Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. 199687
Dondero, J.
Defendant was convicted following a jury trial of first degree burglary (Pen. Code, § 459), and placed on three years’ formal probation. He complains in this appeal that the readback of only the direct testimony of a witness in response to the jury’s request violated his due process rights. We conclude that the readback procedure did not violate defendant’s constitutional or statutory rights, and affirm the judgment.
STATEMENT OF FACTS
The primary witness for the prosecution, Walter Gomez, testified that as he was sitting in the living room of his home on Fordham Circle in Vallejo on the morning of September 5, 2008, he “heard some car noises” across the street. He looked out the window to see two cars, parked “one behind the other, ” in front of his neighbor’s house: one looked like a blue Mustang; the other was a gold Oldsmobile or Chevy Malibu. Gomez then observed two “African-Americans, young guys, ” walk toward his neighbor’s house. One was “chubby” and wore a white T-shirt, and the other one was dressed in dark clothing. The driver of the Mustang remained in the vehicle.
Gomez called his neighbor Gonzalo Gonzales, as he watched the gold car move into the “next-door neighbor’s driveway.” When Gomez said that the two men were “already in” the house and “coming out with stuff, ” Gonzales told him, “Call the police.” Gomez called 911 and told the operator that people were “putting stuff” in the gold car parked in his neighbor’s driveway.
Gomez continued to watch as the two men carried a large flat screen television out of the house and across the driveway, then placed it into the back seat of the gold car. Gomez also observed another person wearing a green T-shirt “walking around, ” although he was not sure the third person assisted the other two to carry items to the car. After loading other “stuff” into the gold car, three people entered the vehicle and “drove away” south on Pembroke. At trial, Gomez identified defendant as the person wearing a white T-shirt who carried the television set to the gold car. Gomez did not notice that defendant was “missing” a forearm and hand from his left arm, and had only a thumb rather than a complete right hand.
Officer Kyle Wylie responded to Fordham Circle and spoke to Gomez within a few minutes of the burglary report. Gomez gave the officer a description of the suspects: three Black males, one “short and dumpy, wearing a white T-shirt with the sides of it cut out.” Gomez told the officer he could not “provide any other physical description” of the remaining two suspects, but “said he could positively ID them if he saw them again.”
As Officer Wylie spoke with Gomez, Gonzales arrived home. They entered the house and observed that a 52-inch television was missing from the living room, bedrooms had been ransacked and jewelry was missing, and in another bedroom a window was broken and a smaller television was missing. Gonzales testified that a laptop computer was also taken from the house.
Vallejo Police Officer Brian Estudillo was in his patrol vehicle at 10:00 a.m., when he received a radio dispatch of a burglary in north Vallejo. The “description of the vehicle that was seen leaving the area” of the burglary was a gold Impala occupied by “three Black males.” Soon thereafter, as Officer Estudillo monitored traffic westbound on Interstate 80 traveling away from north Vallejo, he observed a gold Malibu just past the Redwood Street exit. The officer followed the gold Malibu, which was occupied by three individuals: defendant, the driver; and passengers Albert Harris and Davonte Brooks. When Officer Estudillo was joined by another patrol unit, he activated lights and siren. Just across the Carquinez Bridge, the Malibu pulled over to the shoulder of the freeway, whereupon the officers initiated a “felony car stop.” Officer Estudillo noticed a very large flat-screen television in the back seat of the car.
Gomez and Gonzales were transported to the scene of the vehicle detention. As Gomez approached the gold Chevy Impala he exclaimed, “That’s the car.” The three detained suspects were then separately removed from patrol vehicles, and Gomez “positively” identified “all three of them.” Gomez specifically stated of defendant, “That’s the one in the white shirt” who was carrying the large television. Gonzales inspected the detained gold Impala and identified the televisions, jewelry and laptop computer that belonged to him.
The defense presented testimony from Davonte Brooks, who was detained with his brother Albert Harris and defendant. Brooks admitted that he is an inveterate burglar who committed a “lot” of burglaries, at least 18, in Vallejo. Brooks testified that he alone broke into the house through a window and “took the stuff out the house” outside to the curb. According to Brooks, he was wearing a white T-shirt and pajamas, although photographs taken of him following his arrest show that he was wearing a green shirt. Brooks then called his friend defendant and asked for a ride to school to sell the jewelry. Without help, Brooks put the stolen items in defendant’s car. Brooks testified that he did not tell defendant the items were stolen. As defendant was driving on the freeway, they were “pulled over” and arrested.
