Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. BF117188A, Michael G. Bush, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Hill, J.
A jury convicted appellant Richard Vestal of first degree burglary (Pen. Code, §§ 459, 460 subd. (a)), and in a separate proceeding, the court found true an enhancement allegation that appellant had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). The court imposed a prison term of seven years, consisting of the six-year upper term on the substantive offense and one year on the enhancement.
Appellant’s sole contention on appeal is that a readback of testimony to the jury out of his and his attorney’s presence violated his right to due process of law under the Fourteenth Amendment to the United States Constitution. We will affirm
Because the facts of the instant offense are not relevant to the issue raised on appeal, we will forgo a recitation of those facts.
After the jury retired to deliberate, the foreperson of the jury sent the court a note requesting a readback of the testimony of two of the witnesses who testified at trial. Outside the presence of the jury, the court stated it intended to have the court reporter read back the testimony to the jury, “in the jury room with an admonition that they are not to ask any questions, things of that nature.” Defense counsel objected, and asked that the readback take place in the courtroom with counsel present. The court stated, “I think I have the authority to order my court reporter to ... give that readback in the jury room with appropriate admonition.”
Shortly thereafter, with the jury back in the courtroom, the court told the jury, in relevant part, as follows. “We will break now .... Tomorrow when you are all gathered out in the hallway, [the bailiff] will take you in the back and then [the court reporter] will read. She does read pretty quickly, but she will read it and these are short enough that instead of trying for me to ask you exactly what you are looking for, she is going to start reading from the beginning. She will read the direct, the cross, the redirect, recross, however it is, [of both witnesses]. Our experience is and my experience is that sometimes you know what you are looking for. [¶] ... [¶] … If you get to the point where all 12 of you agree whatever it is you are looking for, it’s one of you looking for something or all 12 of you, you can stop her and just say, okay, that’s all we need from [the first witness], let’s go to [the second witness]. Okay. We have heard what he want to hear. [¶] You are not allowed to ask the her any questions. You are not allowed her to reread it. [Sic.] If you want it read again, and you have that right, you have to just send me another note. The only thing I allow the jurors to do is to tell her to slow down. She is very good at this. She can zoom through it pretty quickly. If she is reading too fast, ask her to slow down. You are not allowed to ask her to reread, you are not allowed to ask her any questions. She starts and she goes through. There weren’t very many objections, but the few objections, the side bar, that’s not on there. She will skip over that. So that’s what will happen first thing at nine o’clock tomorrow morning.”
DISCUSSION
As indicated above, appellant contends the readback, because it occurred outside the presence of appellant and defense counsel, violated appellant’s Fourteenth Amendment due process rights. We disagree.
A criminal defendant has a right under the Due Process Clause of the Fourteenth Amendment “‘to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.’ [Citation.] Although ... this privilege of presence is not guaranteed ‘when presence would be useless, or the benefit but a shadow,’ [citation], due process clearly requires that a defendant be allowed to be present ‘to the extent that a fair and just hearing would be thwarted by his absence,’ [citation]. Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” (Kentucky v. Stincer (1987) 482 U.S. 730, 745.)
