People v. McKee

stances and expressed the belief that the prosecutor would not use it inappropriately. The prosecutor stated that he had no intention of bringing out the phrase himself.

Despite the judge’s and attorneys’ scrupulous concern for fairness, a reporter for the Sacramento Union wrote and the newspaper published an article under the heading “Hell’s Angels Assault Trial Begins Today.” The article is reproduced in the margin.^[1] The article appeared on the morning of July 28, 1967, the same day on which the jury was to commence hearing evidence. The story labeled all three defendants as members of the Hell’s Angels and defendant Waite as former president of the organization’s Sacramento chapter. The text demonstrates that in fastening the defendants with the Hell’s Angels label the reporter was aware of the trial judge’s effort to insulate the jurors from its inflammatory influence.

When court convened on the morning of July 28, all three defendants moved for a mistrial on the ground of publicity impairing fairness of the trial. The trial judge at that point called the jury into the courtroom and asked the jurors whether they had read an article in that morning’s Sacramento Union concerning the trial. All jurors except two stated that they had not read the Union that morning. Two jurors stated that they had seen the first few lines of the Union article and immediately discontinued their reading when they realized it concerned the trial. Both these jurors assured the court that they would not permit the story to prejudice them in deciding the case and agreed not to discuss it with their fellow jurors. The court then ordered the trial to proceed, telling the jury that the trial embraced only the evidence coming from the witnesses.

Following the guilty verdict each of the defendants moved for a. new trial, urging the Sacramento Union article as a ground. The motions were denied. The appealing defendants now assign denial of the mistrial motions and of the new trial motions as error.

The due process of law concept embodied in the Fourteenth Amendment to the federal Constitution requires that the accused receive a trial by an impartial jury free from outside influences.^[2] In considering the effect of inflammatory pretrial publicity, trial courts are enjoined to take strong measures to ensure that the balance is not weighted against the accused, and appellate tribunals must make an independent evaluation of the circumstances.^[3] The California standard for measuring pretrial publicity’s impact upon criminal trials is that recently enunciated in Maine v. Superior Court (1968) 68 Cal.2d 375 [ 66 Cal.Rptr. 724 , 438 P.2d 372 ], Essentially, the Maine case requires an inquiry whether “because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that ... a fair trial cannot be had; ’ ’ the' court may make its own evaluation of the nature, frequency and timing of the published material; no showing of actual prejudice is required of the defense. (68 Cal.2d at p. 383.) The standard announced in Maine was based upon a proposal embodied in the Reardon Report of the American Bar Association, which in turn was drawn from a declaration of the federal Supreme Court in Sheppard v. Maxwell, supra.^[4]

The Maine case declares that—as a standard for judicial review on direct criminal appeals in California—the “reasonable likelihood” rule will be applied prospectively, that is, to future trials. (68 Cal.2d at p. 384, fn. 9.) The present trial antedated the Maine opinion. As a specialized expression of due process demands for the judicial protection of defendants’ rights, the rule had previously been enunciated as dictum in the Sheppard ease. Aside from that phase of it which dispenses with the necessity for demonstrating actual prejudice, the new California rule really seems to summarize

the earlier ad hoc approach which held to the criterion of a fair and impartial trial in which “each ease must turn on its special facts.”^[5] Because it articulates preexisting law, it may he applied here without retroactive effect.

Most of the northern California public regard Hell’s Angels or members of a motorcyclists’ organization of that name with distaste, a fact of which we take judicial notice.^[6] Thus the Sacramento Union article had intrinsic inflammatory qualities which, permitted to penetrate the courtroom, could impair fairness of the trial. Fortunately, its penetration was shallow. Ten of the jurors were ignorant of the story, conscious only that some kind of publication had occasioned a courtroom inquiry. Only two jurors had noticed it and, obedient to the judge’s admonition, had desisted immediately upon recognizing its connection with the ease. The headline could not but supply the two jurors with immediate awareness of the accused men’s identity as Hell’s Angels. In People v. Parker, supra, 235 Cal.App.2d 100 , at page 105, we pointed out that jurors’ professions of objectivity must be weighed against the nature of the crime and the color and impact of the publicity. The crime was repellent enough. The publication was a one-time statement which reached two jurors but did not create a hostile trial environment. Although lending itself to bias, it did not infer guilt of the specific crime. Because of its limited courtroom contact and circumscribed prejudicial force, its influence could be sealed off by a cooperative juror acting under firm judicial admonitions. (Cf. Delaney v. United States (1952) 199 F.2d 107 , 112-113.) Under the particular circumstances the two jurors’ expressed willingness to decide the case without regard to the publicity was realistically acceptable. There was no reasonable likelihood of an unfair trial.

