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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. John Irwin CROWE, Defendant and Appellant.

Cr. 18195.

Decided: February 25, 1972

Velma E. Williams, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., William R. Pounders, Deputy Atty. Gen., for plaintiff and respondent.

By information defendant was charged in Count I with assault by means of force likely to produce great bodily harm (Pen. Code, § 245(a)) and in Count II with robbery (Pen.Code, § 211). He was convicted as charged by a jury. The robbery was determined to be of the second degree. Defendant was sentenced to state prison for the term prescribed by law on Count II only, the court expressly refrained from passing sentence as to Count I. Defendant appeals from the judgment contending through appointed counsel that the trial court erred in the manner in which the voir dire of the jury was conducted and that the cause should have been dismissed upon motion for insufficiency of the evidence under Penal Code section 1118.1.

We find no merit in defendant's claim involving insufficiency of the evidence. Our function on appeal where it is contended that the denial of a section 1118.1 motion was error is the same as in reviewing a conviction. (People v. Valerio, 13 Cal.App.3d 912, 919, 92 Cal.Rptr. 82.) That function is summarized in People v. Reilly, 3 Cal.3d 421 at page 425, 90 Cal.Rptr. 417 at page 419, 475 P.2d 649 at page 651 as follows:

‘An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Mosher [1 Cal.3d 379, 82 Cal.Rptr. 379, 461 P.2d 659] supra; People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.) “If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” (People v. Hillery, [62 Cal.2d 692, 44 Cal.Rptr. 30, 401 P.2d 382] supra, quoting from People v. Robillard, 55 Cal.2d 88, 93, 10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086; in accord, People v. Mosher, supra, People v. Newland, 15 Cal.2d 678, 680–683, 104 P.2d 778.) The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Mosher, supra.) The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Redmond, supra; People v. Bassett, 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 442 P.2d 777; People v. Hall, 62 Cal.2d 104, 109–110, 41 Cal.Rptr. 284, 396 P.2d 700.)’

The elements of the crime of assault as charged in Count I are set forth in Penal Code section 245(a) as follows:

‘Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the state prison for six months to life, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by both such fine and imprisonment. When a person is convicted of a violation of this section, in a case involing use of a deadly weapon or instrument, and such weapon or instrument is owned by such person, the court may, in its discretion, order that the weapon or instrument be deemed a nuisance and shall be confiscated and destroyed in the manner provided by Section 12028.’

Robbery is defined in Penal Code section 211 as:

‘Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.’

The record before us discloses that George Lee Stansbury Jr.'s wallet, money clip and $120 were taken without his permission after he had apparently been beaten over the head. Defendant was unemployed. He had seen the $120 at a time when his companion had been given change for a $5.00 bill by Mr. Stansbury. Defendant was alone in the victim's bedroom for some four or five minutes after the key to the house had been placed on the dresser. The key was never seen again. Later Bennie Peterson, the victim's brother, awoke when he heard a ‘rumbling noise’ like something falling or bouncing in his brother's bedroom. Mr. Peterson dozed off again. He then looked up and saw defendant standing over him. Defendant turned and went into the kitchen. Ten to 15 minutes later Mr. Stansbury was observed bleeding from the head. Mr. Peterson went to the back door and found it wide open. Two hours later defendant called to find out ‘[W]hat was going on over there.’ Mr. Peterson had first met defendant about a week before the incident. He saw defendant frequently during the day in question. He observed defendant for a few seconds at close range at the time of the crime. We conclude that there was sufficient substantial evidence and reasonable inferences therefrom for the trier of fact to find that defendant committed the crimes charged and that the trial court did not err in denying defendant's motion under section 1118.1.

