Opinion
C078697
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEE ROESSLER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MF036585B)
Defendant Michael Lee Roessler shot and killed Michael Lawrence. Convicted of second degree murder and sentenced to a total term of 40 years to life in state prison, defendant appeals.
On appeal, he contends: (1) the trial court improperly removed a juror for drinking and intoxication during deliberations; (2) the court improperly denied his motion for a new trial that was based on the allegation that another juror willfully concealed information or provided false information during the jury selection process; (3) the court violated his due process rights by excluding evidence of the victim's prior convictions for possession of a firearm by a convicted felon; (4) the court violated his right to be present at all critical stages of the trial by allowing testimony to be read back to the jury outside defendant's presence; (5) the cumulative effect of errors resulted in a violation of his due process rights; (6) he is entitled to remand for the trial court to exercise its discretion concerning whether to strike firearm enhancements under legislation enacted during the pendency of this appeal; and (7) he is entitled to remand for a hearing to make a record of information relevant to an eventual youth offender parole hearing.
We conclude: (1) the record supports the trial court's finding that the dismissed juror was drinking and intoxicated during deliberations; (2) the other juror did not willfully conceal information or provide false information during the jury selection process; (3) defendant did not preserve for appeal his attempt to introduce evidence of the victim's prior convictions for possession of a firearm by a convicted felon because he did not obtain a ruling on the issue after he presented self-defense evidence; (4) defendant has no constitutional right to be present during readback of testimony to the jury; (5) there were no errors from which prejudice could accumulate; (6) the matter must be remanded for the trial court to exercise its discretion concerning whether to strike firearm enhancements; and (7) the matter must be remanded for defendant to make a record of information relevant to an eventual youth offender parole hearing.
We affirm.
BACKGROUND
Our resolution of the issues raised by defendant on appeal does not require a detailed recitation of the facts. We therefore provide only this brief summary.
On June 22, 2013, the victim, Michael Lawrence, went to the Islander Tavern in Manteca to buy beer to take out. When he returned home, he appeared upset and said that some men had been rude to him. Lawrence and several others returned to the bar.
Lawrence went into the bar and came back out of the bar shortly thereafter. Defendant and Christopher Oliver followed him out. Defendant and Lawrence yelled at each other. However, defendant and Lawrence eventually shook hands, and Lawrence and the others who came with him to the bar left.
Later, defendant and Oliver drove on motorcycles loudly past Lawrence's residence, revving their engines. Lawrence got angry, and one of his friends threw a bottle at the motorcyclists as they were passing the house a second time. Defendant and Oliver turned around and returned to the residence. Oliver dismounted and began fighting with Lawrence. Defendant drew a handgun and fired multiple shots in Lawrence's direction. Defendant and Oliver left on their motorcycles. Lawrence died of a gunshot wound to the neck.
The district attorney charged defendant by information with murder (count 1; Pen. Code, § 187, subd. (a)), with accompanying firearm arming and discharge enhancement allegations (§§ 12022, subd. (a)(1); former 12022.5, subd. (a); former 12022.53, subd. (d)). The information also charged defendant with conspiracy to commit murder. (Count 2; § 182, subd. (a)(1).)
Hereafter, unspecified code citations are to the Penal Code. --------
A jury convicted defendant of second-degree murder and found true the firearm enhancement allegations. It found defendant not guilty of conspiracy.
The trial court imposed an indeterminate term of 15 years to life for the second degree murder. (§ 190, subd. (a).) It added a consecutive term of 25 years to life for discharge of a firearm resulting in death. (Former § 12022.53, subd. (d).) The court imposed and stayed a term of one year for committing a felony while armed (§ 12022, subd. (a)(1)) and imposed and stayed the upper term of ten years for personal use of a firearm in committing a felony (former § 12022.5, subd. (a)). The total unstayed sentence imposed was 40 years to life.