Trial Severance

Before entering upon the joint trial, both Waite and

McKee moved for separate trials. The motions were premised upon People v. Aranda, 63 Cal.2d 518 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ], Denial of the motions is assigned as prejudicial error.

During the trial an extrajudicial statement by codefendant Bennett was offered in evidence. After an extended voir dire inquiry, the court held Bennett’s statement admissible, provided that all matter implicating his codefendants was first deleted. A police officer then testified that Bennett told him, “that he had been the individual who had hit the victim in the face with a full can of beer ... in his words, that after hitting the man, that the man had been, as he described, double wasted.” He explained that “double wasted” described a bad physical condition.

Although the prosecution may intend to use an incriminating extrajudicial statement of one of several defendants, a joint trial may be permitted if all parts of the statements implicating any eodefendant can be and are effectively deleted without prejudice to the declarant. (People v. Aranda, supra, 63 Cal.2d at p. 530.) While initial editing may sanitize the statement, it may turn out to be damaging in the context of the trial developments. (People v. Matola, 259 Cal.App.2d 686 , 692 [ 66 Cal.Rptr. 610 ].)

As given to the jury, Bennett’s extrajudicial statement had been effectively edited by the deletion of any reference to his codefendants. The latter argue that the prosecution evidence indicated unity of action among the three defendants, hence that Bennett’s incriminating statement tended to incriminate them too. As described to the jury, Bennett’s admission neither identified nor accused his codefendants. Those functions were fulfilled by the prosecution evidence. The jury instructions fully permitted the jury to adjudicate the guilt or innocence of each defendant individually. Bennett’s admission was no more prejudicial to his codefendants than if he had said: “Waite and McKee limited themselves to self-defense, while I alone hit Wilkins with the beer can.” The court did not err in denying trial severance.

Instructions on Proprietor’s Duty to Depend Patron

Error is charged in a jury instruction that the owner of a food and liquor establishment has an affirmative duty to protect patrons from attack by fellow patrons.^[7] The instruc

tion was drawn from rules developed in civil damage actions. (See Slawinski v. Mocettini, 217 Cal.App.2d 192 , 196 [ 31 Cal.Rptr. 613 ].) In criminal cases the right of protecting one’s person or the person of another is defined by the Penal Code. The prosecution theory was that Wilkins went to the aid of Cookie when she was threatened by physical harm by McKee ; that when Wilkins himself was threatened, he pulled a pistol to hold off his would-be assailants; that, as soon as he put it away, the defendants attacked and beat him. According to the defense, Wilkins had intervened in a verbal set-to between McKee and Cookie by threatening the former with a gun, while the defendants had used only such physical force as was necessary to wrest away the gun. These rival versions involved the right of self-defense and the right to defend another who is about to be injured. These rights are delineated in Penal Code sections 692, 693 and 694.^[8]

Specifically, section 694 fixed the standard by which the jury could measure Wilkins’ conduct in coming to the aid of Cookie if it found she was about to be assaulted. If Wilkins’ actions did not exceed the resistance limit fixed by section 694, then his conduct was lawful and he was not about to commit a “public offense” against defendants, who could not claim self-defense against his purely resistive efforts. (Pen. Code, §692; 1 Witkin, Cal. Crimes (1963) §158.) While embodying the same general motion, the instruction given by the court endowed Wilkins with an “affirmative duty” to protect the girl, a broader endowment than the resistive conduct permitted by section 694. An instruction embodying the latter would have been preferable to the one given. No miscarriage of justice occurred, however. The court supplied the jury with