PEOPLE v. OLSON (1984)

OPINION

Defendant Michael Myron Olson appeals following a judgment of conviction of kidnaping while armed with a deadly weapon.  (Pen.Code, §§ 207, 12022, subd. (a).)  We affirm.

I. FACTS

On November 16, 1980, defendant, a Los Angeles dentist, went to the cabin of Ronald Brandon in the Greeley Hill area of Mariposa County and asked if Ronald had seen his (Ronald's) brother, James Brandon.   Ronald said that he had not.   Unknown to defendant, James was occupying a pickup camper shell about 50 feet from Ronald's cabin, and had earlier asked Ronald not to tell defendant where he (James) was because he and defendant were having a disagreement.   Ronald and James were acquainted with defendant through their father, Irv Brandon, a friend of defendant's.   Although Ronald did not know it at that time, defendant was seeking James because the latter owed him $50,000.

After accompanying Ronald to take a phone message to a neighbor, defendant said that he had to leave and asked Ronald to come to his (defendant's) car to say hi to “Vicky.”   As they walked toward where defendant's car was parked, defendant again asked Ronald if he knew where James was, and Ronald again said no.   At that point, Ronald saw a man running down a road armed with a rifle or a shotgun.   Defendant then pulled a snub-nosed revolver, grabbed Ronald's arm and said that Ronald was coming to Los Angeles because that was the only way defendant could find James.

Ronald broke away and ran, but was pursued and tackled by two men, getting cut as he fell into a barbed wire fence.   As one of the pursuers held Ronald in an arm lock, defendant arrived, and then all three walked Ronald to two cars parked nearby.   Ronald was placed in the back seat of one car with one of the men, Andrew Garcia, while the other, David Paschal, was told by defendant to “Call me” or “Meet me.”   Both cars then drove toward Modesto.

Ronald's abduction had been observed by a neighbor, Charles Sudberry, who had earlier noted the license numbers of the two cars because Ronald had indicated that defendant made him (Ronald) uncomfortable.   He had also seen two armed men running, one armed with a rifle or a shotgun and the other with a handgun.   These men took part in the abduction.   Sudberry pursued the two cars in his own car, then returned to his house to get another car, and set off in pursuit of Ronald and his abductors again, this time accompanied by James.   When they could not locate Ronald, they notified the police.

As Ronald was being driven toward Modesto, Garcia examined Ronald's cuts and said “That wasn't supposed to happen.”   In response to a question by Ronald, Paschal said “We're just doing our job.”

California Highway Patrol Officer Robert Jeffre, on patrol near Modesto, received a radio report of the kidnaping, saw a car matching the description of one of the suspect vehicles, and after obtaining backup assistance and confirming that the license number of the vehicle matched the broadcast information, stopped the suspect car.   As his vehicle was pulled over, Paschal said “It's all over.”   Garcia and Paschal were arrested and Ronald was taken to a hospital.   Officer Jeffre searched the suspect car and seized two loaded shotguns, a 38-caliber revolver, two ski masks, two pairs of gloves, and live ammunition.

Defense Case

Defendant testified that he was a dentist and a close friend of Irv Brandon and the latter's sons Ronald and James.   Defendant had loaned James $50,000 in May 1980, after having taken out a 90-day loan himself, and although Irv had promised to repay the money if anything happened to James, neither Irv nor James had repaid the loan.

On November 15, 1980, defendant, Vicky Jew, Andrew Garcia and David Paschal, in two cars, drove to Greeley Hill, arriving in the early morning.   Garcia and Paschal were going to somewhere outside of Yosemite to shoot firearms, and defendant and Jew were intending to see a friend of Jew's about borrowing some money.   Defendant stopped at Ronald's to talk with him personally about locating James.   Defendant told Ronald about the $50,000 that James owed, and as they walked to defendant's car after visiting a neighbor's house, Ronald offered to go to Los Angeles to help look for James.   Ronald said that he had to lock his cabin and leave a note, so defendant drove off, leaving Garcia and Paschal to wait for Ronald.

II. MOTION TO SUPPRESS

Defendant contends that items of physical evidence seized by the police from the car in which the victim was being transported by Paschal and Garcia were irrelevant and thus improperly admitted into evidence against him.   Taken from the car were a pistol, a pump shotgun, a sawed-off shotgun, two pairs of gloves, two ski masks, and ammunition.

