PEOPLE v. ANDERSON

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

The PEOPLE, Plaintiff and Respondent, v. Jeffrey Lee ANDERSON, Defendant and Appellant.

Cr. 29378.

Decided: October 20, 1977

Weitzman & Fidler, Howard L. Weitzman and Larry P. Fidler, Los Angeles, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Theodora P. Berger and Cynthia Sonns Waldman, Deputy Attys. Gen., for plaintiff and respondent.

In case No. A323228, an information charged defendant with: (count I) the murder of Melvin Brown on October 30, 1975, a felony, in violation of Pen.Code s 187; (count II) the murder of Rita Limbrick the same date, a felony, in violation of Pen.Code s 187; (count III) the robbery of Melvin Brown on October 30, 1975, a felony, in violation of Pen.Code s 211; and (count IV) the robbery of Rita Limbrick the same date, a felony, in violation of Pen.Code s 211. Counts III and IV further alleged that, in the commission of the robberies charged therein, defendant intentionally inflicted great bodily injury on each victim within the meaning of Pen.Code s 213.[FN1] Defendant pled not guilty, but a jury found him guilty of counts I through IV,[FN2] further finding that each murder and each robbery was of the first degree (Pen.Code ss 189, 211a). The jury also found true the allegations in counts III and IV that defendant intentionally inflicted great bodily injury on the victim of each robbery within the meaning of Pen.Code s 213. Defendant was sentenced to state prison for the term prescribed by law. The sentences on counts I and II were ordered to run concurrently with each other. The imposition of sentence on counts III and IV was stayed pending service of the sentences on counts I and II, the stay to become permanent thereafter. Defendant appeals from the judgment of conviction, contending: (1) the evidence does not support the judgment; (2) a witness for the prosecution improperly brought out the fact that defendant had been investigated for a murder other than those charged herein; (3) the trial court erred in refusing to allow defendant to introduce evidence that someone other than defendant had threatened the lives of the victims; and (4) the verdicts on counts I and II were the result of coercion by the trial court.

I

Viewed in the light most favorable to the judgment (People v. Sweeney, 55 Cal.2d 27, 33, 9 Cal.Rptr. 793, 357 P.2d 1049 (1960)), the evidence shows: At 3:30-4:00 a. m. on Sunday, October 26, 1975, defendant met Paul Douglas at an all-night pool hall. On learning that defendant “wanted to gamble,” Douglas telephoned Melvin Brown, telling him that Douglas was going to bring some people to Brown's house to gamble. At about 4:30 a. m., defendant, Douglas and two other men, riding in defendant's Cadillac, arrived at Brown's house. There, Douglas and defendant played a dice game, with Brown staking Douglas. After losing $200-300 to Douglas, defendant “pawned” his ring (Exh. 15) to Brown for $100. Thereafter, defendant left Brown's house, returning later with a fresh supply of money. After defendant lost all of this money, he “pawned” his Cadillac to Brown for $1,000. In connection with this transaction, defendant wrote something on a piece of paper and gave the paper to Brown; he also gave Brown the registration slip and the keys for the Cadillac. The game ended sometime between noon and 3 p. m. Sunday, October 26. Rita Limbrick, who lived with Brown, served food to the party. Thereafter, Brown and his visitors left in the Cadillac. Brown was driving it, and was wearing the ring which defendant had pawned to him. After driving his passengers to their respective destinations, Melvin Brown left the Cadillac at the home of his friend, Murray Brown. Melvin Brown had told defendant that if he didn't “redeem” the Cadillac within a week, he (Melvin Brown) would take steps to make it “legally his.”

The night of Wednesday, October 29, 1975, Melvin Brown still was wearing the ring (Exh. 15) pawned to him by defendant the preceding Sunday; he also was wearing a ring (Exh. 14) which he had owned for some time. Rita Limbrick was wearing two rings (Exhs. 16, 17) which belonged to her. On Wednesday, the Cadillac which defendant had pawned to Melvin Brown still was at Murray Brown's house. At 6:30 a. m. Thursday, October 30, Murray Brown arrived at the house of Melvin Brown, intending to drive him to work. He discovered the bodies of Melvin Brown and Rita Limbrick in the house, and called the police. Melvin Brown's body was in a bedroom. The legs were bent toward the small of the back, and were tied together; the hands were tied together behind the back. A cord extended from the feet to the hands. Another cord was tied around the neck, holding in place a sheet and a blanket which covered the head. There were burn marks on the upper portion of the body, as well as lacerations, contusions and abrasions on the scalp, face and chest. The cause of death was a stab wound which passed completely through the heart and the chest. The body of Rita Limbrick was lying face down in a bathtub containing 9-10 inches of water. The body was wrapped in a sheet; a blindfold covered the eyes, and a gag was placed around the mouth. Rita Limbrick's death was caused by drowning. The victims were not wearing the rings (Exhs. 14, 15, 16 and 17) worn by them on Wednesday night, October 29, and these rings were not found anywhere in the house. Also missing were a pistol (Exh. 43) owned by Rita Limbrick and a pistol (Exh. 18) which Murray Brown had loaned to Melvin Brown early in October 1975. The house had been ransacked, and papers were strewn around. Although the police thoroughly searched the house, they failed to find any paper pertaining to the Cadillac which defendant had pawned to Melvin Brown in the dice game of October 26.

