PEOPLE v. GARCIA

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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Roy Lopez GARCIA, Defendant and Appellant.

No. A098872.

Decided: March 02, 2004

Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan, San Francisco, Dylan L. Schaffer, Counsel for appellant. Bill Lockyer Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, John H. Deist, Deputy Attorney General, Counsel for respondent.

In 1998, disputes over his use of newly acquired ranch property pitted appellant Roy Lopez Garcia against residents of an adjacent subdivision in a rural part of Morgan Hill. Debbie Gregg emerged as a leader among Garcia's new neighbors.   In November of that year, her shotgunned body was found on his property near a fence dividing their parcels.   Five days later, Garcia was arrested and charged with her murder.   A grand jury indicted him for first degree murder and alleged that he did so while lying in wait.   At trial, the prosecution's evidence was largely circumstantial.   Garcia maintained his innocence, but his credibility was repeatedly challenged by many witnesses, including several who testified that he had verbally threatened Gregg.

After four days of deliberations, a jury convicted Garcia of first degree murder with special circumstances.   He was sentenced to life imprisonment without possibility of parole.  (See Pen.Code,1 §§ 187, 190.2, subd. (a)(15).)   On appeal, he challenges (1) the propriety of a return visit that the jury made to the crime scene during deliberations;  (2) his impeachment with evidence of a spousal battery;  (3) the admission of dog scent-trailing evidence and the instructions given about its use;  and (4) the trial court's limitation of his cross-examination of a jailhouse informant who testified that Garcia implicated himself in Gregg's death.2  Having carefully considered this complex case, we affirm the judgment.

I. FACTS

A. The Ranch

Sleepy Valley Ranch is an undeveloped parcel of land in rural Morgan Hill. The property contains no buildings or water wells, but there is a large spring on it.   It is steep in places, is heavily vegetated and has a creek running near one of its boundaries.   This creek forms an approximate boundary between the ranch and an adjacent rural subdivision of homes.   Access to the ranch can be had by two routes-from the top of the property by way of Sheila Lane through two locked gates before the lane becomes a fire trail;  or from the opposite end of the ranch via Sleepy Valley Road, a private spur road off of Armsby Lane, another private road serving as the primary access way into the rural subdivision.

In May 1998,3 appellant Roy Garcia acquired Sleepy Valley Ranch from prior owner Alfred Farren for $225,000.   Garcia had been born in Mexico, but had lived in the United States for 30 years.   During that time, he operated a carpet business and became prosperous as a result of his real estate holdings.   Garcia hoped to raise cattle on the ranch.

When Garcia bought the ranch, Debbie Gregg owned an adjacent parcel at the end of Sleepy Valley Road and Griffis Way. She lived alone in a trailer that had been on the lot when she purchased it.   The trailer sat on a corner of the lot, separated from the nearby creek by a fence.   The trailer was not visible from Sleepy Valley Road-a dirt road off of Armsby Lane that had once been paved but had fallen into disrepair-that provided her only access to her property.   Gregg was the only resident of the Armsby Lane subdivision who used this dirt road.   She worked as a therapist at a San Jose mental health clinic that served a primarily Latino clientele and she spoke fluent Spanish.

B. Property Disputes

Even before the sale was complete, a dispute arose over the boundary line between the Garcia and Gregg properties.   Farren told Garcia that he believed that Gregg's trailer and a nearby fence encroached on the ranch property.   Farren had not disputed this matter with the prior owner of Gregg's property.   Gregg herself had sought to purchase part of the ranch near her trailer, but Farren would not sell such a small parcel.   In April, Gregg complained to the county sheriff that someone had tampered with surveyor's stakes serving as property markers between her property and the ranch.   It was never clear who moved the stakes, but Gregg and Garcia each acted as if the other had done so.

Before the ranch sale, Garcia and Farren agreed to have the property surveyed.   Sometime in the spring, a private survey was conducted.4  Engineer William McClintock calculated that the ranch was 252 acres, disputing old county tax records indicating that the ranch was somewhat larger.   In May, he met with Farren, Garcia, Garcia's real estate agent Frank Martinez and Gregg to survey the line between the two properties.   McClintock told them that, based on his survey, he concluded that Gregg's trailer sat on her own property.   When he conducted another survey for Gregg in the fall, he found that the location of a well that had been in dispute was also on Gregg's property, rather than Garcia's ranch.   McClintock also conveyed this information to Garcia, who persisted in believing that both Gregg's trailer and her well in fact encroached on his property.

The rural subdivision abutting Garcia's ranch contained homes on large lots that were owned by Gregg and her neighbors.   The main access to these homes-Armsby Lane-was a private road maintained by an association of about 50 member households.   Gregg was an active member of the association.   Each household paid about $300 a year in road maintenance costs.   The neighbors maintained Armsby Lane themselves at an annual work party.5  Spur roads off of Armsby Lane such as Sleepy Valley Road-also private roads-were maintained by the individual property owners who used them for access to their homes.

Garcia believed that he had the right to use privately maintained Armsby Lane and Sleepy Valley Road to access his ranch.   One Sunday in late May-probably on May 30-Garcia's workers bulldozed part of Sleepy Valley Road 6 off of Armsby Lane near the line between the Garcia ranch and Gregg's property.   He intended to improve the road so that it would support the trucks that he planned to drive to and from his cattle ranch along it.   The bulldozer chewed up what little pavement was left on Sleepy Valley Road and pushed debris and dirt into the creek, about 100 yards from where it ran by Gregg's trailer.   Some of the Armsby Lane neighbors knew of Garcia's plans to use his property as a cattle ranch and were concerned about its impact on their neighborhood.   Other neighbors feared that Garcia intended to fill in the creek and divert its water.

Gregg was particularly concerned about Garcia's destruction of the remnants of pavement on Sleepy Valley Road because access to her trailer along this dirt road could become impassable during the rainy season.   She telephoned several neighbors-most of whom were members of the road association-and, at her request, they met Garcia where the bulldozing work was being done.

The Armsby Lane neighbors learned that Garcia had not obtained a permit to do any grading.   The neighbors told him that it was illegal to obstruct the creek with debris.   Garcia told them that he thought that he had the right to do whatever he wanted on his property, but his neighbors did not believe that ownership of his ranch gave him the right to use Armsby Lane and Sleepy Valley Road. They told Garcia and his workers to stop work on Sleepy Valley Road until everyone was certain that he had a legal right to use the road. The neighbors wanted him to establish his right to use the private roads that they paid to maintain before using them again.

The conversation had been friendly, but became less so as the neighbors' list of concerns grew.   In particular, Gregg angered Garcia.   While most of the neighbors were concerned about his use of their roads, Gregg also wanted to know what Garcia was doing on his own property.   Briefly, she spoke to him in Spanish,7 which incensed him.   Neighbors heard Garcia threaten Gregg.   One later reported that Garcia told Gregg that he could make her “disappear” and he would be certain that he won this dispute.   Two others recalled that Garcia told Gregg that she was his enemy now;  one witness added that Garcia told Gregg that his enemies regretted it.   As the gathering broke up, Gregg offered her hand to Garcia but he refused to shake it.

Gregg told her neighbors that Garcia was grading his property.   Early in June, she complained to the State Department of Fish and Game that he was doing illegal work on the creek.   Warden Mark Imsdahl met Garcia at the site to investigate this complaint.   He discovered that a cut had been bulldozed through the creek in violation of state fish and game laws.   Imsdahl told Garcia that the cut was a code violation.   When Garcia explained that his worker had cut across the creek contrary to his instructions, the warden told Garcia that he was responsible for all work done on his property by his workers.   Imsdahl chose not to cite Garcia for this misdemeanor-it was a small violation in a dry creek bed involving minimal damage that was easily correctable-but he advised Garcia to get a permit before doing any more work on the creek.

Later in June, Herbert Hodges-a Santa Clara County land development officer-visited the ranch in response to complaints that Garcia had illegally graded an access road.8  Hodges found no code violation, but noted evidence of earth movement and culvert construction over the creek.   He advised Garcia that if a cut or fill of a certain height or volume of soil was made, it would violate county codes.   During this visit, Garcia volunteered to Hodges that Gregg's trailer, well and a drain for a septic tank encroached on his property.   He was unhappy about the encroachment.   He also told Hodges that he thought it unfair that road association members were trying to prevent him from using the roads to move equipment, materials and cattle onto his property.

About this time, Garcia began to raise issues about Gregg and her property.   His attorney, Fernando Hernandez, advised Gregg by letter that she was trespassing on his client's property.   Gregg's attorney, Judson Gutheil, responded and countered the claim of trespass.   Garcia and Hernandez prepared to bring a civil action against Gregg.