Defendant testified that he receives disability income for his missing left forearm and right hand, and wears leg braces to compensate for his small feet and one toe “on each” foot. Defendant claimed that he can drive a car, but cannot lift a television due to his inability to grip it.
On the morning of the burglary, defendant received a telephone call from Davonte Brooks, whom he described as “an acquaintance” rather than a friend. Brooks asked for “a ride to school, ” and offered “$20 in gas money, ” so defendant agreed. Driving his great-grandmother’s car, defendant followed the directions given to him by Brooks. As defendant arrived at what he thought was Brooks’s house, Brooks appeared outside and told him to “back into the driveway.” Defendant then asked to use the bathroom, and was directed inside the house by Brooks. He observed a large television on the floor of the living room as he walked through the house. Defendant estimated that he was inside the house only “a couple of minutes, ” then returned to the car. Brooks said he “wanted to get rid of some TV’s, ” and defendant “said, ‘All right.’ ” Brooks and Harris then loaded the television set into the back seat of defendant’s car, and they all left the house in defendant’s vehicle. On the freeway, defendant observed the police following him. He became “nervous” with the police behind him, but Brooks told him to keep driving. As defendant crossed the bridge, police lights were activated, and he “pulled over.” Defendant denied that he agreed to either commit a burglary with Brooks or drive “the get away car” for him.
Brooks did not mention anything about jewelry or computers to defendant, and defendant did not see those items loaded into his car.
DISCUSSION
Defendant argues that his “federal due process” rights were violated by the procedure used to reread testimony to the jury during deliberations. When the jury requested “a rereading of the testimony of Walter Gomez, ” the defense expressly waived the right to be present in court for the reading, and requested “that it be done in the jury room.” The court reporter was directed to “reread the testimony of Walter Gomez in the jury deliberation room to the jurors, ” and to refrain from answering any “questions of the jurors.”
According to a settled statement approved by the trial court, the “jury’s request for a readback of Walter Gomez’s testimony was a request for a reading of all of the testimony of that witness.” After the parties “waived presence at the readback, ” the court reporter “entered the jury room. When she emerged from the room, it seemed as though the readback had taken an unexpectedly short amount of time, so the court asked the reporter why she was finished so soon. She answered that as she was reading the testimony, the jury asked her to stop reading.” The court reporter documented that she read to the jury all of the direct testimony of Gomez, but none of the cross-examination of the witness.
Defendant acknowledges that he waived the right to be present “at the readback, ” but did so, he submits, on the assumption “that all of the testimony would be read.” Defendant claims he did not consent “to a procedure where only the direct testimony would be read.” He relies on Fisher v. Roe (9th Cir. 2001) 263 F.3d 906, 917, to argue that when the trial court learned the cross-examination testimony of the witness had not been read to the jury, the “judge was under a duty to ‘take measures to present a balanced view of testimony, ’ ” or at least to inform the defense “that the initial procedure to which they... consented had changed.” Defendant asserts that the failure of the trial court to “ensure a balanced view of the testimony” was read to the jury by ordering the court reporter to “re-enter the jury room and finish reading all of Gomez’s testimony” was a prejudicial abuse of discretion and violation of his due process rights, particularly in light of the “inconsistencies” and “unreliability” of the witness’s testimony revealed on cross-examination.
We begin our analysis with awareness of the principle articulated in Rushen v. Spain (1983) 464 U.S. 114, 117, that “the right to personal presence at all critical stages of the trial” is a “fundamental right[] of each criminal defendant.” (See also Illinois v. Allen (1970) 397 U.S. 337, 338.) “ ‘The right derives from the confrontation clause of the Sixth Amendment to the federal Constitution and the due process clauses of the Fifth and Fourteenth Amendments, and article I, section 15 of the California Constitution.’ [Citation.]” (People v. Rundle (2008) 43 Cal.4th 76, 177.) It is also settled, however, that “a defendant does not have a right to be present at every hearing held in the course of a trial. ‘During trial, a defendant is not entitled to be personally present at the court’s discussions with counsel occurring outside the jury’s presence on questions of law or other matters unless the defendant’s presence bears a reasonable and substantial relation to a full opportunity to defend against the charges. [Citation.] A defendant claiming a violation of the right to personal presence at trial bears the burden of demonstrating that personal presence could have substantially benefited the defense. [Citation.]’ [Citations.]” (People v. Price (1991) 1 Cal.4th 324, 407–408.)
