional entitlement to effective assistance of counsel is paramount.

We nonetheless cannot conclude that the trial court's error here requires reversal and a remand for resentencing.   The United States Supreme Court has recently emphasized that where the assistance of counsel is not completely denied, the burden generally rests on the defendant to demonstrate he was prejudiced because his counsel's assistance was less than effective.   (United States v. Cronic (1984) 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657;  accord People v. Williams (1988) 44 Cal.3d 883, 937, 245 Cal.Rptr. 336, 751 P.2d 395.)   In this context, prejudice means there must be “a reasonable probability that ․ the result of the proceeding would have been different.”  (Strickland v. Washington (1984) 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674.)   The exceptions to this principle are quite limited.   Of particular relevance here are a small number of situations in which the conditions under which a defense attorney is forced to operate are such that there is little likelihood “any lawyer, even a fully competent one, could provide effective assistance․”  (Cronic, supra, 466 U.S. at pp. 659–660, 104 S.Ct. at p. 2047);  see also Williams, supra, 44 Cal.3d at p. 937, 245 Cal.Rptr. 336, 751 P.2d 395.   Chief among these cases is Powell v. State of Alabama (1932) 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, in which counsel for several defendants charged with a capital offense was appointed the same day as trial.   In Cronic, the Supreme Court contrasted Powell with Avery v. Alabama (1940) 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 in which counsel's three-day preparation time for a capital case was held not to invoke the rule of automatic reversal.  (466 U.S. at p. 661, 104 S.Ct. at p. 2048.)

 We infer a rule from Powell and Avery, as interpreted by Cronic, that a trial court's refusal to postpone a hearing or trial in order to allow defense counsel adequate time to prepare will be subject to a rule of per se reversal only in “a very narrow spectrum of cases where the circumstances leading to counsel's ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.”   (Chadwick v. Green (11th Cir.1984) 740 F.2d 897, 901;  accord United States v. Rodgers (7th Cir.1985) 755 F.2d 533, 540;  but see People v. Fontana (1982) 139 Cal.App.3d 326, 334, 188 Cal.Rptr. 612 (decided before Cronic and Williams ).  (“[T]he denial of a continuance can sometimes be tantamount to the denial of counsel.”).)   This is clearly not one of those “egregious” cases.   The fact that Goodman was not ready for sentencing to take place on December 12 does not mean he had no time for preparation.   His retention of a “sentencing consultant” supports the conclusion he had given some thought to the question of sentence before the December 12 hearing.   Since he agreed with the probation officer's recommendation, the probation report was in effect a brief in support of his position.   The probation report was filed on October 25, 1985.   Hedgecock understandably makes no claim Goodman was given inadequate time to review that document.

 We are also persuaded by the fact that demonstrating prejudice under these circumstances does not appear to be a significant burden to place on a defendant.   Although he has filed a petition for writ of habeas corpus in another context (see ante, p. 415), Hedgecock makes no attempt to inform us as to what the sentencing consultant's report would have said or what could have been added in response to the prosecution's sentencing brief.   Accordingly, consistent with United States v. Cronic, there is no basis for reversal on the ground that the trial court's refusal to continue the sentencing hearing deprived Hedgecock of the effective assistance of counsel.⁵⁸

VIII. DISPOSITION

The judgment is reversed with directions to the superior court to conduct an evidentiary hearing on Hedgecock's motion for new trial consistent with the dictates of this opinion.   In addition, an alternative writ will issue returnable before the superior court.   The hearing on the writ shall be heard concurrently with the evidentiary hearing on the motion for new trial.   In the event the motion for new trial is denied, judgment shall be entered on the convictions.

I concur in the opinion except Part I, dissenting as to the motions to recuse Judge Todd and to subpoena Attorney General records, the issuance of the alternative writ of habeas corpus, the new trial motion with respect to juror misconduct and the remand for the evidentiary hearing.

The majority remands for a new trial hearing.   If a new trial is denied, Hedgecock stands convicted of those counts affirmed by the majority.   If granted, the convictions are set aside and Hedgecock will be tried again for the third time.   My sense of justice says enough is enough.   I would affirm the convictions in their entirety.

The majority remand of this case for an evidentiary hearing declares a new rule of law and authorizes a trial of the jurors who return a guilty verdict in a criminal case.   In the past, juror misconduct claims as a basis for a new trial motion raised a rebuttable presumption of prejudice.   If that presumption was not rebutted, a new trial was ordered.   Rebutted, the new trial motion was denied.   Appellate review of those trial court determinations followed familiar rules.   Deferring to the trial judge's findings, we reviewed the entire record and looked for substantial evidence.   Finding such evidence, we affirmed.   In its absence, we reversed.   The rule was simple.   Fish or cut bait.

Today, the majority relegates to the dustbin these long-established trial court and appellate procedures.   Now, we no longer defer to trial court findings of prejudice or rebuttal of prejudice and we disregard the substantial evidence test.   The majority does not spell out guidelines for trial courts to follow in new trial motion hearings.   This much is clear.   When the appellate court feels the record before the trial judge does not include evidence which would have been helpful in deciding the new trial motion, then the case goes back for an evidentiary hearing.   The trial judge's conclusions on the record carry no weight and the appellate court is not concerned whether substantial evidence supports the decision.

This new rule adds yet another level to the leaning tower of our jurisprudence—a trial after a trial.   Here, the twelve jurors, the alternates and the bailiffs are required to testify.   Their statements to the Attorney General may be used against them.   Other testimony and evidence may be adduced.   Fifth Amendment rights vis-a-vis perjury may arise.   Whatever the result, another appeal will doubtless follow.

To declare this new rule in the context of this case is a miscarriage of justice.   An experienced judge sat through two trials.   He followed familiar procedures.   He denied the new trial motion.   Substantial evidence supports the denial.   The record here does not compel abandonment of long-established trial court and appellate procedures.   I would affirm the convictions in their entirety.

I

Juror misconduct charges first surfaced a week after the jury verdict.   The San Diego Tribune reported that attorney John Learnard, representing a juror he would not identify, wrote a letter to the District Attorney and the presiding judge, stating the unnamed juror told him Burroughs discussed the case with jurors and questioned them about their progress in deliberations.   October 15, 1985, juror Kathleen Saxton–Calderwood signed under penalty of perjury a handwritten four-page declaration reciting (1) the green hat story, (2) Burroughs's comments to the effect there were only two verdicts, the evidence was before the jury and to use common sense, (3) bailiff Holly Murlin said there were other verdict choices, (4) Burroughs and “Joe, a juror,” “quietly and discreetly,” conversed and “looked directly” toward her and juror Renee Ranck, causing her to believe they were talking about “who was ‘holding up’ ” deliberations, (5) hearsay statements as to wine and beer drinking by other jurors in the evenings after deliberations when she was not present, (6) references to telephone conversations with juror Renee Ranck after the jury was discharged concerning talking with investigators;  Ranck's roommate, who worked in the District Attorney's office, was overheard making skeptical observations in the background about their conversation, (7) some jurors did not take the case as seriously as she did, (8) the alcohol and sexual jokes furnished by Burroughs contributed to a lighter attitude among the jurors which she did not think appropriate in light of the seriousness of the matter.

