Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA078038, Victoria M. Chavez, Judge.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Marra Reece appeals from the judgment entered following her conviction by a jury for assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The People’s Evidence
Georjina Featherstone testified at trial that, late in the evening on December 4, 2004, she drove to a home in Compton where she thought her husband was waiting for her. No one answered the door, so she walked around the corner to an apartment building where she believed she might find him. In the reception area of the secured building she found a visitor log indicating her husband was visiting a unit on the third floor. The security guard on duty told her a man matching her husband’s description had gone upstairs about 10 minutes earlier. She took an elevator to the fourth floor instead of the third floor, realized her mistake, returned to the ground floor and left the building to check again at the residence around the corner to see if her husband had returned. She then reentered the apartment building, verified the unit number and took the elevator to the third floor.
As Featherstone left the elevator she saw two women she did not know (Marra Reece and her sister, Magan Reece) approaching her. Magan asked Featherstone if she was looking for her. Featherstone answered no and said she was looking for her husband. According to Featherstone, Magan became irate and began yelling at Featherstone, claiming Featherstone was disrespecting her and her family and insisting Magan did not want her husband. Featherstone, who had been separated from her husband for a six-month period earlier in the year, recognized Magan’s voice from a threatening telephone call Magan had made to her house several months before and, “put[ting] two and two together,” realized she was one of the women her husband had been involved with during their separation.
Marra Reece was tried together with her sister, Magan Reece, on charges of aggravated assault and mayhem. The trial court ordered a mistrial on the mayhem counts, but both sisters were convicted of aggravated assault. The jury also found true the allegation Magan Reece had personally inflicted great bodily harm on the victim, Georjina Featherstone. This appeal solely concerns Marra Reece’s conviction for assault on an aiding and abetting theory of liability. In our factual discussion we refer to the Reeces by their first names for clarity and convenience. (See Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)
Featherstone decided to leave and walked past the women to get to the stairway, not wanting to be trapped in the elevator with them. After she brushed by Marra, she felt someone “jump” her and grab her hair from behind. She was then pulled down the hall by her hair, while bent over forward, and hit repeatedly on her face and head. Defending herself, Featherstone grabbed the hands holding her head, which she believed belonged to Marra, the larger of the sisters. As she tried to pull the hands from her head, a hand she believed belonged to Magan swung up and hit her in the face with something sharp. Featherstone immediately felt severe radiating pain and numbness above her left eye and began to bleed heavily. She did not know what she had been hit with, but saw Magan’s hand holding a partially concealed silver handle with “gauges” on it like a box cutter. She did not see a blade. She estimated she was struck by Magan and Marra between 20 and 30 times during the attack.
During the attack Featherstone was dragged down the hall to the Reeces’ mother’s apartment. Magan knocked on the door and, when her mother answered, told her mother to get her gun. In response to her mother’s question, Magan identified Featherstone as “Dode’s wife,” who, Marra added, “has no right to be here.” The Reeces’ mother left to call the police emergency number. Meanwhile, after repeated pleas by Featherstone, the Reeces let her go. Holding her hand above her eye, Featherstone walked back to the elevator and took it down to the ground floor. The security guard, who testified Featherstone’s face was covered in blood and she was shaking and crying hysterically, tried to stop Featherstone to assist her, but Featherstone rushed out. She returned to her car and drove herself to the hospital emergency room near her home.
“Dode” is the nickname of Featherstone’s husband, Tyree Nelson.
On the way Featherstone looked in the mirror and realized her forehead and eyelid had been split open like a “bake[d] potato.” Once she arrived at the hospital, she saw a diagonal gash stretching from above her eye across her forehead, eyelid and cheek. The cut required between 50 and 60 stitches to close.
At the hospital Featherstone gave conflicting stories about how she received her injury. Before she realized its severity, she claimed she had fallen in the shower. When confronted by a security guard who suspected domestic violence, Featherstone confided she had been attacked by two women but had been too embarrassed and afraid to admit it. She also said she feared Magan because Magan had threatened her during the telephone call some months earlier, claiming she knew what Featherstone looked like and where she lived. The security guard summoned the police.
Medical records, which were not admitted at trial, indicated Featherstone had earlier told a physician’s assistant she was cut by her boyfriend. Featherstone denied making that statement.