Garcia also filed a formal complaint in June with county land use officials against Gregg, reporting that her trailer and septic tank sat on his property line, thus preventing him from fencing his property.   He also claimed that her well was on his property.   County land use officials determined that these issues were beyond their jurisdiction, but the complaint prompted them to learn that Gregg had no permit for the trailer on her property.   In August, she was advised by letter that she was in violation of county land use regulations and was told to secure the proper permits.9

In August or September, Garcia created a pond to water his cattle and built an earthen dam blocking the creek running beside Gregg's trailer.   She filed more complaints with government agencies and passed out petitions to her neighbors.   As secretary of the road association, she authored and distributed its newsletter claiming that Garcia intended to dam the spring feeding the creek.   Gregg feared that if the dam was not properly constructed, debris could block the culvert during a rainstorm and wash out the road, effectively blocking access to neighborhood property.   Several Armsby Lane neighbors filed administrative complaints against Garcia, but Gregg was the galvanizing force in the neighborhood.   She sensed Garcia's hostility to her-once, she asked someone to accompany her when she visited him at his ranch.

In September, Garcia asked McClintock to return to the property to clear up some confusion about a boundary stake near Gregg's trailer.   By this time, Gregg had hired McClintock to assist her in getting a permit to legalize her trailer.   McClintock told Garcia that the stake related to Gregg's trailer-it had nothing to do with his property line.

Later that month, Garcia formally filed a civil action against Gregg for trespass, seeking an injunction to prevent her encroachment onto his ranch.   Garcia's complaint alleged that both Gregg's trailer and her well were actually located on his land.   Although his main concern was with the road association's activities that were preventing him from using his property, Garcia 10 decided not to sue the association, but sued Gregg alone.   When the members of the road association learned of the lawsuit, they hired an attorney to determine whether Garcia had the right to use their subdivision's private roads.   Early in the autumn, Garcia's right to use the Armsby Lane private roads to access his property was established.

At a court hearing in October on the civil lawsuit, a court heard evidence that Garcia created a pond to water his cattle by damming the creek on his ranch.   Twice, Garcia denied this.   Gregg testified that Garcia had threatened her, saying that “anyone that's my enemy will regret it.”   Garcia told the trial court that he did not want to have trouble with his neighbors-he simply wanted to fence his land.   The trial court issued a mutual injunction applying to both Garcia and Gregg.   Each agreed to remove an existing, old, wood fence that leaned over Garcia's property-apparently so that a new fence could be constructed in its place on an agreed lot line-and to remove construction debris from the creek.   The injunction also contained a general, mutual prohibition against trespass.

After the hearing, Hernandez told Garcia that the injunction should resolve all of his issues with Gregg and the road association. At this point, Hernandez withdrew as counsel and Garcia began to represent himself in the matter.   Hernandez advised that if Gregg obeyed the injunction until the next scheduled court date in February of the following year, Garcia should dismiss the case.   He believed that Garcia had no interest in pursuing the case any further, regardless of whether the trailer or well encroached on his property.   As long as Garcia was allowed to build his fence, the attorney believed that he would be satisfied.

Gregg's attorney, Judson Gutheil, was confused by a letter sent after the hearing in which Hernandez implied that the matter was resolved.   Garcia's case had not been formally dismissed, and an answer and any cross-complaint from Gregg were soon due.   At this time, Gregg and Gutheil were still filing new complaints against Garcia with state and county officials.

Also in October, the county land development office received a new complaint that a dam had been constructed-earth had been moved, a tree had been felled and the creek had been blocked.   Herbert Hodges returned to the ranch property to investigate.11  He inspected the site and discovered that a large dam had been constructed since his last visit.12  Both the earth movement necessary to build such a dam and the blockage of the creek constituted code violations.   The dam could have been legally built if Garcia had the work designed by a structural engineer and acquired a county permit.   At the end of October, Garcia received formal notice of this violation and was ordered to abate it, at a cost of more than $4,500.   Garcia called the county land development office and complained that “that crazy woman” was at the root of all his problems.13  In early November, the county sent Garcia a stop work notice, but never received any response to it.

During the fall, a county sheriff saw Garcia's workers constructing a fence on a different line from the boundary McClintock had marked.   The sheriff halted the fence-building.   Two days later, the sheriff watched as members of McClintock's engineering firm again marked the property line and fence construction began along that line.   Gregg had asked to have the sheriff attend while the boundary line dispute was being resolved.   Garcia and Gregg were both present at this meeting.   Garcia told the sheriff that he was under court order not to speak with Gregg.   When McClintock marked the property line, it ran between Gregg's trailer and Garcia's ranch land, which pleased Gregg.

At Gregg's instigation, she and Garcia shook hands.   They agreed that the boundary dispute had been resolved and that now Garcia could build his fence.   In all, the fence between the ranch and Gregg's property cost Garcia almost $60,000 to build.   Garcia told the sheriff that he had only wanted to build a fence, but that the property line had been surveyed several times at a cost that was not worth the few feet of land involved.

However, other issues were yet to be resolved between Gregg and Garcia.   By early November, Fish and Game Warden Mark Imsdahl had received another complaint-this one filed by Gutheil-alleging that Garcia had committed further violations at the creek.   Imsdahl reported the complaint to Garcia, who said he was improving an existing cattle pond.   Imsdahl tried repeatedly to set up an appointment to visit the ranch with Garcia in mid-November, but the meeting never took place.14

On November 13, Larry Ford-an inspector for the state Division of Safety of Dams-called Garcia after receiving a complaint from Gregg that he had built an illegal, 35-foot high earthen dam.   Garcia denied doing this-he had merely constructed a small dam in order to capture water for his cattle.   On Monday, November 16, Ford visited the ranch with Garcia.   During the 45 minutes to an hour that they were together, Garcia complained continuously about Gregg.   Garcia told Ford “I'm the wrong one to make an enemy out of” but Ford did not sense aggression in his tone.   When he viewed the dam, Ford found it to be a small one.   It was too small to be within state jurisdiction, but Ford later concluded that it might fall within county authority.

On November 13, Gregg filed an answer in Garcia's lawsuit against her.   She also filed a cross-complaint seeking a permanent injunction against him.   She alleged causes of action for encroachment, abatement of a private nuisance, willful and negligent trespass, assault and slander of title.   The cross-complaint also alleged that Garcia threatened Gregg on May 30 by telling her “I used to be a street fighter” and “anyone who becomes my enemy will regret it.”   It also alleged that he told Gregg that she had become his “enemy.”   On November 16, Garcia received the cross-complaint.

About 6:00 p.m. or 6:30 p.m. on either Wednesday, November 18 or Thursday, November 19, Armsby Lane neighborhood resident Mitchell Portera saw what appeared to be a pickup truck with running lights mounted atop the cab 15 driving on a ridge on Garcia's property.   The truck appeared to approach a gate leading to property next to Garcia's ranch, then turn around and head back.   Portera thought it was unusual to see vehicles in this area.

On the afternoon of Thursday, November 19, Garcia met with Attorney Dennis Brown.   He told Brown that he had received a notice of a county grading violation as well as Gregg's cross-complaint.   It appeared to Brown that Garcia thought these matters had been resolved when the survey was completed and the fence was erected.   Garcia seemed confused and somewhat angry that the situation was still unresolved.   Brown sensed from Garcia “an undercurrent of ․ grave disappointment, if not ․ anger” because of Gregg's cross-complaint.   Garcia told Brown that he and Gregg had agreed to the property line and now that the fence had been placed there, he had no further issue with Gregg.   He asked Brown to find out why Gregg had filed her cross-complaint.

C. Gregg's Death

On Friday, November 20, the Santa Clara County Sheriff's Office received a report that Gregg had not come to work for two days.16  Her supervisor attempted to reach her at home, but received no response.   When sheriff's deputies arrived at Gregg's home about noon, her pickup truck was parked outside the trailer.   It appeared that two days' mail was in her mailbox.   The trailer was unlocked.   No one was inside and it did not appear to have been burglarized.

A sheriff found Gregg's body on Garcia's side of the fence dividing her property from his ranch.17  She was lying on her back near the fence.   Her head was pointed toward the fence and the trailer beyond it;  her feet pointed toward the creek bed.   A cordless drill was found at her feet.

Gregg's face, arms and legs were marked with dried blood from multiple shotgun pellet wounds.   A copper-colored projectile was found on her pants.   Eleven shotgun pellet marks found in the wooden fence formed a tight pattern.   Three shotgun pellets had passed through the top of the fence and had lodged in the side of Gregg's trailer.   One actually penetrated inside the trailer.   Another pellet was found near Gregg's body.

D. Garcia's Arrest

News of Gregg's death was televised locally on Sunday, November 22.   Frank Martinez-the real estate agent who had helped Garcia purchase the ranch-heard this television report.   He called Garcia about 11:00 p.m. that night to tell him that Gregg was dead, but Garcia's wife Ester said that her husband was asleep.   Martinez shared his news with Mrs. Garcia.   The next day-Monday, November 23-Martinez went to see Garcia at his carpet shop and told him in person that Gregg had been found murdered.   Garcia responded that this news had “nothing to do with” him.   Martinez told him that the police might want to talk with Garcia about Gregg's death because of his dispute with her.