DISCUSSION
I
Removal of Juror
During deliberations, the trial court dismissed a juror because that juror was drinking during deliberations and showed signs of intoxication. On appeal, defendant contends the record does not establish a demonstrable reality that the juror's alcohol consumption rendered him unable to perform his duties as a juror. To the contrary, the record, construed in light of the trial court's factual findings, supported the dismissal of the drinking juror.
A. Law
Penal Code section 1089 permits a trial court to discharge a juror if, among other things, the juror "upon . . . good cause shown to the court is found to be unable to perform his or her duty . . . ." "Good cause" includes many circumstances that render the juror unable to perform the necessary functions, including sleeping during the trial (People v. Bonilla (2007) 41 Cal.4th 313, 350), anxiety (People v. Fudge (1994) 7 Cal.4th 1075, 1099-1100), sickness (People v. Dell (1991) 232 Cal.App.3d 248, 253-254), or even an inability to focus on the deliberations (Mitchell v. Superior Court (1984) 155 Cal.App.3d 624, 628-629).
Intoxication during deliberations constitutes good cause to discharge a juror. (People v. Burgener (1986) 41 Cal.3d 505 (Burgener), overruled on other grounds in People v. Reyes (1995) 19 Cal.4th 743, 753.) In Burgener, the jury foreman notified the trial court, during deliberations, that a juror was intoxicated. (Id. at pp. 516-517.) Instead of holding a hearing or discharging the juror, the court gave a general admonition to the jury not to use intoxicants for the rest of the trial. Thereafter, the jury convicted the defendant. (Id. at p. 517.) On review, the California Supreme Court held that the trial court should have held a hearing to determine the juror's ability to perform his duties. However, the court found the error harmless. (Id. at p. 511-512, 518.) The court said:
"[T]he foreman's statements were sufficient to raise the possibility Juror M. was intoxicated during jury deliberations. If, due to the use of intoxicating substances, Juror M.'s ability to follow the instructions of the court, to deliberate, to render a verdict or otherwise discharge her duties was compromised, she ought to have been excused. [Citations.] It is beyond question that a criminal verdict rendered with the participation of a juror unfit for the proper discharge of her duty due to intoxication must be reversed. [Citations.]" (Burgener, supra, 41 Cal.3d at p. 520.)
We review a trial court's discharge of a juror for abuse of discretion, but the record must support the juror's disqualification as a "demonstrable reality." (People v. Williams (2015) 61 Cal.4th 1244, 1262.) "The demonstrable reality test 'requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [disqualification] was established.' [Citation.] To determine whether the trial court's conclusion is 'manifestly supported by evidence on which the court actually relied,' we consider not just the evidence itself, but also the record of reasons the court provided. [Citation.] In doing so, we will not reweigh the evidence. [Citation.]" (People v. Wilson (2008) 43 Cal.4th 1, 26 (Wilson).)
B. Procedure
During deliberations, the trial court was informed that Juror No. 9 had been drinking. To learn more, the court brought the foreperson, Juror No. 12, into the courtroom. The foreperson told the court that Juror No. 9 "brings a bottle - and I assumed it was tea, but two jurors have smelled it. It is definitely alcohol. And it is my assessment in deliberations that it has impaired his judgment drastically. [¶] I would describe him as belligerent. More than argumentative in - compared to the other jurors, that is. [¶] And it's my recommendation that we replace him." The foreperson said that another juror smelled the bottle and made a face like it was alcohol. Juror No. 9 always had the bottle during deliberations. The foreperson never smelled Juror No. 9's breath, but Juror No. 9 had difficulty articulating, which the foreperson attributed, at the time, to lack of education. The foreperson did not notice any balance problems or slurring of speech, but he noted that Juror No. 9 used the " 'F' word" and other words of that nature frequently. He was familiar with alcohol impairment and believed Juror No. 9 was "[d]efinitely more than buzzed, but not to the point where he - where I would say he was drunk drunk. I wouldn't say this morning he is yet." The impairment got worse as the day went on.