We turn now to the contention that the trial court committed reversible error in refusing to permit defense counsel personally to interrogate the prospective jurors. It behooves us at this point to describe the manner in which the voir dire of the jurors was actually conducted in this case. Prior to the voir dire of the prospective jurors defense counsel submitted a written list of 12 general and 6 individual questions delineating the subject matter he wished covered on voir dire. These have been filed and made a part of the record on appeal. The panel of prospective jurors was first administered the customary oath and twelve of them were seated in the jury box. The court then admonished the panel in general to be attentive to the questions asked of those jurors in the box and proceeded to give a general explanation of the nature of the case. The jurors were then advised that it was the ‘duty of this Court to select the jury, and it is the duty of the Court to examine you for the purpose of selecting the most fair and impartial panel as possible.’ After giving the panel general instructions on the presumption of innocence and reasonable doubt, the court introduced the defendant, his counsel and the deputy district attorney, concluding from the negative response of the panel that none was acquainted in any way with any of them. At the court's request counsel submitted names of prospective witnesses and obtained a negative response to the question, ‘Are any of you acquainted with or had any personal dealing or social contact with any of the names that have been given by the two counsel?’ After making a number of cogent general observations calculated to apprise the prospective jurors of their duties and function the court then examined each of the jurors in the box as to the extent of his jury experience, ability to follow the law, racial prejudice, general area of residence, occupation, marital and family status, relationships to law enforcement agencies, his being charged with crime or the victim of assault or robbery, effect of the length of trial and among other things the general question soliciting any reason why the juror could not be fair and impartial. Detailed inquiry was made of each member of the panel. At the conclusion of the questioning the following transpired:

‘THE COURT: All right, counsel, approach the Bench.

(Discussion at the Bench out of the hearing of the jurors not reported)

THE COURT: Miss Reporter, bring your machine.

(The following proceedings were had at the Bench out of the hearing of the jurors:)

THE COURT: All right now, are there any other questions you want the Court to ask the jurors?

MR. FIORE: [For defendant] Your Honor, I would like to have the opportunity to ask some questions myself. I am accorded that right under Section 1078 of the Penal Code.

THE COURT: What questions do you want to ask?

MR. FIORE: I wanted to ask the young lady, Mrs. Meals, if the fact that she is a Negro and the only one on the panel if that might in any way place her in a compromising position if she were to be chosen to remain as a juror.

I also want to delve a little further into the nature of the occupation of the husbands of three other jurors; namely, Nrs. Rotman, Mrs. Klobucar and Mrs. Hupp.

I also want to ask some other general questions of all of the jury panel relative to——

THE COURT: State them.

MR. FIORE: The fact that my client is in custody presently, if that would have any effect; that is, if they would consider that he is more likely to be guilty than innocent because he is in custody.

I want to ask if they all understad the fact that he is in custody because he can not afford bail.

I also want to ask specific questions of individual jurors as to whether or not they have participated in a situation where they were asked to identify any individual. In other words, if they were ever asked, as and eye witness, to make and identification; if they believed that an individual can be mistaken in an identification, and questions relative to the identification of individuals.

These would be substantially the questions I would like to ask personally. Depending upon their answers there may be others.'

While not in the exact form suggested it appears that the relevant subject subject matter of the voir dire questions submitted in writing by counsel at the outset of the jury selection proceeding was covered by the court in its voir dire. After denying the request the court passed the jurors for cause. We note at this point that no objection was made as to the court's conduct of the voir dire or of the quantity or quality of the examination itself nor were any challenges for cause requested. Thereafter the peremptory challenge procedure ensued. The court conducted the questioning of each new member of the panel along the lines set forth above. During this phase of the proceedings the People exercised two and defendant six peremptory challenges. The following then occurred:

‘MR. FIORE: May I have a moment, just one moment to confer with my client?

THE COURT: All right.

MR. FIORE: Thank you.

(Sotto voce)

THE COURT: Counsel, approach the Bench.

(Bench discussion not reported.)

THE COURT: All right, the peremptory challenges have been completed by the defense and waived by the People. At this point we will ask the Clerk to swear the jury panel.

THE CLERK: Please stand and raise your right hand.

You and each of you do solemnly swear that you will well and truly try the cause now pending before this Court and a true verdict render therein according to the evidence and the instructions of the Court, so help you God?

(The jurors reply in the affirmative.)

THE CLERK: You may be seated.

THE COURT: All right, we will take a recess at this time.'

After the recess proceedings were had in chambers:

‘THE COURT: Where is the other counsel?

MR. FIORE: Mr. Schnabel should be in. He is on his way in.

(Mr. Schnabel enters the Chambers.)

THE COURT: All right, I find no amendment to the Penal Code. Does the District Attorney agree with the position of the defense counsel that in criminal matters there are ten peremptory challenges for an offense less than capital punishment?


THE COURT: Is it your desire to exercise further peremptory challenge?

MR. FIORE: I was discussing the possibility of exercising further peremptory with my client, and we had not as yet, at the time you called us in chambers, come to a decision whether we would accept the jury as constituted.

THE COURT: Well, make your decision and let me know forthwith.

(Both counsel leave Chambers.)

THE CLERK: Your Honor, they say they are going to accept the jury.