On Friday, November 25, the county sheriff executed search warrants for Garcia's Gilroy residence and his San Jose carpet shop.   The sheriff found two 12-gauge Remington shotguns at the residence.   These were pump-action, single-barreled shotguns that required pumping between shots to eject the expended shell and feed a fresh shot into the chamber before a second shot could be fired.   More than 100 shotgun shells of varying sizes and manufactures were also found at several locations in and around the Garcia residence.

While the searches were being conducted, the county sheriff repeatedly called Garcia by telephone to arrange a meeting with him.   Garcia told the sheriff that he was working;  several times, he told the sheriff by cell phone that he was in transit and delayed by traffic.   Finally, Garcia arrived at his shop and met with the sheriff.   He spoke with Dennis Brown by telephone while awaiting transport to the sheriff's office.   He did not mention to Brown that he knew Gregg had been murdered.18  Garcia did not ask why the sheriff wanted to question him or why his home and shop were being searched.

At the sheriff's office, Garcia was first told that the sheriff wanted to talk about his property dispute with Gregg.   Garcia was told that he was not under arrest and he told the sheriff that he had done nothing wrong.   He made a tape-recorded statement denying ever having been in jail.   Some time after he began giving his statement, the sheriff asked Garcia if he wasn't curious about why he was being questioned.   The sheriff told Garcia that Gregg had been murdered and that her body was found on his property.   Garcia said he was surprised at this news, but the sheriff noted that he smiled.   Garcia denied threatening or killing Gregg, but he was arrested for murder at the end of the interview.

E. Pretrial

In December, the People filed a complaint charging Garcia with Gregg's murder, alleging that it was committed while lying in wait.   He posted $1 million bail and was released from custody.   In January 1999, the sheriff again searched Garcia's residence pursuant to a second warrant, this time looking for blood-stained shoes.19

In June 1999, the Santa Clara County Grand Jury indicted Garcia for murder, alleging special circumstances-that Gregg was killed while Garcia was lying in wait.  (See §§ 187, 190.2, subd. (a)(15).)   He was arrested again.   In September 1999, he moved to suppress evidence seized in the November 1998 and January 1999 searches.   He also moved to quash the grand jury indictment.  (See §§ 995, 1538.5.)   By October 1999, the trial court denied both motions.

In June 2000, Garcia moved for reconsideration of the trial court's order denying his motion to set aside the indictment, without success.   In July 2000, Garcia moved to exclude from evidence the statements he made to the sheriff on November 25.  (See Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)   This motion was granted in part and denied in part.   He also moved to exclude evidence of the results of a dog's search for his scent at the crime scene, without success.

F. Prosecution Case-in-chief

Trial began in late July and continued into August 2000.   Evidence was introduced establishing that Gregg was a lesbian who engaged in Native American spiritual practices.   She was described by neighbors as “very quiet, private” sometimes “bashful”-someone who was “charming, very hospitable, pleasant.”   She appeared to have disagreed with only one person-Roy Garcia.

Even George Mumaw-one of Garcia's workers-liked Gregg.   He had a less favorable impression of Garcia.   Mumaw testified that when Garcia spoke about his neighbors, he said “they don't know who [they are] messing with.”   Once, Garcia told Mumaw that for $500, someone from Mexico could make them disappear in the time it would take to snap his fingers or wipe his hands.   It did not seem to Mumaw that Garcia was joking when he said this-he seemed genuinely angry.   The comment seemed out of character for Garcia, who was usually a quiet man.

Garcia told Mumaw that a woman who lived in a trailer was causing him legal problems.   He seemed more irritated every time Mumaw saw him.   After the murder, Mumaw told the sheriff that Garcia admitted telling Gregg that he could make her “disappear.”   Another witness testified that he heard Garcia refer to Gregg as a “bitch.”

At trial, the defense suggested that Garcia thought that his lawsuit with Gregg was resolved once the injunction issued that allowed him to build his fence.   For her part, Gregg believed that the injunction resolved some issues between them, but not all of them.   She and some friends worked on the fence between her property and the Garcia ranch about two weeks before she died.   She told her friends that she was relieved that the fence was done-she hoped it would form a buffer between her and her neighbor.

That fence did not protect Gregg from the gunshots that killed her.   The medical examiner counted almost 60 pellet wounds in her body-most on her left side, in her chest, shoulder, and neck.   The chest wounds formed a tight pattern without powder burns.   Gregg suffered numerous internal injuries particularly to her cardiovascular system.   She bled internally until her heart stopped beating.   The medical examiner estimated from the condition of her body that she was shot by someone standing at almost the same level as she was, shooting slightly upward from a distance of at least two feet away.   He opined that Gregg died within 12 to 24 hours before her body was received at his office in the early evening hours of Friday, November 20.   She had no defensive wounds on her body and probably died within five to 10 minutes of injury, the coroner believed.   He told the jury that it was possible that she was able to move, talk or think during the time between injury and death.20

Some shotgun pellets were retrieved from her body by the coroner and given to the sheriff for analysis.   Edward Peterson, the prosecution firearms expert, testified that one of these pellets was a copper-plated lead pellet of No. 4 buckshot, a common size of buckshot found in 12-gauge shot shells.   None of the shotgun shells found at Garcia's home that were submitted to him for examination contained No. 4 shot.   He could not tell if Garcia's 12-gauge shotguns had ever fired No. 4 copper-coated buckshot.   A typical load of No. 4 copper-coated buckshot contained 27, 34 or 41 pellets, depending on the manufacturer and the size of the load.   Based on the number of pellets found in and around her body, Peterson believed that the killer fired at least two shots at Gregg.

Law enforcement officials determined the trajectory of the shotgun pellets that went through the fence by placing dowels in the fence.   This evidence led sheriff's detective Rick Sprain to conclude that the pellets were shot from a location near an oak tree beyond the creek bed.   The pellets went through the fence toward Gregg and her trailer behind her.   Two round pellet-shaped holes found in a leaf from the oak tree actually appeared to Sprain to line up with the angle created by the fence holes.21

There were at least three theories of where the shooter stood at the time of the killing-in the creek bed, near the oak tree and some bushes, or an open area in front of this stand of vegetation.   The difficult terrain between the trailer and the creek led the sheriff to believe that Gregg was shot from the bottom of the creek bed.   Brush would have hidden a shooter standing in this location from Gregg's view.   If the shooter came closer, Gregg might have heard the shooter's approach on the decaying vegetation on the ground.   Peterson, who also served as the prosecution forensics expert, testified that the most likely of these three possible scenarios was that the shooter shot from the bushes, not from the creek bed or from the open area in front of the bushes and the oak tree.   He believed that the shooter stood more than 10 feet away from her, but there were too many variables to be more precise about the shooter's distance or exact location.

Garcia's November 25 statement to the sheriff was played for the jury.   The jury also heard an audiotape taken from the telephone answering machine in Gregg's trailer.   It contained four messages-two from her supervisor inquiring about her whereabouts and two from neighbors relating concerns about Garcia's work.   The People also put on bloodhound scent trailing evidence tending to link Garcia to the location where the sheriff believed that the shooter stood.  (See pt.   IV., post.)   Finally, a jailhouse informant told the jury that Garcia made admissions to him implying that he had killed Gregg.   (See pt.   V., post.)

G. Defense Case

1. Exculpatory Evidence

Garcia put on a vigorous defense.   Jim Norris-his expert in crime scene analysis-criticized the sheriff's method of determining the shotgun's trajectory.   Based on his own trajectory analysis using a laser, he disputed the sheriff's conclusion that the shots were fired from someone standing in the creek bed.   Norris opined that the creek bed was too deep and the vertical angle of it too steep for a shot fired from this location to strike Gregg.   He told the jury that most of the area between the fence and the creek was impenetrable because it was blocked by a dead tree.   A tight 15-inch diameter pattern of pellet holes and the large number of these holes led him to conclude that two shots were rapidly discharged, one immediately after the other, from a double-barreled shotgun.22  Norris opined that the shooter fired at Gregg from a distance of no more than 15 feet.   From this distance, he believed that the shooter would have been visible crouching 23 in front of some brush that was about 18 feet away from Gregg, rather than hidden behind the brush in the creek bed some 28 to 30 feet away from where Gregg's body was found.   The use of a double-barreled shotgun was also consistent with the lack of evidence of ejected shotgun shells in the area where the shooter may have been.   Once shots are fired, shotgun shells remain in a double-barreled shotgun rather than being ejected as they are from a single-barreled shotgun.

Norris opined that Gregg was standing by the fence with her left hand raised and a cordless drill in her right hand.   She turned to look over her right shoulder as two shots were fired in rapid succession.   The first rounds probably struck her in the back of her shoulder and left hand.   As she turned, Gregg then took rounds in the front of her shoulder and in her eye.