October 17, 1985, Hedgecock filed a motion for a new trial, attaching a declaration from Learnard relating a conversation of October 11 with an unnamed juror.   Learnard's hearsay declaration recites the presence of two other attorneys at a meeting at the unnamed juror's residence, with one of the other attorneys present at another meeting with the unnamed juror in Learnard's office.   Learnard spoke by telephone at least four times with the unnamed juror.   Learnard's declaration in remarkable detail presciently anticipates the averments in the declaration later filed by juror Bohensky.   The new trial motion also attached Saxton–Calderwood's handwritten October 15 declaration and another dated October 16, which arguably waffles her October 15 averments about Burroughs's statements concerning the two possible verdicts.

These two declarations were used by Hedgecock in other motions heard by Judge Todd after continuing the new trial motion hearing.   Hedgecock filed a motion to recuse Judge Todd and also served a subpoena upon him to testify at the new trial motion hearing.   The recusal motion relied on Learnard's hearsay declaration, Saxton–Calderwood's two declarations and two filed by defense counsel.

Hearing on the recusal motion and motion to quash was had the same day.   Code of Civil Procedure 1 section 170.4(b) authorizes a judge to strike a statement of disqualification, such as that filed by Hedgecock, if no legal grounds for disqualification appear on its face.

Judge Todd was correct in striking the statement of disqualification.   The supporting declarations were irrelevant, conclusionary, and included inadmissible hearsay.   Learnard's hearsay affidavit is inadmissible on its face.   No self-respecting judge would give it the time of day.   Saxton–Calderwood's declaration says nothing with respect to disqualification and a great deal as to juror neuroses.   Because Hedgecock's statement included his intention to call Judge Todd as a witness and that disqualification was necessary to preserve the appearance of propriety (§ 170.1(a)(1) & (a)(6)(C)), the majority hold striking the statement was unjustified.

Issuance of Hedgecock's statement of intent to call Judge Todd as a witness does not validate the disqualification statement.   The subpoena was supported by the declarations of Learnard and Saxton–Calderwood.   Again, Learnard's declaration was totally inadmissible and Saxton–Calderwood's was irrelevant, as the declaration made no showing whatsoever Judge Todd could offer relevant testimony.   The subpoena was correctly quashed.

The majority's second point, appearance of propriety bars striking the statement, likewise escapes me.  Section 170.1(a)(6)(C) requires disqualification of a judge if “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”   Hedgecock's formal recusal motion did not cite this section, the two juror declarations do not refer to Judge Todd or to the section, or even intimate facts he would not be impartial.   In short, despite the majority assertion, nothing in this record supports Hedgecock's motion to recuse Judge Todd.

II

The majority holds Hedgecock is entitled to transcripts of interviews of the 12 jurors, the alternates and the two bailiffs, conducted by the Attorney General.   These interviews apparently resulted from requests by Hedgecock and the District Attorney for Attorney General review of allegations of jury tampering that surfaced shortly after the verdict.   Again, those requests were based on the two declarations already before Judge Todd on other motions, i.e., those of Learnard and Saxton–Calderwood.   Judge Todd denied production of the interviews.   The majority reverses his order and says the interviews “will prove helpful to defense counsel in preparing to question the jurors regarding the allegations of misconduct by bailiff Burroughs.”

Judge Todd correctly quashed Hedgecock's subpoena for these Attorney General records.   First, the investigation, the interviews and other Attorney General activities undertaken while the new trial motion was pending before Judge Todd are officious intermeddling without basis in the law into judicial procedures established to assure an independent review by the trial court of claimed juror misconduct.   Second, the two by-now infamous declarations of Learnard and Saxton–Calderwood were not probative of anything.

Government Code section 12550 provides:

“The Attorney General has direct supervision over the district attorneys of the several counties of the State and may require of them written reports as to the condition of public business entrusted to their charge.

“When he deems it advisable or necessary in the public interest, or when directed to do so by the Governor, he shall assist any district attorney in the discharge of his duties, and may, where he deems it necessary, take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction.   In this respect he has all the powers of a district attorney, including the power to issue or cause to be issued subpenas or other process.”

Penal Code section 96 defines juror misconduct and the penalty:

“Every juror, or person drawn or summoned as a juror, or chosen arbitrator or umpire, or appointed referee, who either:  [¶] One—Makes any promise or agreement to give a verdict or decision for or against any party;  or, [¶] Two—Willfully and corruptly permits any communication to be made to him, or receives any book, paper, instrument, or information relating to any cause or matter pending before him, except according to the regular course of proceedings, [¶] is punishable by fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison.”

The record does not disclose any of the circumstances described in Government Code section 12550 authorizing the Attorney General to undertake any investigation of juror misconduct.

Emphasizing the unauthorized inquiry, the declarations forwarded to the Attorney General do not by any stretch of the imagination charge a violation of Penal Code section 96.   Learnard's declaration is pure hearsay;  it does not include any suggestion of a juror promise or agreement to give a verdict, or matter suggestive that any juror “willfully and corruptly” permitted a communication to be made to him or received any information relating to the matters pending before the jury.   Saxton–Calderwood's declaration is likewise deficient.   The focus of the declarations is on Burroughs's communications to the jurors, not the willful and corrupt permission of a juror to receive the communication.

Even if the investigation had been undertaken under color of law, the investigation necessarily looked at violations of Penal Code section 96.   The interviews were not conducted with respect to a motion for a new trial based on juror misconduct.   We deal here with a motion for a new trial, not a preliminary hearing to determine violations of law.   To admit the proceedings of an investigation by the Attorney General into claimed violation of Penal Code section 96 into new trial motion procedures simply compounds the evidentiary hearing error mandated by the majority.   The trial after a trial now overshadows the trial itself.

III

I now address the remand for the evidentiary hearing.   On a motion for a new trial, the trial judge determines whether there is sufficient credible evidence in the record to support the verdict.  (People v. Robarge (1953) 41 Cal.2d 628, 633, 262 P.2d 14.)   The judge has “very broad discretion and is not bound by conflicts in the evidence․”  (Ibid.;   see People v. Jones (1981) 123 Cal.App.3d 83, 89, 176 Cal.Rptr. 398;  People v. Davis (1973) 31 Cal.App.3d 106, 111, 106 Cal.Rptr. 897.)   In People v. Lopez (1984) 155 Cal.App.3d 813, 202 Cal.Rptr. 333, we affirmed denial of a motion for a new trial, noting “the trial court has very broad discretion, and this court would be reluctant to interfere with a decision granting or denying the motion unless there is a clear showing of an abuse of that discretion.”  (Id. at p. 828, 202 Cal.Rptr. 333.)

Juror misconduct raised on a motion for new trial presents a question of fact.   If evidence of the asserted misconduct is conflicting, the decision of the trial judge is conclusive on appeal.  (People v. Sarazzawski (1945) 27 Cal.2d 7, 15, 161 P.2d 934.)

Our review of the entire record thus looks for substantial evidence to support the conclusions of the trial judge in denial of the new trial motion based on juror misconduct.   When we find such substantial evidence, our inquiry ends and we affirm.  (People v. Miranda (1987) 44 Cal.3d 57, 117, 241 Cal.Rptr. 594, 744 P.2d 1127.)   Conversely, absent such substantial evidence, we reverse.

