Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR226361
STEIN, Acting P. J.
James Thomas Harris was convicted of possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)), possession of a concealed weapon (§ 12025, subd. (a)(2)) and making a criminal threat (§ 422). The court placed defendant on probation for five years.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that his conviction must be reversed because the court abdicated judicial control over the response to a request for information made by the jury during deliberations.
We shall find no error and affirm the judgment.
Facts
1. The Underlying Offenses
Defendant was engaged to Morgan Van Brunt, and had two children with her. In August 2005, Van Brunt decided to break up with defendant, and moved, with their children, to her mother’s house.
On August 7, 2005, Van Brunt, in the company of her stepfather and brother, returned to the house she had shared with defendant to retrieve her personal property. At one point, when Van Brunt’s stepfather and brother were outside, defendant stepped in front of Van Brunt, and told her she was going to have to clean up his blood from the front porch. She did not initially understand, but took it as a suicide threat. He then reached into his pocket, held out two bullets, and said he was going to take everything from her. She understood him to be threatening her life. Although Van Brunt was frightened for herself, and for her children, she told defendant he was being ridiculous and walked away as fast as she could.
Van Brunt decided to stay on the front porch while her stepfather and brother continued to remove her property. Defendant walked outside, stood between Van Brunt and the street, and pulled out the bullets again. He said again, in a steady voice, “he was going to take everything away” from her. Van Brunt was extremely frightened, and told her stepfather and brother that they needed to leave immediately. Brian Buckley, Van Brunt’s stepfather, testified that Van Brunt was upset and agitated. She called 911 as they drove to a storage facility. At the storage facility, a patrol car arrived. Van Brunt talked to the officer through the car window, but the officer did not get out of his car, or write anything down. Buckley returned later to finish the move.
On August 21, 2005, defendant appeared at the door of Van Brunt’s mother’s house. Buckley was home, but despite defendant’s persistent pounding and yelling Buckley refused to answer the door. He was a former police officer, and he became concerned when he observed defendant’s hands were underneath a backpack he wore in front, and also that he was reaching into a fanny pack. He also noticed defendant had pushed in the door, and was only stopped by a deadbolt from breaking in. Buckley called the police. A police officer detained defendant nearby, and found 20-gauger shotgun shells in the fanny pack. After handcuffing defendant, the officer searched the backpack and found a sawed-off 20-gauger shotgun.
2. Responses to Jury Questions
During deliberations the jury sent two notes to the court. The first note asked: “During which visit to the apartment on 8/07/05 were the bullets shown and after which visit on 8/07 did she call 911?” The second note asked: “Legally does an implied threat vs. an explicit threat constitute a willful threat to commit a crime?”
The record reflects that the court discussed the questions with defense counsel and the prosecutor. With respect to the second note, they agreed to have the court re-read specified portions of the instructions. With respect to the first note, the transcript states only: “The Reporter read back the requested portions by the jury in the jury room.” Both the prosecutor and defendant’s counsel stipulated that they did not need to be present.
Since the record contained no discussion of how to respond to the first note, a hearing was held to settle the record. At the hearing, the court stated that it met with counsel and it was agreed that the question would be answered by a read back of the relevant testimony. The court gave each party the opportunity to be present during the read back, but each attorney “chose not to be present.” The court then gave the question to the reporter. The reporter testified that she keyed in the words “bullets” and “911,” and went through the relevant portions to omit objections. She and the judge then went into the jury room. He cautioned them not to deliberate in front of the reporter, and told them they could ask the reporter to stop, read back or go forward. The reporter read back the requested testimony. The reporter answered “yes” when the court asked whether she read “all parts where the key words came up in [the] transcript.”
Defendant’s trial counsel agreed with the court’s and the court reporter’s description of how the jury’s request for information was “procedurally . . . handled.” He added that the “normal practice” was to “discuss what’s going to be read back, and the reporter goes back and reads it.” The court confirmed that if there had been any objection to the procedure followed, or the portions to be read, the court, in accordance with its normal practice, would have had the objection put on the record.