The trial court interviewed three additional jurors before interviewing Juror No. 9.
Juror No. 10, who sat by Juror No. 9 during trial, said Juror No. 9 was loud and outspoken during deliberations, but Juror No. 10 did not know whether Juror No. 9 was under the influence of alcohol. Juror No. 10 noticed no evidence that Juror No. 9 was under the influence of alcohol other than being loud. Juror No. 9 brings ice tea to deliberations, but Juror No. 10 never smelled it.
Juror No. 8, who also sat by Juror No. 9 during trial, said Juror No. 9 had told Juror No. 8 that he brought cherry wine, mixed with ice tea, in the bottle. Juror No. 8 said that Juror No. 9 was a little louder and a little more belligerent, but Juror No. 8 did not notice signs of intoxication. Juror No. 8 added: [Juror No. 9's] not a very well public spoke person. And he had a little trouble in his presentation, but he got through it all right."
Juror No. 3 said that Juror No. 9 brought to deliberations a tea bottle with brandy, which Juror No. 3 smelled. Juror No. 9 also brought in a bottle with tea in it. Juror No. 3 did not notice any signs of intoxication.
Juror No. 9 denied bringing alcohol into the jury room or drinking alcohol during deliberations. He said he was joking when he told other jurors that he had alcohol in the bottle. Juror No. 9 retrieved a bottle, which the bailiff smelled and identified as lemon tea. And Juror No. 9 denied bringing any other bottle.
Because the trial court's actual reasoning and the evidence it relied on in discharging the juror are essential to our analysis under the demonstrable reality test, we recite the trial court's ruling:
"All right. Well, it's 9:30 in the morning and he presented one bottle just now. I don't know if he has other bottles or not. I don't know if he has other bottles in his car.
"But it is a credibility issue and the other jurors appeared very honest and straightforward to me. They didn't appear to have any ulterior motive in what they were saying. And I'm relying to a very large extent on the statements of the foreperson because I think the foreperson is in a better position to evaluate the status of jurors than anyone else.
"The foreperson stated that he was belligerent, more than other jurors. He brings a bottle with alcohol. His judgment is impaired drastically. He has difficulty articulating and he appears more than buzzed. Gets worse as the day goes on. So that means to me that there is a very good chance that he starts drinking later on in the day.
"So Juror Three testified that she smelled it. He told her he makes it and the juror said that he was just joking, but she actually smelled it.
"And evaluating the statement of [Juror No. 9], based on thousands of witnesses I have spoken to, thousands of jurors I have spoken to, I'm going to say I don't believe him. I think he's lying to the Court. I think he has been drinking during deliberations. I think it's having an adverse effect on his ability to deliberate and I don't think it is appropriate to have a juror drinking that much.
"If a juror decides to have one drink or two drinks at lunch, that's - I'm not going to say that it's inappropriate. Obviously depends on what effect it has on the individual, but it sounds as though he's having more than one or two drinks because as the juror - as the foreperson says, he is more than buzzed.
"So I think that there is significant evidence here to indicate that he is drinking. That it is having an inappropriate effect on this ability to deliberate. So I'm going to order that he be removed and we will bring in an alternate."
C. Legal Analysis
Defendant argues: "Evidence gathered during the court's investigation of the foreperson's allegations failed to establish as a demonstrable reality that consumption of alcohol rendered juror number 9 unable to perform his duties as a juror." This argument is belied by the evidence and the trial court's credibility determinations.
There was evidence that Juror No. 9 was drinking and, to some extent, intoxicated during deliberations. While no one testified that he was slurring his speech or he was off balance, he was loud and belligerent and he had a hard time expressing himself. While it is true, as defendant contends, that his loudness, belligerence, and limited ability to express himself may have been natural, meaning not the effect of intoxication, the trial court's finding that they were the effects of intoxication was reasonable under the circumstances. As the court was the trier of fact, in this instance, we defer to that reasonable interpretation of the evidence.