The incident at the apartment building was recorded by security cameras, and excerpts from the surveillance videotape were played for the jury. The videotape, which depicted only intermittent frames, showed the Reeces holding Featherstone by the hair, pulling her down the hall and striking her. The images were not sufficiently clear to show any blood, nor was any weapon visible. The videotape did show Featherstone returning to the elevator after having been released by the Reeces and Magan mopping the floor outside of her mother’s apartment door.
2. The Defense Evidence
Marra testified in her own defense at trial. According to her testimony, on the night of the incident she was living with her three children and her sister Magan at her mother’s apartment. Earlier in the evening she and Magan left the building, and, upon their return, were told by the security guard a dark-skinned woman with braids had gone upstairs looking for Magan. They went upstairs to their mother’s apartment and were told by their mother no one had come looking for them. As they walked back toward the elevator, the elevator door opened and Featherstone, whom Marra had never seen before, stepped out. According to Marra -- Magan did not testify -- Featherstone immediately demanded of Magan, “Bitch, where my husband at?” Magan asked who she was talking about, and Featherstone responded, “Bitch, you know who Tyree is.” Marra was acquainted with Tyree, although she and Magan knew him as Dode, because Magan had braided Dode’s hair on occasion. When Magan told Featherstone Dode had not been there that day, she brushed by them to go check the apartment.
The security guard did not remember this conversation, although the surveillance videotape showed her in a brief interaction with the Reeces upon their entry into the building. The guard testified Featherstone did not speak with her or sign the log book when she entered the building some minutes earlier. Another excerpt of the videotape prepared by the defense shows Featherstone walking past the security guard to the elevator, contradicting Featherstone’s testimony she checked the logbook when she entered the building a second time in search of her husband.
In front of the apartment Magan and Featherstone began arguing again and then started physically fighting. Marra did not see who threw the first punch but stepped in to help her sister and slapped Featherstone with her open hand. She then grabbed Featherstone’s hair to restrain her and break up the fight. The Reeces’ mother came out of the apartment to break up the fight but was hit in the melee and returned to the apartment to call the police. Marra pushed Magan into the apartment and released Featherstone when Featherstone promised she would leave if they would let her go. Featherstone walked to the elevator, bleeding from her mouth and a bloody nose. Magan’s nose was also bleeding, and she had scratches on her face. According to Marra, no weapons were used in the fight, and Featherstone’s injury was minor; there were only “a couple of drops of blood” on the floor in front of the apartment, which Magan cleaned up.
A Los Angeles County Deputy Sheriff who had responded to a domestic violence call from Featherstone in 2002 also testified for the defense. During his visit to her home, Featherstone told him she had been beaten on multiple occasions by her husband, including earlier that evening. The defense argued the 2002 incident suggested Featherstone was not cut by Magan but by her husband when he discovered she had gone to the apartment building to confront Magan about her relationship with him. Had she been as badly injured as she claimed, she would not have been able to drive herself from Compton to the emergency room in Long Beach near her home.
3. The Jury Instructions and Verdict
Both of the Reeces were charged with assault with a deadly weapon and by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1). The information alleged the weapon used was a “knife/box cutter.” After conferring with counsel about jury instructions, the trial court stated its intention to modify CALJIC No. 9.02, entitled “Assault With a Deadly Weapon or by Means of Force Likely to Produce Great Bodily Injury or with Firearm,” by including only the portion stating the crime can be committed “by means of force likely to produce great bodily injury” and deleting the language related to use of a deadly weapon. There was no objection from defense counsel. The original verdict forms submitted to the jury, however, stated the Reeces were charged with “assault with a deadly weapon, by means likely to produce great bodily injury,” but with no mention of the “knife/box cutter.”
As modified by the trial court, the instruction read: “Defendants are accused in Count One of having violated section 245, subdivision (a)(1) of the Penal Code, a crime. [¶] Every person who commits an assault upon the person of another by means of force likely to produce great bodily injury is guilty of a violation of section 245, subdivision (a)(1) of the Penal Code, a crime. [¶] ‘Great bodily injury’ refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm. [¶] In order to prove this crime, each of the following elements must be proved: [¶] (1) A person was assaulted; and [¶] (2) The assault was committed by means of force likely to produce great bodily injury.”
