Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 060230-0
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
After a jury trial, defendant Matthew Kehoe was convicted of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a) ). Imposition of sentence was suspended, and he was placed on probation for three years. On appeal, defendant challenges the trial court’s rulings on juror note taking. We conclude that defendant’s contentions do not warrant reversal. Accordingly, we affirm.
All further unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June of 2005, defendant was living in a mobile-like home on a parcel of land that adjoined land owned by Brian Pihl. Pihl’s two-acre parcel was then occupied by Jonathan Waner and Jeff “Kai” Barnwahl, Pihl’s cousin. Pihl’s parcel had three principal structures: a “main house” that Pihl planned to repair and live in; a small house or cabin behind the main house, and a mobile trailer about 50 feet across the driveway. The main house had a living room, a kitchen, a laundry room, two bedrooms, and a bathroom. To facilitate the repair work, the walls in some of the rooms had been stripped of sheetrock, exposing the interior studs and wiring was disconnected. However, the kitchen, which had a refrigerator, stove, and sink; the bathroom toilet and shower; and the laundry room, which had a hot water heater, washing machine and dryer; were all wired for electricity. The house also had furniture, including a couch that folded into a bed, two tables, a couple of chairs and a center aisle kitchen counter. The other structures on the property did not have functioning stoves, toilets or bathrooms. Waner and Barnwahl spent two to four hours each day in the main house, where they showered, cooked, washed, and socialized with each other. On rare occasions, either Waner, Barnwahl, or Pihl slept in the main house. Otherwise, Waner and Barnwahl slept either in the small cabin or in the mobile trailer on the property.
On the weekend of June 25 through June 28, 2005, Waner and his son went camping, returning on either Sunday or Monday. On his return, Waner noticed the front door of the main house was ajar. Waner entered the kitchen and saw that a lot of meat, bread, and cheese items were missing from the refrigerator. Waner suspected the food had been taken by defendant because on three previous occasions, Waner had seen defendant leaving the main house with containers of food. On those prior occasions, Waner had told defendant that he was not allowed onto the property and that if he took food again, Waner would call the police. After this fourth incident, Waner went next door and confronted defendant, who was sitting on the floor of his home. Defendant admitted he had gone into the house and taken more food. Waner called the police.
In response to questioning by Contra Costa County Deputy Sheriff Adam Hernandez, defendant admitted his neighbor was mad because defendant had gone into his house and taken some food. Defendant was arrested and read his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436). In response to further questioning by Hernandez, defendant stated he had taken English muffins, hamburger buns, milk, and cheese, and that he had gone into his neighbor’s house because he was hungry and could not help himself. Defendant admitted he did not have permission to enter the house to get food, and in the past, he had gone into the house without permission and taken food.
Defendant was charged by information with one count of “first degree residential burglary,” in that on or about June 25, 2005 through June 28, 2005, he unlawfully entered a dwelling house and inhabited portion of a building, which was inhabited by Jonathan Waner, with the intent to commit larceny and a felony. At a jury trial, the prosecution presented the testimony of Waner, Pihl, and Hernandez. Defendant presented no witnesses. The jury was instructed to consider first degree residential burglary, and the lesser included offenses of second degree burglary and petty theft. The jury found defendant guilty of first degree residential burglary.
DISCUSSION
Trial Court’s Rulings Regarding Juror Note Taking
A. Relevant Facts
The record does not indicate when the trial court told the parties of its decision to preclude the jury from taking notes or the reason for its ruling. But the record contains a notation that before the trial started, the court refused the prosecution’s request to instruct the jury on note taking.
On May 16, 2006, at 1:30 p.m., the court preliminarily instructed the jurors, but did not include any instruction that the jury could take notes, and consequently, did not admonish the jury regarding the risks of taking notes. Defendant did not raise any objection to the court’s failure to mention juror note taking in its preliminary instructions.