The evidence supports the conclusion that Juror No. 9's ability to deliberate was compromised by his drinking during deliberations. It would have been inappropriate under Bergener, for the court to allow Juror No. 9 to continue deliberating. (Burgener, supra, 41 Cal.3d at p. 520.) The record supports the trial court's finding and the grounds on which the court dismissed the juror, which satisfies the demonstrable reality test. (Wilson, supra, 43 Cal.4th at p. 26.) While there was some evidence that Juror No. 9 was not intoxicated or did not bring alcohol into jury deliberations, the trial court found that evidence was not credible and did not overcome the evidence of his impairment. We do not reweigh the evidence. (Ibid.)
Defendant finds fault with the trial court's reliance on the foreperson. The court said that it came to its conclusions, at least in part, "because I think the foreperson is in a better position to evaluate the status of jurors than anyone else." We find no fault with this statement. The trial court had the responsibility in its investigation to determine what happened in the jury room. It interviewed several jurors, and it determined that the foreperson's observations were the most useful. We need not suppose that the trial court abdicated its role as factfinder to the foreperson; instead, the court recognized that, under the circumstances of this case, the foreperson, who took responsibility for the proper conduct of deliberations, was in the best position to apprise the court of what happened in the jury room.
Defendant recounts declarations filed in support of a later motion for new trial and seems to assume that we will consider those declarations in determining whether the trial court erred in dismissing Juror No. 9. To the contrary, we do not examine later proceedings and after-acquired facts in determining whether the trial court's prior dismissal of a juror was proper. A decision to dismiss a juror that was proper when the trial court made the decision continues to be proper even if later-discovered facts might contradict the evidence the court had when it dismissed the juror. (People v. Fuiava (2012) 53 Cal.4th 622, 716.)
II
Motion for New Trial
Defendant contends the trial court erred by denying his motion for a new trial based on jury misconduct. He claims that the foreperson willfully concealed information and provided false information about his qualification to be a juror - specifically, that the juror was a pastor and had a religious conviction that prevented him from following the instruction that the testimony of only one witness may prove a fact. The contention is without merit.
A. Law
An accused has a constitutional right to a trial by an impartial jury. (Irvin v. Dowd (1961) 366 U.S. 717, 722 [6 L.Ed.2d 751, 755]; In re Hitchings (1993) 6 Cal.4th 97, 110.) "Voir dire examination serves to protect [a criminal defendant's right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror's being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious." (McDonough Power Equip. v. Greenwood (1984) 464 U.S. 548, 554 [78 L.Ed.2d 663, 670] (McDonough).) Because voir dire is the crucial means for discovery of actual or potential juror bias, it cannot serve this purpose if prospective jurors do not answer questions truthfully, and therefore "[a] juror who conceals relevant facts or gives false answers during the voir dire examination . . . undermines the jury selection process and commits misconduct." (In re Hitchings, supra, 6 Cal.4th at p. 111.)
Although the intentional concealment of relevant facts during voir dire constitutes misconduct, and raises a rebuttable presumption of prejudice (People v. Carter (2005) 36 Cal.4th 1114, 1208), a juror's unintentional or inadvertent failure to disclose relevant facts is not accorded the same effect. " 'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional 'concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he is unable to perform his duty." [Citation.] [¶] Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination. [Citations.]' " (People v. San Nicolas (2004) 34 Cal.4th 614, 644, quoting People v. McPeters (1992) 2 Cal.4th 1148, 1175.)