During closing argument the prosecutor argued Marra had been charged with assault by means of force likely to produce great bodily injury (on an aiding and abetting theory) and the assault had been committed with a metal object, likely a box cutter. Marra’s counsel countered she had been charged with assault with a deadly weapon and a lesser included charge of simple assault, but argued there was no weapon and that Featherstone had received her injuries from her husband after leaving the apartment building.
The jury retired to deliberate on the afternoon of August 22, 2005. That same afternoon the jury sent out two notes inquiring about exhibits that had been identified but not admitted and requesting to view the surveillance videotape in the jury room. After advising the jury the exhibits had not been admitted, the court rejected the request to view the videotape in the jury room and reminded the jury the videotape could be viewed in the courtroom. Before being excused for the day, the jury returned to the courtroom to view the videotape.
The next morning the jury advised the court it had reached a unanimous decision on the “counts of assault,” clarified in court to mean on the lesser included simple assault charges, but was deadlocked on the mayhem count by a vote of 11 to 1. Neither counsel for the defendants was present at this time, and another attorney (Ms. Im) from the alternative public defender’s office stood in for them during the proceedings. After polling the jury and determining that nothing would help resolve the deadlock, the court granted a mistrial on the mayhem count. The court then reviewed the verdict forms on the assault charges, advised the jury the forms were incomplete and some were missing and suggested the jury look again at the last part of its instructions to see what they needed to do. The jury retired for a brief time and returned to the courtroom, only to have the court determine the verdict forms were still incomplete. The court directed the jury to return to the jury room and advised it reread CALJIC No. 17.10, which instructs the court cannot accept a guilty verdict on a lesser crime unless the jury has unanimously found the defendant not guilty of the charged crime.
After declaring the mistrial, the court inquired whether the majority vote was to find the defendants guilty or not guilty. The foreperson responded the vote had been 11 for not guilty and one for guilty.
After further deliberating for a short time, the jury sent out another note informing the court it was divided 9 to 3 in favor of a finding of not guilty on the aggravated assault charges, repeated it was deadlocked on the mayhem charge (although the court had already declared a mistrial) and inquired what to do with the verdict forms. The jury was returned to the courtroom; yet another defense counsel (Mr. Wood) stood in for the Reeces. Addressing the jury, the court said, “Having reviewed your most recent communication where you indicate that you are hung on count 1, I have to tell you I don’t have an awful lot of confidence in what’s been going on in view of all of the confusion I’ve just seen over the last little bit of time. . . . I need to be satisfied that you have thoroughly and completely read through the jury instructions and deliberated to a point where everybody understands what you’re supposed to be doing, and has contributed and then reaches a final decision. If your final decision is an impasse, that’s perfectly acceptable if that is indeed your good-faith conclusion. But I want to make sure that it’s after you know what you’re doing and there is a complete understanding.” The court offered to suspend deliberations for the rest of the afternoon to allow a fresh start the next morning, but the jury chose to continue deliberating.
Ten minutes later the jury sent yet another note, explaining, “[t]here is confusion pertaining to the language stating ‘deadly weapon.’ Question: can assault [with] deadly weapon include striking someone [with] their fists, detaining them, pulling hair or a combination if great bodily injury, or possible great bodily injury occurs?” The court discussed the jury’s note with counsel and directed the jurors as follows: “The defendants are each accused in [count 1] of committing the crime of assault by means of force likely to produce great bodily injury. [¶] The definition of the crime is found on jury instruction p. 28 (CALJIC [No.] 9.02). The elements of assault are described on jury instruction p. 29 (CALJIC [No.] 9.00). It is your job to determine the facts (i[.e.], what happened) and then to use your collective judg[ment] to determine whether those ‘facts’ constitute the crime of assault by means of force likely to produce great bodily injury, as defined in the instructions.” The court then excused the jury for the day. In addition, the court replaced the original verdict forms with modified forms deleting the deadly weapon language.
