Defendant was convicted by a jury of eight felonies—four counts of kidnaping (Pen. Code, § 207), and four counts of rape by force and violence (Pen. Code, § 261). After judgment he moved for a new trial. From the judgment and the order denying the motion for new trial, he has appealed.
Contentions
Defendant does not attack the sufficiency of the evidence to support the convictions, other than to claim that the proof of identification is not strong. His contentions are: (1) the remarks of the court to the jury were prejudicial; (2) the district attorney prejudicially misstated evidence in his arguments to the jury; and (3) the court abused its discretion in denying the motion for a nеw trial. Inasmuch as we have concluded that the first contention is sound, and that the case will have to be retried, it becomes unnecessary to consider the other two contentions.
Facts
A general statement of the facts is sufficient for the purposes of the opinion. Each of the four prosecuting witnesses was seized and raped in Santa Clara Comity under circumstances which indicated that the same man committed each offense. The modus operandi was very much the same in each ease. The victim, after alighting from a bus on a lonely corner, was accosted by a man who got out of the left side of his car, leaving the door open, thе lights on, and the motor running. The man usually asked some question and then seized the victim, pulling her into the car, making her get in the front seat from the left side. The victim then was forced to kneel on the floor of the car with her head resting on the seat, while the man drove for some 5 or 10 minutes. During this time the victim usually was told to remove her clothing or the assailant started ripping it off. A knife was used to intimidate the victim. The victim was usually taken from the car for the act of intercourse, during which her face was covered, often with an article of her own clothing. Following the attack,
Remarks op the Court
The jury retired for deliberation at 11 a. m. At 3:20 p. m. the record shows that the jury returned for instructions. They requested and were read the testimony of one of the victims and of two police officers. They retired again at 3:40, and later, at the request of the court, were returned to the courtroom. The following then transpired: “The Court: (Addressing the jury.) You haven’t reached a verdict, Ladies and Gentlemen of the Jury ? The Foreman : We haven’t your Honor; we are unable to agree. The Court: I would like to ask you a question or two. I don’t want to know how you stand, but I would like to ask you one way or another how nearly you were in agreement. In other words, I don’t want you to tell me you are mostly for one side or the other—but numerically,—do you stand eight to four; five or seven, or what ? The Foreman : A. The vote is ten to two for conviсtion. Q. I don’t want any statement about conviction; did you say eight to four ? A. Ten to two. Q. And how recently has that vote changed? A. It hasn’t changed; it has been the vote all alqng. Q. You mean they started ‘ten-to-two’ and are still ‘ten-to-two’? A. That’s right, your Honor. Q. Do you think there is any possibility of reaching a con
There are a number of California decisions on the question of possible prejudice from instructiоns to the jury
Upon the question of just how far a court may go in urging a jury to agree and how prejudicial a judge’s remarks on that subject may be, there seems to be some inconsistency in the decisions. However, the difference in the effect of the judge’s remarks seems to be based upon the closeness of the particular case and the question of whether the remarks were likely to have influenced the jury in the type of verdict it rendered.
In People v. Carder,
In People v. Bruno,
In the three cases last mentioned the judge was not informed as to which way the jury stood. In the following cases he was so informed. People v. Blackwell,
In People v. Piscitella,
In People v. Miles, supra (
While most of the cases upon the subject were before the enactment of section 4% of article VI of the Constitution, the rule would appear to be the same now as then, nаmely, that if, under the circumstances of the particular case, the remarks of the judge, who knew how the jury stood, were such as to bring to bear in some serious degree, although not measurable, an improper influence upon the jury, or to indicate to the jury that a particular result should be reached, such remarks сonstitute prejudicial error.
With the foregoing rules in mind, it is clear from a reading of the judge’s remarks in our case that the two jurors voting for acquittal (and who apparently had consistently so voted from the beginning), well could have believed that the judge felt they should agree with the majority. Undoubtedly, the judge did not intend to influence the jury аs to the type of verdict to be rendered, but we must realistically consider the effect of the language used. There was no impropriety in his asking how the jury stood numerically, but the moment he gained the information concerning which way they stood, it was his duty to be more than careful in his remarks thereafter, so that the jury would cleаrly understand that he was not urging, or even suggesting a verdict one way or the other. Instead he said, “there are twelve of you,—and ten one way and two the other,—that is coming pretty close to an agreement.” It was close to an agreement only if the two for acquittal would change their view and join the majority. As said in People v. Kindleberger, supra (
The judgment and the order denying the motion for new trial are reversed.
Peters, P. J., and Ward J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied October 27, 1949.