THE PEOPLE v. JULIAN GARCIA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JULIAN GARCIA, Defendant and Appellant.

B225913

Decided: October 21, 2011

Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Julian Garcia appeals from the judgment entered following his conviction by jury of stalking (Pen.Code, § 646.9, subd. (a)).  The court sentenced appellant to prison for two years.   We affirm the judgment.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on or between September 15, 2009, and February 6, 2010, appellant committed the above offense.

ISSUE

Appellant claims the trial court violated his constitutional rights to an impartial jury trial and a fair trial because, before the court clerk entered the jury room to replay, at the jury's request, a CD recording to the jury, the trial court (1) failed to admonish the clerk to have no interaction with the jury and to leave the jury room prior to jury deliberations and (2) failed to admonish the jury to have no interaction with the clerk and to request assistance from the court if the jury thought there was something wrong with the replay of the CD.

DISCUSSION

The Court Did Not Constitutionally Err by Failing to Admonish the Clerk or Jury.

1. Pertinent Facts.

During the People's case-in-chief, a CD recording of a 911 call (People's exhibit No. 4) pertaining to events which occurred in this case on February 6, 2010, was played for the jury and admitted into evidence.

The court's June 22, 2010, preinstructions to the jury, and the court's June 24, 2010, final charge to the jury, instructed the jury to the effect (1) jurors were not to interact with anyone except, during deliberations, with other jurors, and (2) the jury was to direct any questions it had to the court.1

After the jury retired for deliberations, the court and parties discussed exhibits.   The prosecutor suggested the CD be played in open court if the jury wanted to hear it.   The court indicated the CD would not be played in open court, neither the prosecutor nor appellant's counsel would be permitted to enter the jury room, and “it will have to be the clerk to go in there to play just that particular item.”   The court asked appellant's counsel what her policy was concerning “readback,” and she indicated her policy was, “must be here.”

Although appellant's counsel commented on her policy regarding “readback,” she did not expressly state anything about the replay of the CD. In particular, appellant did not (1) expressly ask the court to admonish the clerk or jury about anything concerning the replaying of the CD, (2) expressly object to the clerk replaying the CD to the jury in the jury room, or (3) expressly state anything about whether appellant wished to be present in the jury room or courtroom when the CD was replayed in the jury room.   At 11:40 a.m., the court ordered a recess until 1:30 p.m.

The reporter's transcript reflects (1) proceedings resumed at 1:30 p.m., (2) the appearances of, inter alia, the prosecutor, appellant's counsel, and appellant, and (3) at 1:30 p.m., the jury resumed deliberations.   At 2:05 p.m., the CD was replayed at the jury's request and, at 2:20 p.m., the replay ended.   At 3:30 p.m., the jury notified the court that the jury had reached a verdict.

2. Analysis.

Appellant claims the trial court violated his constitutional rights to an impartial jury trial and to a fair trial by failing to admonish the clerk and jury as previously indicated (hereafter, the predeliberation admonitions).   His claim is unavailing.   Appellant waived the issues by failing to raise them below.  (Cf. People v. Saunders (1993) 5 Cal.4th 580, 589–590;  People v. Benson (1990) 52 Cal.3d 754, 786–787, fn. 7;  People v. Rogers (1978) 21 Cal.3d 542, 548.)

Moreover, even if appellant did not waive the issues, he has failed to demonstrate the predeliberation admonitions were constitutionally required.   People v. Oliver (1987) 196 Cal.App.3d 423 (Oliver ), cited by appellant, is illuminating.   In Oliver, the parties stipulated a court reporter could reread testimony to the jury in the jury room.   However, the jury repeatedly interrupted the readback in the jury room and deliberated upon portions of testimony while the reporter was in the jury room.  (Id. at pp. 426–427.)

Oliver held the reporter's presence during those deliberations violated the defendant's right to private and confidential jury deliberations outside the presence of nonjurors guaranteed by state statute, and by his state, and Sixth and Fourteenth Amendment, constitutional rights to a jury trial.  (Oliver, supra, 196 Cal.App.3d at pp. 428–431.)

Oliver concluded a presumption of prejudice arose from the state constitutional violation and, since that violation implicated a federal constitutional right, the presumption had to be rebutted beyond a reasonable doubt under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] (Chapman ).  (Oliver, supra, 196 Cal.App.3d at pp. 431–435, fn. 7.) Oliver also concluded the federal constitutional violation was to be evaluated for prejudice under the Chapman standard.   (Oliver, supra, 196 Cal.App.3d at p. 436.)  Oliver decided on the facts before it that the Chapman standard was satisfied;  therefore, the above state constitutional presumption of prejudice was rebutted, and the federal constitutional violation was harmless, beyond a reasonable doubt.  (Ibid.)

