Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F07898
HULL, J.Defendant Derrick Dewayne Jones appeals his conviction for robbery (Pen. Code, § 211; further undesignated statutory references are to the Penal Code) and the true findings regarding his prior convictions. (§§ 667, subds. (b)-(i), 1192.7, subd. (c), & 667.5, subd. (b).) He contends the trial court prejudicially erred in rejecting the jury’s request for a readback of defense counsel’s closing argument and that such a rejection infringed on defendant’s right to counsel. These points are not well taken and we affirm the judgment.
Facts and Legal Proceedings
Around 6:00 p.m., 16-year-old Matthew Fahsholtz was riding his bicycle when he saw defendant, who he had met once before, and said, “Hi. What’s up?” Defendant returned the greeting and the two spoke for a short time, probably about Fahsholtz trying to sell his bicycle. Defendant then asked if Fahsholtz had a gun. Fahsholtz said he did not and lifted his shirt to confirm that fact. When Fahsholtz raised his shirt, defendant reached into the pocket of Fahsholtz’s pants. Fahsholtz resisted and defendant punched him in the face, knocking him off his bicycle. Fahsholtz lost consciousness and when he came to, he was sitting on the ground with his head on his legs. His bicycle was on the ground next to him. When Fahsholtz regained consciousness, he was missing his gold U.S.A. lighter pen, a pack of cigarettes with about three cigarettes left, another lighter, his wallet and $10 bill in his wallet. These items had been in the pocket defendant had put his hand in.
John Coleman and his friends saw the incident between Fahsholtz and defendant and came over to help Fahsholtz. Coleman walked Fahsholtz to his driveway so Fahsholtz could call his mother. The police were called shortly thereafter. They took a statement from Fahsholtz and his mother and went to the scene to speak with Coleman. At Coleman’s, they saw defendant and Coleman identified him.
As officers approached defendant, he lit a cigarette and threw away the empty pack. During a consensual search, police found Fahsholtz’s gold U.S.A. lighter pen. Fahsholtz’s wallet and $10 bill were not recovered. Fahsholtz was returned to the scene and positively identified defendant as the person who attacked him.
Defendant was charged with one count of robbery, and various prior conviction enhancements. The case was tried to a jury and during the course of deliberations, the jury requested a readback of Fahsholtz’s testimony, the officers’ testimony and defense counsel’s closing argument. The trial court agreed to read back Fahsholtz’s testimony, asked for a clarification as to which officer’s testimony the jury wished to have read back and denied the request for closing argument to be read back, stating, “Statements by attorneys are not evidence and you must base your verdict only on the evidence presented in this courtroom.”
The jury then reached a verdict, finding defendant guilty of second degree robbery. The court found the alleged prior convictions true. Defendant was sentenced to an aggregate term of eight years in state prison.
Discussion
I
Defense Argument Read-Back
Defendant contends the trial court erred in denying the jury’s request for a readback of defense counsel’s closing argument, claiming the court did not recognize its discretion to grant the jury’s request. There is nothing in the record to support this contention.
First, we agree with the Attorney General that any complaint about the response to the jury has been forfeited by counsel’s failure to object. “A defendant may forfeit an objection to the court’s response to a jury inquiry through counsel’s consent, or invitation or tacit approval of, that response.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1048 (Ross); see also People v. Roldan (2005) 35 Cal.4th 646, 729.) “‘Tacit approval’ of the court’s response, or lack of response, may be found where the court makes clear its intended response and defense counsel, with ample opportunity to object, fails to do so. (See People v. Boyette (2002) 29 Cal.4th 381, 430.) At its furthest reach, the rule has been held to justify a forfeiture where defense counsel sat mute while the court provided a response later challenged on appeal. (People v. Roldan (2005) 35 Cal.4th 646, 729.)” (Ross, supra, 155 Cal.App.4th at pp. 1048-1049.)
Here, after the jurors adjourned from the courtroom, the parties entered into the following stipulation, “the jury may receive in the jury deliberation room written responses by the Court to the jury questions provided that, one, counsel are notified and are read such questions; two, counsel may suggest proper responses and, three, counsel will be read and receive copies of the Court’s response.”
The record indicates that in accordance with the stipulation, counsel was notified of the jury’s request “and with agreement, the court sent the . . . response to the jury.” On this record, counsel was properly notified of the jury’s questions and request for readback of defense counsel’s closing argument. Counsel was afforded the opportunity to suggest a proper response. And, counsel was afforded the opportunity to object to the court’s response. Having at a minimum tacitly approved the court’s response, defendant cannot now complain about it.
Second, even if we did not find this issue had been forfeited, we could not agree with defendant’s claim that the “trial court failed to recognize it even had such discretion [to allow a readback of defense counsel’s closing statement] much less weigh and exercise its discretion in denying such a request.” Simply, there is nothing in the record that even remotely suggests the court was unaware of its discretion in this regard. While the court certainly has the discretion to allow the jury to hear a readback of defense counsel’s closing argument, the court also has the discretion to deny the request on the merits “in order to prevent the jurors from diverting their focus from the evidence introduced and the instructions given. In acting as it did, the court was not unreasonable.” (People v. Gordon (1990) 50 Cal.3d 1223, 1260, overruled on other grounds in People v. Edwards (1991) 54 Cal.3d 787, 835; see also People v. Gurule (2002) 28 Cal.4th 557, 649 (Gurule).)
II
Sixth Amendment Right to Counsel
Defendant also contends the denial of the request to read back defense counsel’s closing argument was prejudicial because it infringed upon his right to counsel.
In Gurule, the jury made a number of inquiries, including a request to have a readback of defense counsel’s closing argument. (Gurule, supra, 28 Cal.4th at pp. 648-649.) In denying that request at trial, the court had informed the jury “it is not appropriate that the arguments of counsel on either side be reread to the jury.” (Id. at p. 649.) Relying on the same authorities as defendant relies upon here, the defendant in Gurule argued the constitutional right to present closing argument to the jury had a corollary right to have the jury rehear the arguments upon request. (Gurule, supra, at p. 649.) The California Supreme Court rejected defendant’s claim “[b]ecause defense counsel was able to make a full closing argument before the jury, defendant’s ability to have counsel participate fully and fairly in the factfinding process was not significantly diminished.” (Ibid.)
Defendant claims this case is distinguishable from Gurule because the court “undermined the jury’s efforts to assess the defense position of the case by essentially advising them not to consider what defense said because it was not evidence. . . . Although a proper statement of the law, it was an improper response to the jury inquiry. [¶] This easily may have led the jury to infer they were not to give defense counsel’s closing argument any consideration.” We are not persuaded.
We find Gurule on point. Here, as in Gurule, defense counsel effectively presented and argued the case. His ability to participate fully in the trial was not impacted by the trial court’s decision. (Gurule, supra, 28 Cal.4th at p. 649 .) Nor was the case so complex that a readback was necessary to give defendant the full benefit of the adversarial process. (See People v. Sims (1993) 5 Cal.4th 405, 453.) We find no error.
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P.J., BUTZ, J.