The jury resumed deliberations the next morning and sent out a note 20 minutes later indicating it had reached a verdict. Before the jury returned, Ms. Im, once again standing in for counsel for Marra, inquired about the proceedings the previous afternoon; and the court explained it had directed the jury to the relevant assault instructions. The court added, “The difficulty came inadvertently when the verdict forms were sent in. There was language about assault with a deadly weapon. That’s the only place that that language appeared, because they had not been instructed on that. We deleted that when they were sent the most recent copy of the verdict forms, which show[] only assault by means of force likely to produce, which is all they’ve been instructed on consistently.” The court then declined defense counsel’s request to replace the verdict forms with a version that “specif[ies] either a weapon or force likely to cause great bodily injury, and specif[ies] the weapon . . .,” stating, “They haven’t been instructed on a weapon . . . . The theory that the People have operated under, and the thing that we discussed during jury selection was force likely to produce.”
The jury returned guilty verdicts on count 1, assault by means of force likely to produce great bodily injury, against both Marra and Magan. The jury also found true the special allegation Magan had inflicted great bodily injury under section 12022.7, subdivision (a). Both defendants moved for a new trial on the ground the verdict forms did not conform to the information and the court had erred by deleting the language referring to a deadly weapon from the verdict forms. The motion was denied.
Imposition of sentence as to Marra was suspended. She was placed on probation for a period of three years with various conditions including that she serve 240 days in county jail, time she had already served.
CONTENTIONS
Reece argues the trial court effectively coerced a guilty verdict on the aggravated assault count when it modified the verdict forms during deliberation. She further argues the court violated her due process right to notice of the charges against her and deprived her of her right to present a competent defense when it instructed the jury in a manner at variance with the charges. She also contends the court erred by refusing to allow the jury to view the videotape in the jury room, failing to give sua sponte a limiting instruction on the natural and probable consequences theory of aiding and abetting liability and failing to give a unanimity instruction.
DISCUSSION
1. The Trial Court Did Not Err in Replacing the Misleading Verdict Forms
a. The trial court’s instructions to the jury and modification of the verdict forms did not coerce the jury’s verdict on the aggravated assault charge
A trial court operates under dual obligations in shepherding a jury to its verdict. “The court has a primary duty to help the jury understand the legal principles it is asked to apply [and] must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury [and] should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97; see also People v. Thompkins (1987) 195 Cal.App.3d 244, 250 [“A jury’s request for reinstruction or clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration”].)
At the same time section 1140 bars discharge of the jury, once a cause has been submitted, “unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.” In other words, “[t]he court may ask jurors to continue deliberating where, in the exercise of its discretion, it finds a ‘reasonable probability’ of agreement.” (People v. Pride (1992) 3 Cal.4th 195, 265.) “The determination whether there is reasonable probability of agreement rests in the discretion of the trial court. [Citations.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment ‘in favor of considerations of compromise and expediency.’” (People v. Breaux (1991) 1 Cal.4th 281, 319.) “Any claim that the jury was pressured into reaching a verdict depends on the particular circumstances of the case.” (Pride, at p. 265.)
Reece premises her claim of coercion on the decisions in People v. Stouter (1904) 142 Cal. 146 (Stouter) and People v. Jennings (1972) 22 Cal.App.3d 945 (Jennings) in which the court reversed convictions based on the trial court’s belated instruction on an uncharged crime that led the jury to convict. In Stouter the defendant had been charged with the commission of a lewd act upon a child and the jury was instructed they must find beyond a reasonable doubt the defendant had inserted his finger into the child’s vagina. (Stouter, at p. 147.) After lengthy deliberation the jury inquired whether it was necessary to prove the finger had been inserted into the vagina and whether an attempt to insert the finger into the vagina would be sufficient to render a verdict of guilty. (Id. at p. 148.) The court reread the instructions and sent the jury back, and it continued to deliberate unsuccessfully. After discussing their deadlock with the jurors, “by which the opinions of most of the jurors were very fully disclosed,” the court “gave the jury a new instruction, to the effect they might find the defendant guilty of an ‘attempt’ to commit the crime charged” under section 1159, and provided them with a supplemental verdict form. (Id. at p. 149.) The jury promptly convicted the defendant of the attempt. (Ibid.)