We also recognize the statutory mandate of Penal Code section 1138, which “provides that ‘[a]fter the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.’ ” (People v. Box (2000) 23 Cal.4th 1153, 1213.) “Pursuant to section 1138, the jury has a right to rehear testimony and instructions on request during its deliberations. [Citations.] Although the primary concern of section 1138 is the jury’s right to be apprised of the evidence, a violation of the statutory mandate implicates a defendant’s right to a fair trial conducted ‘ “substantially [in] accord[ance with] law.” ’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 1007.)
In the present case the trial court complied with Penal Code section 1138 by directing the reporter to reread the testimony of Gomez to the jury. The defense also explicitly waived the right to be present during a public rereading of the testimony, so he cannot now complain of denial of that right. (See People v. Ayala (2000) 23 Cal.4th 225, 288; People v. Lang (1989) 49 Cal.3d 991, 1028.) Further, the California Supreme Court has repeatedly and definitively declared that the statutory right to a rereading of testimony is not of constitutional dimension, and “ ‘[t]he rereading of testimony is not a critical stage of the proceedings’ ” at which a defendant must be present. (People v. Cox (2003) 30 Cal.4th 916, 968, citing Ayala, supra, at p. 288; see also People v. Horton (1995) 11 Cal.4th 1068, 1120–1121.) Even in the absence of a personal waiver, a readback of testimony to the jury without the presence of the accused or counsel is not an event that bears a substantial relation to the defendant’s opportunity to defend, and thus does not abridge the accused’s federal constitutional rights to counsel and due process, or the state constitutional right to be present at trial. (See People v. Pride (1992) 3 Cal.4th 195, 251; People v. Hovey (1988) 44 Cal.3d 543, 585; People v. Bloyd (1987) 43 Cal.3d 333, 358–361; People v. Santos (2007) 147 Cal.App.4th 965, 973; People v. Rhoades (2001) 93 Cal.App.4th 1122, 1126.)
While the United States Supreme Court has never “addressed whether readback of testimony to a jury is a ‘critical stage of the trial’ triggering a criminal defendant’s fundamental right to be present, ” the Ninth Circuit has held that criminal defendants have a constitutional right to be present at jury readbacks. (La Crosse v. Kernan (9th Cir. 2001) 244 F.3d 702, 707–708, citing Hegler v. Borg (9th Cir. 1995) 50 F.3d 1472 and United States v. Kupau (9th Cir. 1986) 781 F.2d 740).
Defendant nevertheless complains that once the court reporter disclosed that the jury received a rereading of only the direct examination of Gomez, the trial court had a duty to furnish the jury with an impartial reading of the testimony by including the cross-examination of the witness as well. Defendant’s contention is essentially that a rereading of testimony requires a rereading of all the of the testimony of the witness. His argument does not find support in the law.
Neither the trial court nor the parties may determine the nature or scope of testimony to be reread upon the request of the jury. While “the mandate of... section 1138 is an important protection for a party, it is the right of the jury which is the primary concern of the statute; its provisions do not delegate to the trial judge, the parties, or their attorneys the right to determine the jury’s wishes.” (People v. Butler (1975) 47 Cal.App.3d 273, 283.) The record indicates that the court reporter read the testimony until the jury directed her to cease. Even if defense “counsel had been present and demanded that the reporter continue to reread the testimony, defendant could not have compelled the trial court to order the jury to continue to listen to the rereading of testimony once it was satisfied it had heard enough.” (People v. Ayala, supra, 23 Cal.4th 225, 289.)
In People v. Gordon (1963) 222 Cal.App.2d 687, 689 (Gordon), the jury requested a reading of the testimony of a witness to discern the discrepancy between one part of his testimony and the other. In response to the jury’s request, the trial court proposed a rereading of the cross-examination and redirect testimony of the witness, and the jury foreman agreed. (Ibid.) On appeal in Gordon, as in the case before us, the defendant complained “that the whole” of the witness’s “testimony should have been read to the jury, and that in so doing certain contradictions would be disclosed which were not apparent from a reading of the portions actually selected.” (Ibid.) The court disagreed, with the explanation: “It is clear, however, that the jury were satisfied with the part of the testimony which was read. Had they wanted further testimony read to them, or other further clarification, they certainly would have so requested. If the testimony actually read to them did not contain the matters they wished to hear, they surely would have said so. The trial judge does not have to order read any part of the testimony not requested by the jury foreman. [Citation.] As was said in People v. Smith, 3 Cal.App. 62, 68 [84 P. 449], and quoted in People v. Cathey, 186 Cal.App.2d 217, 222 [8 Cal.Rptr. 694], ‘If the jury did not wish to hear it read the court was not required to compel them to listen to it. It may be assumed that the portion of his testimony which they heard included all upon which they desired to have their memory refreshed.’ ” (Ibid.)