There was also evidence of a longstanding conflict between the Armsby Lane neighbors and the previous owners of Garcia's ranch.   Prior owner Alfred Farren's son testified that an earthen dam existed there before his father sold the property to Garcia.24  He reported problems with the neighbors during past attempts to sell the ranch.   He told the jury that the neighbors used the property as if it was theirs.   He found Garcia to be a “[r]eal mellow guy.”   Many witnesses who knew Garcia testified that he was an honest, truthful man.   He told a friend that he was involved in a land dispute with Gregg.   His friend told the jury that Garcia was upset that he had to go to court and pay attorney fees, but that he seemed to have no animosity toward her.

Garcia's wife Ester testified that her husband's problems about the ranch were with the road association, not with Gregg.   Her husband only wanted to use the roads and fence his property.   She never heard him threaten Gregg or call her a “bitch” or a “crazy lady” as other witnesses had said.   She admitted that three days before her husband was questioned by the sheriff, Frank Martinez had told her that Gregg had been found dead.   She told the jury that she was upset to learn this, but that she did not believe it-that the news of Gregg's death did not really “sink in” with her.   She told the jury that she did not wake her husband to tell him about Gregg's death when Martinez's call came.   The next day, she forgot about the call until after her husband told her that Martinez came to visit him to tell him that his neighbor was dead.

2. Garcia's Testimony

Forty-seven year old Roy Garcia testified in his own defense.   He told the jury about his encounters with Gregg.   He met her for the first time when he was checking out the ranch property.   She introduced herself to him and their meeting was friendly.   He testified that he met Gregg a second time when he met the Armsby Lane neighbors.   After they expressed their concern about him using the private road, he offered to pay his share of road maintenance costs.   He wanted to have friends and neighbors, not enemies, he told them.   Gregg spoke with him in Spanish, saying something offensive to him.   He told her to speak to him in English because he understood English perfectly.

Garcia told the jury that he met Gregg a third time when she angrily accused the former owner-Alfred Farren-of moving the surveying stakes.   Afterward, he asked real estate broker Frank Martinez if he could withdraw from the ranch purchase deal, but Martinez persuaded him not to do so.   Garcia saw Gregg again but did not speak with her when they went to court in October.   His last encounter with Gregg was in early November when they settled the boundary line and set up the fence.   On Monday, November 23, he learned from Martinez that Gregg had been found dead at her trailer.   At that time, he asked Martinez why he mentioned this to him, because he had had nothing to do with it.

On Wednesday, November 25, Garcia was working on a carpeting job.   At midafternoon, he received repeated calls from the county sheriff asking to meet with him.   Initially, he assumed that one of his animals had gotten loose from his ranch-a simple matter he would deal with when he finished his job.   When he got a second call, he learned that this was not the purpose of the sheriff's call, although the officer declined to say why he wanted them to meet until Garcia arrived.   Two more calls from the sheriff came in before Garcia finished his work and returned to his office.   He had offered to meet with the sheriff at another time, but the sheriff wanted to wait for Garcia to finish.

Before meeting the sheriff, Garcia stopped to fill up his truck with gasoline and sought advice from Attorney Dennis Brown by telephone to see if Brown knew what the sheriff wanted to see him about.   He tried to call his home and his office but no one answered the telephone, which seemed odd to him.   He arrived at his shop to find that the sheriff had broken in.   Garcia protested that he had not done anything wrong and wondered why he was being treated this way.

When questioned by the sheriff, Garcia had denied knowing that Gregg was dead.25  He explained at trial that he truly did not believe that she was dead.   He also denied ever having been in jail.   He did not lie when he told the sheriff this-he thought the sheriff wanted to know if he had ever been in prison, not jail.   In fact, he had been jailed twice for brief periods of time.   Garcia admitted that the sheriff's questioning made him angry.   He felt accused and intimidated.   At trial, the sheriff took everything he said and turned it against him.

Garcia admitted that he collected rifles.   He owned two 12-gauge shotguns, but he preferred to use a rifle.   He told the jury that the many shotgun shells found at his home were left by hunters who had borrowed his truck and left them behind.   He never used No. 4 buckshot.

Garcia testified that Martinez had filed the complaint with the county about Gregg's trailer.   Although the complaint was filed in Garcia's name, he told the jury that his attorney did not have his permission to sign Garcia's name to it.   He denied ever saying that he could make Gregg disappear or ever calling her his enemy.   He told the jury that he was offended-not angry-when Gregg spoke to him in Spanish at the neighborhood meeting in May. He never raised his voice and he did not recall refusing to shake her hand when she offered it to him.

Garcia denied killing Gregg or having anything to do with her death.   He testified about his whereabouts at the approximate time of her murder.   Garcia told the jury that on Thursday, November 19, he went to work, met with an Internal Revenue Service official there and went to see Attorney Dennis Brown.   After the meeting with Brown, he returned to the shop to work.   On Friday morning, November 20, he drove to Tracy to get some feed, returning to his shop in the late afternoon.

Garcia told the jury that he had been depressed since his arrest.   He repeatedly denied having done anything wrong.   He protested that the state wanted to take his life for no reason.26  Garcia testified that he had told the truth to the sheriff and to everyone else.

3. Domestic Violence

Outside the presence of the jury, Garcia had moved without success to exclude evidence of domestic violence committed against his wife Ester in 1993 that resulted in a misdemeanor conviction for simple battery.  (See §§ 242, 243, subd. (a).)  Faced with the trial court's ruling that this evidence would be admitted, Garcia introduced the subject himself during his testimony.   He admitted suffering the prior misdemeanor battery conviction, but denied that the San Jose police reports of the incident involving Ester were true.   He offered a different version of the events underlying his prior conviction-the act of a father trying to control his teenage daughter, not that of a husband physically abusing his wife.   Testimony offered by his wife and daughter-Ester and Evangelina Garcia-bolstered his testimony.  (See pt.   III.A., post.)   Garcia also admitted that in 1993, the police had found 14 weapons at his house.   One of those weapons-a shotgun-had since been lost.

H. Prosecution Cross-examination and Rebuttal

On cross-examination, the prosecutor repeatedly attacked Garcia's credibility.   He brought out evidence that Garcia denied knowing that Gregg had been murdered even though Martinez had told him so and had told him that the sheriff would be questioning him about this.   Garcia admitted that the sheriff told him that Gregg's body had been found on his property.   He was not curious about where her body was found or how she had been killed.   He told the jury that he did not ask the sheriff about these matters because they were of no concern to him.   When asked why he did not inquire of the sheriff about why he was questioning Garcia about Gregg's murder, he testified that he had no reason to do so.

The prosecutor also challenged Garcia's credibility about the underlying dispute between Garcia and Gregg.   He suggested that Garcia knew that Gregg's trailer and well were not on his property long before he alleged that they were in his lawsuit against Gregg.   The prosecutor also suggested that Garcia lied at his civil trial when he testified that he did not have a dam on the ranch.

In support of the battery underlying the misdemeanor conviction, the prosecution offered the testimony of two police officers who took the 1993 battery reports from Ester and Evangelina Garcia.   The officers' testimony was consistent with the charges that resulted in the misdemeanor battery conviction and contradicted the testimony offered by the three Garcias.  (See pt.   III., post.)

I. Final Stages of Trial

The jury visited the scene of the crime before the close of evidence.  (See § 1119.)  (See pt.   II.A., post.)   During closing argument, the prosecutor admitted that no one could say precisely where the shooter was when the fatal shots were fired, other than to locate the shooter in the general direction of the creek.   He noted events that occurred in the week before Gregg's death-Garcia's hour-long complaint to Larry Ford about her, his receipt of her cross-complaint, the inspections that were pending and the code violations that were still unresolved-tending to undermine Garcia's claim that his dispute with Gregg was over by the time she died and that he bore no animosity toward her.   He argued that Garcia even lied when he refused to admit that he knew Gregg was dead.

In closing argument, defense counsel attacked the prosecution's forensic evidence, arguing that the evidence suggested that the shooter was close enough to Gregg at the time of the shooting to be visible to her.   Garcia's attorney theorized that the killer was necessarily someone Gregg was comfortable with and that Garcia was someone Gregg feared.   He also suggested that witnesses were lying or mistaken when they spoke of Garcia's threats and hostility toward Gregg.   Garcia's attorney offered strong challenges to the testimony of the jailhouse informant and the dog handler.   He characterized Garcia as a successful businessman who hired professionals to solve his problems and painted Gregg as a person who was simply unimportant to Garcia.   Defense counsel argued that this was a circumstantial evidence case in which there were two reasonable interpretations of the evidence, thus compelling an acquittal.

The jury deliberated for four days before reaching a verdict.   The trial court permitted the jurors to return to the scene of the crime during the deliberations phase of the trial.  (See pt.   II.A., post.)   Ultimately, the jury convicted Garcia of first degree murder and found true the special circumstance allegation that he was lying in wait.   The trial court rejected Garcia's posttrial motions for an evidentiary hearing on the jury's return visit to the crime scene and, later, for new trial.   Garcia continued to maintain his innocence as the trial court sentenced him to life imprisonment without possibility of parole.