THE COURT: Well, I want that on the record; I mean by both counsel.

THE CLERK: Both counsel say they will accept.

THE COURT: I want it on the record. Call them in.

(Both counsel re-enters Chambers.)

MR. FIORE: We will make no further peremptory challenges, your Honor.

THE COURT: Any other matters before we start?

MR. FIORE: I don't believe so, no.

THE COURT: All right.

MR. FIORE: Your Honor, the record is clear that I have not waived my right to voir dire the jury under 1078 of the Penal Code?

THE COURT: You most certainly have your record made.

MR. FIORE: Okay.'

Defendant contends the action of the trial court in failing to permit him the right through counsel personally to voir dire the prospective jurors and in limiting him to six peremptory challenges was error requiring reversal of the judgment. We do not agree for the reasons hereafter stated.

The right of trial by jury composed of fair and impartial jurors is guaranteed by the Sixth Amendment to the United States Constitution1 and article 1 section 7 of the Constitution of the state of California.2 These constitutional provisions are substantive not procedural in nature and the making of a reasonable regulation of the mode of enjoyment of that right is not a denial or impairment of that right. (Frank v. Mangum, 237 U.S. 309, 339–340, 35 S.Ct. 582, 59 L.Ed. 969; People v. Hickman, 204 Cal. 470, 476, 268 P. 909, 270 P. 1117.) Penal Code section 1078 establishes the basic procedure for the selection of a jury in a criminal case in this state. That section provides: ‘It shall be the duty of the trial court to examine the prospective jurors to select a fair and impartial jury. He shall permit reasonable examination of prospective jurors by counsel for the people and for the defendant.’ The questions on voir dire must be limited to matters pertaining to challenges for cause. (People v. Deriso, 222 Cal.App.2d 478, 486, 35 Cal.Rptr. 134.) While it is the duty of the trial judge to safeguard the rights of the defendant (People v. Diaz, 105 Cal.App.2d 690, 696, 234 P.2d 300), the judge enjoys inherent discretion in the conduct of the trial. (People v. Jackson, 250 Cal.App.2d 851, 855, 58 Cal.Rptr. 776; People v. Miller, 185 Cal.App.2d 59, 77, 8 Cal.Rptr. 91, cert. denied 365 U.S. 568, 81 S.Ct. 755, 5 L.Ed.2d 807; Kraft v. Nemeth, 115 Cal.App.2d 50, 52, 251 P.2d 355.) The question arises whether that last sentence of section 1078 compels the court to allow counsel personally to interrogate the panel or permits interrogation by counsel indirectly through the court. The existence of the word ‘shall’ does not in every instance require that the language be construed as mandatory. Whether ‘shall,’ occurring in a code section, is to be construed as mandatory or directory depends upon the intent of the Legislature. (People v. Superior Court, 3 Cal.App.3d 476, 485–486, 83 Cal.Rptr. 771.) We note that section 1078 was enacted in 1872, amended in 1927 and remains unchanged since that date. Bearing in mind that in the instant case the trial court solicited and was furnished questions that defendant wished asked on voir dire and that no challenges for cause were made, we cannot say that the procedure employed by the trial court was error. If in fact the examination of a jury panel is conducted by a competent jurist in a fair and impartial manner using, among other things, questions requested by defendant, additional personal examination is unnecessary to achieve the basic right to trial by jury as guaranteed by the Constitution. On the contrary experience has indicated that, to permit unrestricted voir dire examination by counsel may, and often does, produce a contrary result after tedious, irksome and time-wasting prolongation of questioning through resort to the progressive and accepted device of collective preinstruction as a matter of so-called trial strategy. (People v. Parker, 235 Cal.App.2d 86, 98, 44 Cal.Rptr. 900.) Jury examination by the trial court exclusively has been specifically approved in People v. Brown, 207 Cal. 172, 178, 277 P. 320, 322, 323, cert. denied 280 U.S. 515, 50 S.Ct. 20, 74 L.Ed. 586, wherein it was said:

‘Appellants next contend that the trial court unduly restricted the examination of jurors upon their voir dire. Scarcely any specific instances are pointed to, but we are enjoined to read the whole transcript upon this subject in order to discern the attitude of the court in this respect. The court himself conducted the examinations, permitting the attorneys to suggest questions, as well as also permitting some of the individual defendants to do so. . . .