This standard in review of new trial motion denials finds support in standards of review in other circumstances.   Before a judgment of conviction can be set aside for insufficiency of the evidence to support the verdict, it must appear that upon no hypothesis whatever is there sufficient evidence to support the verdict.  (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)   In reviewing sufficiency of the evidence in criminal cases, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence.  (People v. Johnson (1980) 26 Cal.3d 557, 575–578, 162 Cal.Rptr. 431, 606 P.2d 738.)   A denial of a motion for new trial based on the ground the verdict is not supported by the evidence will be reversed “only in those instances when, as a matter of law, there is no substantial evidence in support of the verdict.”  (People v. McDaniel (1976) 16 Cal.3d 156, 178, 127 Cal.Rptr. 467, 545 P.2d 843.)

The majority opinion does not state those trial court and appellate review standards governing new trial motions.   The opinion rejects Hedgecock's contention the new trial motion declarations establish prejudicial bailiff misconduct as a matter of law and concedes a trial judge could deem Burroughs's comments, standing alone, regarding sequestration costs, nonprejudicial (maj. opn. at p. 416, fn. 11).   The majority simply is discontent with the record and concludes the evidentiary hearing is mandated by footnote 3 in People v. Pierce (1979) 24 Cal.3d 199, 206, 155 Cal.Rptr. 657, 595 P.2d 91, chastising the trial judge for using “unsworn police reports and summaries for affidavits or testimony of the percipient witnesses.”   The footnote goes on to state, “A hearing in open court would have been particularly appropriate to ascertain the relevant facts” as the one juror whose conduct was in question and the police officer to whom he talked were “initially evasive about the scope and content of their conversation.”

The majority's new standard for appellate review of new trial motion denials, i.e., the trial judge must order an evidentiary hearing to substantiate denial of the motion even though substantial evidence supports that determination, is not supported by Pierce.   There, the trial court denial of the new trial motion was wholly unsupported by declarations or affidavits, yet, our Supreme Court did not remand for an evidentiary hearing.   Instead it found the presumption of prejudice arising from juror misconduct was not rebutted, and reversed.  Pierce simply affirmed long-standing law and procedures.

My research has not found any California cases requiring the trial court to reconsider its grant or denial of a new trial motion in the light of an evidentiary hearing concerning factual matters.   The reasons for lack of such authority are obvious.   If the presumption of prejudice arises and is not rebutted, the judgment is reversed for a new trial.   Absent the presumption, or its rebuttal, the decision is affirmed.

Moreover, juror misconduct issues in California do not require evidentiary hearings.  People v. Scott (1982) 129 Cal.App.3d 301, 180 Cal.Rptr. 891, following the principles established in Linhart v. Nelson (1976) 18 Cal.3d 641, 134 Cal.Rptr. 813, 557 P.2d 104, holds the issue of juror misconduct should be decided on the basis of declarations and affidavits and rejects the notion an open evidentiary hearing is required.   It is one thing to try the issue of guilt to a jury and quite another to put that jury on trial with respect to its verdict.

The majority's reliance on federal cases to impose the requirement here of an evidentiary hearing is unfounded.  Remmer v. United States (1954) 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 remanded a conviction to the district court for an evidentiary hearing because the record did not reflect what in fact transpired “or whether the incidents that may have occurred were harmful or harmless” (id. at p. 229, 74 S.Ct. at p. 451).   On a second appeal, the Supreme Court remanded the entire record to the Court of Appeals which affirmed per curiam the conviction (Remmer v. United States (9th Cir.1955) 222 F.2d 720).   Before the Supreme Court again on certiorari, the conviction was reversed and a new trial was granted (Remmer v. United States (1956) 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435 (Remmer II ).   Noting the district court unduly narrowed its inquiry to consider only the impact of an FBI investigation into allegations of tampering with a juror, the court considered the entire record to determine whether the tampering conduct “deemed presumptively prejudicial” (id. at p. 379, 76 S.Ct. at p. 426) was rebutted and concluded the defendant was entitled to a new trial (id. at p. 382, 76 S.Ct. at p. 428).

United States v. Madrid (9th Cir.1988) 842 F.2d 1090 exhaustively reviews federal cases concerning juror misconduct and new trial motion procedures, and states the federal appellate review standard:

“We review alleged jury misconduct independently, in the context of the entire record.  [Citation.]  We accord substantial weight to the trial judge's conclusion as to the effect of alleged juror misconduct.   Considerable deference is paid to the trial judge, since ‘[t]he trial judge is uniquely qualified to appraise the probable effect of information upon the jury, the materiality of the extraneous material, and its prejudicial nature.’   [Citations.]  We look less harshly upon a conviction if the trial court has conducted an evidentiary hearing.  [Citation.]”  (Id. at p. 1092.)

Madrid, relying upon Smith v. Phillips (1982) 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78, and Rushen v. Spain (1983) 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267, per curiam, states the federal rule, “a defendant must demonstrate ‘actual prejudice’ resulting from an ex parte contact to receive a new trial.”  (Id. at p. 1093.)  Madrid construed the holding in Remmer II:

“The Remmer II standard does not govern a district court's decision to call for a new trial on finding that an ex parte contact presents a ‘reasonable possibility’ of prejudice to the verdict.  Remmer II requires only that a district court, upon finding a ‘reasonable possibility’ of prejudice, hold a fair hearing.   In Remmer II, the Supreme Court stated, ‘[i]t was the paucity of information relating to the entire situation [involving a bribe and an open FBI inquiry of a juror prior to the announcement of a verdict] coupled with the presumption [of prejudice] ․ which, in our view, made manifest the need for a full hearing.’  [Citation.]”  (Madrid, supra, at p. 1094.)

While it is true cases are remanded in the federal system for evidentiary hearings on jury misconduct issues, those remands are consistent with the federal rule requiring the defendant to prove “actual prejudice” for entitlement to a new trial.   The federal cases cited by the majority are merely concerned with the claimed failure of the trial court to adduce evidence to support the “actual prejudice” standard.

Here, the record before the trial court included juror and bailiff declarations.   The court concluded Hedgecock was not entitled to a new trial.   Substantial evidence supports the conclusion.   The trial court followed correct procedures and applied applicable law.   Federal cases dealing with a different standard, “actual prejudice,” and placing the burden of proof upon the defendant, do not mandate a California change of procedure and law as to new trial motions and appellate review.

IV

The majority orders issuance of an alternative writ of habeas corpus returnable before the superior court at an evidentiary hearing on the issue of consumption of alcohol by the trial jurors, saying, “the effect of the jurors' liquor consumption was not adequately addressed in Hedgecock's motion for new trial.”   The opinion does not specify in what respects that subject was not adequately addressed.

Bohensky's declaration recites two instances of drinking.   The first occurred at bailiff Murlin's birthday party held in the evening after deliberations.   He had several drinks along with jurors Pierce, Rogers and Dyer.   The second concerns Dyer's condition during morning deliberations one day.  “Karen Dyer was so hung over, she had to go to the bathroom every fifteen minutes to throw up.”   Dyer's declaration avers she was somewhat sick to “my stomach due to nervous tension and had some difficulty keeping food down.   This condition, which was not related in any way to drinking alcohol, had no effect on my mental processes whatsoever.”   Saxton–Calderwood's declaration refers to juror drinking in the evening after deliberations at times she was not present.   “During this time I went back to my room.”   At best, the record on juror drinking discloses Bohensky's non-expert and contradicted opinion Dyer was “hung over,” his participation in evening drinks on the occasion of bailiff Murlin's birthday and Saxton–Calderwood's wholly unsubstantiated “information” jurors drank in the evening when she was not present.   To say these allegations warrant issuance of an alternative writ of habeas corpus reduces the great writ to an absurdity.²

V

Thus, while concurring in parts II through VII of the opinion, I dissent as to part I, dealing with the motions to recuse Judge Todd and to subpoena Attorney General records, the issuance of the alternative writ of habeas corpus, the new trial motion with respect to juror misconduct and the remand for the evidentiary hearing.   I would affirm the convictions in their entirety.

