Opinion
B229896
11-17-2011
THE PEOPLE, Plaintiff and Respondent, v. ANGEL LOPEZ, Defendant and Appellant.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. BA263279 & KA091255)
APPEAL from a judgment of the Superior Court of Los Angeles County, Tia Fisher, Judge. Affirmed as modified.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury found defendant and appellant Angel Lopez guilty of two counts of annoying a child and one count of giving false information to a police officer. On appeal, Lopez contends that the trial court violated his constitutional due process right to counsel when the court answered the deliberating jury's question without first informing or consulting his counsel. We hold that any error was harmless, but because the trial court improperly imposed a domestic violence fine, we modify the judgment to strike the fine, and we affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
Ashley F. was born in May 1994 and was 15 years old at the time of these events, which occurred while she lived in an apartment complex in El Monte. Ashley used to ride her skateboard and wave (a skateboard with a pole) in an area in the complex the kids called "[t]he peanut," a grassy area surrounded by concrete. She first had contact with Lopez, who also lived in the complex, around April 2010: he whistled, hollered, and waved at her while she was at the peanut. Ashley's friend told Lopez he was nasty and to leave Ashley alone. Later that day, Lopez again called and whistled to Ashley from his balcony. The next day, defendant tried to give Ashley a drawing of her face with her name on it. She refused to take it, saying he'd spelled her name wrong, and he threw it into some bushes. A couple of days later, Lopez again tried to get her attention.
In April 2010, Lopez and another man, Ricardo Rios, were on a balcony. Lopez stared at Ashley, and Rios whistled. Because it felt "weird," Ashley went home. Two weeks later, in May, Lopez and Rios, both of whom were on the balcony drinking beer, stared at Ashley. At some point, Ashley's aunt told Lopez to leave Ashley alone or she would call the police, but Lopez replied that he wasn't doing anything.
Rios and Lopez were tried jointly, but Rios is not a party to this appeal.
Two and one-half weeks later, Ashley was again playing at the peanut when she saw Rios, who appeared to be talking on cell phone. He said something like, "psst, psst," and a rose fell in front of her. Rios tried to give her a bouquet of roses, but Ashley refused to take them. Lopez was nearby, sitting on steps. As Ashley rode her wave, Rios stepped into her path and, laughing, grabbed her by the hips, causing her to fall. He tried to give Ashley a rose and threw rose petals at her. Crying hysterically, Ashley ran to her neighbor's apartment and the police were called.
Lopez told a police officer that his name was "Luis Mejia," and Rios said his name was "Ricardo Correa." At trial, Lopez stipulated that his name was "Angel Lopez."
II. Procedural background.
On December 7, 2010, the jury found Lopez guilty of counts 2 and 3, child annoying (Pen. Code, § 647.6, subd. (a)(1)), and of count 5, giving false information to a police officer (§ 148.9, subd. (a)).
All further undesignated statutory references are to the Penal Code.
The jury found Rios guilty of count 1, misdemeanor false imprisonment; count 3, child annoying; and count 4, giving false information to a police officer.
On December 14, 2010, the trial court sentenced Lopez on the child annoying counts, as well as on a companion case, BA263279, for which Lopez had been on probation. On the child annoying case, the court sentenced Lopez to consecutive one-year terms on counts 2 and 3 and to a consecutive six months on count 5, for a total term of two years, six months. In case No. BA263279, Lopez had, in 2004, pled guilty to false imprisonment (§ 236) and was placed on three years' probation. Following his conviction for child annoying, the court revoked probation and imposed a three-year prison term. The court also imposed, among others, a domestic violence fine in the amount of $200.
The trial court orally imposed a $200 fine, but the minute order and abstract of judgment mistakenly state that the court imposed a $400 fine.
DISCUSSION
III. Prejudicial error did not occur when the trial court responded to the jury's request for the "definition" of the law of child annoying.
Soon after retiring for deliberations, the jury asked for the definition of "child annoying," and the trial court, perhaps without informing defense counsel, directed them to CALCRIM No. 1122 and the page it was on. Lopez now contends that the court violated his Sixth and Fourteenth Amendments' right to counsel under the California Constitution when it answered the note without consulting defense counsel. We hold that any error was not prejudicial.
A trial court has a statutory and constitutional duty to notify counsel before answering a jury's note, to afford counsel the opportunity to take some action on the defendant's behalf, such as to amplify, clarify, or modify supplemental instructions. (People v. Hawthorne (1992) 4 Cal.4th 43, 68-69; see also § 1138.) The defendant, however, bears the burden of developing a record, as by a settled statement, showing the existence of the error upon which he bases his argument. (People v. Carter (2003) 30 Cal.4th 1166, 1214-1215; People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) This is because the trial court is presumed to have been aware of and followed the applicable law. (Sullivan, at p. 549; see also Evid. Code, § 664 [it is presumed that an official duty has been regularly performed].)