At about 2:00 p.m., after opening statements, the prosecutor called as her first witness Waner who testified for about one hour and 40 minutes. Shortly after the prosecutor started to question Waner on direct examination, the court noticed that one of the jurors was writing something. Interrupting the testimony, the following colloquy took place: “The Court: Excuse me just a minute. I see one of you started writing. I’m hoping it’s not notes. [¶] I have not admonished you that you can take notes during the course of the proceedings. If, in fact, you need clarification as to the testimony, my court reporter can read back the testimony for you.” Defense counsel responded: “[Defense counsel]: Excuse me. Are you instructing the jurors they can’t take notes? [¶] The Court: No. I’m not going to instruct as to notes, sir. [¶] [Defense counsel]: I ask the Court to allow the jurors to take notes if they want to. [¶] The Court: That request is denied, sir.” The trial then proceeded with the questioning of Waner, Deputy Sheriff Hernandez, and the direct examination questioning of Pihl, with the court recessing at 4:35 p.m.
Immediately before the court recessed for the evening on May 16, the court received a note from juror number 11. The note read: “During testimony, your honor stated that the court would provide clarification if there was testimony that needed to be clarified to refresh a juror’s memory. I am unclear if this was an admonishment regarding note taking or if you were simply informing me of the availability of testimony. I am forgetful of names and relationships, so I write them down.” The court initially indicated that it was going to respond to the note by telling the juror that he could not take notes. When defense counsel objected, the court indicated it would respond to the note the next morning.
On the morning of May 17, the court apparently had reconsidered its response to juror number 11’s note, and decided that it would permit the jurors to take notes. The Court stated: “(Juror No. 11), you sent m[e] a note last night with respect to you didn’t understand my comment to you. [¶] I indicated you could not take notes, and my comment to counsel was I had not given the admonishment with respect to note taking. I omitted it from my preliminary instructions. And you can’t take notes unless I give that instruction. [¶] But given your comments that you have difficulty remembering and you need some assistance in remembering names, if you want, let me give you the admonishment with respect to note taking. And if you want, my bailiff will give you a book, okay? [¶] . . . [¶] For those of you who wish to take notes, let me give you a word of caution with regard to any note taking that you do. You should not permit the note taking to distract you from the on-going proceeding. Please remember you are the sole judges of the believability of the witnesses, and few people can take notes as to each word the witness speaks and at the same time carefully consider the manner [in] which the witness testifies. Unless you’re a highly skilled stenographic reporter, you’ll find yourself incapable of writing down all the testimony. Your notes may therefore be inaccurate or incomplete. [¶] I would urge that you listen, that you observe carefully and that you do not let note taking interfere with your duties as jurors. [¶] So, . . . why don’t you hand (Juror No. 11) a notebook. [¶] Anybody else want a notebook? [¶] Okay. And (Juror No. 11), you just need to leave it in your chair during the break. [¶] Juror No. 11: I don’t really need to take notes now. [¶] The Court: The question with respect to the testimony, if there is any question with respect to testimony, even though jurors do take notes, there is an admonishment that is given that notes are only for use to refresh the juror’s recollection, and if there’s any discrepancies in a juror’s recollection and their notes or the memory of the other jurors, then you can ask the court reporter to read the testimony back.” Neither party objected to the court’s response to the note from juror number 11. Other than juror number 11’s reported response that he did not need to take notes, there is no indication that any of the other jurors requested note pads or took notes during the remainder of the trial.
The trial resumed with defendant’s cross-examination of Pihl, which lasted about forty-five minutes. At the end of Pihl’s testimony, the People rested and the defendant rested without calling any witnesses. After counsels’ closing arguments, the court gave its concluding instructions. The court told the jury that if there was any disagreement as to the actual testimony, the jurors had the right to request either a partial or total read back of the testimony.
Before the court recessed for the evening on May 17, the jurors deliberated for about 30 minutes. The next day, on May 18, the jurors deliberated for another two hours and 20 minutes before they returned their verdict that defendant was guilty of first degree residential burglary. During their deliberations, the jurors asked for a copy of the written jury instructions and the exhibits, which were photographs of Pihl’s property, a diagram of the main house’s floor plan drawn by Pihl, and a diagram of the structures on Pihl’s property drawn by Waner. The jurors did not request any read backs of testimony.
