Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF30617, Eleanor Provost, Judge.
William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
Defendant Michael Laszlo Streib was charged, by first amended information, with grand theft of parts of a stamp mill from the Mount Lily Mine, the property of Mark Wolff (Pen. Code, § 487, subd. (a); count I); grand theft of parts of a mine and mine equipment from the Buchanan Mine, the property of Howard Mason (§ 487, subd. (a); count II); and grand theft of parts of a mine and mine equipment from the Starr King Mine, the property of Mark Knowles (§ 487, subd. (a); count III). A jury convicted him of count I, but acquitted him of counts II and III. Sentenced to two years in prison, he now appeals, claiming the trial court erred by having the prosecutor provide an index of exhibits to the deliberating jury. For the reasons that follow, we will affirm.
All statutory references are to the Penal Code.
Defendant was jointly charged with Dennis Loren Allen and Guy Paul Graham, who were also charged with five counts of receiving stolen property (§ 496, subd. (a)). Defendant was jointly tried with Graham; Allen’s whereabouts were unknown. Neither Graham nor Allen is before us on this appeal.
We summarize the evidence with respect only to count I, the count of which defendant was convicted.
Mark Wolff, who resided near San Luis Obispo, owned the Mount Lily Mine. A former famous gold producer, the mine was located on Italian Bar Road at Five Mile Creek, five miles out of Columbia, in Tuolumne County. In 2008, the mine site contained the remains of a five-stamp mill and associated equipment such as crushers and shaker tables. Wolff had plans to restore the mill. To secure the property, he had a locked gate at Italian Bar Road and a second gate at the actual property entrance. Wolff visited the mine perhaps six times a year, and people from the Lost Dutchman’s Mining Association kept an eye on things in his absence. Wolff never had any problems until metal prices went up.
Further references to dates in the statement of facts are to dates in 2008.
Late one afternoon in early May, James Lawrence, his wife Patricia, and their son were fishing on Five Mile Creek near the Mount Lily Mine. Mr. Lawrence went upstream, while Mrs. Lawrence and their son went downstream for a while. When they were coming back upstream, Mrs. Lawrence noticed that the gate on the road to the mine was down. This was unusual, as was the noise. She thought someone was working on the stamp mill, because it was so loud. She could hear voices and banging. The noise continued the entire two to two and a half hours her family was there.
Mr. Lawrence, who was fishing near the mine, heard what sounded like a truck running and a lot of banging. He was approximately 150 to 200 yards from the source, and could see what looked to be a tow truck trying to pull something. Mr. Lawrence did not go any closer, but gradually fished back down the stream for about 45 minutes. During that time, two trucks went past him. Because he was down in a canyon, all he could see were the truck tops, but he did observe the trucks to have metal on the flatbeds.
Before Mr. Lawrence returned, Mrs. Lawrence and their son were sitting in their truck when she saw a man in a small pickup drive back and forth across the nearby bridge. She then saw a grayish tow truck come out of the road to the Mount Lily Mine. The man in the small pickup pulled in front of the gate. He and the driver of the tow truck each got out, and started talking cordially. The man in the small pickup said the tow-truck driver and his passenger were under arrest for stealing, and the man and the tow-truck driver started laughing.
The man from the tow truck had a walkie-talkie and was talking into it. The small pickup left, heading in the direction of the Lost Dutchman’s Mining Association, and the tow truck parked a bit in front of Mrs. Lawrence and her son. About 15 minutes later, a flatbed truck came out. Part of the stamp mill was on it. The tow truck was pulling a flatbed that was also carrying parts of the stamp mill. The drivers of the two trucks got out, talked, and then left, heading in the direction of Columbia. The trucks were carrying thousands of pounds of metal. Mrs. Lawrence wrote down the license plate number of the tow truck. She knew something was not right, because the mine was very famous locally, and she surmised the owner would not tear down the stamp mill.
When Mr. Lawrence returned, the family drove to the Lost Dutchman’s Mining Association and gave the license plate number to someone. The man in the small pickup was there, and he said he knew a couple of the men in the other trucks. The license plate number was determined to be for a tow truck registered to Guy Graham.
John Cunningham, who became caretaker for the Mount Lily Mine after this incident, had a slightly different memory of events. He arrived in the area of the mine one day in May to find a man standing at the gate. Cunningham, who was driving his Toyota, pulled in front of the gate. Nearby was a truck; a woman was standing there, looking at him. There was no vehicle associated with the man who was standing at the gate.
Cunningham got out of his car and confronted the man at the gate, who put what appeared to be a radio in his pocket. When Cunningham asked who he was and what he was doing there, the man said his name was Dennis and that he was waiting for his buddies, Guy and “Booger, ” up on top of the hill. Seeing people on the Mount Lily Mine property was suspicious, and Cunningham informed Dennis that it was against the law because there was no trespassing.
