People v. Hernandez

BARNARD, P. J. This appellant was convicted of rape, sex perversion and kidnaping under section 209 of the Penal Code, and was acquitted of the crime of robbery. He appeals from the judgment and from an order denying his motion for a new trial.

It is first contended that the evidence is insufficient to support the verdict on the charge of kidnaping under section 209, Penal Code. This appeal involves the facts stated in People v. Hernandez, No. 689, ante, p. 128 [223 P.2d 71], this day decided, and for the reasons there given this contention is without merit. The cases were tried together and the factual background need not be here repeated.

It is next contended that the court committed reversible error in denying appellant’s motion that the jury panel be discharged on the ground “that there were no prospective jurors of Mexican extraction on the panel. ’ ’ Nothing is pointed out except that such a motion was made and denied. No facts or circumstances appear in the record which would tend to support the contention made, or which would have supported or justified the granting of such a motion. The law does not require that members of a racial group of which the defendant is a member must he placed on a particular jury or jury panel. (People v. Jackson, 88 Cal.App.2d 747 [199 P.2d 322]; People v. Hines, 12 Cal.2d 535 [86 P.2d 92].) In the latter case, relied on by the appellant, it appeared without conflict that all individuals of the Negro race had been intentionally excluded from the jury and the jury panel regardless of their statutory qualifications. No such situation here appears and no showing was made as to any of the elements which are essential to such an attack upon the panel.

It'is next contended that the court erred in failing to inform the jury that the offenses charged in the first and [138]second counts of the information (kidnaping under 209, and robbery) were connected in their commission, although this was alleged in the second count (robbery). Reference is made to the first instruction given in which the court reviewed the various charges as contained in the respective counts, which were to be considered by the jury. The only argument made is that if the jury had been instructed that these offenses were connected in their commission it could not have returned a verdict of kidnaping, other than under section 207 of the Penal Code. While the judge did not then state that these offenses were connected in their commission, the information had been twice read to the jury and this fact was abundantly disclosed by the evidence which disclosed one continuing course of conduct. The fact that these two offenses were alleged to be connected in their commission was well known to the jury, and the failure to repeat that fact on this one occasion could not have misled the jury, or have had the effect here claimed.