Sometime in November 1975 defendant sold Melvin Brown's ring (Exh. 14) to an acquaintance for $75. On November 28 defendant pawned to a professional pawnbroker for $100 the ring (Exh. 15) which he had “pawned” to Brown in the dice game. On November 7 a police officer found in defendant's residence the pistol (Exh. 43) belonging to Rita Limbrick and the keys to the Cadillac which defendant had pawned to Melvin Brown. The Cadillac was parked half a black from defendant's residence. On October 30 it had been seized by the police at Murray Brown's house and it had been impounded; subsequently it was released to defendant. On October 30 codefendant Larry Johnson pawned one of Rita Limbrick's rings (Exh. 17) for $100. On November 4, he pawned her other ring (Exh. 16) for $50. On November 8 Johnson pawned for $50 the pistol (Exh. 18) which Murray Brown had loaned to Melvin Brown. Larry Johnson knew defendant. On October 31 he was at defendant's residence, and for three weeks prior to that date he was there almost every day.

Defendant contends the judgment must be reversed because there was no direct evidence showing that he committed either the robberies or the murders of which he was convicted. The contention is without merit. The People may rely on circumstantial evidence to connect a defendant to the commission of the crime charged and to establish beyond a reasonable doubt that he committed it. If the circumstances reasonably justify the findings of the trier of fact, an appellate court cannot reverse merely because the circumstances might also be reasonably reconciled with a contrary finding. 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. Reilly, 3 Cal.3d 421, 424-425, 90 Cal.Rptr. 417, 475 P.2d 649 (1970); People v. Mosher, 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659 (1969).) In reviewing a judgment of conviction, an appellate court must presume in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence. (People v. Vann,12 Cal.3d 220, 225, 115 Cal.Rptr. 352, 524 P.2d 824 (1974).) Before a judgment may be reversed for insufficiency of the evidence, it must clearly appear that upon no hypothesis whatever is there substantial evidence to support the conclusion of the trier of fact. (People v. Mulqueen, 9 Cal.App.3d 532, 540, 88 Cal.Rptr. 235 (1970).)

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 force or fear. (Pen.Code s 211.) A specific intent to steal is an essential element of the crime, but such intent may be established by circumstantial evidence. (People v. Nichols, 255 Cal.App.2d 217, 220, 62 Cal.Rptr. 854 (1967).) While possession of stolen property, standing alone, is insufficient evidence of the possessor's guilt of robbery, “ ‘its quality is of such high degree that only slight corroborative proof of other inculpatory circumstances would warrant a conviction.’ ” (People v. Blair, 2 Cal.App.3d 249, 257, 82 Cal.Rptr. 673, 677 (1969); People v. Yates, 165 Cal.App.2d 489, 493, 332 P.2d 314 (1958); People v. Alexander, 78 Cal.App.2d 954, 956-957, 178 P.2d 813 (1947).) One such inculpatory circumstance is defendant's sale or pawning of the stolen property. (See People v. Lang, 142 Cal. 482, 484-485, 76 P. 232 (1904); People v. Sorrentino, 146 Cal.App.2d 149, 160, 303 P.2d 859 (1956); People v. Alexander, supra, 78 Cal.App.2d at pp. 956-957, 178 P.2d 813; People v. Swanson, 120 Cal.App. 173, 176, 7 P.2d 380 (1932).) In addition, the presence or absence of motive is a circumstance going to the question of the guilt or innocence of the defendant; evidence of motive may be of assistance “in removing doubt and completing proof which might otherwise be unsatisfactory . . . and may be material where the evidence as to the identity of the criminal is circumstantial.” People v. Gonzales, 87 Cal.App.2d 867, 877, 198 P.2d 81, 88 (1948). See also People v. Weatherford, 78 Cal.App.2d 669, 687, 178 P.2d 816 (1947); People v. Richards, 74 Cal.App.2d 279, 289-290, 168 P.2d 435 (1946).) Following the commission of the robberies charged herein, defendant sold one of Melvin Brown's rings and pawned the other. He was in possession of Rita Limbrick's pistol and of the Cadillac's key, which he had given to Brown when he pawned the Cadillac to him in the dice game. Limbrick's rings and a pistol which had been loaned to Brown were pawned by Larry Johnson, an acquaintance of defendant who was seen with him the day after the crimes were committed. Defendant had lost his ring and his Cadillac to Melvin Brown in the dice game. The jury reasonably could infer that he was anxious to recover his property from Brown, and that he resorted to robbery as the means of recovering it. From the ransacking of Brown's house, the jury further could infer that defendant was searching for the paper, the registration slip and the keys which he gave to Brown when he pawned the Cadillac to him. The foregoing evidence, and reasonable inferences to be drawn therefrom, is sufficient to sustain defendant's conviction of the robberies.

Under the felony-murder rule of Pen.Code s 189, a killing committed in the perpetration or attempted perpetration of robbery is murder of the first degree. This is true whether the killing was willful, deliberate and premeditated or merely accidental, and whether the killing was planned as a part of the commission of the robbery. (People v. Lookadoo, 66 Cal.2d 307, 314, 57 Cal.Rptr. 608, 425 P.2d 208 (1967).) The evidence previously summarized herein is sufficient to sustain defendant's convictions of first degree murder under the felony-murder rule. Thus: the jury could infer that defendant killed Melvin Brown and Rita Limbrick in the perpetration of the robberies, as shown by his subsequent possession of their property. (See People v. Reyes, 12 Cal.3d 486, 504-505, 116 Cal.Rptr. 217, 526 P.2d 225 (1974); People v. Cavanaugh, 44 Cal.2d 252, 266, 282 P.2d 53 (1955); People v. Baglin, 271 Cal.App.2d 411, 417, 76 Cal.Rptr. 863 (1969).) “(P)ossession by the accused, shortly after the homicidal death, of articles known to have belonged to the decedent, under circumstances that would justify the inference of larceny, is sufficient to establish the guilty agency of the accused . . . .” (People v. Peete, 54 Cal.App. 333, 346, 202 P. 51, 57 (1921).)

