PEOPLE v. VALENZUELA (1968)

OPINION ON DENIAL OF REHEARING

Appellant seeks a rehearing and the taking of further evidence to establish, as his attached declarations purportedly show, that when the jury waiver was taken in this case the door between the chambers and the courtroom was actually closed and neither the public nor the press was invited into the chambers.¹

While it is questionable whether additional evidence may be taken on a criminal appeal (see People v. Benford, 53 Cal.2d 1, 7, 345 P.2d 928; People v. Merriam, 66 Cal.2d 390, 397, 58 Cal.Rptr. 1, 426 P.2d 161) we need not decide the point at this time. We may assume, Arguendo, that it May be done. (See Cal.Rules of Court 23(b).) But to do so here would be futile because if state constitutional error were thereby proven, such error under the circumstances of this case would be nonprejudicial. (See Cal.Const. art. VI, s 13; People v. Watson, 46 Cal.2d 818, 834—837, 299 P.2d 243; People v. Bostick, 62 Cal.2d 820, 824—826, 44 Cal.Rptr. 649, 402 P.2d 529.)

The petition for rehearing and leave to take additional evidence is denied.

FOOTNOTES

1.  In the counterdeclaration of the Assistant District Attorney of Ventura County it is alleged that a second door into the chambers, the one from the visitor's reception area, was open throughout the waiver proceedings.

PER CURIAM.

SHINN, J., concurs in the order denying rehearing. Hearing denied; PETERS and TOBRINER, JJ., dissenting.