Opinion
Nеlson Claude Thomas appeals from an order admitting him to probation after a jury found him guilty of grand theft in *180 the tаking of property from the person of another (Pen. Code, § 487, subd. 2).
Appellant contends that the court erred in denying a motion for mistrial when it developed that, after the jury had been impaneled but before the tаking of testimony began, four jurors read a newspaper story which had identified the case by name and related that a codefendant had pleaded guilty and been sentenced. The press story is set out below:
Jury Picked For Purse Snatching
Jury sеlection in the case of Nelson Claude Thomas, 27, of Richmond, on trial for snatching an elderly woman’s purse was completed yesterday, while the man’s alleged partner has admitted the crime.
The trial of Thomas, will begin Monday in Marin Superi- or Court before Judge Charles Read Best. He is accused of armed robbery.
Anothеr Richmond man, Larry Dobie Young, pleaded guilty in a plea bargain.
Best sentenced him to four months in jail and ordеred him to enter a Veteran’s Administration hospital thereafter for treatment for drug addiction.
San Rafaеl police said as the pair drove by an ,87-year-old Sad Rafael woman on Fourth Street in September, one of them reached out and grabbed her purse, knocking her to the pavement.
They were arrested moments later on Highway 17.
When the articlе was brought to the court’s attention, the jurors were questioned separately in chambers. Eight jurors had not seеn the article, but four (Flowers, Erickson, Musetti and Garcia) had. All four had recognized that the article referred to the casé which they had been sworn to try and remembered the statement that a codefendant had pleaded guilty.
Flowers acknowledged that, although she did not think she had been influenced, she might have some hesitancy “with the other one pleading guilty.” But in response to the court’s questions, she acknowledged that newspaper articles are not always correct and undertook to take the evidence “only as it сomes through the witnesses during the course of this trial.”
Erickson stated that she was “quite surprised because—well, the fact that we are trying a partner of a guy that admitted that he had already—you know that he was guilty.” When asked whеther she was able to presume appellant innocent, she responded, “I guess so, but when his partner has already admitted he’s guilty, it’s difficult.” The court then pointed out that “Two or more people can be present at the scene of an offense and not necessarily [be] involved in it.” Erickson acknowledged that she had not thought about that possibility and *181 responded affirmatively and without qualification to the court’s inquiries whеther she would form her judgment solely on the basis of the evidence received at trial.
Musetti declared that he still presumed appellant to be innocent, and undertook to render his decision only on the basis оf trial evidence.
Garcia stated that the article would not affect her judgment and that she presumed аppellant to be not guilty.
As the court recognized, the reading by several jurors of the newspaper аrticle, which identified the case and related that a codefendant had pleaded guilty, seriously jeopardized the fairness of the trial. The motion for mistrial called for the court to weigh the danger of prejudice to the defense against the practicability of reducing or eliminating that danger by choosing a nеw jury; to grant a mistrial would have created no conflict with the constitutional guarantee against double jеopardy. (See Pen. Code, § 1141; 1 Witkin, Cal. Crimes, § 195, p. 187; cf.
Curry
v.
Superior Court
(1970)
Counsel have suggested analogies drawn from a number of cases which have expressed and applied the requirement that when there has been extensive prеtrial publicity, a change of venue should be ordered if an independent review of the evidence by the Court of Appeal discloses a “reasonable likelihood” of unfairness. (See, e.g.,
Maine
v.
Superior Court
(1968)
It was not the trial court’s responsibility, in ruling on the motion for mistrial, to attempt to obtain a рerfect jury or to exclude any remote possibility of prejudice. However, the essence of judicial discretion in dealing with a misadventure of the character reflected in this record is to so managе matters as to control the danger of jury prejudice to the extent practicable. Although the likelihood of prejudicial effect upon the minds *182 of the few jurors who saw the article was obviously substantial, the fact that eight jurors had not seen the article at all indicates that there would have been no difficulty, if a mistrial had been granted, in selecting a new jury free of any improper influence. It is concluded that it was an аbuse of discretion to deny the motion for mistrial.
Other contentions advanced by appellant need not be discussed.
The order is reversed.
Caldecott, P. J., and Emerson, J., * concurred.
Notes
Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.