II

Police officer Jerry Anslow, a witness for the prosecution, testified as follows during cross-examination by defendant's attorney: “Q When was the first time you saw the ‘70 Cadillac that ultimately was discovered at Melvin's house at Murray Brown's house? A The first time I actually saw the vehicle myself? Q Yes. A That was some months before when we were investigating Jeffrey (defendant) on another murder.” Counsel for defendant immediately moved for a mistrial on the grounds Anslow's answer was unresponsive and was calculated to deprive defendant of a fair trial. The court denied the motion but, on counsel's request, ordered the underscored portion of the answer stricken and admonished the jury to disregard it. Defendant now contends the judgment must be reversed because: (1) Anslow was guilty of prejudicial misconduct in deliberately bringing out the fact that defendant had been investigated for a murder other than those charged herein; and (2) the prejudicial effect of such testimony could not be cured by striking the testimony and admonishing the jury to disregard it.

A charge of prejudicial misconduct on the part of a witness is properly determined by the trial court in the first instance. (See People v. Collins, 50 Cal.App.2d 281, 285-286, 123 P.2d 43 (1942).) In the present case, the trial court found that Anslow's answer was not calculated to prejudice the jury against defendant.[FN3] The record herein fails to disclose anything which would warrant our holding, as a matter of law, to the contrary. Accordingly, we reject defendant's contention that Anslow was guilty of prejudicial misconduct. Likewise without merit is defendant's claim of misconduct by the prosecutor in failing to anticipate and prevent Anslow's answer. While the prosecutor has a duty to guard against inadmissible statements from his own witnesses on direct examination (see People v. Cabrellis, 251 Cal.App.2d 681, 688, 59 Cal.Rptr. 795 (1967); People v. Baker, 147 Cal.App.2d 319, 324, 305 P.2d 97 (1956)), the objectionable testimony in the present case was elicited during cross-examination of a prosecution witness. The deputy district attorney could not reasonably have foreseen that his witness, Anslow, would volunteer an improper statement while being questioned by defense counsel. (See People v. Schmitt, 155 Cal.App.2d 87, 114, 317 P.2d 673 (1957).)

Anslow's testimony that defendant had been investigated for another murder was inadmissible, since its sole relevancy was to show defendant's criminal character. (See Evid.Code s 1101, subd. (a); People v. Schader, 71 Cal.2d 761, 772-773, 80 Cal.Rptr. 1, 457 P.2d 841 (1969); People v. Gibson, 56 Cal.App.3d 119, 127, 128 Cal.Rptr. 302 (1976).) The only remaining question is whether such testimony was so damaging to defendant's case that it could not be cured by the action of the trial court in striking the testimony and admonishing the jury to disregard it. Where evidence is stricken and the jury is admonished to disregard it, any error in admitting the evidence is generally cured, for the jury is presumed to obey the admonition. (People v. Duncan, 53 Cal.2d 803, 818, 3 Cal.Rptr. 351, 350 P.2d 103 (1960); People v. Hardy, 33 Cal.2d 52, 61, 198 P.2d 865 (1948); People v. Carner, 144 Cal.App.2d 687, 692, 301 P.2d 623 (1956).) It is only where the objectionable evidence goes to the main issue, and proof of guilt is not clear and convincing, that error in admitting such evidence cannot be cured by striking it and instructingthe jury to disregard it. (People v. Hardy, supra, 33 Cal.2d at p. 61, 198 P.2d 865.) In the instant case the court, at the request of defendant's attorney, promptly struck Anslow's objectionable testimony and admonished the jury to disregard it. In a formal instruction given at the conclusion of the trial, the jury was ordered not to consider any evidence which was stricken out by the court. (CALJIC No. 1.02.) The fact that defendant had been investigated for another murder did not go to the main issue of this case; and proof of defendant's guilt, while circumstantial, was clear and convincing. Moreover, the reference to defendant's investigation for another murder was brief, and occurred only once in the course of the trial. Under these circumstances, the effect of Anslow's testimony was cured by the striking of such evidence and the admonition to the jury to disregard it. In support of a contrary conclusion, defendant cites and relies upon People v. Gibson, supra, 56 Cal.App.3d 119, 128 Cal.Rptr. 302, an opinion by this division of the Second District. In that case, a prosecution for murder, the trial court admitted the testimony of two witnesses that defendant previously had committed other crimes (robbery and battery). Such evidence was admitted for the limited purpose of showing defendant's state of mind (intent and motive) at the time of the charged offense, and the jury was instructed that it could consider the other-crimes evidence only for the purpose of determining that issue, not as indicative of criminal propensities on defendant's part. We held that admission of the other-crimes evidence constituted an abuse of discretion, pointing out that defendant was prejudiced by such evidence because the jury could not reasonably be expected to limit its consideration of that evidence to the issue of defendant's state of mind. Gibson is distinguishable from the present case because here, Anslow's objectionable testimony was stricken and the jury was admonished not to consider it for any purpose. From an examination of the entire record herein, it does not appear reasonably probable that a result more favorable to defendant would have been reached if the objectionable portion of Anslow's answer had not been given. Therefore, the admission of such evidence did not constitute a miscarriage of justice requiring reversal of the judgment. (Cal.Const., art. VI, s 13; People v. Watson, 46 Cal.2d 818, 836-837, 299 P.2d 243 (1956).)

III

Defendant wished to call Murray Brown as his witness, and made the following offer of proof regarding Brown's proposed testimony: at various times before October 30, 1975, Melvin Brown told Murray Brown that his (Melvin's) life and the lives of Rita Limbrick and her children had been threatened by an “individual”; this individual had “some sort of transaction” with Rita's mother in which he had been cheated out of some money; he was looking for the mother, and threatened to kill Melvin, Rita and the children if they didn't provide him with information he wanted: Melvin Brown never told Murray Brown the name of the individual who allegedly made the threat. The People objected to the admission of the testimony on the ground that Melvin Brown's statements were hearsay. The trial court sustained the objection, rejecting defendant's argument that such statements were admissible under the “ spontaneous utterance” exception to the hearsay rule. Defendant contends the trial court committed reversible error in excluding the evidence of Melvin Brown's statements.

Subject to certain exceptions, the hearsay rule makes inadmissible evidence of a statement which was made other than by a witness while testifying at the hearing, and which is offered to prove the truth of the matter stated. (Evid.Code s 1200.) The spontaneous utterance exception to the hearsay rule is set forth in Evid.Code s 1240, which provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (P) (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (P) (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” The requirements for application of this exception are as follows: “(1) there must be some occurrence startling enough to produce * * * nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.” (People v. Washington, 71 Cal.2d 1170, 1176, 81 Cal.Rptr. 5, 9, 459 P.2d 259, 263 (1969); Showalter v. Western Pacific R. R. Co., 16 Cal.2d 460, 468, 106 P.2d 895 (1940).) From defendant's offer of proof in the present case, it would appear that the first and third requirements may have been satisfied. However, the offer of proof failed to show how much time elapsed between the making of the threat and Melvin Brown's statements to Murray Brown describing the threat. Although the amount of time elapsing between the occurrence and the utterance is not alone the controlling factor, it is an element to be considered (Wiley v. Easter, 203 Cal.App.2d 845, 854, 21 Cal.Rptr. 905 (1962)), for the theory underlying the spontaneous utterance exception is that the declarant's lack of opportunity for reflection and deliberate fabrication supplies an adequate assurance of the statement's trustworthiness. (Box v. California Date Growers Assn., 57 Cal.App.3d 266, 272, 129 Cal.Rptr. 146 (1976).) The burden of proving the admissibility of a statement as a spontaneous utterance rests upon the party seeking to introduce it into evidence. (Francis v. Sauve, 222 Cal.App.2d 102, 110, 34 Cal.Rptr. 754 (1963); Wiley v. Easter, supra, 203 Cal.App.2d at p. 853, 21 Cal.Rptr. 905.) Defendant here failed to sustain that burden because his offer of proof did not disclose that Melvin Brown's statements regarding the threat were made while he was still under the stress of excitement caused by the threat. Accordingly, because there was no assurance of their trustworthiness, the statements were properly excluded. (See Evid.Code s 405; Dolberg v. Pacific Electric Ry. Co., 126 Cal.App.2d 487, 489-490, 272 P.2d 527 (1954).)

At the trial, defendant argued admissibility of Melvin Brown's statements on the sole basis of the spontaneous utterance exception to the hearsay rule. He now contends that such statements were admissible under the following additional exceptions: (1) the statements constituted declarations against the interest of Melvin Brown (Evid.Code s 1230); and (2) they constituted a statement of his existing state of mind offered to prove his acts or conduct. (Evid.Code ss 1250, 1252.) Citing and relying upon Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), defendant further contends that because Melvin Brown's statements were vital to his defense, their exclusion denied him a fair trial in accordance with due process; therefore, according to defendant, such statements were improperly excluded under the hearsay rule. Chambers is not in point for there, unlike the situation in the present case, the hearsay statements crucial to the defense originally were made, and were offered at the defendant's trial, under circumstances which provided assurance of their trustworthiness. Accordingly, the United States Supreme Court held that the exclusion of such critical evidence deprived the defendant of a fair trial, further observing that the hearsay rule may not be applied “mechanistically” to defeat the ends of justice.

It is unnecessary to discuss the exceptions to the hearsay rule urged by defendant for the first time on appeal because evidence of Melvin Brown's statements was inadmissible, in any event. Thus, while it is always proper to show that some person other than the defendant committed the crime with which he is charged (People v. Mitchell, 100 Cal. 328, 333-334, 34 P. 698 (1893)), “ ‘mere evidence of motive in another person, or of motive coupled with threats of such other person, is inadmissible unless coupled with other evidence tending to directly connect such other person with the actual commission of the crime charged. . . . It seems to us that there is a sound basis for this rule and that it rests fundamentally upon the same consideration which led to the early adoption of the elementary rules that evidence to be admissible must be both relevant and material.’ ” (People v. Perkins, 8 Cal.2d 502, 514-515, 66 P.2d 631, 637 (1937), quoting from People v. Mendez, 193 Cal. 39, 51-52, 223 P. 65 (1924), disapproved on another point in People v. McCaughan, 49 Cal.2d 409, 420-421, 317 P.2d 974 (1957), emphasis added. See also People v. Edmond, 200 Cal.App.2d 278, 281, 19 Cal.Rptr. 302 (1962); People v. Buono, 191 Cal.App.2d 203, 228, 12 Cal.Rptr. 604 (1961).) In the instant case, there was no evidence connecting the unidentified person who allegedly threatened the lives of Melvin Brown and Rita Limbrick with the commission of their murders.