Reversing, the Supreme Court stated, “There is no doubt of the general rule that after a jury have retired for consultation they may be called into the court for further instructions, but we think that it was erroneous and unfair to give the last instruction as to the attempt, at the time and under the circumstances at and under which it was given. The jury had been out for a very long time without being able to agree under the instructions which had been given them . . . and many of the jurors had practically told the court what their opinions were . . . . The project of instructing the jury for the first time, . . . that they might, notwithstanding the former instructions, convict the defendant of the attempt, was clearly an afterthought suggested by the statements of the jurors as to how they then stood, and apparently intended to help them, not generally arrive at a verdict, but to arrive at some sort of a verdict of guilty. Such a proceeding is, we think, a most dangerous interference with the right of a defendant to a fair trial.” (Stouter, supra, 142 Cal. at pp. 149-150.)
In Jennings, supra, 22 Cal.App.3d 945, the Court of Appeal applied the reasoning of Stouter to reverse the defendant’s conviction of aggravated assault under section 245, subdivision (a). The defendant had been charged with a violation of former section 217 (assault with intent to commit murder). During the conference on jury instructions, defendant sought an instruction on simple assault but objected to an aggravated assault instruction under section 245, subdivision (a). The trial court denied the request for an instruction on simple assault but acquiesced in the objection to an instruction for aggravated assault. (Id. at p. 947.) When the jury returned the third time reporting a deadlock, however, the comments of the jurors made clear the jury could not agree on the intent to murder, and the court instructed on both simple and aggravated assault as lesser included offenses. The jury promptly convicted the defendant under section 245, subdivision (a). (Id. at p. 948.)
Former section 217 was repealed in 1980. (Stats. 1980, ch. 300, § 2, p. 628.)
On appeal, Division Four of this court found no material difference between the case before it and Stouter. (Jennings, supra, 22 Cal.App.3d at p. 948.) Distinguishing the decision in People v. Purcell (1937) 22 Cal.App.2d 126, which had declined to follow Stouter, the court observed that the court’s instructions, like those in Stouter, “introduce[d] in the midst of jury deliberation, a new and theretofore unmentioned offense.” (Jennings, at p. 949.)
Neither Stouter nor Jennings is controlling here. In each of those cases the trial court, after learning of the basis for the jury’s deadlock, instructed the jury as to a statutory offense different from that with which the defendant had been charged and tried: An attempt to commit, rather than commission of, a lewd act in Stouter; and aggravated assault rather than assault with the intent to commit murder in Jennings. In contrast, the trial court in this case simply deleted language from the verdict form that related to an alternate manner of committing aggravated assault under section 245, subdivision (a), leaving the jury to consider Reece’s guilt on the exact same crime with which she had been charged and the jury had originally been instructed. (See People v. Purcell, supra, 22 Cal.App.2d at p. 133 [trial court properly amended previously given erroneous instructions].)
Although not disputing this significant difference between the cases she relies upon and the trial court’s action in this case, Reece argues the modification occurred only after the trial court had learned the majority of the jurors were inclined to acquit her on the aggravated assault charge and insists the court’s subsequent expression of displeasure coerced the jury to reverse course. Reece’s argument is not based on a fair reading of the proceedings. It is plain the jury was thoroughly confused by the instructions and did not understand its obligations with respect to completion of the verdict forms. Twice the jury attempted to return a conviction on simple assault without having first reached a verdict on the aggravated assault charge. The court quite properly directed the jurors to review particular instructions that explained their responsibility to resolve the more serious charge before returning a verdict on the lesser included offense. (See People v. Fields (1996) 13 Cal.4th 289, 309-310 [trial court has duty to instruct that jury cannot convict of a lesser included offense unless it has concluded defendant is not guilty of greater offense].) After it briefly grappled with this issue further, the jury indicated it was deadlocked on the aggravated assault charge. Rather than force a decision, the trial court offered to suspend deliberations for the rest of the afternoon to allow a fresh start the next morning. The jury, which had been deliberating only one and one half days, elected to continue deliberating.
After additional deliberations (approximately 20 minutes) the jury sent another note that indicated their uncertainty as to the meaning of the term “deadly weapon” and alerted the court to the discrepancy between the instructions the jury had received on the aggravated assault charge, which had been approved by all counsel, and the verdict form, also previously approved by counsel, which read “assault with deadly weapon, by means likely to produce great bodily injury . . . .” The court raised the discrepancy with counsel and decided to replace the deadly weapon language with language that tracked the instructions provided to the jury. Was this prejudicial error? Not in the least. The trial court had an affirmative duty to instruct the jury according to the law and to assist the jury in understanding any applicable laws. Reformation of the verdict forms to comport with the jury instructions, which Reece does not challenge here, was proper.
