People v. Yarbrow

86 Cal.App.3d 445 (1978) 150 Cal. Rptr. 324 THE PEOPLE, Plaintiff and Respondent,

v.

ALBERT YARBROW, Defendant and Appellant.

Docket No. 30868. Court of Appeals of California, Second District, Division Five.

November 17, 1978. COUNSEL

Gillingham & Jackson and Howard W. Gillingham for Defendant and Appellant.

[446] Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, A. Wells Petersen, Jeffrey A. Joseph and Gary W. Schons, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

STEPHENS, J.

(1) There is one issue requiring reversal in this case. We necessarily apply the clear reasoning in People v. Gainer (1977) 19 Cal.3d 835 [139 Cal. Rptr. 861, 566 P.2d 997].

Defendant is entitled to a further comment by this court, albeit advisory only. In case of a retrial, and the giving of an instruction on section 511 of the Penal Code, we see no reason not to give the complete applicable portion of the section rather than omitting a few words:

"Upon any indictment for embezzlement, it is sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable."

The judgment is reversed.

Kaus, P.J., concurred.

ASHBY, J.

I respectfully dissent. The majority has dutifully followed the literal language of People v. Gainer (1977) 19 Cal.3d 835 [139 Cal. Rptr. 861, 566 P.2d 997], which assumes prejudice to the defendant when the Allen instruction is given. I certainly do not disagree with the policy underlying this procedural rule fashioned by the Supreme Court, especially as it applies to the typical Gainer-type situation. The instant case, however, has differences which are significant. First of all, the vote counts as reported by the foreman of the jury were as follows: