People v. York

STONE, J.

—This case was previously before this court on an appeal from a judgment of conviction of the crime of

[464]

assault with a deadly weapon upon a police officer. Upon the direct appeal from the judgment, defendant raised the point that during its deliberations the jury, through the foreman, advised the bailiff that it wished a transcript of the testimony of the police officer and was told by the bailiff that it was not available. In a nonpublished opinion affirming the judgment, this court noted that it could not consider the error asserted in the appeal brief since the facts supporting the alleged misconduct of the bailiff were discovered following denial of the motion for a new trial and, consequently, were not part of the record. The court pointed out that defendant might seek relief by filing an appropriate writ. This petition for writ of error

coram vobis

followed.

The Honorable Robert K. Meyers, retired judge of the Superior Court of the State of California, in and for the County of Tulare, was appointed referee to hold an evidentiary hearing concerning matters raised in the

coram vobis

petition. Judge Meyers found that the incident occurred and that it was prejudicial to defendant.

The Attorney General does not deny that the record establishes unequivocally that the jury wished to review the testimony of the police officer and, through the mistaken belief of the bailiff, were advised that it was not available. Neither does the Attorney General deny that the bailiff violated the law by himself advising the jury, and wrongly at that, rather than returning them to the court as provided by Penal Code section 1138. Rather, the Attorney General takes the position that the referee erred in permitting the foreman of the jury and other jurors to testify as to the events that occurred and thereby impeach their verdict. This, it is argued, is contrary to the law of this state.

(People

v.

Weatherford,