When a party seeks a new trial based upon jury misconduct, "the court must undertake a three-step inquiry. First, the court must determine whether the evidence presented for its consideration is admissible. [Citations.] . . . [¶] Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct. [Citations.] . . . [¶] Finally, if misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial." (People v. Duran (1996) 50 Cal.App.4th 103, 112-113.) "Although prejudice is presumed once misconduct has been established, the initial burden is on defendant to prove the misconduct" (In re Carpenter (1995) 9 Cal.4th 634, 657 (Carpenter)), and " '[w]e will not presume greater misconduct than the evidence shows' " (People v. Lewis (2001) 26 Cal.4th 334, 390, quoting Carpenter, at p. 657).
B. Procedure
During jury selection, the eventual foreperson filled out a questionnaire, including the following questions and answers:
"The testimony of only one witness, whom you believe, can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence. [¶] Do you agree with this law?" The foreperson marked "Yes." The questionnaire also asked, "Will you follow this law?" The foreperson marked, "Yes."
The questionnaire asked: "Do you have any strong personal beliefs about sitting in judgment on a criminal case or any religious beliefs that would make it difficult for you to enforce any of our laws or abide by the law as the court will explain it?" The foreperson marked, "No."
The foreperson wrote that he was employed at Kaiser Permanente as a medical secretary.
During voir dire, the foreperson said, "I will follow only the laws provided by the judge."
After trial, defendant filed a motion for new trial with an accompanying declaration from a defense investigator, including the following excerpt:
"When speaking with . . . the foreperson, during the meeting at one point he asked to go 'off the record', I complied and turned off a digital recorder. He indicated he was a pastor in his church, that he was a Jehovah Witness. He related that as such his religious beliefs required him to hear from two persons regarding the same fact before it can be proven."
Defendant raised this issue at the motion for new trial, arguing that the foreperson concealed his "other occupation as a pastor" and his belief that two witnesses were required to prove any fact. Defendant claimed that, if the information had been divulged, the jury panel would have been different.
The trial court rejected defendant's argument: "[T]here was no indication that [the foreperson] was not truthful on voir dire or in his questionnaire or that his religious beliefs had an inappropriate effect on his verdict. People of any religion can be a jury - on a jury. Atheists can be on a jury. The question is is the juror going to make a decision based on the law and the facts."
C. Legal Analysis
On appeal, defendant asserts the foreperson lied on the questionnaire and in voir dire on two matters: (1) his occupation and (2) his religious conviction that prevented him from following the instruction that the testimony of only one witness may prove a fact. We conclude the record does not establish that the foreperson improperly concealed anything.
As to the foreperson's "occupation" as a pastor, defendant appears to assume that being a pastor in this particular religion is an occupation. But an assumption is not the same as establishing a fact. The fact that the foreperson was a pastor, even if true, does not establish that the foreperson lied when he wrote in the questionnaire that he was employed at Kaiser Permanente as a medical secretary. Not all religions have a paid clergy. Thus, not all "pastors," which is itself a very broad and undefined term in the record, necessarily are employed in that role.
As to his religious convictions, the foreperson wrote on his questionnaire and said during voir dire that he would follow the law, including the law that a fact may be proven by the testimony of one witness. He also wrote that he did not "have any strong personal beliefs about sitting in judgment on a criminal case or any religious beliefs that would make it difficult for [him] to enforce any of our laws or abide by the law as the court [explained] it." In other words, the foreperson made a commitment not to let any personal religious belief interfere with the foreperson's duties as a juror. Even assuming the defense investigator's declaration adequately conveyed the substance of his discussion with the foreperson, the declaration simply does not establish that the foreperson lied or violated his oath as a juror by failing to apply the law as instructed by the court. "We will not presume greater misconduct than the evidence shows." (Carpenter, supra, 9 Cal.4th at p. 657.)
Since the record does not support defendant's assertion that the foreperson lied on the questionnaire or during voir dire, we need not consider further defendant's contention that the trial court erred by denying the motion for new trial.
