PEOPLE v. BAKER

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Earl BAKER, Defendant and Appellant.

No. B079329.

Decided: January 24, 1995

Debi A. Ramos, under appointment by the Court of Appeal, Altadena, for defendant and appellant. Daniel E. Lungren, Atty. Gen., Marc E. Turchin and Akram A. Awad, Deputy Attys. Gen., for plaintiff and respondent.

Earl Baker (Baker) appeals from a judgment following his conviction on two counts of robbery.   Baker admitted the robberies.   He challenges only the findings of personal use of a firearm in the commission of the crimes.   Baker contends he is entitled to a new trial because his right to a trial by jury was violated when the trial court refused to dismiss jurors who were guilty of misconduct during the trial.   Baker also contends his right to be present during trial and to rebut evidence against him was violated when the court permitted the bailiff to conduct a demonstration for the jury outside his presence.   For the reasons set forth below, we affirm the judgment as to the robbery convictions, but reverse as to the findings of personal use of a firearm.

FACTS AND PROCEEDINGS BELOW

On March 23, 1993, at approximately 10:30 p.m., Baker was walking alone on Ventura Boulevard.   He stopped outside Stratton's restaurant located at 16900 Ventura Boulevard in Encino to commit a crime.   At the time, he had a gun in his possession.   He waited and lingered around the restaurant until he saw Debra Levonian (Debra) and her sister-in-law, Tina Levonian (Tina).   As the two women were leaving the restaurant and walking to their car, appellant approached them holding a gun.   Baker first approached Tina, who was on the driver's side of her car, and demanded her purse.   She handed Baker her purse.   He then went towards Debra, who was standing on the passenger side of the car.   Debra handed Baker some money, approximately $11.

After taking the money and purse, Baker walked away down an alley.   He made his way to Ventura Boulevard and hitched a ride with co-defendant Kevin Pullum (Pullum).   Meanwhile, the two women contacted the authorities and informed them they had been robbed and provided a description of Baker.

At approximately 10:50 p.m. on March 23, 1993, Officer Steve Park of the Los Angeles Police Department pulled up alongside a red rental vehicle and observed a black male sitting in the passenger seat who matched Baker's description.   The officers followed the red vehicle and requested assistance.   Within two minutes, a black and white squad car joined Park's vehicle following the red car.   When the marked squad car flashed its lights and sounded the siren at the red car, Pullum refused to pull over.   Instead Pullum accelerated and began driving through stop signs, red lights, and speeding through alleys.   Sometime after Baker first saw the squad car's lights, Baker threw the gun out of the window of the car.   He left Tina's purse on the floor.   When Pullum finally stopped the car, Pullum and Baker ran from the car in separate directions.   Officers Park and Johnson pursued Baker on foot.   Officers Martinez, Van Gober, Friedman and Kilpatrick assisted in arresting Pullum.

After Pullum and Baker were in custody, Martinez searched the car.   On the front passenger seat she found two live .32 caliber rounds of ammunition, a purse containing Tina's credit cards and a wallet.   The following morning Martinez recovered a .32 caliber revolver loaded with three live rounds of ammunition.   Baker admitted the gun was his.   However, he denied displaying the weapon to the women.

Trial began on August 5, 1993.   On August 12, 1993, the court, counsel, and both defendants became aware there was a significant problem regarding improper contact between the prosecution's witness Officer Friedman and two jurors in direct violation of the court's instructions.   The court learned of this contact when juror number 2 handed the court clerk a note explaining the inappropriate contact.   As a result, the trial court held an evidentiary hearing to ascertain what had transpired.   After questioning and at the request of defense counsel, both of whom requested juror number 2 be removed, the court discharged juror number 2.

At this point, the court asked the other members of the jury, collectively, if they had observed or had a conversation with any witnesses in the case.   In response to this question, none of the jurors came forward.   The judge then questioned each juror individually.   After independently interviewing the jurors and Officer Friedman, the court removed juror number 4 for misconduct.   The court also made a number of factual findings concluding jurors 3, 7, 9, 10, and alternate juror 2 were “problematic” as well because when asked in the group if they had observed any conversation they did not respond, but when asked individually, they admitted they had.   Over the objection of defense counsel, the court refused to remove any other juror.   Instead, the court stated it would deliver a very strong admonition against what Officer Friedman had done.   The court then denied a motion for a mistrial.

The jury was instructed and commenced deliberations.   The court gave a special instruction prepared by the defense admonishing the jury the inappropriate conduct of Officer Friedman should not affect the juror's determination.

On August 16, 1993, the jury requested a demonstration of whether bullets could slide out of the chamber of Baker's gun.   The court allowed the demonstration but Baker was not present, his counsel having waived his presence.

The jury found Baker guilty on both counts of second degree robbery and of using a handgun under California Penal Code 1 section 12022.5(a).   Baker admitted all four section 667.5(b) enhancements.