In Carter, the clerk's transcript recorded the receipt of two questions from the jury and that the court responded to them via the bailiff. (People v. Carter, supra, 30 Cal.4th at p. 1214.) The reporter's transcript, however, contained no record of any proceedings related to the jury's questions. On appeal, the defendant claimed that his attorney had not been informed of the requests. Carter held that the defendant bore the burden of developing a record to ensure review of his claim, and, in the absence of such a record, it would assume the trial court followed established law by contacting trial counsel and affording them an opportunity to respond before communicating with the jury. (Id. at p. 1215.)
Here, the trial court instructed the jury with, among others, CALCRIM No. 1122, child annoying. The jury began deliberations at 2:03 p.m. Lopez did not waive his right to be present for readback, and his defense counsel said he would be across the street. The court also told counsel to give their contact information to the judicial assistant. At 2:36 p.m., just 33 minutes after beginning deliberations, the court received a note from the jury asking for the "[d]efinition of the law of [c]hild [a]nnoying." At 2:44 p.m., the court responded, "See page 10, Instruction # 1122." The jury reentered the courtroom with its verdict at 3:33 p.m.
"The defendants are charged in count 2 as to defendant Lopez, and count 3 as to defendants Lopez and Rios, with annoying a child, a violation of Penal Code section 647.6. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant engaged in conduct directed at a child; [¶] 2. A normal person[,] without hesitation[,] would have been disturbed, irritated, offended, or injured by the defendant's conduct; [¶] 3. The defendant's conduct was motivated by an unnatural or abnormal sexual interest in the child; and, [¶] 4. The child was under the age of 18 years at the time of the conduct. [¶] It is not necessary that the child actually be irritated or disturbed. It is also not necessary that the child actually be touched. It is not a defense that the child may have consented to the act."
--------
Here, as in Carter, the reporter's transcript is silent whether defense counsel was told about the jury question and given the opportunity to respond before the trial court answered it. In the absence of a record, we presume, under Carter and Evidence Code section 664, that the trial court followed established law.
In any event, even assuming that the trial court did not consult defense counsel about the jury's note, nothing in the record suggests that Lopez was prejudiced. When the constitutional rights of a defendant are implicated by the trial court's ex parte instructions to the jury, we apply the test for harmless error in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Delgado (1993) 5 Cal.4th 312, 330-332, but see People v. Hawthorne (1992) 4 Cal.4th 43, 68 , fn. 14) [noting that "[t]he standard of review in assessing the impact of an improper communication between the court and a deliberating jury is not clear," but not resolving the issue]; People v. Jenkins (2000) 22 Cal.4th 900, 1027 [noting different standards of review have been applied to claims of error under section 1138].) Based on the totality of the circumstances as reflected in the record, no prejudicial contact between the judge and jury occurred here. The jury's request was made just 33 minutes after retiring for deliberations. That request was not for "additional" instruction, as Lopez claims, but for the "definition" of child annoying. It is likely that the jury simply did not see the instruction in the jury instruction packet, and this is clearly how the trial court interpreted the note. That the jury did not ask for clarification after the court referred them to CALCRIM No. 1122, and instead quickly rendered a verdict just under an hour after the trial court's response, strongly suggests this, rather than confusion about the law, is the case. (See, e.g. People v. Jennings (1991) 53 Cal.3d 334, 384 [where trial judge's response to jury question was compelled by law, the judge's failure to consult counsel was not prejudicial].)
For this same reason, we reject Lopez's further contention that the trial court erred by referring the jury back to CALCRIM No. 1122 in response to the question. A trial court must instruct the jury, sua sponte, on the general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case. (People v. Moye (2009) 47 Cal.4th 537, 548; People v. Abilez (2007) 41 Cal.4th 472, 517; People v. Breverman (1998) 19 Cal.4th 142, 154.) But where "the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The court here reasonably interpreted the jury's note as simply asking to be directed to the law on child annoying. As we have said, the note did not ask for clarification of the law. It asked for the "definition" of the law of child annoying. That definition was in the instructions already provided to the jury. The court therefore was well within its discretion simply to refer the jury to the page on which they could find CALCRIM No. 1122.
IV. The domestic violence fine must be stricken.
In the probation violation case, the trial court imposed a domestic violence fine under section 1203.097. That fine, however, may be imposed when the defendant is sentenced to probation. Lopez was sentenced to prison. As the Attorney General concedes, the fine must therefore be stricken.
DISPOSITION
The domestic violence fine imposed under section 1203.097 is stricken. The clerk of the superior court is ordered to modify the abstract of judgment and to forward the modified abstract of judgment to the Department of Corrections. The judgment is otherwise affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
CROSKEY, Acting P. J.
KITCHING, J.