Reece argues language in the information, which is reflected in the withdrawn verdict forms, required the People prove a deadly weapon had been used for the crime to be an aggravated assault and also contends fists and feet cannot, as a matter of law, be deadly weapons. Her assertion with respect to the effect of the charging allegations is considered in the following subsection. Her contention as to feet and fists is simply wrong. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [“[t]hat the use of hands or fists alone may support a conviction of assault ‘by means of force likely to produce great bodily injury’ is well established”].)
b. Reece received adequate notice of the charges against her
Due process requires a criminal defendant be given fair notice of the charges to provide an opportunity to prepare a defense and to avoid unfair surprise at trial. (People v. Gallego (1990) 52 Cal.3d 115, 189; People v. Bishop (1996) 44 Cal.App.4th 220, 231; People v. Tardy (2003) 112 Cal.App.4th 783, 786.) Reece claims this principle was violated when the trial court sua sponte replaced the verdict forms with versions that deleted references to deadly weapons. Reece claims her defense was constructed around the absence of any credible evidence her sister had used a weapon during their encounter with Featherstone.
The record, however, does not support this contention. Reece was charged and convicted under section 245, subdivision (a)(1), which defines aggravated assault as an assault committed either by use of “a deadly weapon or instrument other than a firearm” or “by any means of force likely to produce great bodily injury.” Although the information states in part “assault with deadly weapon, by means likely to produce GBI, in violation of [§ 245, subd. (a)(1)],” it also specifies “assault . . . with a deadly weapon, to wit, knife/box cutter, and by means of force likely to produce great bodily injury.” (Italics added.) This language was sufficient to advise Reece and her counsel of the scope of the charge against her.
2. The Trial Court Did Not Err in Requiring the Jury To View the Surveillance Videotapes in the Courtroom Rather Than in the Jury Room
Under section 1137 a jury is authorized to take evidentiary exhibits other than deposition transcripts, jury instructions and personal notes into the jury room for closer review. (See generally People v. Horowitz (1945) 70 Cal.App.2d 675, 704 [“[t]he jury is a constitutional part of the court and they are privileged to take all or any of the exhibits with them”]; People v. Douglas (1977) 66 Cal.App.3d 998, 1006 [§ 1137 extends to tape recordings]; People v. Manson (1976) 61 Cal.App.3d 102, 215 [phonograph records and record player]; People v. Walker (1957) 150 Cal.App.2d 594, 603 [tape recordings and player].) Section 1137 is not mandatory, however, and what may be taken by the jury into the jury room is left to the sound discretion of the trial court. (Walker, at p. 603; see People v. Clair (1992) 2 Cal.4th 629, 661 [a court has “‘inherent authority regarding the performance of its functions’”].) In addition, the trial court is charged with “provid[ing] for the custody and safekeeping” of all materials submitted to the jury. (§ 1137.)
Section 1137’s corollary, section 1138, requires the trial court to provide for the rereading of testimony or further instruction in the courtroom in the presence of counsel. (See, e.g., People v. Ainsworth (1988) 45 Cal.3d 984, 1020 [rereading of testimony]; People v. Wester (1965) 237 Cal.App.2d 232, 238 [requests for instruction]; People v. Malone (1959) 173 Cal.App.2d 234, 244 [same].) Section 1138 is silent, however, as to the form in which the testimony must be furnished, a question that is apparently left to the trial court’s discretion.
Reece contends the trial court erred when it declined to allow the jury to review the surveillance videotapes in the jury room while they were deliberating. Although “an important element of trial by jury is the conduct of deliberations in secret, free from ‘“‘intrusive inquiring into the sanctity of jurors’ thought processes”’” (People v. Engelman (2002) 28 Cal.4th 436, 442-443), “[t]he rereading of testimony is not a critical stage of the proceedings.” (People v. Ayala (2000) 23 Cal.4th 225, 288.) We see no distinction between a readback of testimony and a replay of the videotape excerpts for purposes of section 1138 and no improper intrusion on the jury’s ability to deliberate.