In People v. McCoy (2005) 133 Cal.App.4th 974, this court, in rejecting a challenge similar to that raised by appellant here, noted that the United States Supreme Court “has never held that a readback is a critical stage of trial.” (Id. at p. 982.) Further, we noted, the California Supreme Court has on several occasions rebuffed the notion that a defendant has a due process right to be present at a readback: “In People v. Cox (2003) 30 Cal.4th 916, the court noted in passing that both the accused and his attorneys waived their presence at a readback but denied relief on the ground that ‘the rereading of testimony is not a critical stage of the proceedings.’ [Citation.] ... In People v. Horton (1995) 11 Cal.4th 1068, with no showing that the accused’s personal presence could have assisted the defense in any way, the court held that his attorney’s stipulation to a readback without his or his attorney’s presence was not ineffective assistance. [Citations.] ‘The reading back of testimony ordinarily is not an event that bears a substantial relation to the defendant’s opportunity to defend,’ the court observed. (People v. Horton, supra, 11 Cal.4th at p. 1121.) [¶] Similarly, the court held in People v. Pride (1992) 3 Cal.4th 195 that despite the absence of a personal waiver by the accused his attorney’s waiver of the presence of both attorney and client at a readback did not violate the accused’s federal or state constitutional rights to counsel and due process even though, as the court acknowledged, ‘no one was present (the court, counsel, or defendant) to monitor or report the readback.’ [Citation.] Congruently, the court held in People v. Bloyd (1987) 43 Cal.3d 333 (Bloyd) that the accused’s attorney’s stipulation to the absence of attorney and client alike from a readback did not abridge the accused’s federal constitutional right to counsel or state constitutional right to be present at trial even in the absence of his express consent. [Citation.] Likewise, where the accused’s attorney ‘purported to waive’ the accused’s presence, ‘various portions of testimony were reread to the jury,’ and the appellate briefing made no contention ‘that any other exchanges between the judge and jury, or counsel and jury, took place,’ the court in People v. Hovey (1988) 44 Cal.3d 543 declined to grant relief since ‘rereading of testimony ordinarily would not be an event which bears a substantial relation to the defendant’s opportunity to defend, and nothing in the present record indicates that defendant’s personal presence would have assisted the defense in any way.” (Id. at pp. 982-983, fn. omitted.)
This court concluded in McCoy: “Inferring a general rule from United States Supreme Court and California Supreme Court cases, we hold by parity of reasoning, on a record not only showing that the court carefully admonished the jury before the readback but also failing to show, let alone intimate, that McCoy’s or his attorney’s presence during the readback could have assisted the defense in any way, that the court committed no constitutional error in allowing the readback over express defense objection.” (People v. McCoy, supra, 133 Cal.App.4th at p. 983, fn. omitted.)
The trial court in McCoy “ordered the readback in the jury room, and admonished the jurors not to ask questions, not to discuss the case while the court reporters were in the jury room, and--if the jurors felt something was missing--to request an additional readback from the court reporters on the topics in the jury’s note but otherwise to request an additional readback only from the court.” (People v. McCoy, supra, 133 Cal.App.4th at p. 981.)
Here too, the court properly admonished the jury and there is nothing in the record to suggest the presence of appellant or his counsel at the readback could have assisted appellant. As in McCoy, there was no due process violation.
Appellant argues McCoy is wrongly decided. He asserts that McCoy overlooks the possibility that “some events ... could improperly happen during agreement,” viz., “juror[s] [could] disagree[] about how much they want read back, leading to the equivalent of deliberations in the presence of the court reporter; the court reporter [could] inadvertently includ[e] sidebar discussions; [the testimony might not be read back] in a clear and neutral manner”; and “the jury could speculate that the defendant’s absence from the readback was an indication that he was in custody.” And, he argues further, because it would be “nearly impossible” for appellant to prove any of these events occurred, given “the secrecy of the proceedings combined with the protection of the jury’s privacy as set forth in Code of Civil Procedure section 237,” the McCoy court was wrong to rely to any degree on the defendant’s failure to show that the presence of him or his attorney would have been helpful to the defense.
But notwithstanding appellant’s speculations about what might happen in his absence during a readback and the practical difficulties in proving what did happen, our Supreme Court has made clear that appellant has the burden of establishing he was prejudiced by his absence at the readback. As indicated above, in People v. Horton (1995) 11 Cal.4th 1068, the defendant argued that he was “improperly excluded from proceedings convened to read back the testimony of prosecution witnesses at the jury’s request” and counsel was ineffective in waiving appellant’s presence. (Id. at p. 1120.) In rejecting this argument, our Supreme Court stated: “As we previously have observed in rejecting similar guilt phase contentions, a ‘defendant is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his or her opportunity to defend the charges against him, and the burden is on defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial.’ [Citations.] ... The reading back of testimony ordinarily is not an event that bears a substantial relation to the defendant’s opportunity to defend [citation], and nothing in the present record indicates that defendant’s personal presence would have assisted the defense in any way.” (Id. at pp. 1120-1121, italics added.) The McCoy court, in basing its holding in part on the fact that the defendant did not show he was harmed by his absence at the readback, correctly interpreted and applied United States and California Supreme Court precedent. Neither appellant’s speculations nor the practical difficulties in establishing prejudice persuade us otherwise.
DISPOSITION
The judgment is affirmed.