Discussing the federal constitutional right to a jury trial, Oliver observed that one of the guarantees implicit in the nature of an impartial jury trial was that the jury's verdict “must be based upon the evidence adduced at trial uninfluenced by extrajudicial evidence or communications or by improper association with the witnesses, parties, counsel or other persons.”   (Oliver, supra, 196 Cal.App.3d at p. 428.)  Oliver also observed that “Equally implicit in this constitutional guaranty is the right to have the jury's deliberations conducted privately and in secret, free from all outside intrusions, and extraneous influences or intimidations.”  (Ibid.) Oliver later stated, “This isolation from extraneous influences has traditionally been ensured by deliberations which are conducted in private sessions by the jurors alone.”  (Id. at p. 429, italics added.)

The fact that isolation of jurors from extraneous influences traditionally has been ensured by deliberations conducted in private sessions by jurors alone militates against a conclusion that an additional procedure, i.e., the predeliberation admonitions at issue here, are constitutionally required.   Appellant cites no case holding that a defendant's federal constitutional rights to an impartial jury trial or due process require that a trial court give the predeliberation admonitions.   Appellant has failed to demonstrate that the trial court's failure to give the predeliberation admonitions violated his federal constitutional right to an impartial jury trial or federal constitutional rights to due process or a fair trial.

Oliver also observed that private and secret jury deliberations were an essential part of the state constitutional right to a jury trial.  Oliver indicated the state constitutional right protected the essential features of the common law right to a jury trial (Oliver, supra, 196 Cal.App.3d at pp. 429–430) and that “[a]mong those essential features of the common law jury was the requirement that its deliberations be private and secret.”  (Id. at p. 430.)   Notably absent from Oliver is any suggestion that the predeliberation admonitions were required by common law.   Appellant cites no case holding that common law required a trial court to give the predeliberation admonitions or that a failure by the trial court to do so violated a defendant's state constitutional rights to a jury trial or to due process.   Appellant has failed to demonstrate the trial court's failure to give the predeliberation admonitions violated his state constitutional right to a jury trial or right to a fair trial.

Moreover, even if the giving of the predeliberation admonitions to the jury was mandated by appellant's federal constitutional rights to an impartial jury trial and due process, and his state constitutional rights to a jury trial and due process, we believe the trial court, in giving its standard preinstructions and standard final charge to the jury, satisfied any such mandate with respect to predeliberation admonitions to the jury.

Finally, even if the trial court failed to give constitutionally required predeliberation admonitions, appellant concedes there is no need to reverse the judgment if the error was harmless beyond a reasonable doubt (Chapman, supra, 386 U.S. at p. 24;  cf.  Oliver, supra, 196 Cal.App.3d at pp. 431–436).   For the reasons described below, we conclude the error was harmless under the Chapman standard.

In the present case, insofar as admonitions to the jury are concerned, the preinstructions, and instructions given during the final charge, effectively advised the jury concerning its obligation to not discuss the case with nonjurors and to direct any requests to the court.   We presume the jury followed those instructions.  (People v. Sanchez (2001) 26 Cal.4th 834, 852.)   Insofar as admonitions to the clerk are concerned, the court did not admonish the clerk not to interact with the jury, and did not admonish the clerk to leave the jury room before deliberations.   However, the court's preinstructions to the jury, and instructions during the final charge, effectively admonished the jury not to interact with anyone and not to deliberate in the presence of any nonjuror.   We presume the jury followed these instructions and, therefore, did not interact with the clerk other than to listen to the replay of the CD, and did not deliberate in the presence of the clerk.

Insofar as admonitions to the jury and/or clerk are concerned, appellant does not suggest, and the record does not demonstrate, that, in the jury room (1) the clerk and a juror(s) ever communicated with each other, (2) the clerk did anything other than replay the CD, and/or (3) the clerk was present during any of the jury's deliberations.   Appellant concedes “it is not known if there was any interaction between the court clerk and the juror[s] or if the jurors began deliberations in the court clerk's presence.”   Any constitutional deficiency in the trial court's predeliberation admonitions to the clerk and/or jury were harmless beyond a reasonable doubt.