In any event, “[w]hen a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under section 1138.” (People v. Roldan (2005) 35 Cal.4th 646, 729.) “‘The failure of defendant’s counsel to object or move for a mistrial upon the court frankly informing him of the court’s action might also be construed to be a tacit approval. Approval of the court’s action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error.’” (Ibid.; see also People v. Boyette (2002) 29 Cal.4th 381, 430 [finding error waived by failure to object to trial’s court decision not to respond to jury’s note].)
Reece’s counsel failed not once, but twice, to object to the court’s stated intention not to allow the video equipment to be moved from the courtroom to the jury room in order to allow the jurors to review the surveillance videotapes. The first opportunity occurred before the jury began deliberating, and the second occurred when the jury sent a note asking to have the videotapes played in the jury room just an hour after deliberations began. “It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citation.]” (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
The People and the defense prepared different condensed versions of the original surveillance videotape, each of which was admitted into evidence, but which required different interfaces. The People’s version was shown on a television monitor; the defense’s version was projected onto a screen. After reading the instructions to the jury, the court advised all present, “Both the tapes from the security cameras have been accepted into evidence, which means you could consider them as part of your deliberations. I don’t want to send the equipment into the jury room for fear that they might break or, you know, something could happen. . . . If you want to see either . . . you could see them as many times as you want. But we’re going to play them for you. So just let us know, and we’ll bring you into the courtroom, and we’ll play them in here . . . . You could do it as many times as you want.”
Even were we to assume error, moreover, Reece does not demonstrate how she was prejudiced or denied a fair trial by the trial court’s action. (People v. Box (2000) 23 Cal.4th 1153, 1214; People v. Frye (1998) 18 Cal.4th 894, 1007.) It is not reasonably probable the verdict would have been different if the court had allowed the jury to view the videotapes in the jury room rather than the courtroom. (People v. Watson (1956) 46 Cal.2d 818, 836.)
3. The Trial Court Did Not Err by Failing To Instruct the Jury Sua Sponte on the Limitations of the Natural and Probable Consequences Theory of Aiding and Abetting Liability
A defendant aids and abets the commission of a crime when he or she, with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging or facilitating the commission of a crime, by act or advice aids, promotes, encourages or instigates the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) A defendant who aids and abets the commission of a crime is guilty of that crime regardless of the degree of his or her involvement. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529 [“‘[l]iability attaches to anyone “concerned [in the commission of a crime],” however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal’”].) Moreover, an aider and abettor can be found “guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.)
The trial court fully instructed the jury on the general theory of aiding and abetting liability and was not asked by Reece’s counsel to instruct on the supplemental “natural and probable consequences” doctrine. Reece now argues the prosecutor’s closing argument improperly implicated the natural and probable consequences doctrine, imposing on the trial court the sua sponte duty to instruct the jury under CALJIC No. 3.02. According to Reece, had the jury been properly instructed, it might have concluded she had intended to aid only in a misdemeanor assault on Featherstone and could not have reasonably foreseen her sister Magan might use a weapon or great bodily injury was likely to occur as a result of the attack.
As given to the jury, CALIC No. 3.00 provides, “Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime; or, [¶] 2. Those who aid and abet the commission of the crime.” CALJIC No. 3.01 provides, “A person aids and abets the commission of a crime when he or she: [¶] 1. With knowledge of the unlawful purpose of the perpetrator; and, [¶] 2. With the intent or purpose of committing or encouraging or facilitating the commission of the crime; and, [¶] 3. By act or advice aids, promotes, encourages or instigates the commission of the crime. [¶] Now, mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”
The instruction Reece claims should have been given, CALJIC No. 3.02, provides, “One who aids and abets [another] in the commission of a crime [or crimes] is not only guilty of [that crime] [those crimes], but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime[s] originally aided and abetted. [¶] In order to find the defendant guilty of the crime[s] of _______, [as charged in Count[s] _____,] you must be satisfied beyond a reasonable doubt that: [¶] (1) The crime [or crimes] of ________ [was] [were] committed; [¶] (2) That the defendant aided and abetted [that] [those] crime[s]; [¶] (3) That a co-principal in that crime committed the crime[s] of [_________]; and [¶] (4) The crime[s] of ______ [was] [were] a natural and probable consequence of the commission of the crime[s] of _________. [¶] [In determining whether a consequence is ‘natural and probable,’ you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. “Probable” means likely to happen.] [¶] [You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of _____ was a natural and probable consequence of the commission of that target crime.]”
