Martinez

Statement Of The Case

On May 2, 1975, an amended information was filed in the superior court charging appellant with the following crimes: count I, violation of Penal Code section 209, kidnaping for the purpose of robbery where the victim suffered bodily harm, to wit, death; count II, violation of Penal Code section 261, subdivision 2, forcible rape; count III, violation of *7 Penal Code section 211, robbery; count IV, violation of Penal Code section 187, murder. It was also alleged that during the commission of counts I through IV, appellant used a firearm in violation of Penal Code section 12022.5. It was further alleged, under former Penal Code section 190.2, subdivision (b)(3), that the murder was willful, deliberate, and premeditated and was committed during the commission of kidnaping, rape, and robbery. As an additional special circumstance, it was also alleged, under former Penal Code section 190.2, subdivision (b)(4), that appellant had suffered a prior conviction for murder.

On June 13, 1975, appellant filed a motion for a change of venue pursuant to Penal Code section 1033, subdivision (a); the motion was denied. On July 2, 1975, a petition for writ of…

I respectfully dissent on the sole issue of the jury misconduct pertaining to the bringing of the maps into the jury room. The majority correctly has cited the rule that a presumption of prejudice arises from any act of jury misconduct. (People v. Honeycutt (1977) 20 Cal.3d 150, 156 [ 141 Cal.Rptr. 698 , 570 P.2d 1050 ]; People v. Wong Loung (1911) 159 Cal. 520, 528-529 [ 114 P. 829 ]; People v. Conkling (1896) 111 Cal. 616, 628 [ 44 P. 314 ].) Further, I agree in substance with the majority’s statement that in the instant case the presumption of prejudice would be rebutted if the three critical criteria they have articulated are satisfied (i.e., the jury misconduct in question (1) did not cause an adverse effect on the jury’s function of impartially weighing the evidence, (2) did not lighten the prosecution’s burden of proof and (3) did not contradict an asserted defense).

However, at the hearing on defendant’s motion for a new trial the prosecution failed to produce any evidence in opposition to the undisputed fact of jury misconduct. Because of this lack of evidence the majority looks to the entire record to conclude that the above three critical criteria were satisfied, thus…

FRANSON, Acting P.J. —

On May 2, 1975, an amended information was filed in the superior court charging appellant with the following crimes: count I, violation of Penal Code section 209, kidnaping for the purpose of robbery where the victim suffered bodily harm, to wit, death; count II, violation of Penal Code section 261, subdivision 2, forcible rape; count III, violation of Penal Code section 211, robbery; count IV, violation of Penal Code section 187, murder. It was also alleged that during the commission of counts I through IV, appellant used a firearm in violation of Penal Code section 12022.5. It was further alleged, under former Penal Code section 190.2, subdivision (b)(3), that the murder was willful, deliberate, and premeditated and was committed during the commission of kidnaping, rape, and robbery. As an additional special circumstance, it was also alleged, under former Penal Code section 190.2, subdivision (b)(4), that appellant had suffered a prior conviction for murder. [1]

On June 13, 1975, appellant filed a motion for a change of venue pursuant to Penal Code section 1033, subdivision (a); the motion was denied. On July 2, 1975, a petition for writ of…