II. CRIME SCENE VISIT

A. Facts

Garcia raises three claims of error pertaining to the jury's September 5, 2000 27 return visit to the crime scene during its deliberations.   He objects to the trial court's order precluding himself and his counsel from being present at the visit;  he argues that a trial court response to a juror's question about permissible conduct during that visit was improper;  and he contends that some jurors improperly deliberated at the crime scene outside the presence of other jurors.   Before considering the legal questions presented, we review in detail how these issues arose in the trial court.

Before trial, both sides agreed that a visit to the crime scene would be necessary.   The court indicated that it would permit a visit to Gregg's trailer and the nearby creek on Garcia's ranch only if the defendant's presence was waived and if it was agreed that no testimony would be taken.   Garcia's counsel seemed to agree to this plan;  he certainly did not object to it.

Shortly before the first crime scene visit was to occur, Garcia's counsel twice stipulated that his client would not accompany the jury on its crime scene visit.   Garcia personally agreed to this plan.   It was to be a closed session of court-no neighbors, family members or media representatives would be allowed to attend, nor would the court reporter be required to be present.   The jurors would not be permitted to ask questions about the case while they were at the crime scene, nor would they be permitted to enter Gregg's trailer.   The fence through which the shotgun pellets had been fired had been removed and secured as evidence.   It was replaced on the property in an attempt to recreate the crime scene as it was on the day of Gregg's death.   The dowels that had been placed by sheriff's deputies to show the trajectory of the shotgun pellets were also placed into the fence.

The visit to the crime scene took place on August 17.   Garcia did not attend, but his defense counsel were present.   The jury spent at least an hour there.   The prosecution and defense did not rest their cases until after the visit.   During closing argument, Garcia's attorney opined that this view of the crime scene helped the jurors to get a sense of the space and the sound made by the vegetation on the property.

On August 31-after the jury had deliberated for two full days-the jurors asked to return to the crime scene.   This time, defense counsel objected and refused to waive Garcia's presence.   While Garcia characterized the proposed visit as an opportunity to take new evidence, the trial court disagreed, viewing it as part of the jury's deliberation process.   It ruled that the jurors could return and review evidence that they had already taken on their first visit.   Garcia's counsel also objected to the possibility that the jurors would discuss the case at the scene, arguing that this was tantamount to the jury conducting its own investigation.   However, the trial court again ruled that because the jurors were deliberating, any discussion conducted privately among themselves would be proper.

While the plans for the return visit were being debated, the prosecutor asked about replacing the fence.   Garcia's attorney objected to the proposal to put the fence and the dowels back at the crime scene.   The trial court ruled that because the jury had already seen the fence and the dowels at its August 17 visit, it could see them again.   Later, when the jury was advised that the trial court was arranging the return visit, one juror asked whether the fence would be at the crime scene, explaining the importance of that circumstance.28

Once Garcia and the prosecution understood that the return visit would take place, Garcia's counsel objected to the presence of attorneys at the visit.   The trial court ruled that no attorneys would attend, but it construed the previous waiver of Garcia's presence at the first visit to extend to the second visit, as well.   Later, defense counsel attempted to withdraw what he characterized as a stipulation that counsel need not be present at the return visit.   However, the trial court noted that there was no stipulation to withdraw-attorneys would not be present because it had ordered that they could not attend.   Neither the attorneys nor Garcia would be present, the trial court ruled.

The return visit requested on August 31 occurred on September 5.29 Before leaving for the return visit to the crime scene, the jurors met with the judge in court.   Garcia and the attorneys were not present.   The trial court admonished the jurors that this time, they would be deliberating at the crime scene, not taking new evidence.   The jurors were permitted to discuss the case at the scene as long as they did not do so within earshot of the trial judge, the court staff and those officials transporting them to the crime scene.   The trial court denied a juror's request that he be allowed to bring a laser pointer to the crime scene in order to “shoot a line.”   It advised the jurors to use materials on the property to take any sight lines.  (See pt.   II.C.1., post.)   The fence and the dowels were replaced at the crime scene before the return visit, and the jurors spent almost an hour at the crime scene.   The jury returned its guilty verdict against Garcia on the following day, September 6.

In January 2001, Garcia moved for an evidentiary hearing to create a record of what occurred during the September 5 visit to the crime scene.   In February 2001, the trial court allowed the prosecution and defense to create a settled record of the August 17 visit which they attended.   However, it denied Garcia's requests to order a settled record of the September 5 visit and to conduct an evidentiary hearing about what occurred during that visit.   It found that the parties had requested the August 17 view of the scene and had agreed that Garcia would not be present at that visit.   The trial court concluded that the September 5 visit was undertaken as part of the jury's deliberations, not for taking further evidence.   It found that its guidelines for deliberations during the September 5 visit had been placed on the record and found no evidence that the jury failed to follow those guidelines.   In particular, the trial court noted that (1) it had denied a juror's request to use a laser pointer to take a sight line because this would have been tantamount to the taking of new evidence;  (2) the jurors had been admonished not to discuss the case while in transit, but only at the scene;  and (3) all jurors were to be present during any discussions.   Finally, the trial court noted its observation that at the September 5 visit, the jurors looked down the dowels that were placed in the fence in an apparent attempt to locate where the shooter had been.

In March 2001, Garcia renewed his motion for an evidentiary hearing in conjunction with his motion for new trial, but the trial court again found no basis for an evidentiary hearing about the September 5 visit.   It incorporated its February 2001 findings into this ruling.   It reiterated that the August 17 visit constituted the taking of evidence and was made at the request of counsel.   It noted that both defense counsel and Garcia himself waived his presence at that first visit.   By contrast, the September 5 return to the crime scene was not the taking of new evidence, the trial court ruled, but an opportunity for the jury to review evidence that had already been presented.   The second visit took place during deliberations from which Garcia was properly excluded.   A juror's request to take new evidence was specifically denied by the trial court before the September 5 visit occurred.   When that request and the trial court's ruling on it was explained to counsel after the second visit took place, defense counsel agreed at that time that the response was correct.   Garcia raised no objection to the response at that time.

When denying Garcia's motion for new trial, the trial court found that an allegation that it violated state law by responding to the jury's question without first consulting counsel was raised for the first time in this motion.  (See § 1138.)   By failing to raise this claim earlier, Garcia had waived this claim of error and was now estopped from raising it in his motion for new trial, the trial court ruled.   Even if a statutory violation occurred, the trial court ruled that its denial of the proposed laser use by a juror was proper.   It considered alleged statements made by some jurors as set forth in Garcia's declarations to be factually true when it ruled on the new trial motion.   Errors argued by Garcia in that motion were all harmless beyond a reasonable doubt under the analysis that the trial court used.   Ultimately, the trial court denied the motion for a new trial with regard to the September 5 crime scene visit.   With these facts in mind, we now turn to the specific challenges that Garcia raises on appeal.

B. Right to be Present with Counsel

1. As Matter of Law

 First, Garcia contends that the trial court's decision to permit the jury to return to the crime scene on September 5 during deliberations while barring his presence and that of defense counsel violated his federal and state constitutional rights to be present with counsel at all critical stages of his trial.   He reasons that under state law, a visit to a crime scene by jurors necessarily constitutes the taking of evidence at which a defendant has a right to be present with counsel.   He urges us to find that this return visit involved the taking of specific evidence that was different from and beyond that which was taken during the jury's first visit to the crime scene-evidence taken outside his presence and that of his counsel in violation of his rights to counsel and to due process such that a new trial is required.  (See U.S. Const., 6th & 14th Amends.)

 A motion for new trial may be granted when the jury has received any out-of-court evidence other than that resulting from a view of the premises. (§ 1181, subd. 2.) Under California law, a trial court has specific statutory authority to permit a jury to view the place where a crime was committed. (§ 1119;  see People v. Bush (1886) 68 Cal. 623, 630, 10 P. 169 (Bush );  see also Annot.  (1940) 124 A.L.R. 841.)   A view of the crime scene may assist the jurors to more clearly understand and apply the evidence in the case.  (People v. Milner (1898) 122 Cal. 171, 184, 54 P. 833.)   The decision whether to permit the jury to view a crime scene rests in the sound discretion of the trial court.   Its decision will only be reversed for an abuse of that discretion.  (People v. Kraft (2000) 23 Cal.4th 978, 1053, 99 Cal.Rptr.2d 1, 5 P.3d 68, cert. den. sub nom.  Kraft v. California (2001) 532 U.S. 908, 121 S.Ct. 1234, 149 L.Ed.2d 142;  People v. Fudge (1994) 7 Cal.4th 1075, 1104, 31 Cal.Rptr.2d 321, 875 P.2d 36, cert. den. sub nom.  Fudge v. California (1995) 514 U.S. 1021, 115 S.Ct. 1367, 131 L.Ed.2d 223;  People v. Peggese (1980) 102 Cal.App.3d 415, 421, 162 Cal.Rptr. 510;  People v. Morales (1968) 263 Cal.App.2d 368, 379, 69 Cal.Rptr. 402, cert. den. sub nom.  Morales v. California (1969) 393 U.S. 1104, 89 S.Ct. 907, 21 L.Ed.2d 798.)   An abuse of discretion occurs if the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice.  (People v. Lawley (2002) 27 Cal.4th 102, 158, 115 Cal.Rptr.2d 614, 38 P.3d 461, cert. den. sub nom.  Lawley v. California (2002) 537 U.S. 1073, 123 S.Ct. 671, 154 L.Ed.2d 567.)   This grant of authority is very broad, such that a reversal for abuse of discretion is highly unlikely.  (See People v. Wheeler (1971) 23 Cal.App.3d 290, 312, 100 Cal.Rptr. 198, overruled on another ground in People v. Wheeler (1978) 22 Cal.3d 258, 286-287, 148 Cal.Rptr. 890, 583 P.2d 748;  People v. Wong Hing (1917) 176 Cal. 699, 705, 169 P. 357.)