While Reece is correct a sua sponte duty to instruct under CALJIC No. 3.02 may arise where the prosecutor relies on the natural and probable consequences doctrine in closing argument, Reece’s argument once again rests on a mischaracterization of the record. Reece focuses on the prosecutor’s statement, “These are serious offenses . . . . As an aider and abettor, a principal aider and abettor, you are equally responsible, equally guilty to everything that happens to a victim. No matter what your participation is. So, therefore, if you find Magan guilty of count 1, and count 2, the defendant . . . Marra Reece, she goes down equally with her sister.” Immediately before this portion of her argument, however, the prosecutor said, “If it was defendant Magan Reece’s fight, why didn’t Marra let her [(Featherstone)] go at that point so that the victim could have -- as Marra used -- mutual combat. She didn’t because it was not their intent to do that, ladies and gentlemen. And she is not guilty of some misdemeanor or some lesser offenses. No, she’s way up there . . . with her sister.” That is, the prosecutor argued Reece shared her sister’s specific intent to injure Featherstone, an element of the mayhem charge, and was not suggesting that Reece was guilty of either of the more serious charges on a natural and probable consequences theory. In light of the charges and the testimony at trial, the prosecutor’s comments did not require the trial court to further instruct the jury under CALJIC No. 3.02.
4. The Trial Court Did Not Err by Failing To Give a Unanimity Instruction
Reece finally contends the trial court was required to instruct sua sponte under CALJIC No. 17.01 to ensure the members of the jury unanimously agreed on the basis for their guilty verdict. According to Reece, the trial court’s deletion of the deadly weapon language from the instructions and verdict form likely confused the jury as to which act constituted the aggravated assault.
CALJIC No. 17.01 provides, “The defendant is accused of having committed the crime of _______ [in Count _______]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act][or] [omission] upon which a conviction [on Count _______] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he][she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count _____], all jurors must agree that [he][she] committed the same [act][or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act][or] [omission] agreed upon be stated in your verdict.”
A defendant is entitled to a verdict in which all 12 jurors concur beyond a reasonable doubt as to each count charged. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534; People v. Maury (2003) 30 Cal.4th 342, 422 [“[a] requirement of jury unanimity typically applies to acts that could have been charged as separate offenses”]; People v. Mota (1981) 115 Cal.App.3d 227, 231 [“‘“where there are multiple acts placed before a jury, each being a separate chargeable offense in itself, the prosecution must elect the act on which the charge will stand,” or otherwise “the jurors [might] range over the evidence at will and pick out any one of the offenses upon which to found its verdict”’”].) If a case requires use of the unanimity instruction, the court must give it sua sponte. (See People v. Hefner (1981) 127 Cal.App.3d 88, 97.)
“‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.] [¶] On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty.” (People v. Russo, supra, 25 Cal.4th at p. 1132; see People v. Santamaria (1994) 8 Cal.4th 903, 918-919; People v. Napoles (2002) 104 Cal.App.4th 108, 116.) Indeed, “‘[j]urors need not unanimously agree on whether the defendant is an aider and abettor or a principal even when different evidence and facts support such conclusion.’” (People v. Maury, supra, 30 Cal.4th at p. 423.) Nor is a unanimity instruction required when the acts are so closely connected in time as to form part of one transaction or a single course of conduct. (People v. Crandell (1988) 46 Cal.3d 833, 875, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; Napoles, at p. 116[exception arises when the acts are so closely connected in time and place that they form a single offense].)
The assault against Featherstone involved a series of acts, including punches, slaps, hair pulling, pushes and possibly use of a metal object, so closely connected they were part of “one prolonged assault, of which the individual blows and other indignities were inseparable components.” (People v. Robbins (1989) 209 Cal.App.3d 261, 266.) No unanimity instruction was required. The jury’s conclusion these acts, whether considered singly or as a whole, were performed in a manner likely to produce great bodily injury is more than sufficient to uphold Reece’s conviction.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.