Opinion
For Opinion on Rehearing, see 43 Cal.Rptr. 131.
Sandford R. Willford, Los Angeles, under appointment by the District Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Paul N. Wenger, Deputy Atty. Gen., for plaintiff and respondent.
JEFFERSON, Acting Presiding Justice.
A jury found defendant guilty of two counts of burglary (Pen.Code, § 459). He appeals from the judgment.
The evidence established that two bars, Jonesy's Cocktail Lounge and Ferdy's Bar, had been burglarized and that a certain amount of money and liquor had been taken. The chief prosecution witness, Virgil Lamproe, testified that he and defendant had committed the burglaries. Corroborating this testimony, there was evidence that a chip of glass found in defendant's car, which Lamproe testified had been used to haul the loot, came from one of the stolen bottles of liquor; also, that a portion of the stolen money was found buried in the back yard of defendant's residence.
Though defendant offered no formal defense, in his argument to the jury, he denied participation in either of the burglaries and claimed an alibi.
One of the contentions raised by defendant, who represented himself at the trial, is that the trial court should have granted him a new trial because of bias against him by a member of the jury which was concealed by a false answer on voir dire examination.
During the voir dire examination of the jury, juror Alvin C. Tucker responded to questioning by the court, as follows:
'Q [the Court] Do you know the Defendant here?
'A [Mr. Tucker] In a 'round about way. I knew him through the kids when they was going to school.
'Q Is there anything in that acquaintanceship that would cause you to be biased or prejudiced against him? (Emphasis added.)
'A No, sir.' In support of his motion for new trial defendant filed an affidavit executed by Mr. Tucker which states as follows:
'I, Alvin C. Tucker, hereby certify and declare:
'I reside at 754-20 Street, Paso Robles, California and am a mechanic at the Chevrolet Garage, Paso Robles, California. I have lived in Paso Robles and in this County for approximately the last 22 years.
'I was one of the jurors on the trial of the above-entitled case in the Superior Court. There was one other juror who resides in Paso Robles and has for many years last past, Louis J. Claassen of 344-14 Street, Paso Robles.
'Betty J. Paaske and Herbert A. Van Horn, both of whom reside in Atascadero, were also on the jury.
'I had personally known of Martin 'Junior' Sanchez through my children since they attended Paso Robles Union High School at the same time Sanchez was enrolled as a student and was an athlete there. I would say I have personally known of him for about the last 10 years. Like the other permanent residents of Paso Robles and the northern part of our county, I have known through the press, local radio and conversation of the general reputation of 'Junior' Sanchez, defendant in the case we tried, for truth, honesty and integrity--which was bad and for being frequently suspected of, and, at least once before the case we tried, convicted of, burglary. I knew that inquiries regarding him were frequently made by the police during the last few years and that the general opinion of the community was that it was only a question of time before he would be put away.
'In the jury room, during our deliberations, it was necessary for some of the 'local' jurors to, and we did, point out to the jurors from the south end of the county that the statements relative to his alibi, such as being asleep in a car at the time the burglaries occurred, and the like, made by Sanchez during his 'argument' were not sworn testimony and had to be disregarded under the judge's instructions to us. The 'argument'--or 'unsworn testimony'--of Sanchez was impressive and the fact that he was apparently in a car with the witness Lamproe when the police just arrested Lamproe only--without arresting Sanchez--backed up the probability under his unsworn statements that Lamproe was not only the first and proper suspect and guilty but that he had deliverately thrown the blame upon a man of bad reputation that he knew the police wanted--but who was innocent in this particular case--in order to make things easier upon himself.
'We local jurors in discussing the whole situation informed the jurors from the south end of the county of Sanchez' bad reputation (of his previous conviction for burglary and the fact that ever since his high school days he had been often in trouble with the police and suspected of stealing.
'I believe it was only the information we local jurors had and gave to the nonlocal jurors about Sanchez which induced the south-county jurors to go along with us and convict the defendant because technically, he had given alibi testimony which he had not sworn to, and which, under the judge's instructions we were not supposed to consider as proof of any facts.
'I have read the foregoing statement consisting of three pages to this point, and it is true and correct, and I certify and declare under penalty of perjury that the foregoing statement is true and correct.
'Executed at Paso Robles, California, this 27th day of March, 1963.'
As stated by our Supreme Court in People v. Castaldia, 51 Cal.2d 569, 572, 335 P.2d 104, 106, 'It is the general rule in California that affidavits of jurors may not be used to impeach a verdict. [Citation.] However, an exception to this general rule is: Affidavits of jurors may be used to set On voir dire, juror Tucker testified that there was nothing in his acquaintanceship with defendant which would cause him to be biased or prejudiced against defendant. However, in his affidavit, Tucker stated that he knew defendant had a bad reputation for honesty and integrity; that he knew defendant had once been convicted of burglary; and that the general opinion in the community was that 'it was only a question of time before he [defendant] would be put away.' Further, that he and other 'local' jurors informed 'the jurors from the south end of the county' of defendant's bad reputation and prior conviction of burglary, and, thereby, induced these jurors to side with the 'local' jurors and to convict defendant.
Thus, from Tucker's affidavit, it is apparent that he concealed, during his voir dire examination, knowledge of the defendant which in fact did cause him to be prejudiced against defendant. We believe the facts in the instant case clearly bring the affidavit within the exception to the general rule, as set out in Castaldia, supra, above quoted. It was therefore admissible in evidence on the motion for new trial.
Furthermore, the affidavit establishes that juror Tucker and other members of the jury were guilty of misconduct which entitled defendant to a new trial. (Pen.Code, § 1181, supra. 2, 3 and 4; People v. Castaldia, supra, 51 Cal.2d 569, 572, 335 P.2d 104.) Because we cannot say, on the record before us, that, in the absence of the misconduct complained of, a different verdict would have been improbable, the misconduct constitutes a miscarriage of justice within the meaning of article VI, section 4 1/2, of the California Constitution. (People v. Castaldia, supra, 51 Cal.2d 569, 573, 335 P.2d 104.)
In view of this conclusion, it is not necessary to consider other contentions presented by defendant.
The judgment of conviction is reversed.
KINGSLEY, J., and FRAMPTON, J. pro tem., concur.
Assigned by Chairman of Judicial Council.