III
Exclusion of Victim's Prior Convictions
Defendant contends the trial court abused its discretion by excluding evidence of the victim's prior convictions for possession of a firearm by a convicted felon. He argues that evidence should have been admitted under Evidence Code section 1103 to show the victim's propensity for violence, in support of defendant's claim that defendant acted in self-defense. We conclude the trial court did not abuse its discretion because defendant sought admission of the prior conviction evidence before defendant testified that he acted in self-defense, and he did not renew his effort to have the evidence admitted after the relevant self-defense evidence had been proffered. In other words, at the time the trial court excluded the evidence, exclusion was proper.
" 'It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible.' [Citations.] Under Evidence Code section 1103, such character traits can be shown by evidence of specific acts of the victim on third persons as well as by general reputation evidence. [Citation.]" (People v. Wright (1985) 39 Cal.3d 576, 587.)
During the presentation of the prosecution's case-in-chief, defendant's attorney argued that he should be able to present evidence of victim Lawrence's prior convictions for being a convicted felon in possession of a firearm in 1985, 1991, and 1993. Counsel cited Evidence Code section 1103, subdivision (a), which provides: "In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] [O]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character." The specific conduct defense counsel wanted to show is that Lawrence was armed during the confrontation with defendant, and counsel wanted to use that evidence to cross-examine some of the prosecution's witnesses. Counsel argued: "I clearly believe that the victim in this case would not have left his home and gone up to that street without being armed, whether it's a stick, whether it's a weapon, whether it's a firearm. He's going to act in conformity with who he is. And I need to establish that these people know exactly who he is, which is why the wife was begging her sister-in-law to take her to the bar to make sure he didn't get into a violent confrontation. To prevent me from doing that, when the Evidence Code specifically allows it, is to paint this case in a false light." And later, counsel said: "I believe the jury is entitled to know that he perhaps armed himself in conformity with his character evidence that he has had for years of carrying a weapon."
The prosecutor responded that there was no evidence the victim had a firearm. The only argument that the victim may have had a firearm was that he had prior convictions (the most recent conviction being 20 years before the murder) for possessing a firearm.
The court ruled: "As far as putting on bad character of the victim, I don't think that there's been a sufficient threshold to allow that to come into evidence. And typically that would be if there's an argument of self-defense. And I don't think we have anywhere near the threshold required to establish that, so I don't think we're at the point where 1103 evidence would be allowed. But as I've said, if, after the People's case has concluded, the defense feels there's enough evidence or at some other point in the defense's case, if the defense feels that there's sufficient evidence to prove that, I'll take another look at it. But at this point, I'll sustain the People's objection."
Later, still during the presentation of the prosecution's case-in-chief, defense counsel referred to the court's prior ruling, saying, "I have not been allowed to ask the widow or Amparo Contreras about the decedent's character because he is an ex-felon who has carried firearms in three different counties, I am feeling rather hogtied by the Court's ruling . . . ." The court responded: "You know what I would suggest? You write a letter to the California legislature and tell them you think they should change the law. They should change 1103 because all I'm doing is following 1103. And until they change it, that's going to be my ruling."
During the defense's case, defendant took the stand and testified that, during the final confrontation, he saw that victim Lawrence, who was fighting with Christopher Oliver, had an object in his hand. Defendant feared he was not going to be able to get away from the situation, so he fired a shot in Lawrence's direction.
Defendant did not make a motion for the trial court to reconsider its ruling made during the prosecution case-in-chief that the evidence was insufficient to justify admission of the victim's three prior convictions for possession of a firearm by a convicted felon.
After trial, defendant moved for a new trial. Among other things, he argued that the trial court erred: "The court erred in excluding evidence that Michael Lawrence had been thrice convicted of violations of Penal Code section 29800(a)(1) or its predecessors. In a homicide case in which the defendant is relying on a defense of self-defense/defense of others, the issue of who was the aggressor could not be more important. Any fact bearing on this issue is of the utmost relevance, regardless of the defendant's knowledge or lack thereof concerning the fact in question." Defendant provided authority that, when self-defense is raised, evidence of a victim's aggressive and violent character is admissible. (See People v. Rowland (1968) 262 Cal.App.2d 790, 797.)