 Rules concerning the admissibility of weapons have two elements:  (1) where the specific weapon used to commit the charged crime is not known, weapons having been connected to the defendant may be admitted as circumstantial evidence that the defendant committed the crime;  (2) where the prosecution relies upon a specific weapon, evidence that the defendant possessed other weapons is irrelevant and tends to show only that the defendant is the kind of person who possesses weapons.  (People v. Riser (1956) 47 Cal.2d 566, 577, 305 P.2d 1;  People v. DeVaney (1973) 33 Cal.App.3d 630, 635, 109 Cal.Rptr. 276;  People v. Rinegold (1970) 13 Cal.App.3d 711, 720–721, 92 Cal.Rptr. 12;  see People v. Daniels (1969) 71 Cal.2d 1119, 1143, fn. 16, 80 Cal.Rptr. 897.)

 In the present case, the evidence established that defendant, Paschal and Garcia acted in concert to kidnap the victim;  defendant was armed with an unidentified pistol, and Paschal and Garcia were seen to have been armed with some kind of long weapon and a pistol.   Since the pistol found in the car was registered to the defendant, and one of the shotguns so found was registered to his female companion, the relevance of these guns is apparent.   The admission of the other gun added little to the jury's knowledge gained from evidence correctly admitted.  (People v. Riser, supra, 47 Cal.2d at p. 577, 305 P.2d 1.)

 There was no testimony by any witness regarding the use by the kidnapers of gloves or ski masks.   The logical connections between facts material to defendant's guilt or innocence and the gloves and ski masks seized from the kidnaped car are tenuous at best.   Given the state of the other evidence against defendant, we conclude that any error in admitting the challenged nonweapon items was harmless.  (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)

III. JURY PANEL

Defendant repeats on appeal his very narrow challenge to the jury panel from which his jury was selected, made on the grounds that the Mariposa County Superior Court did not comply with the provisions of Code of Civil Procedure sections 200 and 201a.¹

An identical claim was made by the defendant in People v. Powell (1974) 40 Cal.App.3d 107, 115 Cal.Rptr. 109, a murder case in which a broad, multifaceted attack was made upon the panel of jurors.   In that case, the defendant attempted to show that the method of selecting persons for the venire resulted in a disproportionate exclusion of blacks, that the method of granting exemptions and exclusions from the venire had the same effect, and that a screening test designed to exclude incompetent jurors also impermissibly kept blacks from the jury panel.  (Id., at pp. 124–142, 115 Cal.Rptr. 109.)   In a lengthy discussion, the Court of Appeal rejected the statistical methods advanced by the defendant and held that he had not met his burden of proving that any identifiable group had systematically been excluded from jury service.  (Id., at pp. 133, 141–142, 115 Cal.Rptr. 109.)

In the present case, defendant has made no attempt to show that any identifiable group has been excluded from jury service.   His single complaint is that the relevant statutory provisions governing the granting of exemptions and exclusions from the venire have not been complied with, i.e., that a technical “violation” of Code of Civil Procedure sections 200 and 201a deprived him of a jury panel composed of a fair cross section of the community, regardless of whether any group was actually excluded.

The “violation” of the relevant statutes arises as follows:  because Code of Civil Procedure section 200 provides, in part, that “[t]he court shall excuse a person from jury service” for specified reasons (emphasis added), and because the Mariposa County Superior Court had not adopted “written rules and regulations supplementary to such rules as may be adopted by the Judicial Council ․ whereby the jury commissioner ․ shall be empowered to grant excuses from jury service” (Code Civ.Proc., § 201a), the jury commissioner (county clerk) and her deputies in that county were free to use capriciously their power to grant exclusions for hardship to exclude (unidentified) groups from jury service.   Defendant did not allege that any such group had actually been so excluded, nor did he make any attempt to prove that the subject officials actually misused the power given them, or that the jury panel was not representative of the community.   Merely the opportunity to wrongfully exclude a community subgroup is sufficient, in defendant's view, to render his conviction invalid.