 Garcia's challenge to the September 5 visit to the crime scene involves the intersection of a trial court's authority to permit a view, the defendant's right to be present at all significant stages of trial, and the jury's right to conduct its deliberations in secret.   A criminal defendant has a constitutional right to be present and to have the assistance of counsel during trial, particularly during that part of trial when evidence is being taken by the trier of fact.  (U.S. Const., 6th & 14th Amends.;   Cal. Const. art.   I, § 15;  Bush, supra, 68 Cal. at pp. 631-633, 10 P. 169;  see §§ 977, subd. (b)(1), 1043, subd. (a).)  Cases have also held that the defendant and defense counsel have a right to be present during a visit to the crime scene.30  (See Bush, supra, 68 Cal. at pp. 628, 631, 634, 10 P. 169;  see also People v. Milner, supra, 122 Cal. at p. 184, 54 P. 833.)

The trial court in this case permitted the jury-accompanied by the judge and counsel for both parties-to visit the crime scene on August 17 before the close of evidence.31  Throughout the proceedings, the trial court's sense of the September 5 return visit was that it was part of the deliberations and did not involve the taking of new evidence.   In his motion for new trial, Garcia argued that he was denied his right to be present and to have the assistance of counsel at the return visit,32 but the trial court denied the motion.   It ruled that the jurors did nothing more at the September 5 visit than view evidence that they had seen before, even if they noticed something new about that evidence during their second viewing of it.

On appeal, Garcia contends that the trial court erred in this ruling because new evidence was necessarily taken at the September 5 visit.   As a matter of law, he reasons, every visit to a crime scene necessarily involves the taking of new evidence.   We have considered this issue carefully.   Garcia's reasoning is clearly sound if the jury visited the crime scene only once and if that visit occurred during the phase of the trial at which evidence is taken.   Evidence includes things presented to the senses that are offered to prove the existence or nonexistence of a fact.  (Evid.Code, § 140.)   A visit to a crime scene offers visual evidence to the jury.  (See Cal. Law Rev. Com. com., 29B West's Ann. Evid.Code (1995 ed.) foll. § 140, p. 15 [term “evidence” defined broadly to include sight such as jury view].)   In a case involving a single visit to a crime scene during trial, the California Supreme Court reasoned that it would be “impossible that a jury could go and view [the scene] without receiving some evidence.”  (Bush, supra, 68 Cal. at p. 630, 10 P. 169;  see People v. Bolin, supra, 18 Cal.4th at p. 325, 75 Cal.Rptr.2d 412, 956 P.2d 374 [jury receives nontestimonial evidence during view of crime scene];  People v. Milner, supra, 122 Cal. at p. 184, 54 P. 833 [viewing scene as receipt of evidence];  see also § 1181, subd. 2 [new trial may be granted if jury received out-of-court evidence except that resulting from view of premises];  People v. Riel (2000) 22 Cal.4th 1153, 1196, 96 Cal.Rptr.2d 1, 998 P.2d 969, cert. den. sub nom.  Riel v. California (2001) 531 U.S. 1087, 121 S.Ct. 803, 148 L.Ed.2d 690 [assumes jury view constitutes portion of trial involving taking of evidence].)  “[I]t is fair to presume that what they ․ saw tended to or did influence their verdict.”  (Bush, supra, 68 Cal. at p. 632, 10 P. 169.)   For this reason, the Supreme Court concluded that a view of the crime scene is a part of the trial at which the defendant has a right to be present.  (Id. at pp. 633-634, 10 P. 169.)

In the context of a crime scene visit during the evidence-taking portion of a criminal trial, the California Supreme Court found it important to permit the defendant and defense counsel to attend, reasoning that they needed “to be able to perceive exactly what impression is being made upon the jury by any portion of the evidence given [at] trial.   And it may frequently happen that it is within their power then to introduce other evidence which might tend to disabuse that body of a wrong impression, or the counsel might by fair and legitimate argument be able to convince them of the right view to be taken of such evidence.”  (Bush, supra, 68 Cal. at p. 631, 10 P. 169.)   If the defendant and counsel are present at a view of the crime scene, they may “at any moment, by a question, a suggestion, an argument, or even a glance, confound [the defendant's] accusers, vindicate his innocence, or at least mitigate his punishment.”  (Id. at p. 633, 10 P. 169.)

The cases that provide that the defendant has a right to be present with counsel at a visit to the crime scene involve visits occurring before deliberations began-during the time that the jury was taking evidence in the case.  (See Bush, supra, 68 Cal. at p. 628, 10 P. 169.)   It stands to reason that every initial visit to a crime scene necessarily involves the taking of new evidence, because when a jury first sees the place where a crime took place, it considers whether its assessment of the physical layout of the crime scene fits the prosecution's theory of the crime or whether the defense's arguments countering that theory are more reasonable.  (See, e.g., id. at pp. 630-631, 10 P. 169.)   As with all evidence taken during trial, the evidence taken during an initial visit to a crime scene would tend to influence the verdict that the jurors ultimately reached.

However, this analysis is of little use to us in analyzing the issue in this appeal because the September 5 visit to the crime scene is factually distinguishable from those visits discussed in these cases for two significant reasons.   First, the September 5 crime scene visit marked the second time that the jury viewed the crime scene, not the first.   There are no reported California cases in which a jury made two visits to the scene of the crime-once during trial and a second time during jury deliberations-as happened in Garcia's case.  (See People v. Milner, supra, 122 Cal. at p. 184, 54 P. 833 [jury visit during trial];  Bush, supra, 68 Cal. at p. 628, 10 P. 169 [jury visit to crime scene of homicide during trial];  People v. Peggese, supra, 102 Cal.App.3d at pp. 420-421, 162 Cal.Rptr. 510.)   In our view, these cases are all factually distinguishable from the case before us on appeal.

The issue before us is whether-after an initial visit occurs during that part of trial proceedings at which evidence is taken-a return visit during jury deliberations also necessarily constitutes a taking of evidence.   Reason suggests that a jury's second visit to a crime scene does not have the same impact as its first.   The cases cited to us, and those we have found in our own independent search for applicable case law, all involve a single crime scene visit made during trial, while the jury was still taking evidence in the underlying case.   On a second viewing of the scene of the crime, the premise of these cases-that the jury was necessarily taking in new evidence during its visit to the crime scene-no longer rings true.

There is a second reason why the September 5 visit to the crime scene differs from those discussed in the case law-it occurred during deliberations and after the close of evidence rather than during the evidence-taking portion of trial.   Garcia's claim of error turns in large part on persuading us that the second visit to the crime scene was necessarily a second opportunity for the jury to take new evidence.   He would have us reject the trial court's view that the return visit was merely an opportunity for the jury-as part of its deliberations process-to review evidence it had already taken.   During deliberations, neither the defendant nor defense counsel has a right to be present.   A jury's deliberations must be conducted privately and in secret, free from outside influences.  (See § 1128;  People v. Oliver (1987) 196 Cal.App.3d 423, 428-429, 241 Cal.Rptr. 804.)   The principles allowing a defendant and defense counsel to be present during a jury view clearly apply during the taking of evidence, but the same reasoning loses its force when the crime scene visit occurs during jury deliberations from which the defendant and defense counsel-indeed, all persons other than the 12 jurors-are barred.

We find little case law on point to guide us on the principles that should apply to a jury view conducted during deliberations.33  In one case, the California Supreme Court suggested in dicta that a trial court might have the authority to allow a view of a crime scene during deliberations.   In that matter, the defendant made a request during trial that the jury be allowed to visit a place alleged to have been burglarized.   The trial court denied the request, but later indicated that it would permit a view to take place after the jury sought to visit the premises during deliberations.   The jury had indicated that they were unable to reach a verdict.   In fact, a delay occurred in the trial, other events overtook the jury's request, and the jurors convicted the defendant without visiting the crime scene.   The Supreme Court ruled that this view would have been procedurally irregular, but stated in dicta that the trial court would have had discretion to grant the request for a view during deliberations if a proper motion for a view had been made before the close of evidence.  (People v. Hawley (1896) 111 Cal. 78, 81-85, 43 P. 404;  People v. Peggese, supra, 102 Cal.App.3d at p. 421, 162 Cal.Rptr. 510.)   If a view of the crime scene would have been proper as a first visit during deliberations because the defendant unsuccessfully sought a visit, we conclude that, a fortiori, a return visit to the crime scene would be proper during jury deliberations if it had already viewed the scene before the close of evidence.