Cunningham asked Guy’s last name. Dennis replied that it was “Gorman” or “Grimes.” Cunningham, who recognized the name, responded that it could not be him, because he would not do this to one of their friends. Dennis said that Guy said it was okay, that the stuff was given to him. Cunningham responded that they were trespassing and stealing, and that the sheriffs were going to be on their way out.
Cunningham heard trucks coming down the hill. The first was a white, two-ton flatbed full of mining equipment that Cunningham recognized as having come from the Mount Lily Mine. “Booger, ” whom Cunningham subsequently identified from a photographic lineup as defendant, was in this truck. The second vehicle was a gray tow truck with a Holmes wrecker on the back. Guy Graham was driving. Cunningham asked Graham what the purpose was. Graham responded that it was just sitting there, rotting and rusting, so they were taking it. Cunningham told defendant that he was going to be under arrest if he was stealing the stuff, but defendant said that Graham had hired him to work there, and that it was not stolen. The lady who was present loudly said that she had gotten the license plate number.
Cunningham contacted Wolff and advised him to call the sheriff. Wolff remembered receiving this call sometime between May 1 and May 13. Within a week, Wolff went to inspect the mine, which he had last visited the proceeding February. He found that the gate at the road had been completely ripped from its foundations, and there was evidence of heavy equipment going up and down a quarter-mile access road to the side of the mill site. All of the equipment at the mill site had been ripped from its moorings. The stamps and all the other equipment had been taken.
Cunningham subsequently was shown photographs of scrap metal that was being sold in Stockton. He identified some of it as having been on the trucks and belonging to the Mount Lily Mine. He also identified a photograph of Graham coming out of the scrap metal place.
At approximately 3:05 a.m. on May 8, California Highway Patrol Officer Dillon was outside Jamestown when he saw an old tow truck and a large flatbed truck. The flatbed was carrying what looked like a metal or iron wagon wheel, possibly a huge gear. The tow truck had a cutting torch and equipment stacked on it.
The tow truck, which was in front, was driving downhill at 30 miles per hour in a 55-mile-per-hour zone. One of its wheels appeared to be wobbling, and Dillon initiated an enforcement stop. The other vehicle, which was registered to Guy Graham and appeared to be associated with the tow truck, continued on.
Defendant was driving the tow truck, which was also registered to Graham. He said he was with Graham, and that they had been clearing property and cutting up scrap metal all day, off of Buchanan, somewhere out behind Tuolumne. Defendant was arrested on an outstanding warrant and was also cited and booked on the charge of driving with a suspended license. He was taken to the Tuolumne County Jail.
On May 8, Michael Monroe was in custody at the Tuolumne County Jail. In the holding cell with him was a man whom jail records showed was defendant. Defendant related that he and a couple of other men had been going to mine sites and taking the metal from old stamp mills and selling it in Merced or Stockton or Modesto. Defendant said they had a truck and were taking tons of it and making thousands of dollars, and that they had done this the night before. Defendant mentioned that one mine was out of Tuolumne City, and another was in Rose Creek. This bothered Monroe, who was interested in western heritage and had been to many mine sites. A week or two later, Monroe was getting gas when he started talking to a forest service enforcement agent. Monroe mentioned what he had heard.
Jail records also showed defendant’s nickname was “Booger.”
Tuolumne County Sheriff’s Detective Memmer became involved in the investigation of a possible theft of mining equipment from the Mount Lily Mine. Cunningham gave him Guy Graham’s name. On June 16, Memmer met with Graham and showed him photographs of the Mount Lily Mine’s stamp mill that had been provided by Wolff. Despite the fact he had once lived on Italian Bar Road, Graham denied ever being at the mine or even knowing with certainty where it was. He also denied owning a tow truck. Later, however, he admitted that he had owned a tow truck, but that it had gone over a cliff within the last couple of weeks and he had left it there. Memmer was unable to find any vehicle over the side of a cliff at the location Graham gave.
Memmer spoke to defendant at some point when defendant was in court regarding his suspended license. Defendant said he was collecting scrap metal from mines outside of Tuolumne City for Graham, that he was being paid $15 an hour, and that Graham had told him that Graham had permission to take the metal from the mine sites. Defendant said they then took the metal to Stockton.
In defense, Graham presented evidence that around the time of the incident, he was working for several individuals in the area, cleaning up and hauling away scrap metal and iron from their properties.
DISCUSSION
During deliberations, the jury sent out a note expressing confusion over the correlation between exhibits, charges, and events. Over defense objection, the prosecutor prepared a one-page index containing the pertinent information. Nothing in the document indicated it was prepared by the prosecutor. The trial court attached the index to a copy of the jury’s note and sent the document back to the jury room. Defendant now contends the trial court committed prejudicial error by permitting the prosecutor to connect the exhibits to the charges after the case had already been submitted to the jury.
