People v. Jenkins

BROWN (Gerald), J.

A jury found defendant guilty of violating Penal Code section 459 (burglary), and not guilty of violating Penal Code section 496 (receiving stolen prop

[539]

erty), as charged in a two-count information. Defendant appeals from the judgment and order denying a new trial, contending (1) prejudicial error in the judge conversing with and instructing the jury out of court in the absence of defendant and his counsel, no record having been made of the conversation; and (2) insufficiency of the evidence.

(1)

Was there prejudicial error %

The case was submitted to the jury at 11:52 a.m. A verdict was reached at 9:07 p.m. In the early afternoon the trial judge had an unreported conversation with the jury out of court without the knowledge or presence of defendant or his counsel. This was error in violation of Penal Code sections 1043 and 1138. Whether there is prejudicial error resulting in a miscarriage of justice must, in the last analysis, depend upon the particular facts of the individual case.

(People

v.

Weatherford,

27 Cal.2d 401,418 [164 P.2d 753].)

What occurred in the present situation is set forth in affidavits of defendant’s attorney, the trial judge and the foreman of the jury. Defendant’s attorney, in his affidavit, stated that following the verdict he was advised by jurors and the bailiff that the trial judge had answered questions of the jury foreman about the law of the case, at the jury room during the deliberations of the jury, in the absence of the defendant and his counsel; the attorney also discussed the matter with the trial judge who stated he had talked with the jurors regarding the law of burglary in the absence of defendant and his counsel; that the judge did not recall any further conversation with the jury. The affidavit of the trial judge stated that while he was walking by the door of the jury room en route to his chambers, the bailiff opened the door in response to a knock; the bailiff received a piece of paper from the foreman which was handed to the judge in the hallway inquiring, “What acts amount to first degree burglary?” The judge then “stepped to the doorway of the jury room and advised the foreman orally that the jury had been instructed to find the defendant not guilty as to Count One, or in the alternative, to find the defendant guilty of burglary in the second degree, and that the jury was not to be concerned about first degree burglary. ...” The judge stated he did not discuss the subject of admissions; also the defendant and his attorney were not present. The affidavit of the foreman of the jury provides that at one time during the deliberations of the jurors the vote was 11 to 1 for acquittal on both counts; that during the deliberations certain ques