I concur in the lead opinion except as to its conclusion that any error in failing to give the requested unanimity instruction was harmless beyond a reasonable doubt as to Counts Four and Five.   As to those counts, I would reverse.

First, I am satisfied there is no legal difference between the case where a perjury charge is based on multiple false statements made in a single proceeding where only one oath is taken, and a charge alleging multiple omissions from one document verified by a single declaration under penalty of perjury.   In each instance, proof of only one knowing false statement or intentional omission is required to prove perjury.

It is not disputed the jurors must be instructed that when a defendant is charged with making more than one perjured statement, they must also be told they must all agree on the false statement or statements on which they base a conviction of perjury.   There is no logical reason why Hedgecock should be subject to a different rule when charged in a single perjury count based on his intentionally omitting to include one or more of several items from a verified document.   Where proof of any one would support the charge, the failure to give a unanimity instruction permitted Hedgecock to be convicted even though no twelve jurors agreed any single omission was illegal.¹

Where a defendant is charged in a single count with several offenses and evidence is submitted tending to show commission of more than one offense, a jury must agree on the particular act committed in order to convict.  (See People v. Scofield (1928) 203 Cal. 703, 710, 265 P. 914.)   Because a reviewing court cannot be assured jurors have based their conviction on a unanimous finding as to a particular act (here, the act of intentionally failing to include a specific material fact from disclosure forms) in the absence of a unanimity instruction, Counts Four and Five must be reversed.   There are two recognized exceptions to this principle, continual acts and prosecutorial election.   Neither applies here.  (See People v. Madden (1981) 116 Cal.App.3d 212, 216–218, 171 Cal.Rptr. 897.)   The People do not contend the multiple acts which they alternatively allege as support for these counts meld into a continuous course of conduct.   They are, in fact, separate services supposedly rendered to Hedgecock by Tom Shepard & Associates before their relationship was expressed in a written contract.   Moreover, the People made no election to rely on a particular act at trial.   The People specifically chose not to rely on a specific allegation.   In chambers, the court inquired whether it was lawful “․ if five jurors should vote to convict based upon one of the items mentioned and seven vote to convict on one of the other items specifically mentioned?”   The People responded, “Yes ․ if they unanimously find that [Hedgecock] lied, even though they may not agree on how he lied, you could have 15 or 20 items․”

Thus, the People's position, accepted by the trial court, was that a valid perjury conviction could be obtained even though no more than one juror was convinced any particular material fact was omitted;  a result which would clearly violate the fundamental right to a unanimous jury verdict before a conviction.  (See People v. Madden, supra, 116 Cal.App.3d at p. 219, 171 Cal.Rptr. 897.)   Under the People's hypothetical and under the multiple evidentiary facts presented on Counts Four and Five, the absence of a unanimity instruction permits a conviction even though a majority of the jurors was convinced that each intentional alleged omission was not proved.   Such a result is incompatible with requirements for conviction of an offense for which the Legislature has determined a greater degree of proof is required than for any other crime except treason.  (Compare Pen.Code, § 1103a with § 1103;  People v. Viniegra (1982) 130 Cal.App.3d 577, 181 Cal.Rptr. 848 and cases there cited.)

Moreover, the lead opinion is overly generous in assessing several of the items relied on by the prosecutor in Counts Four and Five as “less than compelling.”   Although the evidentiary strength of the alternative items is largely irrelevant to the issue of whether reversible error occurred here, as the lead opinion recognizes in section V (ante, p. ––––, fn. 40) some of the multiple items with which the People “shotgunned” the jurors on Counts Four and Five were not required to be included in Hedgecock's financial statements at all.   The lack of a unanimity instruction therefore was especially prejudicial on these counts, considering the court's oblique materiality instruction advising the jurors that:  “If you find that the defendant made one or more of the statements as charged, such statements were material matter within the definition of perjury read to you.”   This instruction effectively precluded the jurors from determining whether any item in the People's laundry list of omissions was material and limited its role to determining whether in fact those events actually took place.   Once the event was found to have occurred, the jurors reasonably could have believed they had no alternative but to convict because it was not included in the filed statement.   Thus, it is probable some, and perhaps all, jurors based their verdicts only on facts which could not support the perjury conviction.²

FOOTNOTES

1.   The statement has been attributed to the late Jesse Unruh, former Speaker of the Assembly and California State Treasurer.   It was reported Unruh had concluded shortly before his death that “the milk had gone sour,” an observation borne out by the facts of this case.  (See The State, L.A. Times (Dec. 22, 1987) p. 2., vol. 6.)

2.   See Bauder, Captain Money and the Golden Girl:  The J. David Affair (1985).

3.   These facts are drawn largely from the declarations submitted by the 12 jurors and the 2 bailiffs.   To the extent they narrate the declarant's subjective interpretation of the facts rather than the objective facts themselves, the declarations have been ignored.  (See People v. Hutchinson (1969) 71 Cal.2d 342, 349–351, 78 Cal.Rptr. 196, 455 P.2d 132;  In re Stankewitz (1985) 40 Cal.3d 391, 397–398, 220 Cal.Rptr. 382, 708 P.2d 1260.)

4.   Hedgecock also produced declarations from several individuals who had discussed Hedgecock's trial with Burroughs at various points in time before the jury verdict.   On each occasion, Burroughs expressed his belief (usually adamant) in Hedgecock's guilt.

5.   Attached to Bohensky's declaration were handwritten notes Bohensky stated he started to take in response to Burroughs' instructions.   The notes include the following comments:  “Di says Judge should have struck a lot of testimony.   Brought up paper case as far as evidence not carrying much weight.  ‘We've been looking at it too much. [’]”  “2:00 o'clock—Dick tries to get things going.   Di jumps all over him.  ‘I'm tired of you trying to push Mr. Hedgecock's trial along.’   Jumped all over him.   Kathy chimed in also.”

6.   A declaration by defense attorney Michael Pancer recounts an interview he conducted of Stark at which Stark's attorney, Dale Hilman, was also present.   According to Pancer, Stark stated “that the Judge was concerned about the expense of the sequestration and expected the jury to reach a verdict one way or the other.”   Although this testimony was arguably inadmissible hearsay as to the central issue in the new trial motion, it did support Hedgecock's request for an evidentiary hearing at which the individual jurors could be questioned.

7.   Interestingly, a close reading of Bohensky's declaration indicates that Bohensky never attributed to Stark knowledge of the facts Stark expressly denied.

8.   Judge Todd treated the motion to recuse as a statement of disqualification pursuant to Code of Civil Procedure section 170.3, subdivision (c)(1).