IV

On the fourth day of its deliberations, the jury returned to the courtroom with verdicts finding defendant guilty of the offenses charged in counts I through IV of the information. When the jury was polled at defendant's request, one juror, Mr. Barnes, responded that the guilty verdict on count II was not his verdict. Outside the presence of the other jurors, the court and counsel questioned juror Barnes regarding his verdict on count II. Barnes confirmed his vote of not guilty on that count; he further stated that he wished to change his vote on count I to “not guilty.” The verdicts on counts III and IV were recorded. The court excused the jury for the day, ordering it to return the following morning for further deliberation on counts I and II (the murder charges against defendant) and counts V through VIII (all charges against codefendant Johnson). Defendant then moved for a mistrial on counts I and II on the ground that further deliberation would result in an attempt by the other jurors to put pressure on Barnes to change his vote to guilty on those counts. The court denied the motion for mistrial. The following day court and counsel met with the jury forewoman in chambers, at her request. She stated that Mr. Barnes was not following the court's instructions in that he refused to consider each case against defendant separately, and refused to deliberate with the other jurors. After conferring with counsel, the court announced its intention to reinstruct the jury on its duty to deliberate. Counsel for defendant objected to such reinstruction, and again moved for a mistrial; the motion was denied. The court then reinstructed the jury.[FN4] After further deliberating for 41/2 hours, the jury found defendant guilty of counts I and II. Defendant contends his conviction on these counts must be reversed because “the combined effect of the aforementioned proceedings was to coerce Juror Barnes into agreeing to find (defendant) guilty.”

A trial judge may attempt to obtain the jury's agreement on a verdict so long as his remarks to the jury do not amount to coercion to reach a particular verdict. (Witkin, Cal.Criminal Procedure, p. 537, s 526.) The basic test of coerciveness is whether the instructions and remarks of the court, viewed in the totality of applicable circumstances, operated to displace the independent judgment of the jury in favor of considerations of compromise and expediency. (People v. Carter, 68 Cal.2d 810, 817, 69 Cal.Rptr. 297, 442 P.2d 353 (1968); People v. Ozene, 27 Cal.App.3d 905, 913, 104 Cal.Rptr. 170 (1972).) Most cases where coercion has been found are those in which the judge urged agreement after learning that a majority of the jurors were for conviction; under such circumstances, coercion of the jurors in the minority resulted. (See People v. Carter, supra, 68 Cal.2d at p. 816, 69 Cal.Rptr. 297, 442 P.2d 353; People v. Baumgartner, 166 Cal.App.2d 103, 107-108, 332 P.2d 366 (1958); People v. Walker, 93 Cal.App.2d 818, 825, 209 P.2d 834 (1949).) In the final analysis, however, a judge's awareness of how the jurors stand numerically on the issue of guilt is not controlling, for “(w)hether statements of a trial judge amount to coercion of a verdict is peculiarly dependent upon the facts of each case.” (People v. Burton, 55 Cal.2d 328, 356, 11 Cal.Rptr. 65, 79, 359 P.2d 433, 447 (1961).)

In the present case the judge, when he reinstructed the jury, knew it was divided 11 to 1 for conviction on counts I and II. A careful reading of the judge's remarks and instructions (fn. 4) shows he merely informed the jury, in essence, that it was their duty to deliberate, to discuss, to keep an open mind, and to reach a verdict based on the evidence and the law as stated by the court. The following evaluation of the judge's comments in People v. Fain, 174 Cal.App.2d 856, 864, 345 P.2d 305 (1959), is applicable here: “(T)here was nothing in his words that was not a fair and reasonable statement of the law; there was no indication that he believed the evidence pointed in any particular direction; there was no direction or suggestion that the jury should agree immediately or at all; and it does not seem probable that the jury took a wrong inference from what he said.” In short, there was nothing in the judge's remarks and instructions herein which suggested an opinion as to what verdict should be reached, nor was there any improper pressure upon the jury to agree. The verdicts on counts I and II cannot be said to have been the result of coercion. Cases cited by defendant in which coercion was found are distinguishable from the present case. Thus, in People v. Carter, supra, 68 Cal.2d 810, 69 Cal.Rptr. 297, 442 P.2d 353, the lone dissenting juror was singled out in open court and questioned as to his understanding of the instructions reread by the court; the judge observed that the case was not “complicated”; and he threatened, in effect, to lock the jurors up for the night if a verdict were not reached in half an hour. In People v. Baumgartner, supra, 166 Cal.App.2d 103, 332 P.2d 366, the judge, aware that the jury stood 11 to 1 for conviction, gave a version of the Allen instruction, which stated in part that “if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his or her own mind is a reasonable one.”[FN5] (By way of contrast, the jurors in the present case were instructed that none of them should be influenced to decide any question in a particular way simply because of the opinion of the majority.) And in People v. Walker, supra, 93 Cal.App.2d 818, 209 P.2d 834, the judge, knowing the jury stood 10 to 2 for conviction, stated: “there are twelve of you, and ten one way and two the other, that is coming pretty close to an agreement”.

Defendant further contends a mistrial should have been declared because of misconduct by juror Barnes, as shown by the following statement made by him in explaining to court and counsel his “not guilty” vote on count II: “I feel like that there is not enough direct evidence or circumstantial evidence or inferences to apply the charge of murder on Mr. Johnson, and therefore, although the two gentlemen are tried separately, I don't think that we can thoroughly and deeply in our hearts convict one entirely without convicting the other one.” Neither of defendant's motions for mistrial was based on such alleged misconduct. Moreover, the case cited and relied upon by defendant in support of his claim of misconduct (People v. Guzman, 66 Cal.App.3d 549, 136 Cal.Rptr. 163 (1977)) is not in point. There, one juror proposed to the jury that they barter an acquittal of the codefendant for a conviction of the defendant. The record herein shows no such misconduct on the part of juror Barnes.

The judgment is affirmed.

I dissent.

The majority finds no merit in any of the contentions advanced by defendant. In my view, two contentions advanced by defendant are meritorious and mandate a reversal of the judgment of conviction.