Powell, supra, expressly rejected this argument:

“[T]he absence of any fixed standard should not be condemned.   It appears to us that the Jury Commissioner and his staff attempted to use common sense in determining if a prospective juror should be excused․   We are impressed that [the] primary motivation [of the officials] was the recruitment of competent jurors.   Nothing shows that they applied a different standard with respect to different classes or ethnic groups.   While this method is admittedly fluid, it is better that this program be one of recruitment than one of conscription.  [Citations.]”   (People v. Powell, supra, 40 Cal.App.3d at p. 134, 115 Cal.Rptr. 109.)

Since Powell was decided, in 1978, Code of Civil Procedure section 201a was amended ² so that its authorization (“the superior court ․ may adopt” (emphasis added)) became a command (“[t]he superior court ․ shall adopt” (emphasis added)) to adopt the supplementary rules or procedure called for by the statute.   Defendant appears to argue that the amendment demonstrates a legislative intent to overrule Powell and requires strict enforcement of the statute, upon pain of invalidation of any convictions resulting from verdicts of the contaminated panels.

 General precepts of statutory interpretation, that the intent of the Legislature be effectuated and that said intent be derived from the language of the enactment (see Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658, 147 Cal.Rptr. 359, 580 P.2d 1155) are of little value in determining whether the amendment of “may” to “shall” was intended by the Legislature to invalidate all convictions occurring in Mariposa County (and any other county which has not adopted written guidelines as called for by Code Civ.Proc., § 201a) after the effective date of the amendment, for such would be the effect if defendant's assertions are accepted by this court.   It cannot be denied that the vesting of unregulated discretion in county officials to excuse jurors for hardship does permit those officials, if corrupt or evil, to manipulate such exclusions so as to control the composition of the jury venire.   It is also evident that the Legislature intended to limit the discretion of the county officials by mandating that the superior court adopt written guidelines to govern the granting of hardship exclusions.   The issue presented by the present appeal is whether the failure to adopt such guidelines, in absence of any evidence that the jury panel resulting from the granting of hardship exclusions was unrepresentative in any way, requires that a conviction resulting from the verdict of a jury panel so selected be reversed.

Recognizing that “ ‘[t]he right to a fair and impartial jury is one of the most sacred and important of the guarantees of the Constitution,’ ” and that “ ‘[w]here it has been infringed ․ a conviction by a jury so selected must be set aside,’ [citations]” (People v. Wheeler (1978) 22 Cal.3d 258, 283, 148 Cal.Rptr. 890, 583 P.2d 748) it does not follow, as defendant suggests, that the technical violation of the Code of Civil Procedure sections relating to the granting of hardship exclusions and exemptions from jury service justifies a reversal of his conviction.   This is not a case where flagrant and/or intentional government violation of individual rights has so infected the administration of justice that the entire process must be abandoned in order to isolate the constitutionally toxic illegality.   Defendant has shown nothing more than that the county authorities made good faith efforts to accommodate the citizens selected at random to form the jury venire, and that the superior court failed to comply with the express terms of Code of Civil Procedure section 201a.   Without some demonstration that these actions and omission resulted in an unfair or biased jury, his conviction, if otherwise valid, should not be discarded.³

IV. JUROR EXEMPTION

 During voir dire, defendant requested that a juror be “exempted” because he was a park employee, which, he claimed, made him exempt as a “peace officer” as defined in section 830.2 of the Penal Code.   The request was denied, and he was forced to use a peremptory challenge.   He cites this as reversible error.

It is not necessary to reach the issue as to whether the juror was exempt, for one who is exempt from jury service is not thereby made incompetent to serve.  (Code Civ.Proc., § 199 specifies who is incompetent—persons who are exempt from jury service are not.)   An exemption is personal to the juror;  if he does not chose to claim it, he may serve.

It was not error to deny defendant's claim of an exemption on behalf of juror Horner.

V. EXTRAJUDICIAL STATEMENTS

The victim, Ronald Brandon, testified that when he asked defendant's companions, while they were driving him to Modesto, why they were “doing this,” Paschal responded “We're just doing our job.”   Brandon also testified that, when Paschal saw the flashing red lights of pursuing police vehicles, the latter said “Its all over.”   Defendant asserts that these statements (1) were inadmissible hearsay (2) if admissible, violated his Sixth Amendment right to confront the declarant, Paschal, who did not testify at trial and (3) that the Sixth Amendment error was not harmless beyond a reasonable doubt, and thus requires reversal.