9.   Because Hedgecock's points and authorities in support of his motion for new trial never raised the issue, the trial court never ruled on whether the evidence regarding juror consumption of alcohol required the granting of a new trial.  (See post, pp. 424–425.)

10.   It is well-established in California that juror testimony regarding the consumption of alcohol by jurors is admissible under Evidence Code section 1150 because it describes “objectively ascertainable” conduct within the meaning of People v. Hutchinson (1969) 71 Cal.2d 342, 349, 78 Cal.Rptr. 196, 455 P.2d 132.  (See Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 412–415, 185 Cal.Rptr. 654, 650 P.2d 1171.)

11.   It is for this reason we must reject Hedgecock's contention that the declarations submitted at the new trial motion, when viewed in light of the entire record (see Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417, 185 Cal.Rptr. 654, 650 P.2d 1171), establish prejudicial bailiff misconduct as a matter of law.   Burroughs' declaration basically denied all Bohensky's and Saxton–Calderwood's allegations except the telling of the “green hat story.”   There was simply not enough information in the declarations to permit the trial judge to ascertain the context in which the “green hat story” was later discussed by the jurors during deliberations.  (See post, p. 423.)   As to Burroughs' comments to Stark regarding the costs of sequestration, we think that if they stood alone, a trial judge could reasonably deem them nonprejudicial.   None of the juror declarations recalled Stark mentioning the costs of sequestration during deliberations.  (But see post, fn. 17.)   Not only does this restrict the audience who could have been prejudiced;  it also suggests that Stark understood that such considerations were inappropriate.   Finally, Hedgecock's counsel did not argue the issue of juror consumption of alcohol at the motion for new trial.  (See ante, fn. 9.)

12.   Justice Stephens' dissent argued as follows:  “In criminal cases, however, defendant correctly argues that the rule set down in Linhart is inapplicable and that in-court testimony may be taken on a charge of juror misconduct.   In support of this contention, with which I agree, defendant relies on People v. Pierce (1979) 24 Cal.3d 199, 206, footnote 3 [155 Cal.Rptr. 657, 595 P.2d 91]․  [¶] The People v. Pierce court did not point out the reason for the apparently different rule in civil and criminal cases.   As I analyze the problem, the reason no doubt seemed too obvious to require elucidation.   It is necessary only to refer to Penal Code section 1181, which provides both the manner of procedure and grounds for a motion for new trial in criminal cases.   Differing from Code of Civil Procedure section 658, which requires that when the motion is made on the ground of jury misconduct ‘it must be made upon affidavits,’ Penal Code section 1181 contains no such limiting provision.   In fact, only subdivision 8, which deals with the ground of newly discovered evidence, requires that the motion be initiated with supporting affidavits.   Certainly, where restraints and penalties, as in this case of great magnitude, are involved, there is good reason for the variance between civil procedures and criminal procedures.”

13.   Penal Code section 1181, subdivision 8, applicable only to motions for new trial based on insufficiency of the evidence, does contain an affidavit requirement.  (See People v. Pic'l (1981) 114 Cal.App.3d 824, 878–879, 171 Cal.Rptr. 106.)   Subdivisions 2 and 3 of section 1181, which deal generally with jury misconduct and tampering, contain no similar requirement.

14.   Consistent with our view, it is interesting to note that the California trial court in Rushen v. Spain (1983) 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 conducted an evidentiary hearing in which at least one juror testified.  (Id. at p. 116, 104 S.Ct. at 454.)

15.   There was apparently no motion for new trial in Burgener based on the jury misconduct issue.   Accordingly, the Supreme Court did not have the option of remanding the case to the trial court for an evidentiary hearing on the motion.

16.   The dissent suggests these federal cases may be distinguished because they merely allow an evidentiary hearing in support of a more stringent federal standard which requires that the defendant demonstrate “actual prejudice.”  (Dis. opn., post, p. 467.)   This apparently is to be contrasted with the California standard which allows the defendant to invoke a rebuttable “presumption of prejudice.”  (See People v. Honeycutt (1977) 20 Cal.3d 150, 156, 141 Cal.Rptr. 698, 570 P.2d 1050.)It is incorrect to assume, however, that the sole purpose of the Remmer -type hearing is to give the defendant a forum within which he may attempt to demonstrate actual prejudice.  Remmer itself makes clear that an equally important and in fact preliminary purpose of an evidentiary hearing is to give the defendant the opportunity to establish that misconduct or tampering has in fact occurred.  (347 U.S. at p. 230, 74 S.Ct. at p. 451;  see also United States v. Brantley, supra, 733 F.2d at p. 1439 (hearing necessary to “ascertain whether the alleged jury misconduct actually occurred”);  Gafford v. Warden (10th Cir.1970) 434 F.2d 318, 321 (remand for a hearing to “determine whether the jury did receive and consider evidence from extrajudicial sources”);  Richardson v. United States, supra, 360 F.2d at p. 369;  Tobias v. Smith (W.D.N.Y.1979) 468 F.Supp. 1287, 1291 (jurors may be questioned “as to what was said and what occurred”).)   Even in California, a defendant cannot invoke the presumption of prejudice before he demonstrates some misconduct has occurred.Moreover, it is not at all clear that the federal standard meaningfully differs from the California rule.  Remmer itself holds that unauthorized private communication or contact with a jury about the pending matter is “presumptively prejudicial” (347 U.S. at p. 229, 74 S.Ct. at p. 451;  compare Honeycutt, supra, 20 Cal.3d at p. 156, 141 Cal.Rptr. 698, 570 P.2d 1050, relying on and quoting Remmer.)  Smith v. Phillips, supra, 455 U.S. at p. 215, 102 S.Ct. at p. 945 does hold that a defendant must prove “actual bias” but that holding arose in a case which did not involve alleged outside influences on jurors.  (See Haley v. Blue Ridge Transfer Co., Inc., supra, 802 F.2d at p. 1535 and fn. 5, and cases there cited.)   In addition, Smith relies heavily on Remmer yet gives no indication it was intended to overrule the presumption of prejudice in outside influence cases.   Finally, even if this aspect of Remmer can be argued to be sub silentio overruled (see United States v. Madrid, supra, 842 F.2d 1090, 1093), most of the federal cases cited in support of the need for an evidentiary hearing were decided before Smith at a time when Remmer controlled such that the federal and California standards were functionally identical.

17.   Even those cases which deny an evidentiary hearing or affirm the district court's decision to conduct a restricted inquiry do so on the particular facts of the case, acknowledging the need for full-scale evidentiary hearings in some types of cases.  (See, e.g., Brofford v. Marshall (6th Cir.1985) 751 F.2d 845, 85 (unnotarized juror statement insufficient to require evidentiary hearing);  U.S. v. Calbas (2d Cir.1987) 821 F.2d 887, 896–897 (hearing adequate where defense counsel was permitted to submit in advance questions to be asked of trial jurors).)

18.   This does not necessarily turn on whether holdout jurors heard Burroughs' comments.   As noted previously (ante, p. 416), the facts of this case suggest the possibility that Burroughs' communications with certain members of the jury had the effect of cementing their view of Hedgecock's guilt.   Obviously if this occurred, it would constitute a more subtle though equally reprehensible form of misconduct.

