Vinson

The People appeal from an order granting defendant a new trial (Pen. Code, § 1238) after a jury convicted him of murder, attempted murder, and robbery (Pen. Code, §§ 187, 664, 211), with use of a firearm in their commission. (Pen. Code, §§ 12022, subd. (a); 12022.5.) The basis of the new trial motion was an allegation of judicial misconduct in that during jury deliberations the trial judge (Rothwell B. Mason), spoke briefly with a juror Mary Peruch in chambers out of the presence of defendant, counsel, or court reporter.

Defendant’s motion was heard by Judge Raymond B. Roberts. Defendant presented declarations from his counsel and from Peruch. Her statement indicated that during deliberations she was the only one of the twelve to vote for acquittal, and as a consequence was receiving pressure from the others to alter her vote; she sent a note asking to see Judge Mason; he agreed to see her in his chambers; he admonished her not to say which way the jury was voting; she then told him the other jurors thought she was partial to the defendant; he replied “no comment.”

The prosecution presented the affidavits of nine of the eleven other jurors. Each denied that any pressure…

I concur in the result. Paulson v. Superior Court (1962) 58 Cal.2d 1 [ 22 Cal.Rptr. 649 , 372 P.2d 641 ], does not teach a per se rule. The test, it appears to me, is whether the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].) I conclude that it was harmless under Chapman. I write separately to stress that error was committed; our opinion should not be interpreted to condone *86 such error. Wise counsel dictates that prejudice (and reversal) not be risked and that error be avoided. While the Paulson procedure may be bothersome at times, it is the reasoned decisional law which guides all of us on the bench.

A petition for a rehearing was denied July 29, 1981, and the judgment was modified to read as printed above. Respondent’s petition for a hearing by the Supreme Court was denied October 2, 1981. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.

PARAS, Acting P.J.

The People appeal from an order granting defendant a new trial (Pen. Code, § 1238) after a jury convicted him of murder, attempted murder, and robbery (Pen. Code, §§ 187, 664, 211), with use of a firearm in their commission. (Pen. Code, §§ 12022, subd. (a); 12022.5.) The basis of the new trial motion was an allegation of judicial misconduct in that during jury deliberations the trial judge (Rothwell B. Mason), spoke briefly with a juror Mary Peruch in chambers out of the presence of defendant, counsel, or court reporter.

Defendant's motion was heard by Judge Raymond B. Roberts. Defendant presented declarations from his counsel and from Peruch. Her statement indicated that during deliberations she was the only one of the twelve to vote for acquittal, and as a consequence was receiving pressure from the others to alter her vote; she sent a note asking to see Judge Mason; he agreed to see her in his chambers; he admonished her not to say which way the jury was voting; she then told him the other jurors thought she was partial to the defendant; he replied "no comment."

The prosecution presented the affidavits of nine of the eleven other jurors. Each…