A. Admissibility As Hearsay

The trial court admitted the statements under the coconspirator exception to the hearsay rule pursuant to Evidence Code section 1223.⁴  Defendant does not appear to contest the sufficiency of evidence of conspiracy at the time the statements were adduced.⁵  He also admits that there was sufficient evidence that Paschal made the statements while participating in the alleged conspiracy.   His complaint is that the statements were not made “in furtherance” of the conspiracy, and thus not within the exception.

We have been unable to find any reported California opinion which focused its inquiry upon the “in furtherance” requirement to any significant extent.   The usual question is whether the declaration at issue has been made during the pendency of the conspiracy, and the cases by a large predominance involve statements made either just before or just after the conspiracy has ended, admissibility turning upon which of those alternatives is applicable.   Nevertheless, we agree with the concurring and dissenting opinion of Justice Sullivan in People v. Saling (1972) 7 Cal.3d 844, 856, 103 Cal.Rptr. 698, 500 P.2d 610, that the “in furtherance” requirement serves the salutary purpose of narrowing the conspiracy exception to the hearsay rule so as to exclude unreliable evidence which does not come within the original justification for the exception.  (Id., at pp. 858, 859–860, 103 Cal.Rptr. 698, 500 P.2d 610.)

 Although the Model Code of Evidence, rule 508, subdivision (b) (1942) ⁶ replaced the requirement that a declaration be in furtherance of the conspiracy with a “relevance” standard, and the Uniform Rules of Evidence, rule 63, subdivision (9)(b) (1953) followed suit,⁷ the California Law Review Commission, in its report to the Legislature prior to enactment of the Evidence Code, retained the “in furtherance” language with no reason given for the alteration of the Uniform Rules language.  (Tent. Recommendation and Study Relating to the Uniform Rules of Evidence, art. VIII, Hearsay Evidence (Aug. 1962) 6 Cal.Law Revision Com.Rep. (1964) Appendix, p. 322.)   In accordance with the commission's recommendation, Evidence Code section 1223 was adopted with the “in furtherance” requirement included.   We note that rule 801, subdivision (d)(2)(v) of the new Uniform Rules of Evidence (1974), classifies as not hearsay a statement which is offered against a party and is “a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.”   It thus appears that the trend of modern legal thought and the intent of the California Legislature both support the continued vitality of the “in furtherance” requirement for admissibility of a coconspirator's hearsay declaration.

The requirement that the statement be in furtherance of the conspiracy serves to protect an accused from the idle chatter of criminal partners or deliberately fabricated evidence.  (United States v. Layton (9th Cir.1983) 720 F.2d 548, 556.)   Merely narrative declarations are not admissible, but if the statement furthers the common objectives of the conspiracy, it is.  “In short, [the statement] must assist the conspirators in achieving their objectives.”  (Ibid.)

 Paschal's first statement—“We're just doing our job”—had a tendency in reason to pacify a distraught Ronald Brandon who was being transported over a public highway in full daylight, and who might otherwise be expected to try to do something rash during the trip to call some motorist's attention to his plight.   The statement was not idle chatter—it was made in response to a question from the victim.   It was not narrative in nature.   The chance of it being deliberately fabricated is remote indeed.   The evidence was, therefore, admissible.

 The other statement—“It's all over”—did nothing to damage defendant's case.   If the jury was to believe any part of Brandon's testimony, he was abducted, either at defendant's order or as a result of independent action of Paschal and Garcia.   A statement to the effect that the “jig is up” did nothing to point the finger at defendant.

B. Sixth Amendment/Confrontation Issues

 Admission of hearsay under the coconspirator exception does not violate a defendant's right to confrontation under the 6th Amendment.  (People v. Brawley (1969) 1 Cal.3d 277, 288–291, 82 Cal.Rptr. 161, 461 P.2d 361;  People v. Dominguez (1981) 121 Cal.App.3d 481, 496, 175 Cal.Rptr. 445;  People v. Pic'l (1981) 114 Cal.App.3d 824, 874–877, 171 Cal.Rptr. 106.) ⁸

C. Prejudice

Finally, we note that if the admission of the statements was erroneous, the trial court ruling was harmless beyond a reasonable doubt.