None of the cases cited by appellant compel a contrary conclusion.   This includes People v. McCoy (2005) 133 Cal.App.4th 974 (McCoy ).   In McCoy, the court permitted, over the defendant's objection, a court reporter to reread testimony to the jury in the jury room.   Prior to that readback, the court admonished the jury not to ask questions, not to discuss the case while the reporter was in the jury room, and, if the jury felt something was omitted during the readback, to request, only from the court, an additional readback.   (Id. at p. 981.)

McCoy concluded the readback did not violate the defendant's state or federal constitutional rights to counsel or due process where the record (1) showed the court carefully admonished the jury before the readback and (2) failed to suggest that the presence of the defendant or his counsel during the readback could have assisted the defense in any way.  (McCoy, supra, 133 Cal.App.4th at pp. 981, 983.)

McCoy does not help appellant.  McCoy did not involve a defendant's constitutional right to an impartial jury trial, but his right to counsel and due process and, in any event, McCoy concluded no constitutional error occurred.   The fact McCoy relied in part on the trial court's giving of predeliberation admonitions to the jury to conclude no constitutional error occurred in that case was not a holding that a trial court's failure to give such admonitions sua sponte to a jury and/or clerk is constitutional error.   In McCoy, the defendant objected to the readback in the jury room;  appellant did not object to the replay of the CD in the jury room or to the fact he would not be present there during the replay.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The court, using CALJIC No. 0.50, preinstructed the jury that “[the parties had] a right to expect that you will conscientiously consider and weigh the evidence, ․ [¶] ․ [¶] You must not ․ consider or discuss facts as to which there is no evidence.   This means, for example, that you must not on your own ․ consult ․ persons for additional information.  [¶] ․ [¶] You must not converse among yourselves, or with anyone else ․ on any subject connected with the trial, except when ․: [¶]  (a) The case has been submitted to you ․;  [and] [¶] (b) You are discussing the case with a fellow juror;  ․ [¶] ․ [¶] You must promptly report to the Court any incident within your knowledge involving an attempt by any person either to improperly influence any member of this jury, or to tell a juror his or her view of the evidence of the case.”During its final charge to the jury, the court instructed that “you must determine what facts have been proved from the evidence received in the trial and not from any other source” (CALJIC No. 1.00), “[the parties had] a right to expect that you will conscientiously consider and weigh the evidence” (CALJIC No. 1.00), and “You must decide all questions of fact in this case from the evidence received in this trial and not from any other source․  [¶] You must not ․ consider or discuss facts as to which there is no evidence.   This means, for example, that you must not on your own ․ consult ․ persons for additional information.  [¶] You must not discuss this case with any other person, ․ except a fellow juror during deliberations․”  (CALJIC No. 1.03).   The court also instructed that “During deliberations, any question or request you may have should be addressed to the Court on a form that will be provided” (CALJIC No. 17.43) and “During deliberations the bailiff will not permit any person to speak to or communicate with any juror” (CALJIC No. 17.54)..  FN1. The court, using CALJIC No. 0.50, preinstructed the jury that “[the parties had] a right to expect that you will conscientiously consider and weigh the evidence, ․ [¶] ․ [¶] You must not ․ consider or discuss facts as to which there is no evidence.   This means, for example, that you must not on your own ․ consult ․ persons for additional information.  [¶] ․ [¶] You must not converse among yourselves, or with anyone else ․ on any subject connected with the trial, except when ․: [¶]  (a) The case has been submitted to you ․;  [and] [¶] (b) You are discussing the case with a fellow juror;  ․ [¶] ․ [¶] You must promptly report to the Court any incident within your knowledge involving an attempt by any person either to improperly influence any member of this jury, or to tell a juror his or her view of the evidence of the case.”During its final charge to the jury, the court instructed that “you must determine what facts have been proved from the evidence received in the trial and not from any other source” (CALJIC No. 1.00), “[the parties had] a right to expect that you will conscientiously consider and weigh the evidence” (CALJIC No. 1.00), and “You must decide all questions of fact in this case from the evidence received in this trial and not from any other source․  [¶] You must not ․ consider or discuss facts as to which there is no evidence.   This means, for example, that you must not on your own ․ consult ․ persons for additional information.  [¶] You must not discuss this case with any other person, ․ except a fellow juror during deliberations․”  (CALJIC No. 1.03).   The court also instructed that “During deliberations, any question or request you may have should be addressed to the Court on a form that will be provided” (CALJIC No. 17.43) and “During deliberations the bailiff will not permit any person to speak to or communicate with any juror” (CALJIC No. 17.54).

CROSKEY, Acting P. J. ALDRICH, J.