The trial court denied the motion for new trial.
On appeal, defendant reasserts his argument that, because his defense, at least partially, was self-defense, he was entitled to introduce evidence of the victim's violent and aggressive character. The obvious problem with that reliance is that the trial court excluded the evidence before there was any argument or evidence supporting a self-defense claim. After defendant testified and claimed that he saw something in the victim's hand, defendant made no attempt to have the trial court change its ruling based on that new evidence.
"We review the correctness of the trial court's ruling at the time it was made . . . and not by reference to evidence produced at a later date. [Citations.]" (People v. Welch (1999) 20 Cal.4th 701, 739.) Defendant's citation to his own testimony, which was given after the trial court's ruling, does not support his argument, made in this new trial motion and on appeal, that the trial court erred. The argument is therefore without merit.
In any event, the victim's prior convictions occurred 20 or more years before the murder. It is doubtful that the jury would have used them to decide that defendant's claim of self-defense was credible. Also, if the trial court had determined that the evidence of the victim's prior convictions was admissible under Evidence Code section 1103, it would have been well within the court's discretion to exclude the evidence under Evidence Code section 352 because the prior convictions were remote in time.
IV
Defendant's Absence at Readback
Defendant contends the reading back of testimony to a jury is a critical stage in a criminal prosecution at which he has a federal constitutional right to be present. He asserts the trial court violated this constitutional right by not allowing him to be present for the jury readback. We conclude, as defendant concedes, that the California Supreme Court has held that jury readback is not a critical stage in a criminal prosecution, and the United States Supreme Court has not held otherwise.
During jury deliberations, outside the presence of the jury, the court said:
"Last week there was some read back, and I had a lot of free time, and so we did it in the courtroom; however, I'm doing a jury trial now and I am just not going to be able to do it in open court. So we are going to just send the reporter into the jury room and she will read that material to the jury."
The court reporter read back the testimony to the jury in the jury room, outside the presence of the court and the parties.
Defendant contends that this procedure violated his right to be present at all critical stages of trial. The contention is without merit.
"[T]he right to personal presence at all critical stages of the trial" is a "fundamental right[] of each criminal defendant." (Rushen v. Spain (1983) 464 U.S. 114, 117 [78 L.Ed.2d 267, 272], fn. omitted.) However, the California Supreme Court has specifically rejected the notion that jury readback is a critical stage of the prosecution. (People v. Cox (2003) 30 Cal.4th 916, 963, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Ayala (2000) 23 Cal.4th 225, 288; People v. Horton (1995) 11 Cal.4th 1068, 1120-1121; see also People v. McCoy (2005) 133 Cal.App.4th 974, 982-983.) The California Supreme Court's decisions are binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Nevertheless, defendant argues that the jury readback outside his presence, and without his personal waiver, violated his right to be present at all critical stages of the prosecution. In support, he cites precedent of the Ninth Circuit of the United States Court of Appeals. (See Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 815, overruled on other grounds in Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 685.) But even the Ninth Circuit recognizes that the United States Supreme Court has never held that jury readback is a critical stage of the prosecution. (La Crosse v. Kernan (9th Cir. 2001) 244 F.3d 702, 708.)
We reject defendant's contention based on the California Supreme Court precedent that jury readback is not a critical stage of trial.
V
Asserted Cumulative Error
Defendant contends that, even if errors individually do not require reversal, the cumulative effect of the errors requires reversal. The contention is without merit because there was no error. (People v. Hovarter (2008) 44 Cal.4th 983, 1030.)
In any event, defendant makes this contention without explaining how the asserted errors cumulatively caused sufficient prejudice to require us to reverse the judgment. Without such an explanation, the contention is no more than boilerplate with no substance.