 There was direct testimony by the victim that defendant initiated the kidnapping by pulling a pistol, and corroboration of much of the victim's testimony as to the events surrounding his seizure through the testimony of witness Sudberry and the ownership of two of the guns found in the Garcia-Paschal car.   The defense was the all-or-nothing assertion of complete innocence, without offering any explanation as to why Paschal and Garcia would have kidnapped the victim without the knowledge or direction of defendant, to whom the victim's relatives allegedly owed $50,000.   Defendant's version of events was simply not believed by the jury, and the extrajudicial statements of Paschal could not have added much to the balance against him.

VI. AIDING AND ABETTING INSTRUCTION

After this matter was submitted for decision, our Supreme Court handed down People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318.   Beeman was convicted of assorted offenses on the theory that he aided and abetted two others;  he was not present during the crimes.   The trial court instructed the jury with CALJIC No. 3.01.⁹  The instruction did not require proof that the defendant rendered aid with an intent or purpose of either committing, or of encouraging or facilitating commission of, the offenses.   According to defendant's testimony, he told the two persons who committed the offenses against defendant's relative that he wanted no part of the scheme.   He claimed he took action to collect and return the property taken.   The jury requested clarification of the law of aiding and abetting, whether inaction could mean that the defendant was guilty, and what one must do to “absolve himself” from the crime.   Although requested, the trial court refused to modify the CALJIC instruction as suggested in People v. Yarber (1979) 90 Cal.App.3d 895, 916, 153 Cal.Rptr. 875.   The judgment was reversed, our Supreme Court resolving a conflict between appellate opinions and finding that the aider and abettor must have an intent or purpose to commit or assist in the commission of the criminal offenses;  it was not enough that the aider and abettor engage in the required acts with knowledge of the perpetrator's criminal purpose.   The court stated:

“Thus, we conclude that the weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.”  (People v. Beeman, supra, 35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)

The error was deemed prejudicial because Beeman's defense focused on the question of his intent.   There was considerable evidence to indicate that the defendant had aided the robbery, but the defendant claimed that his purposes in doing so were innocent, and that he did not think that the robbery would occur.  “Thus, the essential point of his defense was that although he acted in ways which in fact aided the criminal enterprise, he did not act with the intent of encouraging or facilitating the planning or commission of the offenses.”  (At p. 562, 199 Cal.Rptr. 60, 674 P.2d 1318.)   Since the jury's questions to the court during deliberations were focused on this very issue, the error was reversible under any standard of review.

The defendant in the instant case has requested this court to consider the alleged instructional error in the giving of CALJIC No. 3.01 in the light of Beeman.   We issued an order vacating the submission so that we could consider the issue.

We note that Beeman is retroactive.  (People v. Darwiche (1984) 152 Cal.App.3d 630, 639–640, 199 Cal.Rptr. 806.)

 The giving of the instruction in the form of CALJIC No. 3.01 was error.   We need not address the issue of the appropriate test of prejudice—that is, whether we apply the People v. Watson, supra, 46 Cal.2d 818, 299 P.2d 243 harmless error test or the more stringent harmless beyond a reasonable doubt test in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705—because under either test, the error is not reversible.

In the instant case, unlike in Beeman, the defense amounted to a complete denial of the kidnaping offense.   According to the defendant, Ronald Brandon voluntarily agreed to return to Los Angeles to attempt to locate his brother (who, in fact, was hiding but a few feet from the scene of the kidnap).   Defendant denied pointing a gun at the victim and claimed he had departed the scene before Brandon got into the car with Garcia and Paschal.   The prosecution evidence, on the other hand, consisted of two eyewitness accounts of defendant actively participating in the kidnap.   This is unlike the Beeman case where it was undisputed that Beeman was not present during the crime.   Beeman contended that his motive was to return the stolen articles.   In the instant case, it is undisputed that it was the defendant, Olson, who desired to collect a $50,000 debt from the victim's brother.   This was ample motive of a conspiracy to kidnap.   Defendant's involvement in the offense was direct and active.   The defense never advanced a plausible explanation of why Garcia and Paschal would have acted independently to kidnap and transport the victim to Los Angeles.

