Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF121272. Craig Riemer, Judge. Affirmed.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Ivy B. Fitzpatrick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Raymond Manuel Navarro appeals his conviction for attempted robbery. (Pen. Code, §§ 664, 211.) He argues the trial court erred by not granting his motion for new trial based on misconduct by the jury foreman during deliberations.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 12:50 a.m. on January 7, 2005, the victim, a clerk who worked the late night shift at an gas station convenience store, arrived for work, parked her car, and turned off the ignition. The car doors automatically unlocked when she turned off the engine, and defendant immediately got into her car and sat down in the front passenger seat. Defendant grabbed the victim’s purse, which was on the center console behind the gearshift. The victim and defendant then struggled to gain control over the purse, until the victim was able to pull the purse away. She then put the purse on her left side near the door, turned on the ignition, and put the car in reverse. Defendant got out of the car as it began to move backward. The victim then drove her car to the gas pump area, locked the car, and went inside. Another store clerk called police.
The responding police officer attempted to make contact with defendant, but he ran away. Police were called again later that evening when defendant returned to the store. Once again, defendant ran when approached by police. When police lost sight of defendant, the officers called for a canine officer. After the canine officer was deployed, the police were able to locate and arrest defendant.
Defendant was charged and convicted by a jury of attempted robbery (§§ 664, 211) and resisting or delaying arrest (§ 148, subd. (a)(1)). In a separate proceeding, the trial court found true two prior prison term allegations that were charged under section 667.5, subdivision (b).
Defendant’s mental competence was questioned and examined at least four times during the criminal proceedings in the trial court, and these questions resulted in delays. Defendant was, however, found competent prior to trial and criminal proceedings were permitted to resume.
At a sentencing hearing on August 3, 2007, the trial court sentenced defendant to a total of three years four months in state prison. To reach the sentence, the trial court imposed the low term of 16 months on count 1, plus two one-year enhancements for the prior prison terms under section 667.5, subdivision (b).
DISCUSSION
Defendant believes the trial court should have granted his motion for new trial because the jury foreman committed misconduct by disregarding requests by other jurors to have trial testimony read back to them. To support this contention, defendant cites affidavits signed by jurors that were submitted in support of his motion for new trial. In the most accusatory declaration, the juror stated in pertinent part as follows: “I asked for read back at least twenty times. I specifically requested read back on the issue of intent of [defendant], about whether he actually touched the purse of the witness or not. . . . [¶] When I requested read back, the foreperson did not write to the court to request read back in a note. Only one note was written for read back.”
The record includes four posttrial motions requesting a new trial. The first motion indicates it was “received” by the court on May 11, 2006, about a month after the jury’s verdicts. A second motion was filed on December 28, 2006. A third motion was filed on April 27, 2007. The fourth and final motion was filed on May 8, 2007. This fourth and final motion was apparently filed because the trial court ordered defendant’s counsel “to file one consolidated motion for new trial.” The trial court denied this consolidated motion in a hearing held August 3, 2007. In his opening brief on appeal, defendant only challenges the court’s ruling on his fourth and final motion filed on May 8, 2007. We have therefore confined our analysis to the trial court’s denial of this final motion.
A trial court may grant a motion for new trial when the jury is “guilty of any misconduct by which a fair and due consideration of the case has been prevented” or “[w]hen the verdict has been decided . . . by any means other than a fair expression of opinion on the part of all the jurors.” (§ 1181, subds. (3), (4).) “With misconduct, prejudice is presumed and reversal is required unless there is no substantial likelihood that any juror was improperly influenced to the defendant’s detriment.” (People v. Clair (1992) 2 Cal.4th 629, 668.) In determining whether misconduct occurred, “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination.” (People v. Nesler (1997) 16 Cal.4th 561, 582.)
“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 the] law.” ’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 1007.) When readback is requested, it is permissible for the court to inform the jury of the time it may take to prepare testimony for rehearing. (People v. Hillhouse (2002) 27 Cal.4th 469, 506.)
