Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. RIF137527, Mac R. Fisher, Judge.
McCONNELL, P.J.
INTRODUCTION
A jury convicted Anthony Renard Miles, Jr., of assault with a firearm (Pen. Code, § 245, subd. (a)(2).) The jury also found true allegations Miles inflicted great bodily injury (id., §§ 1192.7, subd. (c)(8), 12022.7, subd. (a)), and personally used a firearm in the commission of the assault (id., §§ 1192.7, subd. (c)(8), 12022.5, subd. (a)).
The trial court suspended imposition of sentence and placed Miles on formal probation for three years. Among the conditions of his probation, Miles is precluded from being in places where gang members congregate.
Miles appeals, contending we must reverse his conviction because the trial court did not allow him to be present for the reading back of testimony in violation of his federal constitutional right to due process of law. In addition, he contends we must modify the probation condition precluding him from being in places where gang members congregate to include a knowledge requirement.
The People do not oppose the second contention, we agree the addition of a knowledge requirement is appropriate, and we direct the trial court to modify the probation condition accordingly. In all other respects, we affirm the judgment.
We omit a summary of the facts underlying Miles's conviction as we may resolve the issues raised on appeal without reference to them.
I
Exclusion from Reading Back of Testimony
After the jury started its deliberations, the trial court asked defense counsel how she wanted to handle any jury requests to read back testimony. Defense counsel stated Miles wished to be present if testimony was read back to the jury. The prosecutor stated she had never been present for a readback, and the court stated it did not know whether it had any choice in the matter. The court deferred deciding the matter pending an actual readback request from the jury.
The trial court and parties revisited the issue a few days later. By then, both the prosecutor and the court were involved in another trial. Defense counsel reiterated she and the defendant wished to be present during any readback of testimony. The court noted that, under Penal Code section 1138.5, it did not have to be present for a readback. Apparently because it was engaged in another trial, it asked defense counsel for further briefing on how the court could accommodate her wishes without it being present for the readback.
The parties and the trial court revisited the issue again a short time later. Defense counsel argued the defendant had a federal constitutional right to be present for and to have his counsel involved in all critical stages of the case, which she argued included the readback of testimony. She provided the court with authorities to support her position In response, the prosecutor stated she did not oppose defense counsel's presence during a readback.
The jury subsequently requested the court reporter read back the testimony of six witnesses, including Miles. The trial court and the parties revisited the issue for a third time. The court tentatively decided that, in the absence of a waiver of defendant's presence, the readback would occur in open court before it. The prosecutor agreed the defense had a right to be present for the readback; however, she did not know whether she or the court also had to be present. The court deferred deciding the matter to allow the prosecutor to present additional briefing on that point. The court ultimately permitted both counsel to be present for the readback. The court was not present for the readback and, presumably because of that, the court did not allow Miles to be present for it.
Another attorney substituted for prosecutor during the readback to allow the prosecutor to continue with the other case she was trying before the trial court.
As he did below, Miles contends on appeal the reading back of testimony to a jury is a critical stage in a criminal prosecution for which he has federal constitutional right to be present. By not allowing him to be present for the readback in this case, he contends the trial court deprived him of due process of law.
We need not engage in a lengthy discussion of this issue as Miles states he is raising it solely to preserve his right to later federal court review. He acknowledges the United States Supreme Court has never addressed whether the reading back of testimony to a jury is a critical stage of a criminal prosecution. (La Crosse v. Kernan (9th Cir. 2001) 244 F.3d 702, 707-708.) More importantly, he acknowledges the California Supreme Court has specifically rejected the notion. (People v. Cox (2003) 30 Cal.4th 916, 963, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Ayala (2000) 23 Cal.4th 225, 288; People v. Horton (1995) 11 Cal.4th 1068, 1121; see also People v. McCoy (2005) 133 Cal.App.4th 974, 982-983.) The California Supreme Court's decisions are binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We, therefore, conclude the trial court's decision to exclude Miles from the reading back of testimony did not deprive Miles of his federal constitutional right to due process of law.
II
Probation Condition Prohibiting Presence in Certain Places
As one of the conditions of Miles's probation, the trial court ordered Miles to "[n]ot associate [with] unrelated persons who are known gang members [and] stay away from all places where such persons congregate." Miles contends the stay away portion of the condition must be modified to include a knowledge requirement, otherwise that portion of the condition is vague and invalid.
Although the People do not concede Miles's point, they do not oppose the requested modification. We agree with Miles the addition of a knowledge requirement is appropriate and will direct the trial court to modify the probation condition accordingly. (People v. Kim (2011) 193 Cal.App.4th 836, 843-845; People v. Leon (2010) 181 Cal.App.4th 943, 952; see also In re H.C. (2009) 175 Cal.App.4th 1067, 1072; In re Vincent G. (2008) 162 Cal.App.4th 238, 244-245, 247.)
DISPOSITION
The trial court is directed to modify the gang conditions of probation to indicate Miles is not to associate with any person he knows or his probation officer informs him is a member of a criminal street gang, and he is not to visit or remain in any specific location which he knows or which his probation officer informs him is an area of criminal-street-gang-related activity. (People v. Leon, supra, 181 Cal.App.4th at p. 954.) In all other respects, the judgment is affirmed.
WE CONCUR: McDONALD, J., IRION, J.