B. Analysis
Section 1137 reads, in relevant part, that “[u]pon retiring for deliberation,” the jurors “may” take with them “notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person.” By its terms, section 1137 “implicitly approves the practice of juror note taking.” (People v. Whitt (1984) 36 Cal.3d 724, 746, fn. omitted; see People v. Cline (1963) 222 Cal.App.2d 597, 601.) But, neither section 1137 nor any constitutional provision requires a trial court to permit juror note taking. Additionally, at the time of the trial in May of 2006, there was no rule of court adopted by the Judicial Council addressing juror note taking. Thus, in the absence of a specific constitutional or statutory provision, or rule adopted by the Judicial Council, it was within the trial court’s discretion to determine whether the jurors in this case would be allowed to take notes during the trial. (§ 1044 [trial judge has duty “to control all proceedings during the trial . . . with a view to the expeditious and effective ascertainment of the truth regarding the matters involved”]; see People v. Kilobaud (2005) 131 Cal.App.4th 674, 691 [under section 1044, “trial courts have discretion to fashion procedural rules as justice dictates”].)
On December 1, 2006, the Judicial Council adopted effective January 1, 2007, California Rules of Court, rule 2.1031, which reads: “Jurors must be permitted to take written notes in all civil and criminal trials. At the beginning of a trial, a trial judge must inform jurors that they may take written notes during the trial. The court must provide materials suitable for this purpose.” (Judicial Council of Cal., Meeting Minutes of Dec. 1, 2006 .)
To the extent defendant argues to the contrary, we cannot agree that the court’s initial prohibition of juror note taking was arbitrary. Given the factual and legal issues to be presented to the jury, defense counsel’s estimate that the trial would be one and a half days, and the presence of a court reporter available to read back any testimony, the trial court could have reasonably concluded that juror note taking would be of slight benefit and consequently, unnecessary in this case. While defendant requested that the jurors be allowed to take notes during the testimony of the prosecution’s first witness, the trial court’s denial was appropriate given the late request and that no juror had expressed either an interest or a need to take notes at that time. (People v. Stone (1965) 239 Cal.App.2d 14, 22 [trial judge has duty “to see that the trial is conducted in a fair and orderly manner”].)
Even assuming error in the court’s rulings regarding juror note taking, defendant has failed to demonstrate that his right to a fair jury trial was “fundamentally prejudiced.” In his opening brief, defendant contends that reversal is warranted because (1) “[e]ven in this short case, the jurors’ ability to individually and collectively assess the evidence might well have been improved had they been permitted to take notes”; and (2) the court’s initial prohibition on note taking and its later approval with cautionary instructions had a chilling effect on juror number 11, and any other juror who might have wanted to take notes. In his reply brief, defendant speculates that juror number 11 may not have been paying adequate attention because he was “stewing” about the court’s admonishment against note taking. Defendant’s contentions do not warrant relief.
We see no evidence that any of the jurors were distracted or unduly influenced by the court’s rulings regarding note taking. Also, none of the jurors expressed in any way that the court’s prohibition on note taking had or would affect their ability to perform their duty to deliberate and return a verdict based on their individual recollections of the evidence presented at trial. The court’s initial comment was accompanied by the instruction that the court reporter would be available to read back any testimony. When juror number 11 later wrote to the court, he explained that he had been writing during the trial because he was forgetful about names and relationships. But, the juror acknowledged an understanding that a read back of testimony would be available if necessary. In response to juror number 11’s note, the court again expressly told the jurors that if they could not recall any testimony, they could request read backs of testimony. We assume the jurors followed the court’s final instructions that their findings of fact were to be based on their individual recollections of the evidence presented at trial, and the repeated admonition that if necessary, the jurors could request read backs of the testimony. In the absence of any evidence that any juror was unable to recall the evidence necessary to reach a verdict, there is no reason to believe the court’s rulings on juror note taking had any affect on the outcome of the trial. In determining prejudice, we may also consider that defendant failed to call to the trial court’s attention the arguments now raised on appeal. (See People v. Carpenter (1997) 15 Cal.4th 312, 393.) If defendant thought that any juror’s ability to perform his or her duties had been compromised by the court’s rulings on juror note taking, he could have sought the available remedies of removal of juror number 11 and substitution of an alternate juror (§ 1089), a mistrial, or a new trial after the verdict.
Given the brief three day trial, the simplicity of the facts and issues to be resolved by the jury, and that the jurors were repeatedly told they could request read backs of testimony but none were requested, it is not reasonably probable that defendant would have achieved a more favorable result in the absence of the court’s rulings on juror note taking. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.