We have examined the entire transcript of these proceedings, which covers some 400 pages, and in our opimion the examination of each talesman was full, fair, just, and proper, and no substantial right of any kind was denied defendants or any of them. This method of examining jurors has been provided for by the recent statute, (section 1078 of the Penal Code, as amended by St.1927, p. 1039), and where fairly conducted has been approved by this court. People v. Estorga, 206 Cal. 81, 273 P. 575.)'

While it is true that in the instant case certain additional questions were orally submitted by counsel and refused by the court, that fact does not detract from the validity of the procedure employed but rather goes to the requirement that the conduct of the examination by the court be reasonable. Here the additional oral questions submitted at the conclusion of the voir dire were properly refused as having been covered by others previously asked and as not being calculated to assist materially in securing an appropriate jury. Our conclusion herein is fortified by Rousseau v. West Coast House Movers, 256 Cal.App.2d 878, 64 Cal.Rptr. 655. Although Rousseau is a civil case the court therein discussed California Rules of Court, rule 228, for civil jury trials in the light of Penal Code section 1078, and People v. Brown, supra, since that rule follows the text of the code section. In Roussean the trial court followed the procedure used in the instant case. In holding that this was not error, it was said at page 886, 64 Cal.Rptr. at page 660:

‘We conclude that in achieving the objective of a fair and impartial jury, various procedures, including that used by the trial court in this case, are permissible when intelligently and conscientiously applied. No substantial rights of the parties were denied by reason of the procedure of jury selection followed in this cause. (People v. Brown, 207 Cal. 172, 178, 277 P. 320; People v. Casscrio, 16 Cal.App.2d 223, 227, 60 P.2d 505; West Coast Securities v. Kilbourn, 110 Cal.App. 293, 298, 294 P. 57.)’

Furthermore, this method of selection has long been sanctioned and employed in the federal courts and is referred to as the federal method. The State Judicial Council is presently considering the use of the federal method in criminal cases in California. (46 Cal.State Bar Journal 110.) There was no error in employment of the federal method in the instant case.

We turn to defendant's claim that he was deprived of his right to exercise peremptory challenges. While it is true that to deprive a defendant of his prescribed number of peremptory challenges is error when the record reflects his desire to execute all of them (People v. Shaw, 237 Cal.App.2d 606, 611, 47 Cal.Rptr. 96; People v. Diaz, supra, 105 Cal.App.2d 690, 695, 234 P.2d 300), that tule is not applicable herein. Defendant was not limited to six such challenges. The erroneous conclusion of the trial court that defendant was entitled to only six peremptories was corrected and defendant offered a further opportunity to exercise challenges. It is a fair conclusion from the record that defendant never intended to exercise more than six peremptories irrespective of the mistake of law momentarily indulged in by the trial court. In People v. Bugg, 79 Cal.App.2d 174, 179 P.2d 346, the trial court's mistake was never corrected. On appeal it was said therein at page 176, 179 P.2d at pages 347, 348:

‘It appears that the court was mistaken in the statement that defendants had exhausted their peremptory challenges and that counsel joined in this mistake and failed to call the court's attention to the fact that defendants were entitled to additional peremptory challenges.

There is no intimation in the record that defendant desired to exercise an additional peremptor challenge or would have done so if the mistake of law had not been made. There is nothing to indicate that an objectionable juror had been forced on defendant or that he was dissatisfied with the jury as selected. Under such circumstances the error cannot be held to be prejudicial.'

We have examined the record of the jury selection procedure as conducted in this case and conclude that there was no error in the method selected or in the manner in which it was employed by the trial court.3 In any event we are satisfied beyond a reasonable doubt that, if error there was, that error did not contribute to defendant's conviction or result in a miscarriage of justice. (Cal.Const. art. VI, § 13; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 710; People v. Watson, 46 Cal.2d 818, 834–838, 299 P.2d 243.)

The judgment is affirmed.


1.  The Sixth Amendment ot the U.S. Constitution reads:‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.’

2.  Article 1, section 7 of the California Constitution reads:‘The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions three-fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions and cases of misdemeanor, the jury may consist of twelve upon which the parties may agree in open court.’

3.  We are not unaware of the decision of this court in People v. Adams, 21 Cal.App.3d 972, 99 Cal.Rptr. 122, which reaches a contrary result with respect to mandatory nature of Penal Code section 1078. However, we believe that the conclusion reached therein is not compelled by the language of that section, by existing case law, by the United States Constitution or California Constitution or favored by the practicalities of the situation.

ALLPORT, Associate Justice.

SCHWEITZER, Acting P. J., and COBEY, J., concur.