People v. Andrews

At 4:23 a.m. a neighbor of Hackett who lived in the apartment below that of Hackett heard noises of drawers being opened and shut as well as a loud crash. Later that day, a cleaning woman heard moans from Hackett’s apartment, entered to investigate and saw him lying on the floor, head bleeding, pockets turned inside out, furniture disarranged, a large pool of blood in the hallway, and a gavel wrapped in a towel on the bar. Hackett’s car was later found in Los Angeles. Appellant’s identity was established through conversations with David Mauricio and photographs taken the evening of the incident by one of the Englishwomen. After his arrest, appellant first denied any involvement in the crimes, but upon learning of his wife’s arrest, changed his story and said he would “take the whole rap” and to leave his wife out of it.

On December 10, 1981, during the jury trial, an article appeared in the Santa Barbara News Press entitled “Robbery-beating trial under way” concerning the case at bench. Along with a description of the crimes and the status of the trial, the article included the following: “Andrews, who is being held in the county jail on $25,000 bond, was charged with multiple counts of armed robbery and assault with a deadly weapon, as well as auto theft. He also faces felony charges in Los Angeles. [f| Andrews’ wife, a co-defendant in the case, was sentenced Oct. 7 to three years in prison after pleading guilty to a charge of armed robbery. Susan Lane Andrews, 24, who was reared in Santa Barbara, entered the plea in connection with the clothing store robbery.”

Defense counsel moved for a mistrial and requested that the jurors be questioned individually in chambers to ascertain whether any had read the article. The trial court denied the motion, refused to question the jury but admonished the jurors to disregard and not to read any news releases regarding the trial.^[1]

During jury deliberations, the court discovered that exhibits which were not introduced into evidence were sent mistakenly to the jury room. One of the exhibits was the December 10th article from the Santa Barbara News-Press, the subject of appellant’s prior motion for a mistrial.^[2] Said error was

“ ‘In the language of Lord Coke, a juror must be as “indifferent as he stands unsworne.” [Citation.] This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.’” (Turner v. Louisiana (1964) 379 U.S. 466 , 472 [ 13 L.Ed.2d 424 , 428, 85 S.Ct. 546 ].)

Evidence of other alleged crimes is inadmissible when it is offered solely to prove criminal disposition or propensity on the part of the accused to commit the crime charged, because the probative value of such evidence is outweighed by its prejudicial effect. (People v. Haston (1968) 69 Cal.2d 233 , 244 [ 70 Cal.Rptr. 419 , 444 P.2d 91 ].) When evidence that a person committed a crime is relevant to prove some fact other than his disposition to commit such acts (such as motive, opportunity, intent, plan, identity, absence of mistake), the evidence “should be received with ‘extreme caution’, and if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused.” (Id., at p. 244.)

Since the mere fact that appellant was “facing other felony charges” could be relevant only to his propensity to commit crimes, it would be inadmissible. (Evid. Code, § 1101.) Similarly, evidence of a co-defendant’s guilty plea has been held prejudicial. (See People v. Leonard (1983) 34 Cal.3d 183 [ 193 Cal.Rptr. 171 , 666 P.2d 28 ]; also People v. Rolon (1967) 66 Cal.2d 690 [ 58 Cal.Rptr. 596 , 427 P.2d 196 ] re effect of admission of prior conviction with same codefendant.)

The court, out of the presence of the jury, summed up the defense argument regarding the codefendant’s plea as follows: “Well, Mr. Herman’s point is that if the other actor in this situation with Susan was the heavy, and if Susan pleads guilty, therefore, the other party involved all the more so must be guilty and that got through to the jury through this newspaper article.”

The question remains whether the presumption of prejudice from the juror misconduct of reading the articles not admitted, nor likely admissible, into

Respondent asserts that as to the instant case, affidavits of the jurors that they acted in conformity with the court’s admonition is sufficient to dispel the presumption of prejudice.^[4] We disagree.

In People v. Thomas (1975) 47 Cal.App.3d 178 [ 120 Cal.Rptr. 637 ], defendant was indicted for grand theft in violation of Penal Code section 487, subdivision 2. He moved for a mistrial on the grounds that, after the jury had been impaneled but before taking of testimony began, four jurors read a newspaper story which identified the case by name and related that a codefendant had pleaded guilty and had been sentenced. Said motion was denied and he was subsequently convicted. The Court of Appeal reversed, holding that it was an abuse of discretion to deny the motion for mistrial. Although the likelihood of prejudicial effect on the minds of the four jurors who saw the article was obviously substantial, when the article was brought to the court’s attention and the jurors were questioned separately in chambers, eight jurors had not seen the article at all. This indicated to the appellate court that there would have been no difficulty, if a mistrial had been granted, in selecting a new jury free of any improper influence. The court further held that the granting of the motion would have created no conflict with the constitutional guaranty against double jeopardy.

Respondent argues that Thomas is distinguishable in that the jury in this case had not seen the articles at any early stage of the proceeding. However, the time at which a jury obtains possession of an inadmissible