Here, the trial court concluded there was no misconduct by the jury foreman and denied defendant’s motion during a hearing held on August 3, 2007. In pertinent part, the trial court stated as follows: “There is some indication in the declarations . . . [a] desire to have a readback was voiced by at least one of the jurors, but that the foreperson, presumably with the consent of the majority of the jurors, overrode that and failed to request a readback[.] [B]ut that assertion is contradicted by the record of the request actually received by the Court, which indicates that the jurors did request readbacks, both on what was being said by the Defendant when he entered the vehicle and what was—and everything that happened after—after some point in time, apparently after the Defendant entered the vehicle, although the actual question from the jury has to do with when the victim entered the vehicle, which, presumably, was a mistake. [¶] So when I look at all those circumstances, it appears to me the declarations are contrary to the record in this case, of what questions actually were sent from the—from the foreperson to the Court. It appears the questions or the request for readback that are mentioned in the jurors’ declarations were, in fact, made. [¶] No readback was delivered in response to the first question because there was no response to the Court’s request for clarification, and no readback was delivered in response to the second question, or request number three, because there was—because, apparently, the jury came out with a verdict before the court reporter was prepared to give the readback. [¶] So in the Court’s way of thinking, the declarations, to the extent that they are admissible, do not establish misconduct, either by the Court or by anyone on the jury, but rather describe a rather typical situation, . . . where jurors become frustrated with each other, become frustrated with the time it takes to give them a readback and changed their minds while they are—while they are waiting. [¶] I don’t think that that kind of frustration amounts to juror misconduct. So it would be the Court’s intention to deny the motion for a new trial in its entirety.”
The record indicates the jury began deliberations on April 10, 2006; their discussions continued for a short time until they were released for the day and told to return the next day at 10:00 a.m. At approximately 11:00 a.m. the next morning, the court received a question from the jury stating, “we need a legal definition of ‘intent’ and ‘mental state.’ ” After consulting with counsel, the court responded in writing.
Later the same morning, at the jury’s request, the court spoke to the jurors on the record, and the foreperson indicated the jury had reached a decision on count 2 but was having trouble reaching a decision on count 1, because there was a disagreement over the terms “intent” and “mental state.” As a result, the court briefly commented on the ordinary, everyday meanings of these terms. The court also asked the jury to consider whether additional time, instructions, or a readback of specific testimony would help them reach a decision. Since it was almost noon, the court told the jurors to take a break, and when they returned to continue their discussions and to let the court know if they needed a readback or to have specific questions answered about their instructions.
After the lunch break, the jury sent two more requests to the court. The first request stated, “We would like testimony of [the victim] from both prosecution [and] defense on when she entered her car.” The court made the following response: “Could you please clarify your request? (1) When you say ‘when she entered her car,’ are you referring to when [the victim] entered her car or when the defendant entered the car? (2) If the latter, are you interested in just the testimony concerning the entry, or everything that happened while he was inside?” The jury told the clerk, “they were looking for what [defendant] said while he was in the vehicle,” and the clerk told them they would need to put their request in writing. The jury then gave the clerk another note, which stated, “Did the defendant ‘mumble’ when he was sitting in the car?” The court responded by telling the jury, “The court reporter is preparing her notes. It will take a while. Continue deliberating while you wait for her.” The record then indicates the jury reached a verdict before the court reporter finished preparing the testimony to be read back.
Based on the foregoing, we cannot disagree with the trial court’s finding that defendant’s allegations of misconduct by the jury foreman are directly contradicted by the record. The record includes not only the transcript of the proceedings on the date in question, but the notes sent by the jury foreman to the court, and the court’s written responses thereto. Contrary to defendant’s allegations, and the statements made in the declarations by some of the jurors, the jury foreman did ask for readback of specific testimony. The requested testimony was directly related to the purported reason the jury was having trouble reaching a verdict on count 1 and to the issue mentioned in the complaining juror’s declaration. We have no reason to doubt the accuracy of the court’s record. The record is more credible than the jurors’ declarations, because the record was made contemporaneously with the relevant events, and the jurors’ declarations were executed almost a year after the jury’s verdict when memories had considerable opportunity to fade.