19.   For the benefit of the court on remand, we also note our concern with the legal reasoning employed by the trial judge in denying the motion for new trial.   To begin with, the court committed fundamental error when it stated that any misconduct by the bailiff could not have prejudiced Hedgecock because of the “overwhelming” evidence against him.   (Ante, p. 414.)   As the Supreme Court has explained, “Convincing evidence of guilt does not deprive a defendant of the right to a fair trial ․ includ[ing] among other things the right to an unbiased jury․”  (People v. Hogan (1982) 31 Cal.3d 815, 846, 183 Cal.Rptr. 817, 647 P.2d 93, quoting People v. Martinez (1978) 82 Cal.App.3d 1, 22, 147 Cal.Rptr. 208;  see also People v. Pierce, supra, 24 Cal.3d at pp. 206–207, 155 Cal.Rptr. 657, 595 P.2d 91.)The court's reliance on Saxton–Calderwood's statements during voir dire (ante, p. 414) was also incorrect.   If voir dire statements could be relied upon to rebut the prejudice which would otherwise result from external influences on the jury, reversal on such a ground would seldom if ever be required since jurors routinely profess their ability to consider only the evidence properly admitted in court and the law as given to them by the trial judge.  (Compare, e.g., People v. Hutchinson (1969) 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132 (communication from bailiff);  People v. Andrews (1983) 149 Cal.App.3d 358, 196 Cal.Rptr. 796 (newspaper article inadvertently sent into jury room).)Finally, as we have already stated (ante, p. 423), there was simply insufficient evidence presented in the declarations to allow a conclusion that no reasonable juror could have interpreted the “green hat story” as an instruction on reasonable doubt.   Two jurors stated that they so interpreted it.   Several other jurors remembered the story as having something to do with reasonable doubt and indicated it was discussed during deliberations.   Without knowing the context of those later discussions, it is impossible to conclude it could not possibly have had an effect on the deliberations.

20.   Following the investigation, the Attorney General concluded there was insufficient evidence to warrant the filing of criminal charges.

21.   The Attorney General alerts us to the fact that, in contrast to this case, Hill v. Superior Court involved the question of a criminal defendant's right to pretrial discovery.   He does not suggest a different standard which should be applicable in this arguably different context, instead asserting that Hedgecock has not satisfied the “plausible justification” threshold.

22.   We have independently reviewed the transcripts of the interviews with jurors Pickering and Doherty and conclude they contain relevant information.   For instance, Pickering recalled that in opposing her request to have portions of the testimony reread, Bohensky commented that someone, either Judge Todd or Burroughs, had expressed concern about the cost of the sequestration process and the amount of time deliberations were consuming.  (Pickering Interview, pp. 19–20.)   In addition, Pickering mentioned hearing a reference to the “green hat story” during deliberations.   In response to a discussion about reasonable doubt, one member of a group of jurors who sat together and who Pickering characterized as “pretty much ha[ving] a feeling that Mr. Hedgecock was guilty” said, “[S]hall we tell them the green hat story that Al told us [?]”  Another member of the group, perhaps Richard Stark, replied, “[N]o we probably shouldn't.”   Pickering treated it as a private joke.  (Pickering Interview, pp. 5, 13.)   Doherty stated that toward the end of deliberations in response to her question, one of the bailiffs told her that sequestering the jury had cost “something like 8 or 9 thousand dollars just for the rooms and the meals․”  (Doherty Interview, p. 12.)   She also remembered seeing Burroughs and Bohensky talking privately at the Tuesday night party.  (Doherty Interview, p. 19.)

23.   All statutory references in this subsection of the opinion are to the Code of Civil Procedure unless otherwise indicated.   In these and later statutory references, we omit repetition of the word “subdivision”.

24.   It would also be significant to know whether bailiff Murlin reported to Judge Todd Kathy Saxton–Calderwood's comments regarding Burroughs' alleged statement there were only two possible verdicts.

25.   The oral agreement between Hedgecock and Shepard for the sale of the list was apparently memorialized in writing at some later date.   A written contract setting out the terms of the agreement is dated January 1, 1982, but testimony at trial established that the stationary on which the contract was typed was not in existence until mid–1982.   TS & A's bookkeeper testified she recalled typing the agreement some time after August of 1982.

26.   The evidence established that Hoover gave $1,000 to four individuals (three J. David employees and the spouse of one of the employees) to “purchase” tables for the event.   Although this testimony firmly established Hoover's intent to evade the City's campaign finance limitations, there was no evidence to suggest that Hedgecock knew of Hoover's actions in this particular regard.

27.   Other clients handled by TS & A during 1982 included state senate candidate Dan Kripke, assembly candidate Richard Roe, Celebration of the Sea, Human Services Coalition, and Oceanside Taxpayers for Orderly Growth.   In February 1983, TS & A did a jury survey for Defenders, Inc.

28.   The date picked by Hedgecock appears to be the day following the one-year anniversary of Hedgecock's having received full title to the Inabinett note from his ex-business partner, Michael Turk.

29.   This appears to be but an application of the suggestion in several cases that where jurors can reasonably disagree on the facts which constitute an element of the offense, a unanimity instruction is required.  (See People v. Kent (1981) 125 Cal.App.3d 207, 213, 178 Cal.Rptr. 28;  People v. Gary (1987) 189 Cal.App.3d 1212, 1218, 235 Cal.Rptr. 30.)   Although these cases are based at least in part on federal constitutional principles (see Kent, supra, 125 Cal.App.3d at p. 213, 178 Cal.Rptr. 28;  Gary, supra, 189 Cal.App.3d at p. 1218, 235 Cal.Rptr. 30), there is a tension between them and a line of California Supreme Court cases which repeatedly have held that a jury need not be instructed it must agree on the “theory” under which a particular offense was committed as long as it agrees that the offense as it is a “defined by the statute” was committed.  (People v. Milan (1973) 9 Cal.3d 185, 195, 107 Cal.Rptr. 68, 507 P.2d 956, reaffirmed in People v. Guerra (1985) 40 Cal.3d 377, 386, 220 Cal.Rptr. 374, 708 P.2d 1252 [different theories of first degree murder];  see also People v. Nor Woods (1951) 37 Cal.2d 584, 586, 233 P.2d 897 [different theories of grand theft];  People v. Failla (1966) 64 Cal.2d 560, 567–569, 51 Cal.Rptr. 103, 414 P.2d 39 [different theories of felonious intent for burglary].)   The tension has yet to be explored.   In Failla, for example, the evidence suggested the defendant may have entered the victim's residence intending to commit forcible oral copulation or assault.   Because an element of the crime of burglary is the intent to commit a felony, the prosecution's two “theories” are in fact different mental states each of which may independently satisfy the mens rea element for burglary.   From a functional standpoint, we have difficulty distinguishing the mens rea element in burglary from the taking element in Kent or the legal violation element in Gary in terms of the need for jury unanimity.

30.   CALJIC No. 7.25 provides:  “When it is charged that the defendant made more than one perjured statement, it is necessary to prove that he made at least one of such statements.   All the jurors must agree upon the statement found to have been perjured.”

31.   The jury was instructed as follows:  “In order to reach a verdict, all 12 jurors must agree to the decision and to any finding you have been instructed to include in your verdict.   As soon as all of you have agreed upon a verdict or verdicts you shall have it or them dated and signed by the foreman and then shall return with it to this courtroom.”