In Beeman, the jury focused on the intent issue and asked for direction from the court in that regard.   In the instant case, the jury made the following request:  “We request information from the Judge concerning gun involvement and explanation of forms;  also define the term ‘principal’ ”.   The court then read CALJIC Nos. 3.00, 3.01 and 17.15.   CALJIC No. 17.15 relates to the jury's duty to return an armed finding where a defendant or a “principal” in the commission is armed.   The evidence in this case showed that defendant pulled a gun on Brandon but that weapon was never recovered.   Thus, the jury's question almost certainly stemmed from preoccupation with that concern, rather than defendant's liability for the kidnaping offense.   The fact that the jury returned a guilty verdict and armed finding within 30 minutes of this reinstruction also leads to the reasonable inference that any confusion on their part was short-lived and insignificant.   This contrasts sharply with the situation in Beeman where the jury's questions very clearly indicated their concern went to the heart of the defense and it took two hours to reach a verdict after reinstruction.

There was clear proof of defendant's guilt.   His feeble defense was absurd.   We find that the error was harmless beyond a reasonable doubt.  (Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. at p. 828.) ¹⁰

VII. SENTENCING

 The due process considerations applicable to a sentencing hearing are not identical to those appropriate to trial on the issue of guilt;  a defendant who complains of due process error at sentencing is entitled to relief only if the hearing procedures are fundamentally unfair.  (People v. Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220.)  “Reliability of the information considered by the court is the key issue in determining fundamental fairness.”  (Id., at pp. 754–755, 150 Cal.Rptr. 778, 587 P.2d 220.)

Defendant complains of the probation report's inclusion of hearsay statements made by defendant's companions Garcia and Paschal taken from a police report, hearsay statements made by Paschal to the probation officer, and the information that Paschal was murdered prior to being sentenced on identical charges.   Defendant concedes that the report may contain hearsay information (People v. Barajas (1972) 26 Cal.App.3d 932, 939, 103 Cal.Rptr. 405), but argues that the challenged material was “inflammatory” and “irrelevant”.

 The trial court's discretion in sentencing should not be disturbed on appeal absent a clear showing of abuse;  abuse is shown when the court exceeds the bounds of reason.  (People v. Sanchez (1982) 131 Cal.App.3d 718, 740, 182 Cal.Rptr. 671.)   The appellate court must presume that the sentencing court was not influenced by irrelevant matter contained in the probation report.  (People v. Ozene (1972) 27 Cal.App.3d 905, 915, 104 Cal.Rptr. 170.)   As pointed out by the People, the probation officer was required to include the information about Paschal's murder by California Rules of Court, rule 419(a)(2), which provides that the report shall include “information concerning any co-defendants and the status or disposition of their cases.”

Defendant makes no legal attack on the sentence imposed (middle term of five years plus one-year weapons enhancement), and the main source of his outrage appears to be his failed expectation that as a dentist and first time offender, he would receive probation.   There has been no showing of an abuse of discretion by the sentencing court, or that the information relied upon by that court was unreliable, resulting in fundamental unfairness.

VIII. CONCLUSION

The judgment is affirmed.

FOOTNOTES

1.   Code of Civil Procedure section 200 provides as follows:“The court shall excuse a person from jury service upon finding that the jury service would entail undue hardship on the person or the public served by the person.”Code of Civil Procedure section 201a provides:“The superior court in each county or city and county shall adopt written rules and regulations supplementary to such rules as may be adopted by the Judicial Council establishing a procedure whereby the jury commissioner of said county or city and county shall be empowered to grant excuses from jury service to such prospective jurors who in the opinion of the jury commissioner qualify for excuses under Section 200.”