The Hawley court's reasoning provides additional support for this conclusion.   That court observed that a view occurring during deliberations would have been within the spirit of state law permitting a jury that had retired for deliberations to be brought back into court so that testimony could be read back in order to resolve any disagreement among the jurors about it.   The visit would have been little more than “the exhibition of a map which had been referred to in the evidence, but which had not been exhibited to the jury.”  (People v. Hawley, supra, 111 Cal. at p. 85, 43 P. 404;  see § 1138.)

 This reasoning is consistent with our conclusion that, at a return visit to a crime scene during deliberations, the jury need not necessarily be viewed as taking new evidence.   Instead, it may simply review the evidence it had already seen at the first visit in order to refresh its collective recollection of the crime scene.   When a jury requests a readback of testimony 34 or views physical evidence in the jury room during deliberations, that review of the evidence that was properly admitted during trial may reveal some new insight to jurors.   Even if-as a result of this part of the deliberative process-a juror noticed some fact that was not initially apparent during the evidence-taking portion of the trial, that would not constitute a reopening of evidence or a taking of new evidence.  (See, e.g., People v. Bogle (1995) 41 Cal.App.4th 770, 779-781, 48 Cal.Rptr.2d 739;  see also Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 659, 115 P. 313.)   In the same manner, we conclude that a second visit to a crime scene made during deliberations does not, as a matter of law, constitute the taking of evidence when an initial visit made during trial served this purpose.35

2. In Fact **

III.-V.**

The judgment is affirmed.76

In 1886, our Supreme Court held that a defendant has a statutory right to be present at a jury view.  (People v. Bush (1886) 68 Cal. 623, 634, 10 P. 169.)  “We are of the opinion that it is not intended by section 1119, Penal Code, that a view to be taken by the jury of any place or places contemplated by that statute should ever be ordered by the court, or take place unless in the presence of the defendant.”  (Ibid., italics added.)   Thus, it has long been the law of this state that, in the absence of a waiver, permitting a jury view out of the presence of defendant is plain error.  (People v. Lowrey (1886) 70 Cal. 193, 194, 11 P. 605;  People v. Milner (1898) 122 Cal. 171, 184, 54 P. 833[“[i]t has ․ been declared to be error for the jury to receive a view of the premises in the absence of defendant [citing Bush ]”].)

Although hoary with age, Bush is still binding precedent and has continually been reaffirmed by the Supreme Court.  (See, e.g., People v. Lang (1989) 49 Cal.3d 991, 1025-1026, 264 Cal.Rptr. 386, 782 P.2d 627[“[u]nder our state law, a defendant has a right to be present at a jury view [citing Bush ], but the right may be waived”];  People v. Bolin (1998) 18 Cal.4th 297, 325, 75 Cal.Rptr.2d 412, 956 P.2d 374 [defendant has statutory right to be present at a jury view].)   The Bush rule is grounded in two well-established principles.   The first is that a defendant has the right to be present at all evidentiary proceedings.  (United States v. Gagnon (1985) 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486;  People v. Gutierrez (2003) 29 Cal.4th 1196, 1202, 130 Cal.Rptr.2d 917, 63 P.3d 1000;  Cal. Const., art.   I, § 15;  Pen.Code, § 1043.)   The second is that a jury view of premises constitutes the taking of evidence.  (People v. Bolin, supra, 18 Cal.4th at p. 325, 75 Cal.Rptr.2d 412, 956 P.2d 374 [“we have long held that ‘in so viewing the premises the jury was receiving evidence’ even if nontestimonial”];  People v. Bush, supra, 68 Cal. at p. 634, 10 P. 169 [“ ‘though no witnesses are examined at the view, yet the jurors, from their observation of the place and its surroundings, may receive a kind of evidence from mute things, which cannot be brought into court to confront the accused, and are in their nature incapable of cross-examination’ ”].)

To be sure, these cases address a jury view taken during the evidentiary portion of a trial.   The question before us is whether the same rule should apply to a subsequent view, conducted during jury deliberations.   The majority concludes that it does not, reasoning that a jury view of the crime scene during deliberations does not necessarily involve the taking of evidence, that the view is no different than the reexamination of an item of physical evidence in the jury room from which a defendant is properly excluded, and that a second site visit does not have the same impact as the first.  (Maj. opn., ante, at p. 659.)

Here, I must part company with the majority.   I cannot agree that a jury view of a crime scene during deliberations is no different in kind or quality from a jury view of an item of physical evidence in the jury room.   It is one thing for jurors to examine and manipulate a pistol, a duffel bag, or a safe and a set of keys in the controlled environment of a jury room.   It is quite another for jurors to spend nearly an hour hiking around on an acre or so of land with virtually no supervision.1  The fact that both occur during the deliberations stage of the trial does not make them equivalent.

Putting aside the question of whether a second view should have been permitted at all, any reexamination of a crime scene is fraught with difficulties.   Even with precautions in place, it simply is not possible to anticipate and exclude all potential evidentiary intrusions, be they planned or inadvertent, such as an unreported or unexpected physical change in the premises, the uninvited appearance and commentary of a neighbor or bystander, or the unauthorized performance of jury experiments or tests.   In my view, if a jury is to be allowed to conduct deliberations at the crime scene and away from the stringently monitored setting of the courthouse, the defendant and defense counsel should have the right to be present to observe what occurs on the scene, to ascertain for themselves whether new evidence has been taken (or has simply emerged), and to witness the occurrence of any irregularities.   Any logistical concerns that may arise from the defendant being present during such a visit can be resolved with common sense solutions.2

The majority's additional reasons supporting their decision are unpersuasive.   First, we can only guess at whether a second view will have a greater or lesser impact on a jury;  much would depend on the state of the evidence and each juror's state of mind at the time of each view.   In any event, the relative impact of a second view has no bearing on the core issue before us:  whether the view could involve the taking or receiving of new evidence.   Second, the fact that the second view takes place during the deliberative phase of the trial is not a reason to reject defendant's right to be present.   No one would dispute defendant's entitlement to be present at a second view of a crime scene if it occurs during the evidentiary portion of the trial.   The fact that it occurs during deliberations should not negate the salutary rule enunciated in Bush. It is the wiser course to ensure the regularity of any site visit by securing defendant's right to be present.   Indeed, the strange turn of events in this case exemplifies the wisdom of this result.

I would conclude it was error to allow a jury view of the crime scene in the absence of the defendant (People v. Bush, supra, 68 Cal. at p. 634, 10 P. 169) where there was no waiver of defendant's presence (People v. Lang, supra, 49 Cal.3d. at pp. 1025-1026, 264 Cal.Rptr. 386, 782 P.2d 627).

Even if the bright line rule of Bush were not applicable, the question remains whether the second jury view implicates defendant's right to be present or to have counsel present at other stages of the proceedings, such as during a rereading of testimony requested by the jury (Pen.Code, § 1138).   I conclude that it does.  “ ‘Penal Code section 1138 requires that any questions posed by the jury regarding the law or the evidence be answered in open court in the presence of the accused and his or her counsel, unless presence is waived.’ ”   (People v. Hawthorne (1992) 4 Cal.4th 43, 69, 14 Cal.Rptr.2d 133, 841 P.2d 118.)   Here, the jury's request for a jury view was akin to a question regarding the evidence;  defendant, therefore, had a right to be present.   (People v. Hawley (1896) 111 Cal. 78, 85, 43 P. 404 [jury's request for a view of the scene during deliberations was considered to be “within the spirit of section 1138”].)   Although defendant's exclusion from proceedings enumerated in Penal Code section 1138 is not necessarily error (see, e.g., People v. Ayala (2000) 23 Cal.4th 225, 288, 96 Cal.Rptr.2d 682, 1 P.3d 3 [readback of testimony is not a critical stage of proceedings at which defendant's presence is required] ), it is error when, as here, both defendant and his counsel are excluded, over defendant's objections.  “While it makes perfect sense to conclude that the presence of the defendant would be largely a matter of form when a defendant's lawyer is present at proceedings raising largely legal issues, when the lawyer is also absent and uninformed, the matter becomes a problem of constitutional substance.”  (Fisher v. Roe (9th Cir.2001) 263 F.3d 906, 916, overruled on other grounds in Payton v. Woodford (9th Cir.2003) 346 F.3d 1204, 1217, fn. 18.)   On this record, I would hold the trial court committed prejudicial error in excluding both defendant and his counsel from the second view.