32.   Two alleged omissions form the basis of Counts 14 and 15:  Hedgecock's failure to report the interest payments he continued to receive on the Inabinett note after had sold it to Nancy Hoover;  and his failure to report Jerry Dominelli and J. David as the source of his home renovation loan.   The jury was instructed that “[i]n order to find the defendant guilty of Counts Fourteen and Fifteen as those counts relate to the money used for the renovation of the State Street home you must unanimously conclude that the evidence has proved beyond a reasonable doubt that Roger Hedgecock intentionally failed to disclose the money used for the renovation of the State Street home was a loan or a gift from J. David and Company, ․ [¶]  If you do not so unanimously conclude, or if you conclude that the money was a loan from Nancy Hoover, then you cannot convict the defendant of the crimes alleged in these counts as those counts relate to the money used for the renovation of the State Street home.”Although the instruction did not similarly inform the jury they had to unanimously conclude Hedgecock failed to report the Inabinett interest payments, the unanimity instruction as to the renovation loan eliminated any possibility that some but less than all jurors could have found him guilty based on each of the two alleged omissions.   And in any event, as we explain later in another context (post, pp. 450–451), the guilty verdict on Count 11 makes it clear the jurors unanimously concluded Hedgecock committed perjury by failing to report the Inabinett interest payments.

33.   In his petition for rehearing, Hedgecock suggests that the jury may have concluded the contract was for full and adequate consideration, yet nonetheless returned a guilty verdict based on the activities of George Mitrovitch on behalf of the Hedgecock campaign.   Our reading of the record indicates the prosecutor never relied on such a theory.  (See 19 RT 2820–2821, 2822–2823, 2826–2830, 2833, 2835–2836, 2853–2854, 2925–2927.)In any event, Mitrovitch was a long-time Hedgecock supporter who had worked as a volunteer on previous Hedgecock campaigns.   He specifically testified that his duties at J. David did not include work on the Hedgecock campaign.  (12 RT 1903.)   To contradict these facts, Hedgecock relies on one nebulous statement by Mitrovitch:  “Without the relationship that I had with J. David, without having been their director of public affairs, I think that it's fair to say that there are a number of activities that I could not have continued participating in.”  (12 RT 1904.)   We do not believe this isolated reference can reasonably be read as sufficient to support a conclusion that Mitrovitch's work on behalf of the Hedgecock campaign constituted an in-kind contribution by his employers, Jerry Dominelli and Nancy Hoover.   Especially given the lack of reliance by the prosecution, we see no need for a unanimity instruction on these counts.

34.   A lengthy instruction requested by Hedgecock which attempted to distinguish the responsibilities of the candidate from those of the campaign treasurer contained the following language:  “Among the surrounding circumstances may be considered that Roger Hedgecock relied on the advice of his treasurer, Peter Davis, and persons who have expertise in the preparation of campaign disclosure statements, such as Mike McDade, campaign chairman and legal advisor, and Peter Aylward, administrator.”

35.   Implicit in this analysis is our determination that the evidence was more than sufficient to support the jury's necessary conclusion any reliance by Hedgecock on McDade or others did not cause him to honestly and in good faith believe his CDSs fully and fairly complied with the reporting requirements of the Political Reform Act.

36.   It is true the jury was instructed in the alternative it could find Hedgecock guilty if it concluded Dominelli and/or Hoover made payments to TS & A which “were earmarked to be spent for the benefit of the Roger Hedgecock campaign.”   Hedgecock does not challenge the correctness of this alternative instruction, perhaps because his counsel agreed to its being given.

37.   McDade testified as follows:  “The committee, Hedgecock for Mayor Committee, had a contract with Tom Shepard & Associates for fair and adequate consideration.   The law is very clear that when that occurs there is no need to report any overhead expenses of the consultant, any employees' salaries, anything of that nature.”  (emphasis added.)   He later emphasized the same point:  “The issue is whether or not we had a fair and adequate contract with Tom Shepard.   In my opinion, we had a contract that provided for the coverage of all of his services.   Beyond that there is no reporting requirement.”   As noted above, the instructions given the jury were fully consistent with McDade's explanation of the applicable legal standard.

38.   Section 81004.5 states:  “Any report or statement filed pursuant to this title may be amended by the filer at any time.   Amending an incorrect or incomplete report or statement may be considered as evidence of good faith.”

39.   Hedgecock also faults the trial court for failing to instruct the jury it could consider “the presence or absence of good faith” in determining “whether Roger Hedgecock intentionally omitted something that should have been reported, ․”  The instruction is redundant and was properly refused.   Obviously Hedgecock did not act in good faith if he intentionally omitted reportable information.

40.   All statutory references in section III are to the Government Code unless otherwise indicated.

41.   The title referred to in both statutes is Title 9 which constitutes the Political Reform Act of 1974.  (See Govt.Code, §§ 81000–91015.)

42.   Thus, the fact that a precursor statute to section 81004, former Government Code section 3709 (see Stats.1973, c. 1166, p. 2435, § 3), contained an explicit reference to the punishment “as provided by Section 126 of the Penal Code” and that such reference was eliminated in section 81004 suggests nothing more than that the drafters of the Political Reform Act were attempting to avoid redundancy.

43.   We also reject Hedgecock's contention that if he was properly charged with felony perjury, the trial court was obligated to instruct on a misdemeanor violation of section 91000 as a lesser included offense.   A lesser included offense instruction need only be given “if there is substantial evidence to support a jury's determination that the defendant was in fact only guilty of the lesser offense.”  (People v. Ramos (1982) 30 Cal.3d 553, 582, 180 Cal.Rptr. 266, 639 P.2d 908;  see also People v. Mathis (1985) 173 Cal.App.3d 1251, 1257, 219 Cal.Rptr. 693.)   Here, there was no dispute Hedgecock signed the CDSs and SEIs under oath.   If the jury was to convict him of any crime, it must necessarily conclude he was guilty of perjury.   There was no basis for a lesser included offense instruction.

44.   Section 2015.5(a) provides the following form for declarations under penalty of perjury:  “I certify (or declare) under penalty of perjury that the foregoing is true and correct[.]”

45.   We are aware that the court in People v. Dodge (1961) 12 A.D.2d 353, 212 N.Y.S.2d 526, 537 cited the passage in French which we refer to, but it provided no authority for the proposition other than French.

46.   We are somewhat concerned by an argument made by the prosecutor which suggested that TS & A made unreported contributions during this period when it allowed its offices to be used for volunteer training sessions and Saturday morning meetings of the Hedgecock campaign's executive committee.   Although Hedgecock did not object to the prosecutor's argument, it appears to be inconsistent with Government Code section 82015 which provides in part:  “The term ‘contribution’ does not include a payment made by an occupant of a home or office for costs related to any meeting or fundraising event held in the occupant's home or office if the costs for the meeting or fundraising event are five hundred dollars ($500) or less.”   In any event, the evidence of Hedgecock's knowledge of the other items—particularly the Tom Lawrence media sessions, the pledge cards and the use of TS & A employees—was sufficiently strong that it is highly improbable any juror relied on the prosecutor's argument without also finding Hedgecock knowingly failed to disclose the other items.