I

A Prosecution Witness' Reference to Investigating Defendant on Another Murder Constitutes Reversible Error

In answer to a question on cross-examination which asked solely for a date, Police Officer Anslow answered: “That was some months before when we were investigating Jeffrey (the defendant) on another murder.” The trial court denied defendant's motion for a mistrial but struck the reference to a murder investigation and instructed the jury to disregard the stricken matter. While conceding the answer given by Officer Anslow to be error, the majority considers that the court's action in striking the answer and admonishing the jury was sufficient to preclude any prejudice to defendant. I disagree. Under the circumstances presented, I view the matter as constituting irrevocable prejudice to defendant. The failure of the trial court to grant defendant's motion for a mistrial constituted a miscarriage of justice requiring reversal of the judgment.

In the instant case, defendant was being tried for two murders and two robberies of the murder victims. The rule is well settled that when evidence is offered that defendant committed some offense other than the offense for which he is being tried, admissibility must be considered with care and extreme caution because such evidence is fraught with great danger of undue prejudice to defendant. The great danger of prejudice results from the fact that, even though relevant, a jury may take evidence that a defendant committed some other offense as justifying a finding of guilt in the case on trial. (See People v. Guerrero (1976) 16 Cal.3d 719, 129 Cal.Rptr. 166, 548 P.2d 366; People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267.)

Here, however, the danger of prejudice to defendant is even greater because Officer Anslow's reference to defendant and another murder is a speculative reference insofar as whether defendant committed an uncharged offense. In addition, the reference to defendant and another murder occurs in a case in which defendant is charged with two murders, and the evidence against him is all circumstantial evidence. This is exactly the type of situation in which a jury is likely to take the primrose path of finding that defendant is engaged in the business of committing murders, irrespective of the evidence presented in the instant case.

The assumption that the trial judge's action of striking Officer Anslow's answer and giving an admonition to the jury minimized or cured the prejudicial effect of what the jury heard is unfounded and ignores the realities of human nature and human experience. While I accept the premise that the jurors would do their best to remove from their minds the stricken reference to defendant and another murder, I am of the view that under the facts of this case a “ ‘(d)iscrimination so subtle is a feat beyond the compass of ordinary minds . . . . It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed.’ ” (People v. Antick (1975) 15 Cal.3d 79, 98, 123 Cal.Rptr. 475, 488, 539 P.2d 43, 56.)

II

The Trial Court's Instruction, Given After One Juror Had Announced in Open Court that he Did Not Agree with the Guilty Verdicts Reached by Eleven of the Jurors on the Two Murder Counts, Constituted Undue and Illegitimate Pressure on the Dissenting Juror To Agree with the Majority and Violated Defendant's Due Process Rights to a Fair Trial

Although the instruction given by the trial court after the jurors had been engaged in deliberations, was not the Allen charge held to be erroneous in People v. Gainer (1977) 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997, it was still an illegal instruction because it contained vices held impermissible by Gainer and other pertinent decisional law. The instruction given by the trial judge in the case at bench is set forth verbatim in footnote 4 of the majority opinion. Under the circumstances present in the instant case, this instruction is “objectionable as a judicial attempt to inject illegitimate considerations into the jury debates as an appeal to (a) dissenting (juror) to abandon (his) own independent judgment of the case against the accused.” (Gainer, supra, 19 Cal.3d 835, 849, 139 Cal.Rptr. 861, 868, 566 P.2d 997, 1004.)

I cannot agree with the majority that a careful reading of the trial judge's instruction before us shows merely that he informed the jury in essence that it was their duty to deliberate and discuss the evidence and the law with an open mind and reach a verdict based on the evidence, and the law as stated by the court. My analysis of this instruction leads me to conclude that there is only one reasonable interpretation of this instruction that it was designed to put pressure on the lone holdout juror Barnes, to vote for conviction on the two murder counts. The instruction, irrespective of the actual words used, told the dissenting juror to consider his own status as a dissenter in addition to weighing the evidence and applying the law. It therefore introduced into the case “a consideration both rationally and legally irrelevant to the issue of guilt.” (Gainer, supra, 19 Cal.3d 835, 848, 139 Cal.Rptr. 861, 868, 566 P.2d 997, 1004.)

The Gainer court then added: “The instruction does not escape this condemnation because it may be interpreted as requiring dissenters to merely ‘reexamine’ their views rather than to directly include majoritarian factors in the primary calculus of guilt. At best this reading strains the language of the charge. More significantly, minority jurors have no greater duty to ‘reexamine’ their views than do majority jurors. Finally, we should not hesitate to condemn an instruction which carries a strong implication that jurors should consider the preponderance of votes in forming their views simply because the charge subtly avoids an explicit statement of that proposition.” (Id. at 848, fn. 10, 139 Cal.Rptr. at 868, 566 P.2d at 1004.)

The instruction given in the instant case must be considered in light of the facts that it was known to the jury and the judge that juror Barnes was a lone dissenter on the two murder counts; that the foreman sought a conference with the court which was held with counsel present; that the foreman stated in this conference that juror Barnes was not following the court's instructions in that he refused to consider the case against each defendant separately and refused to deliberate with the other jurors. The trial court made no effort to determine the truth or falsity of the foreman's allegations against juror Barnes. After telling the jury that they knew he had this conference with the jury foreman, the court then started his instruction by telling the jury: “I have come to the conclusion that the problem basically is free and open deliberations of the jury.”