2.   Statutes 1978, chapter 718, section 2, page 2247.

3.   Defendant cites United States v. Coleman (E.D.Mich.1977) 429 F.Supp. 792, a federal case in which federal grand jury indictments were dismissed because the federal clerk did not follow proper statutory procedure in formulating potential juror lists, as authority for the proposition that even a technical violation of statutes governing juror selection requires dismissal of charges.   Besides noting that such federal precedent is not binding upon the Court of Appeal (San Francisco Bay Area Rapid Transit Dist. v. Superior Court (1979) 97 Cal.App.3d 153, 161, 158 Cal.Rptr. 627), it should also be noted that the federal courts are not unanimous in finding that failure to precisely follow jury selection procedures taints criminal procedures.  United States v. Tarnowski (E.D.Mich.1977) 429 F.Supp. 783, decided at the same time as Coleman, reached the exact opposite conclusion.   Subsequent cases have held that there must be substantial failure to comply with statutory procedures to warrant dismissal, and that excusal of jurors by the clerk was not a substantial failure to comply where there was no showing that the clerk made a significant number of erroneous determinations.  (See United States v. Layton (N.D.Cal.1981) 519 F.Supp. 946, 953–954.)Defendant's citation of Dorshkind v. Harry N. Koff Agency, Inc. (1976) 64 Cal.App.3d 302, 134 Cal.Rptr. 344 is inapposite.   Contrary to custom, the trial judge appointed the jury foreperson.   The appellate panel reversed on the ground that this infringed upon the independence of the individual juror by impliedly indicating to them that the foreperson so selected is, in the court's view, entitled to deference.   In Dorshkind, the court's mistake resulted in a manifestly obvious result.   In the instant case, there is no indication that the jury as selected was unrepresentative.

4.   Evidence Code section 1223 provides:“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:“(a) 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;“(b) The statement was made prior to or during the time that the party was participating in that conspiracy;  and“(c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court's discretion as to the order of proof, subject to the admission of such evidence.”

5.   There had already been ample testimony that defendant, Paschal and Garcia had mutually carried out the victim's kidnapping at the time the victim testified as to Paschal's statements.

6.     “Evidence of a hearsay declaration is admissible against a party to the action if the judge finds that ․ [¶] (b) the party and the declarant were participants in a plan to commit a crime or civil wrong and the hearsay declaration was relevant to the plan or its subject-matter and was made while the plan was in existence and before its execution was complete ․”In the comment, the committee stated:“Clause (b) does not accept the rule as generally stated with reference to declarations of co-conspirators and willful joint-tortfeasors, which holds the declaration inadmissible unless made in furtherance of the conspiracy.   Numerous decisions, however, receive against one conspirator evidence of any statement made during the conspiracy by a co-conspirator concerning the conspiracy, despite the lack of a showing that the statement was made in furtherance of the conspiracy.   With these clause (b) agrees․”

7.     “As against a party, a statement which would be admissible if made by the declarant at the hearing if:  ․ [¶] (b) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination․”

8.   Defendant asserts that even admissible extrajudicial statements would violate his right to confrontation, citing People v. Claxton (1982) 129 Cal.App.3d 638, 181 Cal.Rptr. 281 and People v. Coble (1976) 65 Cal.App.3d 187, 135 Cal.Rptr. 199.   However, both of those cases involved hearsay admitted under the “statement against penal interests” exception of Evidence Code section 1230, and neither mentioned or considered the holding of People v. Brawley, supra, 1 Cal.3d 277, 82 Cal.Rptr. 161, 461 P.2d 361.  (See People v. Claxton, supra, 129 Cal.App.3d at pp. 664–666, 181 Cal.Rptr. 281;  People v. Coble, supra, 65 Cal.App.3d, at pp. 193–197, 135 Cal.Rptr. 199.)

9.   CALJIC No. 3.01, as given to the jury, reads in part:“A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.”

10.   We note that the Supreme Court has impliedly refused to apply the per se error analysis of People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913 to the instructional error complained of here.   In People v. Beeman, supra, the high court discussed the various standards for assessing prejudice and concluded that under the most lenient—People v. Watson, supra,—Beeman had been prejudiced.  (Beeman, supra, 35 Cal.3d at p. 563, 199 Cal.Rptr. 60, 674 P.2d 1318.)   The court then stated:  “Because we reverse under Watson we do not in this case decide whether failure to correctly instruct on the element of criminal intent should as a general rule be reviewed under a stricter rule of harmless error.”  (Ibid., emphasis added.)   It thus appears that some form of harmless error analysis should be used in such cases.   Here, under the strictest harmless error standard, it is evident that defendant was not prejudiced by the trial court's instructional error.

ANDREEN, Acting Presiding Justice.

WOOLPERT and MARTIN, JJ., concur.