Finch

The Los Angeles County Grand Jury returned an indictment charging defendants with murder, in *757 violation of section 187 of the Penal Code, in count I, and conspiracy to commit murder, in violation of section 182 of the Penal Code, in count II. Several overt acts were alleged in the conspiracy count. The first and second jury trials resulted in mistrials being declared because of the inability of the jurors to agree upon a verdict. In a third jury trial, both defendants were found guilty of conspiracy to commit murder; defendant Finch was found guilty of murder in the first degree, and defendant Tregoff guilty of murder in the second degree. On the issue of penalty the jury fixed defendant Finch’s sentence at life imprisonment on both counts and defendant Tregoff’s penalty on the conspiracy count at life imprisonment. Motions for a new trial were denied. Defendant Finch was sentenced to life imprisonment on both counts. Defendant Tregoff was sentenced to state prison for the term prescribed by law on count I and life imprisonment on count II. Sentences were ordered to be served concurrently. Each defendant appeals from the judgment of conviction and from the order denying the…

I concur in the determination that each judgment of conviction must be affirmed. However, in my judgment an erroneous answer was given by the court to the jury in response to the jury’s question as to whether “a second degree verdict on count 1,” the murder charge, would “contradict the guilty verdict on count 2 [the conspiracy charge] of one defendant while the other defendant is found guilty of first degree on count 1 and guilty on conspiracy count 2.” (See People v. Ditson, 57 Cal.2d 415, 449 [ 20 Cal.Rptr. 165 , 369 P.2d 714 ]; State v. Ochoa, 41 N. M. 589 [ 72 P.2d 609, 614-615 ].) Error of that nature makes necessary a careful consideration of the record for the purpose of determining whether it was prejudicial. In this ease it does not appear to be reasonably probable that a result more favorable to either of the defendants would have been reached in the absence of such error. Consequently, it cannot be said that there has been a miscarriage of justice. (See People v. Watson, 46 Cal.2d 818, 836 [ 299 P.2d 243 ].)

*780 The petition of appellant Tregoff for a rehearing was denied April 3, 1963, and appellants’ petitions for a hearing by the Supreme Court were denied May 8,…

The Los Angeles County Grand Jury returned an indictment charging defendants with murder, in violation of section 187 of the Penal Code, in count I, and conspiracy to commit murder, in violation of section 182 of the Penal Code, in count II. Several overt acts were alleged in the conspiracy count. The first and second jury trials resulted in mistrials being declared because of the inability of the jurors to agree upon a verdict. In a third jury trial, both defendants were found guilty of conspiracy to commit murder; defendant Finch was found guilty of murder in the first degree, and defendant Tregoff guilty of murder in the second degree. On the issue of penalty the jury fixed defendant Finch's sentence at life imprisonment on both counts and defendant Tregoff's penalty on the conspiracy count at life imprisonment. Motions for a new trial were denied. Defendant Finch was sentenced to life imprisonment on both counts. Defendant Tregoff was sentenced to state prison for the term prescribed by law on count I and life imprisonment on count II. Sentences were ordered to be served concurrently. Each defendant appeals from the judgment of conviction and from the order…