Defense counsel also stated that he did not recall which portions of the transcripts contained the words “bullet” and “911,” and suggested that the settled record include references to where in the transcript these references occurred. The court did not agree that this was necessary. Consequently, the settled record still does not identify which portions of the transcript were actually read. This deficiency in the record, however, does not deprive this court of a meaningful opportunity to review defendant’s claim of error. (See People v. Heard (2003) 31 Cal.4th 946, 970.) The settled record is sufficient to allow this court to determine whether the court abdicated control and whether defense counsel raised any objection to the procedure or substance of the read back Identifying the particular portions of the transcript that were read back would only be important in the context of an attempt to demonstrate prejudice. Yet, defendant’s claim of error does not depend upon a showing of prejudice, because he contends the error is reversible per se. Moreover, in light of our determination, post, that defendant waived his contention on appeal, and that it would also fail on the merits, we shall not need to reach the question whether the claimed error resulted in any prejudice.
The settled statement filed with this states: “In response to the December 1, 2005 jury question of ‘During which visit to the apartment on August 7, 2005 were the bullets shown and after which visit on August 7, 2005 did she call 9-1-1’ submitted at 3:55 PM, in the above titled matter, the court reporter, Betsy Giugni went through the transcript, keyed in the words that were requested of ‘bullets’ and ‘9-1-1,’ and read those portions back to the jury, with objections deleted.
“Ms. Giugni went into the jury room with Judge Ely, Judge Ely gave the jury instruction about not deliberating in front of the court reporter, and that the jury should stop her, ask her to go forward or backward, or stop the read back entirely, at their direction. Ms. Giugni’s practice is to read back the direct examination, cross-examination, redirect and recross, if any, and recross in which the requested words appear, limited to, or expanded upon, at the jury’s direction.
“The reporter’s transcript of the September 19, 2006 settlement proceeding is attached for filing to this order, and is an accurate representation of the agreed settled record.”
Analysis
Section 1138 provides: “After 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.” “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.” ’ ’’ (People v. Frye (1998) 18 Cal.4th 894, 1007.)
Defendant contends that his right to a fair trial was violated because the court failed to exercise its discretion in deciding how to respond to a note from the jury and instead allowed the court reporter, without judicial supervision, to determine which portions of the testimony should be read back. In reliance upon Riley v. Deeds (9th Cir. 1995) 56 F.3d 1117 (Riley), defendant asserts the way the court handled the jury request for a read back of testimony constituted a complete abdication of judicial control over the read back proceedings and therefore his convictions must be reversed without regard to any showing of prejudice.
The threshold problem is that defendant failed to interpose any objection to the procedure followed in the proceedings below. At the hearing to settle the record, the court confirmed that if there had been any objection to the procedure followed, or the portions to be read, the court, in accordance with its normal practice, would have had the objection put on the record. When the court fails to provide any response at all to a jury note, failure to object may not waive the contention on appeal. (See People v. Litteral (1978) 79 Cal.App.3d 790, 796-797 (Litteral); but see People v. Hill house (2002) 27 Cal.4th 469, 505 [court questioned whether Litteral correctly allowed a defendant to raise a violation of the jury’s right to read back of evidence].) But, “[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, italics added (Roldan).) Defendant’s contention on appeal does not concern a failure or refusal to respond to a jury request for information. Rather, he seeks to challenge what he contends was an improper delegation to the court reporter of the judicial responsibility to decide whether testimony should be read back, and what testimony was responsive, without any judicial supervision. In People v. Robinson (2005) 37 Cal.4th 592 (Robinson), the court applied the waiver doctrine to a similar contention. The defendant in Robinson argued that the trial court’s statement: “ ‘I take it all the testimony has been found as to those items and the jury and alternates will be read those in the jury room’—reveals that the trial court ‘let the court reporter decide which testimony was responsive to the jurors’ questions and failed to participate in the planning and supervision of the read back Thus, defendant argues, the trial court abdicated control over the read back process in violation of section 1138, which provides that, when a jury requests a read back of testimony, ‘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.’ . . . [¶] . . . As we . . . observed in Roldan[, supra, 35 Cal.4th 646, 729-730], a claim of error in the selection of the testimony read back to a jury, as well as any alleged impropriety or failure to comply with section 1138, is waived by defense counsel’s failure to object at the time the trial court directed the read back” (Robinson, supra, at pp. 633-634.) In this case, the court met with counsel and it was agreed that the question would be answered by a read back of the relevant testimony. Both attorneys waived their right to be present during the read back and then the court gave the question to the reporter so that she could key in the words “bullets” and “911” to identify the relevant portions of the testimony. Defense counsel did not object. We conclude that, by failing to interpose any objection, defendant gave tacit approval to the procedure the court followed in identifying relevant portions of testimony to be read back, and therefore waived his contention on appeal that the court abdicated judicial control.