VI
Firearm Enhancements
To the base term of 15 years to life for the second degree murder, the trial court added a consecutive term of 25 years to life for discharge of a firearm resulting in death. (former § 12022.53, subd. (d).) The court also imposed but stayed a term of one year for committing a felony while armed (§ 12022, subd. (a)(1)) and imposed and stayed the upper term of ten years for personal use of a firearm in committing a felony (former § 12022.5, subd. (a)). During the pendency of this appeal, the Legislature enacted Senate Bill No. 620 (2017-2018 Reg. Sess.; Stats. 2017, ch. 682), giving the trial court discretion to strike firearm enhancements, which, at the time of sentencing, were mandatory and not subject to the trial court's discretion. In People v. Woods (2018) 19 Cal.App.5th 1080, this court held that the Senate Bill No. 620 amendments giving the trial court discretion to strike firearm enhancements is retroactively applicable to all cases not yet final. (See newly enacted provisions giving trial courts discretion to strike firearm enhancements, §§ 12022.5, subd. (c); 12022.53, subd. (h).)
In supplemental briefing, defendant argues we must remand for the trial court to exercise its discretion concerning whether to strike the firearm enhancements. The Attorney General acknowledges the applicability of the new legislation but asserts that, given the trial court's imposition of a consecutive term of one year for committing a felony while armed and a consecutive upper term for personal use of a firearm, any remand would be futile. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [no remand for resentencing on similar issue because the trial court already made its position clear].)
We conclude the record does not clearly indicate that remand would be futile. We note that, even though the trial court imposed a consecutive term of one year for committing a felony while armed and a consecutive upper term for personal use of a firearm, those terms were stayed. Also, the law regarding sentencing has changed since the trial court sentenced defendant, making the consecutive, unstayed term of 25 years to life for discharge of a firearm resulting in death discretionary rather than mandatory, so it is not unreasonable to acknowledge that the trial court on remand may decide to sentence differently with respect to the firearm enhancements.
We express no opinion as to how the trial court should exercise its newly granted discretion on remand. We only conclude that, under the circumstances of this case, the trial court should be provided the opportunity to exercise its discretion in the first instance. (See People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [noting that it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way].)
VII
Remand for Youth Offender Evidence
In supplemental briefing, defendant contends he is entitled to remand for a hearing to make a record of information relevant to his eventual youth offender parole hearing because he was 23 years old at the time of the murder. The Attorney General agree, as do we.
During the pendency of this appeal, the Legislature enacted Assembly Bill No. 1308 (2017-2018 Reg. Sess.), which amends section 3051 to raise the age of those eligible for youth offender parole hearings from those who were under 23 years old to those who were 25 years of age or younger when they committed their controlling crimes. (Stats. 2017, ch. 675, § 1.) A youth offender who is convicted of an offense for which the sentence for the controlling offense (here, second degree murder) is a term of less than 25 years to life shall be considered for release at a youth offender parole hearing during his 20th year of incarceration. (§ 3051, subd. (b)(2).) At the hearing, the Board of Parole Hearings must "give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).)
We agree remand is necessary. There is no question that the amended statute applies to defendant: it has retroactive effect (Stats. 2017, ch. 675, § 1); defendant was under 25 years old at the time of the murder; and he was sentenced to a term of 15 years to life for the controlling offense. Further, the California Supreme Court held that juvenile offenders must be given the opportunity to compile information regarding the juvenile offender's characteristics and circumstances at the time of the offense to be considered at a future youth offender parole hearing, including statements by family members, friends, school personnel, faith leaders, and representatives from the community. (People v. Franklin (2016) 63 Cal.4th 261, 283.)
DISPOSITION
The matter is remanded to allow defendant sufficient opportunity to make a record of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing and to allow the trial court to exercise its discretion under sections 12022.5, subdivision (c) and 12022.53, subdivision (h) concerning whether to strike firearm enhancements. The judgment is otherwise affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Renner, J.