47.   If a statement is used testimonially, i.e., for the purpose of inducing the trier of fact to believe in the truth of the assertion itself, it is hearsay.   However, if the statement is used circumstantially, i.e., as evidence of conduct on the part of the declarant, it is not subject to the hearsay rule.  (People v. Green (1980) 27 Cal.3d 1, 23, fn. 9, 164 Cal.Rptr. 1, 609 P.2d 468;  see also 6 Wigmore, Evidence (Chadbourn rev. ed. 1976) §§ 1715, 1790.)

48.   Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy.  (Evidence Code section 1223(a).)

49.   “[E]vidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain or bodily health) is not made inadmissible by the hearsay rule when:  (1) The evidence is offered to prove the declarant's state of mind, emotion or physical sensation at that time or at any other time when it is itself an issue in the action;  ․” (Evid.Code, § 1250 subd. (a).)

50.   Section 1101 subdivision (a) provides:  “[E]vidence of a person's character or a trait of his or her character ․ is inadmissible when offered to prove his or her conduct on a specified occasion.”

51.   Such an approach would eliminate the conceptual crossfire which often catches prosecutors in close cases.   If a single conspiracy is charged, the defendants invariably argue that multiple conspiracies were improperly joined together to bolster a weak case, and that there is a fatal variance between pleading and proof.  (See, e.g., Kotteakos v. United States (1946) 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557;  United States v. Varelli (7th Cir.1969) 407 F.2d 735, 741–744;  United States v. Borelli (2d Cir.1964) 336 F.2d 376, 382–387.)   If several separate conspiracies are charged, the defendants contend conviction on more than one count is barred by principles of double jeopardy.  (See, e.g., United States v. Cerro (7th Cir.1985) 775 F.2d 908, 910–914;  United States v. Winship (5th Cir.1984) 724 F.2d 1116, 1126–1127;  United States v. Marable (5th Cir.1978) 578 F.2d 151.)

52.   All statutory references in this subsection of the opinion are to the Code of Civil Procedure unless otherwise indicated.

53.   The 10–day–5–day rule of subdivision (2) of the statute provides that where the identity of the judge is known at least 10 days before the hearing or trial, the motion must be filed at least 5 days before that date.   If the judge is not identified more than 10 days before, the motion can be filed at any time prior to the hearing or trial.

54.   Hedgecock requested the following materials and information in his discovery motion:“1. Disclosure of the existence of any written or unwritten information pertaining to discussions or memoranda in the District Attorney's office concerning the alleged charges in the instant case;“2. Disclosure of the existence of any written or unwritten information relation to instances of Elections Code violations that were brought to the attention of the District Attorney's office and not prosecuted;“3. Disclosure of any written or unwritten policies of the District Attorney's office regarding prosecution of campaign violations;“4. Disclosure of names of persons brought to the attention of the District Attorney's office regarding campaign violations since January, 1976;“5. Disclosure of any letters written by the District Attorney's office regarding campaign irregularities since January, 1976;“6. Disclosure of any complaints made to the District Attorney's office regarding any improprieties during an election campaign since January, 1976;“7. Disclosure of any information brought to the attention of the District Attorney's office relating to improprieties by public officials not running for office since January, 1976;“8. Disclosure of names of persons who made amendments to their Statement of Economic Interest forms from January, 1976, to the present and whos[e] amendments were scrutinized by the District Attorney's office.”

55.   All statutory references in this subsection of the opinion are to the Penal Code.

56.   Most of this evidence was also submitted in support of Hedgecock's motion for discovery on the issue of selective prosecution.   (See ante, p. 456.)   The prosecutor initially objected to the court's consideration of the newspapers clippings on grounds they constituted inadmissible hearsay evidence, but the court never ruled on the objection.   After the court ruled on the recusal motion, the prosecutor stated he understood all the affidavits and documents were before the court.  “If they're not in evidence, they represent proffered evidence on behalf of the defendant that was rejected.”   For purposes of this appeal we consider all the evidence that was before the court in connection with the recusal motion.

57.   While the record is not totally clear on who Hedgecock planned to examine at the evidentiary hearing, it does reflect that McKechnie, City Clerk Charles Abdelnour and the District Attorney's Office spokesman Steve Casey were excused as witnesses immediately after the court ruled on the recusal motion.

58.   In his petition for rehearing, Hedgecock urges an independent reason for resentencing.   Relying on Lewis v. Superior Court (1988) 198 Cal.App.3d 1101, 244 Cal.Rptr. 328 and Code of Civil Procedure section 170.3(c)(4), Hedgecock argues that Judge Todd's failure to answer the statement of disqualification within 10 days (see ante, pp. 413–414) resulted in automatic disqualification which in turn rendered all later rulings including sentencing void.  Lewis, however, involved a situation in which the trial judge took no action on a recusal request for more than a month.   Here, in contrast, Judge Todd acted timely on Hedgecock's request by striking the statement of disqualification.   Although as we have explained (ante, pp. 425–426) that action was erroneous, it certainly tolled the 10–day period.   We do not read section 170.3(c)(4) as mandating automatic disqualification under such circumstances.

FN1. All statutory references are to the Code of Civil Procedure unless otherwise specified When referring to statutory subparts we omit repetition of the word “subdivision.”.  FN1. All statutory references are to the Code of Civil Procedure unless otherwise specified When referring to statutory subparts we omit repetition of the word “subdivision.”

2.   Tanner v. United States (1987) 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90, citing Federal Rule of Evidence 606(b), rejects the use of juror affidavits to demonstrate juror misconduct during trial and affirms the denial of an evidentiary hearing on a new trial motion with respect to allegations a juror slept during the trial, some of the jurors consumed alcohol during lunch recesses, others smoked marijuana, and still others ingested cocaine.  “In our view the language of the Rule [606(b) ] cannot easily be stretched to cover this circumstance.   However severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an ‘outside influence’ than a virus, poorly prepared food, or a lack of sleep.”  (483 U.S. ––––, ––––, 107 S.Ct. 2739, 2748.)   Hedgecock's habeas corpus writ is simply another shot at a new trial motion.   The alcohol use declarations are inadmissible and an evidentiary hearing may not be ordered on alcohol consumption, an issue which seeks to impeach the jury verdict by attacking the subjective mental processes of the jurors, an off-limits area.  (See Ballard v. Uribe (1986) 41 Cal.3d 564, 575–578, 224 Cal.Rptr. 664, 715 P.2d 624, conc. opn. of Mosk, J.)

1.   The dicta in People v. Smith (1984) 155 Cal.App.3d 1103, 1186–1187, 203 Cal.Rptr. 196, referred to in the lead opinion and on which the People rely, did not arise in a perjury prosecution.   In fact, the felony tax count there was reduced to a misdemeanor violation of a statute which did not contain any element there be a verified false statement.

2.   It appears the reason the court's materiality instruction refers to “statements” and not “omissions” is because it failed to modify CALJIC No. 7.21 (4th ed. 1982) appropriately.   That instruction defines perjury and its manner of proof in terms of false statements, rather than omissions.   Having done so, the court “tracked” that language in its finding as to materiality.   In the absence of an appropriate modification, CALJIC No. 7.21 is confusing and the materiality instruction becomes meaningless.   That the CALJIC instruction contains no alternative language suitable for omissions, presumably reflects the fact that all prior reported cases have wrestled with this problem in context of the falsity of actual oral statements made after taking an oath or written statements placed in a form to which a declaration under penalty of perjury is appended.

WIENER, Acting Presiding Justice.

WORK, J., concurs.