Defendant acknowledges that the juror’s declaration stating requests for readback were denied at least 20 times is “likely hyperbole.” Nevertheless, he argues we should overturn the trial court’s finding of no misconduct since “it is apparent that numerous requests went unfulfilled because of the foreman’s improper intervention.” As a result of this purported misconduct by the jury foreman, defendant claims it is impossible to determine whether the foreman’s alleged misconduct caused prejudice. We disagree. First, we do not think “it is apparent that numerous requests went unfulfilled.” Rather, all of the relevant evidence in the record indicates the only significant issue of contention among the jurors was whether there was sufficient evidence concerning defendant’s intent. The jury foreman specifically requested key testimony by the victim that would have been more than adequate to address this very topic. The jury was informed that the court reporter was “preparing her notes,” and this testimony would be provided to the jury in due course. There is no hint in the record that there were other issues of contention among the jurors that should have been addressed by additional, formal requests for readback. If there were such issues, we would expect to see them mentioned in the jurors’ declarations and/or in other parts of the record. Nor do we believe a defendant’s right to a fair trial requires a jury foreman to make a formal request for a readback of lengthy testimony each and every time a member of the jury suggests it is necessary. This case was not a complex one. Requests for readback must be reasonable under the circumstances. “Although any juror may request a readback of testimony (§ 1138), a request may not be used solely to vex or annoy the other jurors or to delay the proceedings.” (People v. Burgener (2003) 29 Cal.4th 833, 880.)
Defendant also claims the alleged misconduct resulted in “structural error,” which is “reversible per se.” Structural error has only been found in “a very limited class of cases.” (People v. Gray (2005) 37 Cal.4th 168, 233, fn. 20.) Defendant cites no viable authority for this argument, and the alleged errors in this case are not the type of structural errors that require reversal of a judgment in the absence of prejudice. Indeed, our Supreme Court has held that reversal is only required for an error of this type if there is prejudice to the defendant. (People v. Clair, supra, 2 Cal.4th at pp. 667-668.)
Our Supreme Court considered the significance of similar circumstances in People v. Gonzales (1968) 68 Cal.2d 467. After deliberating for several hours, the jury requested readback of certain testimony. (Id. at p. 472.) The court told the jury the court reporter would not have his notes available until the next morning. The court advised the jury they could deliberate further that afternoon, but if it was impossible to do so without the requested testimony, they could stop deliberating until the next morning. The jury resumed deliberations and 15 minutes later returned with a verdict. (Ibid.) Based on the record, our Supreme Court concluded as follows: “It thus appears that before the court was able to fulfill the request the jury manifestly decided that the reading of the testimony was unnecessary. Under the circumstances the court did not err in receiving the verdict without reading the testimony to the jury.” (Id. at pp. 472-473.)
In this case, the record as a whole suggests this is exactly what happened here—the jurors were simply able to resolve contested issues and to reach a verdict while continuing their deliberations and waiting for the court reporter to prepare testimony for readback. After the jury reached its verdict, both counsel were able to confer with jurors in the hallway. Later, when defendant wanted to question the jurors again, the prosecutor opposed and filed a declaration dated June 8, 2006, which stated in pertinent part as follows: “One female juror indicated that during deliberations, after submitting their request for readback, each juror discussed what they recalled about the victim’s testimony.” This exercise apparently succeeded in resolving any lingering doubts. “After listening to the jurors and their recollections, one individual juror indicated that he must have been wrong about what he thought the testimony was and they were able to reach a unanimous verdict.”
Moreover, we would be unable to find prejudice even if misconduct occurred because the other evidence in the record, including the testimony that would have been read back if the jury had not reached a verdict, supports defendant’s conviction for attempted robbery. “Robbery” is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) “An attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission.” (People v. Medina (2007) 41 Cal.4th 685, 694.) The victim testified she reached for her purse, which was lying on the center console inside the car, when she noticed defendant looking at it. She and defendant reached for the purse at the same time. The victim held the straps on the purse while defendant gripped the side. Defendant appeared extremely angry while they struggled over the purse. The victim finally managed to pull the purse away, causing her elbow to hit the car door. From this testimony, the jury could reasonably infer defendant specifically intended to rob the victim’s purse and used force or fear to accomplish this purpose.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., MILLER, J.