Defendant was not entitled to induce a different or more comprehensive rereading of testimony than the jury requested. (People v. Ayala, supra, 23 Cal.4th 225, 289; Gordon, supra, 222 Cal.App.2d 687, 689.) Thus, he cannot establish that his absence from the rereading of the testimony in any way prejudiced him or resulted in the denial of a fair and impartial trial. (People v. Fauber (1992) 2 Cal.4th 792, 836–837; People v. McCoy (2005) 133 Cal.App.4th 974, 983.)
Defendant’s reliance on Fisher v. Roe, supra, 263 F.3d 906, 917 (Fisher), overruled on other grounds by Payton v. Woodford (9th Cir. 2003) 346 F.3d 1204, 1216, to compel a different result is unavailing. In Fisher, neither defendants nor their counsel were aware of a readback of portions of the trial testimony relating to the time line of the crime in question, which one of the jurors noted was the key issue in determining the defendants’ guilt. (Fisher, supra, at pp. 910–911.) The defendants subsequently sought habeas relief, claiming that they were not notified of the jury’s request, and neither counsel nor the judge was present to supervise the readback proceedings. (Ibid.) Based on the Supreme Court’s “working constitutional standard by which to evaluate whether a defendant has a right to participate in a particular proceeding, ” (id. at p. 914) the Ninth Circuit determined that under the “unique facts of this case” (id. at p. 917) the defendants had the right to be present during the readback “if their absence could have undermined the fairness of the proceedings.” (Id. at p. 915.) The court concluded that because the readback “occurred not only in the absence of the defendants and their lawyers, but without their knowledge and participation, ” (id. at p. 916) and because the trial judge was not present to supervise the procedure, their presence “could have made certain, where appropriate, that testimony of defense witnesses was read as well as that of the state’s witnesses. They could also have ensured that any cross-examination of prosecution witnesses would be read in addition to direct testimony. They could also have made certain that the court reporter’s notes were accurate, that her notes accurately reflected the witnesses’ testimony, and that she did not unduly emphasize any part of the requested testimony or use any improper voice inflections.” (Id. at p. 915.)
Fisher is not persuasive in our case for several reasons. First, Fisher relied on the defendants’ constitutional right to be present at the critical stage of jury readbacks (La Crosse v. Kernan, supra, 244 F.3d 702, 707–708), a principle exclusive to the Ninth Circuit that has not been adopted by the United States Supreme Court and is directly contrary to California law. (McElveen v. Cal. Dept. of Corr. & Rehab. (N.D.Cal. 2010) 2010 U.S. Dist. Lexis 76298, 8 (McElveen); People v. Ayala, supra, 23 Cal.4th 225, 289.)
Moreover, Fisher is factually dissimilar in critical respects. Fisher found constitutional error “where neither the defendant nor his counsel was aware of a read-back of a defendant’s testimony to the jury.” (United States v. Rosales-Rodriguez (9th Cir. 2002) 289 F.3d 1106, 1110.) Here, in contrast, the defense was not only properly informed of the readback request, but consulted by the court in advance about the proposed procedure. (People v. Jennings (2010) 50 Cal.4th 616, 682–683; People v. Cox, supra, 30 Cal.4th 916, 963.) The defense then agreed to have the court reporter read the testimony back to the jury in the deliberation room, and defendant knowingly and voluntarily stipulated to his absence from the proceeding. The error that was found in Fisher did not occur here. (Lugo v. Terhune (9th Cir. 2008) 277 Fed.Appx. 714, 716; McElveen, supra, 2010 U.S. Dist. Lexis 76298, 7–8; Johnson v. Galaza (N.D.Cal. 2009) 2009 U.S. Dist. Lexis 32454, 19–20; Hearnes v. Runnels (E.D.Cal. 2005) 2005 U.S. Dist. Lexis 31535, 40–43; People v. Ayala, supra, 23 Cal.4th 225, 288–289.)
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Banke, J.