This opening sentence is an indictment of juror Barnes as the lone dissenter and constitutes an acceptance by the trial judge of the truth of the allegations of the jury foreman having heard only her side of the story. In addition, the court mentioned several times more that it was the duty of the jury to deliberate. At one point in the instruction the judge told the jury what he considered to be “basic to the whole jury system, that deliberations must be had with open minds, and it is the duty of each of you to follow the law as stated to you.” The court further emphasized the duty of jurors to follow the law as stated by the court by using this language: “I ask you again to follow your sworn oath to apply the law of the case and the evidence as you understand it.”

This emphasis upon “duty to deliberate” and “follow the law” finds its genesis in the jury foreman's statement to the court, made in an in-chambers hearing with only the attorneys present, that jurors Barnes, the dissenter, was the only one who was derelict in his duty. Even though the instruction studiously and with subtlety avoided any reference to any particular juror, the conclusion is compelling and inescapable that it was directed solely toward juror Barnes telling him that he was not deliberating with the other jurors and that he was refusing to follow the law as stated by the court. Implicit in this instruction is an expression by the court to the jury that Barnes was stubborn and that he should cease and desist from holding out for acquittal and join the other eleven jurors and find the defendant guilty of murder as charged in counts I and II of the information.

In my view, this constitutes coercion by the trial judge of the rankest sort. But what is worse it constituted coercion not simply to get the jury to reach a verdict but to reach a particular verdict a verdict of guilty.

The fact that the court sought to soften its coercive stance by saying it was not intending to emphasize any particular instruction is meaningless. Juror Barnes could only interpret the judge's remarks as being directed to him. The other jurors would understand the same thing since the eleven-to-one vote for conviction on counts I and II had been announced in open court. Under the circumstances, juror Barnes had no chance of converting any other jurors to his point of view; the trial court had said in this instruction, in unmistakable terms, that it was juror Barnes who was not following the law of applying the law properly to the facts. “The basic test of coerciveness has been stated to be whether the instruction and the remarks of the court, viewed in the totality of the circumstances, operated to displace the independent judgment of the jury in favor of compromise and expediency.” (People v. Ozene (1972) 27 Cal.App.3d 905, 913, 104 Cal.Rptr. 170, 175.)

In People v. Crossland (1960) 182 Cal.App.2d 117, 5 Cal.Rptr. 781, the trial court remarked to the jury that the case was probably the most simple one he had ever tried in his twelve years as a superior court judge, and that he had heard over a thousand trials. In holding that such remarks by the trial judge constituted jury coercion, the Crossland court stated that “we are unable to distinguish the case at bar from the decisions which hold that insistence upon further deliberation by the jury, coupled with statements that the case is clear or simple, constitutes coercion of the jury and requires reversal . . . .” (Crossland, supra, 182 Cal.App.2d 117, 119, 5 Cal.Rptr. 781, 782.)

In People v. Conboy (1910) 15 Cal.App. 97, 98, 113 P. 703, it was held prejudicial error for the trial judge to tell the jury that “there is no reason why 12 honest, intelligent, reasonable men should not reach a conclusion in this case, and I am surprised that you have not done so already.” Similar to Conboy is People v. Kindleberger (1893) 100 Cal. 367, 368, 34 P. 852, 853, in which the trial judge, after being informed that the jury had been unable to reach agreement, told the jury “that in view of the testimony in this case, the court is utterly at a loss to know why twelve honest men cannot agree in this case.”

In the case at bench, although the trial judge was not as forthright in his remarks to the jury as were the trial judges in Crossland, Conboy and Kindleberger, the implications of coerciveness stand out as a beacon light and with the same chilling effect as did the more obvious coercive language found in Crossland, Conboy and Kindleberger.

It is suggested that the trial judge indicated that he was not emphasizing any particular instruction in rereading a number of instructions to the jury. But the jury had not asked that these particular instructions, or any instructions at all, be read to them a second time. There was no need shown for any rereading of instructions. The jury had in the jury room for their deliberations all of the instructions which had been read to them prior to their deliberations. This must be assumed since the court gave CALJIC Instruction 17.45 which stated, in pertinent part: “The written instructions now being given will be made available in the jury room during your deliberations.” The phrase which follows “deliberations” “if you so request” was deleted from the printed instruction.

In this situation where the jury has all of the written instructions, any rereading of certain instructions must necessarily have the impact upon the jury that the judge considers the reread instructions to be more important than the others. This nullifies CALJIC Instruction No. 1.01 that tells the jurors they are not to single out any particular instruction and ignore the others but are to consider all the instructions as a whole.

Why did the trial judge feel the need of repeating CALJIC Instruction No. 1.01 which the jury had before it in the jury room? Why did the trial judge feel the need of repeating CALJIC Instruction No. 17.40 which tells the jurors that each juror must decide the case for himself, but should do so only after a discussion of the evidence and instructions with the other jurors, and that a juror should not hesitate to change an opinion if he were convinced that it was erroneous, and that no juror should be influenced to decide a question in a particular way because a majority of the jurors, or any of them, favored such a decision? This instruction had already been given and the jury had the written instruction in the jury room. Why did the trial judge decide that it was necessary to repeat CALJIC Instruction No. 17.41 which reminded each juror that he should not at the outset make an emphatic expression of his opinion on the case or state how he intended to vote because, in so doing, his sense of pride might be aroused and he might hesitate to change an opinion even if shown that it was wrong? This instruction also had already been given and the written instruction was in the jury room for jurors to read if any jurors so desired.

In the case at bench the conclusion is inescapable that the trial judge, with no request from the jury but relying upon the unsubstantiated allegations of the foreman, was using his judicial position to emphasize certain instructions in order to bring pressure to bear upon juror Barnes to surrender his independent judgment and vote with the eleven other jurors to find defendant guilty of the two murder offenses. In the words of United States v. Bailey (5th Cir. 1972) 468 F.2d 652, 662, the final charge given by the trial judge in the instant case “ ‘places the sanction of the court behind the views of the majority, . . . and tempts the minority juror to relinquish his position simply because he has been the subject of a particular instruction.’ ” The trial court's instructions constituted prejudicial error and precluded defendant from being given a fair trial.