A. Background
A number of exhibits consisting of photographs or documents were presented during the prosecution’s case and, ultimately, admitted into evidence. Many consisted of multiple photographs or documents that were stapled together and not individually marked. It was apparent, from which witness was asked to identify a particular exhibit, which exhibit(s) corresponded to which location (which mine(s)). The first amended information identified, for the counts charging grand theft, which mine was involved and who owned the property alleged to have been stolen. Although jurors had no such identifying information before them, either by way of the court’s instructions or the verdict forms (neither of which specified which count involved what mine or whose property), the record shows the trial court synopsized the first amended information for prospective jurors. In his opening summation, the prosecutor discussed the evidence pertaining to each count, and specified which count occurred on which date with respect to the receiving stolen property charges.
Shortly after 3:30 p.m. on February 18, 2010, the jurors left the courtroom to begin their deliberations. The exhibits were not immediately sent in to them, as the trial court wanted to view the photographs first. Although the record does not show the exact time the jury was excused for the evening, the trial court expressed an intention to let the jurors go at about 4:45 p.m.
At 8:30 the next morning, jurors sent out a note requesting the following: “Identification of exhibits – which exhibit pertains to which event. [¶] Which charge is for each event? Count 1 is for what date(s), what mine, etc[.] [¶] Cunningham’s testimony at the gate to Mt. Lily. [¶] Monroe’s testimony.”
When court reconvened at 9:14 a.m. outside the jury’s presence, the trial court related that the jury had asked which exhibits pertained to which event. Defendant’s counsel objected to answering the question on the ground that it would be providing evidence “after the trial.” When the trial court remonstrated that the jurors were confused, defense counsel argued that it was the prosecutor’s job to establish, during the presentation of evidence, “what applies to what.” When defense counsel noted that jurors were not asking for read back, the trial court interjected that read back could be done.
The prosecutor agreed that it would be possible for the court reporter to read back the testimony of each witness as to what exhibit he or she was shown, but he opined that doing so would require an undue consumption of time. He suggested jurors had been given the information, but some were confused or did not take notes. He argued that jurors were seeking clarification, and that every exhibit was in the record and nothing was being given to the jurors that they had not already heard during the trial. Jurors would simply be provided with an index so they could conduct their deliberations in a timelier manner.
Defense counsel countered that she saw the information “as analysis of the jury, ” but the trial court agreed it was an index. Defense counsel then stated that if the trial court was going to provide the information to the jury, counsel had conferred on the issue. The prosecutor related that he had prepared a yellow sheet of paper, which he had shown to both counsel, on which he had listed the charge for each count, the dates as stated in the charging document, and the exhibits pertaining to each charge.
The prosecutor also listed the mine to which each charge related.
Defense counsel for Graham joined in the objection by defendant’s counsel to giving the information to the jury. He argued that while it would not be providing new evidence, it would be organizing the evidence in a way that assisted the prosecution. He acknowledged, however, that he and his client did not want the jury to be confused. The trial court stated that it had been confused about which counts were which and which exhibits applied to which mine, and it advised the prosecutor to use a chart in the future during opening statement and closing argument. The trial court acknowledged, however, that the chart would probably not go into the jury room, and that jurors who did not take good enough notes could get very confused.
The trial court concluded that the only viable option was to organize the information, otherwise jurors would be at a loss unless they took adequate notes, or hours and hours of the court reporter’s time were spent coming up with an answer as to each exhibit. The trial court expressed its unwillingness to take that kind of time, which would take the court reporter well into the following week. Instead, it decided that if defense counsel were confident the prosecutor’s list was accurate, it would attach it to the written question and send both back to the jury, “[a]s just a way to make sense of this for them.” Defense counsel for both defendant and Graham agreed the index was accurate. The trial court observed that the index would also take care of the question which charge pertained to which event, although it noted that the prosecutor had clarified that in his closing argument.
The trial court attached the index, which showed the count, date, charge, mine, and exhibits, to a copy of the jury’s question and had the bailiff deliver it to the jury. Court then recessed at 9:26 a.m. The jury subsequently sent out two further requests; one was a question, and the other asked that additional testimony be reread. At 3:28 p.m., the trial court informed the parties that the jury had reached a verdict.
B. Analysis
Defendant contends there was no authority for the trial court to do what it did. We are not persuaded.
The deliberating jurors sent a note to the trial court asking which exhibit and which charge related to which event. The trial court responded to the note by returning the note to the jury with an attached piece of paper that charted the count numbers, the dates for each count, the charge alleged in each count, the location (mine) for each count, and the exhibits received on each count. Nothing on that piece of paper referenced who created it. The information in it reflected the evidence admitted at trial. Counsel agreed it was accurate.