In any event, defendant’s contention also would fail on the merits, because the facts of the case are distinguishable from Riley, supra, 56 F.3d 1117, the case upon which defendant primarily relies. In Riley, the jury asked the court for a read back of part of the trial testimony. The trial judge was not available. In his absence, and without any input from the judge, the judge’s law clerk assembled the jury in the courtroom with the defendant Riley, his lawyer, and the prosecuting attorney present. At the jury’s request, only the victim’s direct testimony was read. (Id. at p. 1118.) The Ninth Circuit Court of Appeals held that the “trial judge’s failure to rule on whether the victim’s direct examination should have been read back, coupled with his absence and unavailability during the read back proceeding, resulted in structural error that rendered Riley’s trial fundamentally unfair and deprived him of due process under the Fourteenth Amendment.” (Ibid.) The court further held that the error was structural, and therefore required reversal without any showing of prejudice. (Ibid.)
We see no analogy to the facts of Riley, supra, 56 F.3d 1117 . In this case, the judge was present, met with counsel to discuss the note and the response, and to rule on the jury’s request for information. The court exercised its discretion by determining, in consultation with the parties, that a read back of testimony was the appropriate response. Nothing in the record supports even an inference that the reporter acted on her own initiative and without direction from the court in deciding the relevant portions of the transcript would contain the words “bullets “ or “911.” The reporter merely performed the mechanical task of searching for those key words in the transcript. The judge then went with the reporter into the jury room to give the jury instructions not to deliberate in front of the reporter, and to advise that during the read back they could stop and ask the reporter to read back further or go forward. The judge was absent from the jury room during the read back, but defendant does not contend the judge was unavailable in the event a problem had arisen during the read back The record would not, in any event, support such a contention. The mere fact that the judge did not remain in the jury room during the actual read back was entirely proper. “When a trial judge exercises control over whether and what testimony previously introduced in evidence should be read to the jurors at their request after deliberation has begun, and the judge remains available to address any questions from the jurors to the court that might arise during the read back of the testimony, nothing in logic, reason, due process of law, or the right to a trial before an impartial jury compels the judge to be present while the testimony is read to the jurors.” (People v. Rhoades (2001) 93 Cal.App.4th 1122, 1127.) We conclude the court did not abdicate judicial control over the process of responding to the jury’s note, because it was present, met with the parties to discuss the appropriate response, decided whether and what testimony would be read to the jury, and remained available to respond to any problem that might arise during the read back
Defendant also suggests it is error to allow the jury to control how much of the selected relevant testimony it actually listens to. Assuming arguendo only that it is error to allow a jury to decide it has heard enough and stop the read back, or to ask to hear more, for context, the error here would be harmless under any standard, because the jury did not exercise this prerogative. The reporter testified that she read back all of the portions of the transcript that had been selected.
Finally, we note that defendant does not attempt to demonstrate prejudice, relying instead upon Riley, supra, 56 F.3d 1117 for the proposition that the error was structural, and requires reversal per se. In Robinson, supra, 37 Cal.4th 592, our Supreme Court rejected “defendant’s additional claim that any error was structural in nature and requires reversal per se.” (Robinson, at p. 636, fn. 21.) The court explained that the holding in Riley was limited to the particular facts of that case, and that this limitation had been recognized by subsequent Ninth Circuit decisions. (Ibid.) Where, as here, the facts of Riley are distinguishable “ ‘ “[a] conviction will not be reversed for a violation of section 1138 unless prejudice is shown” ’ ” (Id. at p. 634.)
Conclusion
The judgment is affirmed.
We concur: SWAGER, J., MARGULIES, J.