I would reverse the judgment of conviction with respect to the murder charges.

FOOTNOTES

1.  In case No. A324075, a four-count information charged Larry Johnson with commission of the same felonies charged against defendant Anderson in case No. A323228. On the People's motion, case No. A324075 was consolidated with case No. A323228 as counts V, VI, VII and VIII thereof. Defendant and Johnson were jointly tried on the charges in the consolidated cases.

2.  Codefendant Johnson was found not guilty of counts V through VIII.

3.  At the hearing on defendant's motion for a new trial, the court stated: “On that point, it did not seem to me at the time that the officer's statement was calculated. Perhaps he could have left that last part of the answer out, that is, that last phrase off, but I do not believe it was totally unresponsive. I was quite certain at the time and I am still convinced that he did not calculate or intend to prejudice the jury. At any rate, the prejudice that may have resulted from that I think was the type, under the circumstances of the case, that was cured by the admonition I gave.”

4.  The jury was instructed as follows: “Now, ladies and gentlemen, of course, you know that I have had a talk with Miss Stuehrmann (the jury forewoman) at her request in chambers in the presence of the attorneys concerned in the case. I have come to the conclusion that the problem basically is free and open deliberations of the jury.“I'm going to read you some instructions, and I'm not going to read these instructions for the purpose of emphasizing anything to you, because, as you well know, each rule of law which has been stated to you in these instructions is as important as any rule of law if you believe it so. One of your duties is to decide the importance and applicability to the facts as you understand them of each rule of law that is stated in these instructions.“However, it may be that I do wish to, on the other hand, emphasize one concept not a rule of law, but a concept of the jury system, and that is the duty to deliberate, the duty to discuss, the duty to keep an open mind until a decision is firmly made with reason and in accordance with the facts as you understand them and the law as stated to you by the Court.“So with that in mind, I'm stating to you that it is the duty of the Court to instruct you in the law that applies to the case, and you must follow the law as stated to you. As jurors it is your exclusive duty to decide all questions of fact submitted to you, and for that purpose to determine the effect and the value of the evidence.“In determining whether the defendant is guilty or not guilty, you must be governed solely by the evidence received at the trial and the law as stated to you by the Court. You must not be governed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling.“Both the People and the defendants have a right to expect that you will conscientiously consider and weigh the evidence and apply the law of the case, and that you will reach a just verdict regardless of what the consequences of that verdict might be.“Now, if the Court repeats any rule now, I am repeating some of these instructions, but what I said before applies; I'm not giving you any emphasis on anything other than perhaps the duty of the jury to deliberate.“If the Court repeats any rule, direction, or idea, or states the same in varying ways, no emphasis thereon is intended, and you must not draw any inference therefrom.“You are not to single out any certain sentence or any individual point of the instructions and ignore the others. You are to consider all of the instructions as a whole and to regard each in the light of all the others.“Now, of course, in this case each count charges you have eight counts, you know. Each count charges a separate and distinct offense. You must decide each count separately on the evidence and the law applicable to it uninfluenced by your decision as to any other count. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each count must be stated in a separate verdict.“Now, both the People and the defendants are entitled to the individual opinion of each juror. It is the duty of each of you to consider the evidence for the purpose of arriving at a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after a discussion of the evidence and the instructions with the other jurors.“You should not hesitate to change an opinion if you are convinced it is erroneous. However, you should not be influenced to decide any question in a particular way because a majority of the jurors or any of them favor a decision.“Now, the attitude and conduct of the jurors at the beginning of their deliberations of course, you have passed that stage, but the problem is still the same at this juncture in your deliberations it is rarely productive of good for a juror at the outset to make an emphatic expression of his opinion on the case or to state how he intends to vote. When one does that at the beginning, his sense of pride may be aroused and he may hesitate to change an opinion even if shown that it is wrong. Remember that you are not partisans or advocates in this matter, but you are judges.“As I say, I'm not giving you these instructions again to emphasize them, but only to emphasize something that is basic to the whole jury system, that deliberations must be had with open minds, and it is the duty of each of you to follow the law as stated to you.“I wish you to retire to the jury room and resume your deliberations.“. . . yo“Ladies and gentlemen, there is one further instruction which it has been suggested by the attorneys that I read to you that may be helpful.“The rule in this case is that you must decide separately whether each of the two defendants is guilty or not guilty. If you cannot agree upon a verdict as to both the defendants but do agree on a verdict as to one of them, you must render a verdict as to the one upon which you agree.“Again, I say I reread these to you for the purpose of restarting your deliberations in the hope that you will be successful.“I ask you again to follow your sworn oath to apply the law of the case and the evidence as you understand it.“With that, you may further deliberate.”

5.  In People v. Gainer, 19 Cal.3d 835, p. 852, 139 Cal.Rptr. 861, p. 870, 566 P.2d 997, p. 1006 (1977), our Supreme Court concluded that it is error to give an instruction of this type, stating: “(B)oth controversial features of the Allen -type charge discussed herein inject extraneous and improper considerations into the jury's debates. We therefore hold it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried.” The Supreme Court further concluded that such rule is applicable to all cases not yet final as of the date of the decision (i. e., August 31, 1977). The instruction given by the trial court in the present case contains neither of the objectionable features condemned in Gainer.

DUNN, Associate Justice.

KINGSLEY, Acting P. J., concurs.

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