Accordingly, I respectfully dissent.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise indicated..  FN1. All statutory references are to the Penal Code unless otherwise indicated.

FN2. This case was transferred from the Sixth Appellate District by order of the Supreme Court..  FN2. This case was transferred from the Sixth Appellate District by order of the Supreme Court.

3.   All subsequent dates refer to the 1998 calendar year unless otherwise indicated.

4.   Escrow actually closed on the sale of the ranch in May although the final survey was not finished until June.

5.   Farren had never been a member of the road association and had never paid to maintain Armsby Lane in and through the rural subdivision.   Instead, he accessed the ranch by Sheila Lane through its locked gates.   That right of access ran with the ranch property.

6.   There was also evidence that Garcia's grading equipment might have only used the private road to access the ranch where actual grading work was done.

7.   In October, Gregg testified in a civil trial that she had admonished Garcia in Spanish not to be rude and not to point at her.

8.   Consistent with its privacy policy, county officials did not tell Garcia who filed these complaints.   The jury later learned that Gregg and another of the Armsby Lane neighbors did so.

9.   Because of Gregg's death, this matter was never resolved, but the jury heard evidence that the county would probably have required her trailer to be relocated to satisfy its setback requirements.

10.   Attorney Fernando Hernandez testified that he-not Garcia-made a strategic decision to sue Gregg rather than the road association.   The attorney believed that Gregg had fewer resources to prevent Garcia's access to his property than the road association. Hernandez's decision was also prompted by the suspicion-which he and Garcia shared-that Gregg had moved the surveyor's stakes.

11.   At that time, Hodges did not know who filed this complaint, but he later learned that it was filed by a representative of the Division of Safety of Dams of the State Department of Fish and Game.

12.   The jury saw photographs of these conditions taken in October.

13.   On cross-examination, Garcia denied saying this.

14.   In late November, Imsdahl inspected the ranch and found that the work had been done was new, not simply an improvement of an existing condition.   A fence had been built, trees had been damaged, grading had been done that affected creek drainage, and a dam or pond had been constructed.   Garcia had no permits for any of this work.   Imsdahl concluded that the fence, the dam and the placement of debris into the creek each constituted a separate code violation.

15.   Garcia had a truck with yellow running lights mounted atop the cab for use at his carpet shop.

16.   Gregg did not keep scheduled appointments on the afternoon of Thursday, November 19.   Her home answering machine recorded a message from a neighbor who called her on November 19.

17.   There was evidence that shortly before her death, Gregg was pleased that the surveyor's work was completed and that she could finish building her fence.   At the time of her death, the fence was not yet finished.

18.   When Brown asked Garcia what reason the sheriff might have to search his shop, Garcia told Brown that he had no idea.

19.   Various items of footwear and clothing that were seized from Garcia's home were analyzed.   One shoe showed traces of human or higher order primate blood, but the stain was too small to obtain DNA testing.   Other items either had no blood or nonhuman blood on them.   One of Garcia's sons later testified that the shoe on which human blood was found was his-he had injured himself and bled on his shoes.

20.   A defense expert in forensics later opined that Gregg fell to the ground immediately after she was shot and did not move.

21.   A defense expert later opined that the leaf holes were made by insects, not the gunshots that killed Gregg.   He noted that the force of a gunshot would not have shot holes through the leaf, but would have blown it off the tree.

22.   Edward Peterson, who served as the prosecution's firearms expert, disagreed with this opinion, concluding that no one could determine from the pattern of shot alone whether the shooter used a double- or single-barreled shotgun.   He also opined that it might not be possible to determine whether two shots were discharged simultaneously or two shots were discharged in rapid sequence.   There was evidence that Garcia did not own a double-barreled shotgun and no such weapon appears to have been found when his home and shop were searched.

23.   A prosecution expert later rebutted this evidence, concluding that the recoil from the shots would have knocked over someone who fired a double-barreled shotgun while squatting.

24.   This contradicted evidence from another witness who had testified that the dam was placed there after Garcia bought the ranch.

25.   At the time of the interview, the sheriff did not know that Martinez had already told Garcia that Gregg was dead.

26.   The record contains no suggestion that Garcia ever faced the death penalty.

27.   All subsequent references to dates between August 17 and September 6 refer to the 2000 calendar year unless otherwise indicated.

28.   This comment occurred when Garcia, defense counsel and the prosecutor were outside the courtroom.

29.   August 31 was a Thursday and the jury did not deliberate on Friday, September 1, although the trial court and the attorneys met on Friday to discuss plans for the return visit.   Tuesday, September 5, was the first court day after the Labor Day holiday weekend.

30.   A criminal defendant may voluntarily waive his or her constitutional right to be present during a visit to the scene of the crime.  (People v. Bolin (1998) 18 Cal.4th 297, 325, 75 Cal.Rptr.2d 412, 956 P.2d 374, cert. den. sub nom.  Bolin v. California (1999) 526 U.S. 1006, 119 S.Ct. 1146, 143 L.Ed.2d 213.)

31.   Garcia and his trial counsel waived his right to be present at the August 17 visit to the crime scene.

32.   At one point, Garcia's defense counsel stated that none of the attorneys for either side should attend the return visit.   This could be characterized as a waiver of Garcia's right to challenge the return visit on assistance of counsel grounds, but as Garcia had earlier argued against the return visit and the trial court had ruled that the visit would take place, we do not deem the subsequent comments of Garcia's attorney to constitute a waiver of this claim of error.

33.   In one case, a trial court received a request for a crime scene visit from the jury during deliberations.   The trial court denied the request, noting that to permit a view at that point would require the reopening of the case.  (People v. Peggese, supra, 102 Cal.App.3d at pp. 420-421, 162 Cal.Rptr. 510.)   That case is factually distinguishable from ours because that jury made no initial visit to the crime scene during trial when the jury was taking evidence.  (See id. at p. 421, 162 Cal.Rptr. 510.)   In such a situation, the jury would have been taking new evidence, because it had no earlier visit to the crime scene to fill that function.

34.   The California Supreme Court has held that ordinarily, the readback of testimony is not a critical stage of the proceedings.   (People v. Ayala (2000) 23 Cal.4th 225, 288, 96 Cal.Rptr.2d 682, 1 P.3d 3, cert. den. sub nom.  Medrano Ayala v. California (2001) 532 U.S. 908, 121 S.Ct. 1235, 149 L.Ed.2d 143;  People v. Horton (1995) 11 Cal.4th 1068, 1120-1121, 47 Cal.Rptr.2d 516, 906 P.2d 478, cert. den. sub nom.   Horton v. California (1996) 519 U.S. 815, 117 S.Ct. 63 [harmless error].)   Such readback of testimony does not bear a substantial relation to a defendant's opportunity to defend himself or herself.  (People v. Horton, supra, 11 Cal.4th at pp. 1120-1121, 47 Cal.Rptr.2d 516, 906 P.2d 478 [harmless error];  see People v. Ayala, supra, 23 Cal.4th at p. 288 fn. 8, 96 Cal.Rptr.2d 682, 1 P.3d 3 [error may be harmless even in absence of waiver];  see also People v. Dennis (1998) 17 Cal.4th 468, 538, 71 Cal.Rptr.2d 680, 950 P.2d 1035, cert. den. sub nom.  Dennis v. California (1998) 525 U.S. 912, 119 S.Ct. 257, 142 L.Ed.2d 211 [absence from conference on instructions was not error].)

35.   Garcia argues that if we conclude that the September 5 visit was a proper part of deliberations, then the trial court erred by accompanying the jury during a secret part of its deliberative process.   California law provides that a trial judge or a sworn bailiff should accompany the jury to ensure that nothing improper occurs at the crime scene.  (Bush, supra, 68 Cal. at pp. 633-634, 10 P. 169.) In this case, the trial court and court officials who accompanied the jury when it returned to the crime scene remained some distance from the jurors themselves, who were cautioned not to discuss the case except when they were alone.   There is no evidence that the trial court or transporting officials overheard any part of the jury's deliberative process.   Thus, we see no harm in the trial judge's physical presence at the jury's second view of the crime scene, as he remained out of earshot.

FOOTNOTE.   See footnote *, ante.

76.   We issue a separate order ruling on Garcia's related petition for writ of habeas corpus.  (Case No. A101394.)

1.   As the trial court itself acknowledged, “there is no question that the jury during the second visit acted outside the presence of the Court and staff․”

2.   For example, in this case, because the trial judge and courtroom staff accompanied the jurors during their deliberations, the jurors were instructed not to talk about the case unless they were all together and out of earshot of the judge and the staff.   The same admonition could be given if the defendant and counsel were present as well.   Alternatively, the jurors could simply be admonished not to engage in deliberations during the site view.  (Cf. People v. Lang, supra, 49 Cal.3d at p. 1026, 264 Cal.Rptr. 386, 782 P.2d 627 [practical measures could be taken to prevent jury from observing defendant in shackles at the jury view].)

REARDON, J.

I concur:  KAY, P.J.