“[W]hen faced with questions from the jury, … ‘a court 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.’ [Citation.]” (People v. Young (2007) 156 Cal.App.4th 1165, 1171-1172, quoting People v. Beardslee (1991) 53 Cal.3d 68, 97.)
We know of no authority for the proposition that a defendant is entitled to a confused jury. (See People v. Martinez (1978) 82 Cal.App.3d 1, 23 [if jury had requested a map to help in deliberations, defense counsel would have been hard pressed to argue that the jury should not have the benefit of an accurate map to aid its understanding of the testimony].)
The California Supreme Court has held that a trial court has “inherent authority regarding the performance of its functions.…” (People v. Gordon (1990)50 Cal.3d 1223 at p. 1260.) This inherent authority includes the power to order that the closing summations of counsel be reread to a deliberating jury (People v. Sims (1993) 5 Cal.4th 405, 452-453, overruled on another ground in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032; People v. Gordon, supra, 50 Cal.3d at p. 1260), despite the fact that statements of the attorneys are manifestly not evidence (People v. Richardson (2008) 43 Cal.4th 959, 1004). It also includes the power to reopen closing argument to assist the jury in overcoming a deadlock. (People v. Young, supra, 156 Cal.App.4th at pp. 1170-1172.) Further, the trial court has broad discretion to order a case reopened for good cause, and to allow the introduction of additional evidence, even after jury deliberations have begun. (People v. Green (1980) 27 Cal.3d 1, 42, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 241, People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; People v. Cuccia (2002) 97 Cal.App.4th 785, 792-793; see also §§ 1093, 1094.) The court may also order testimony reread to the jury. (See § 1138.) The trial court here did not follow these courses. This does not mean, however, that the trial court erred.
In People v. Linwood (2003) 105 Cal.App.4th 59 (Linwood), the defendant was charged in several counts; the evidence established two incidents. After the evidence was presented, the trial court indicated to the prosecutor that it was confused as to which evidence supported the individual charged counts. It told the prosecutor: “‘Okay. This needs to be clear to the jury so we’re very clear on what they are considering, because certainly I got mixed up.’” (Id. at p. 72.) After closing arguments, but before instructing the jury, the court explained to jurors that counts 1 and 2 were two different allegations relating to the same incident and referred to the People’s theory of one incident occurring before the evidence referred to a “‘popping sound.’” The court went on to explain that “‘the three counts of attempt’” referred to “‘the later incident in the testimony when the police dr[o]ve up.’” (Ibid.)
On appeal, the defendant contended that the trial court’s comments to the jury “unfairly emphasized the prosecution’s case, and the assistance thus provided to the prosecution implied the court believed in the prosecution’s case.” (Linwood, supra, 105 Cal.App.4th at p. 73.) The appellate court found the court’s comments appropriate. It pointed out that article VI, section 10 of the California Constitution provided that a court could “‘make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.’” (Linwood, supra, 105 Cal.App.4th at p. 73.) The Court of Appeal observed: “‘[T]he court did not comment, in any manner, upon the guilt of the accused, but merely discussed and analyzed the evidence in an impartial and instructive manner.’ [Citation.] The court sought to clear up possible jury confusion, which is a judicial function. [Citation.] The possibility of jury confusion was real since the court itself required a clarification of the prosecution’s theory with respect to which incidents referred to which charges.” (Id. at p. 74.)
Here, the trial court, like the court in Linwood, engaged in its judicial function to address jury confusion. As we have previously described, the trial court responded to the jury’s request for clarification with a chart that contained information from the evidence that was presented to the jury and that counsel agreed was accurate. There was nothing in the document to indicate to the jury that the prosecutor had prepared it and it was delivered to the jury by the trial court, the inference being that it was the trial court’s response to the jury’s question. There is no argument the document was inaccurate or presented something new or different from what was already before them.
Under these circumstances, defendant has not persuaded us that the trial court acted beyond its inherent authority or abused its discretion by giving the index to the jury, that the procedure somehow invaded the province of the jury to decide the facts of the case or lightened the prosecution’s burden of proof, or that the situation was akin to the prosecutor’s failure to prove his case beyond a reasonable doubt.
In any event, defendant has failed to establish prejudice. Defendant’s argument to the contrary notwithstanding, the evidence on count I was overwhelming. Defendant was seen hauling items taken, without the owner’s permission, from the Mount Lily Mine. The jury rejected the notion that defendant believed Graham had permission to take the items and so lacked the intent required for grand theft. Witness testimony established which exhibits pertained to the Mount Lily Mine, and those exhibits added little, if anything, to the case against defendant on count I.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HILL, P.J., VORTMANN, J.
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.