Probation was denied and Baker was sentenced to 13 years calculated as follows:  the high term of 5 years as to both counts of robbery, the high term of 5 years for use of a firearm under section 12022.5(a) for both counts, and 1 year each for 3 individual priors under section 667.5(b) to run consecutively to count one.   The sentences for counts one and two were to run concurrently.

Defendant filed a timely notice of appeal.

 DISCUSSION

I.  EVEN THOUGH SOME MEMBERS OF THE JURY COMMITTED MISCONDUCT APPELLANT SUFFERED NO PREJUDICE.

A. Jurors Number 2 And 9 Committed Misconduct By Improper Contact With A Witness, However Appellant Suffered No Prejudice.

 Jury misconduct affects the defendant's fundamental rights to an unprejudiced jury and the fairness of the trial proceedings.   This issue is an independent appellate issue to be adjudicated by this court based upon the whole record.  (People v. Brown (1976) 61 Cal.App.3d 476, 481, 132 Cal.Rptr. 217.)

 Appellant contends the trial court committed reversible error by depriving him of his constitutional right to a competent and fair jury.   Specifically, he argues several jurors disregarded the court's instruction not to speak with witnesses.   Section 1122 requires, at each adjournment prior to submission of the case, the court admonish the jurors not to converse with witnesses:  Here, the trial court instructed the jury:  “You are directed to have no conversation of any kind with any party, attorney, or witness in this case during the course of the trial.”

Two jurors did not follow this instruction.   Juror number 2 had a conversation with a prosecution witness, Officer Friedman, who had not yet testified.   During the conversation, the other jurors were present somewhere in the hallway where Friedman and juror number 2 were conversing.   Juror number 9 also had a brief conversation with Officer Friedman.   Juror number 9 approached juror number 2 and told him they should inform the court of their contact with Officer Friedman.

“The right of unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.”  (People v. Diaz (1984) 152 Cal.App.3d 926, 933, 200 Cal.Rptr. 77.)   By engaging in a brief conversation with Officer Friedman even if not related to the case, the two jury members violated their obligation under section 1122.   The court had explained this obligation in its instructions.  (See People v. Ryner (1985) 164 Cal.App.3d 1075, 211 Cal.Rptr. 140.)   The juror's conversation with Friedman might have caused them to accord his testimony greater credibility.   Therefore, the two jurors did commit misconduct.

 We must next decide whether the misconduct at issue requires reversal.   Jury misconduct is not prejudicial per se (People v. Sutter (1982) 134 Cal.App.3d 806, 820, 184 Cal.Rptr. 829), but such misconduct raises a presumption of prejudice, which can be rebutted by proof no prejudice actually resulted.  (People v. Pierce (1979) 24 Cal.3d 199, 207, 155 Cal.Rptr. 657, 595 P.2d 91.)   In Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 185 Cal.Rptr. 654, 650 P.2d 1171, our Supreme Court explained the presumption of prejudice arising from juror misconduct “may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct.”  (Id. at p. 417, 185 Cal.Rptr. 654, 650 P.2d 1171;  see also People v. Diaz, supra, 152 Cal.App.3d at p. 934, 200 Cal.Rptr. 77.)

 A unanimous verdict is required in a criminal case.   Thus the disqualification of a single juror could have resulted in a different verdict on any of the counts.  (People v. Brown, supra, 61 Cal.App.3d at p. 482, 132 Cal.Rptr. 217.)   As a result, a judgment adverse to a defendant in a criminal case must be reversed or vacated “whenever ․ the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.”   (People v. Marshall (1990) 50 Cal.3d 907, 950, 269 Cal.Rptr. 269, 790 P.2d 676, quoting 2 ABA Standards for Criminal Justice, std. 8–3.7 (2d ed. 1980) p. 8.57.)  “The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard.   In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror.”  (People v. Marshall, supra, 50 Cal.3d at p. 951, 269 Cal.Rptr. 269, 790 P.2d 676;  2 ABA, Standards for Criminal Justice, supra, std. 8–3.7, Commentary, p. 8.58.)

 In this case, the presumption of prejudice regarding the misconduct of jurors conversing with a witness has been rebutted.   Juror number 2 was removed which leaves only juror number 9's misconduct in speaking to Officer Friedman.   The record shows Friedman merely asked juror 9 if he was a juror in the case.   Juror 9 replied he was and that was the extent of the conversation.   This conversation could not have produced any significant effect because it added nothing contradictory to the evidence at trial and did not even relate in any way to the trial.   The People need not affirmatively prove by extrinsic evidence this misconduct actually had no effect on the juror's deliberations.   The presumption of prejudice is typically rebutted by the simple realization that some forms of misconduct are inherently nonprejudicial.  (People v. Martinez (1978) 82 Cal.App.3d 1, 25, 147 Cal.Rptr. 208.)

The contact here was of the kind deemed nonprejudicial in People v. Ryner, supra, 164 Cal.App.3d 1075, 211 Cal.Rptr. 140.   In Ryner, a prosecution witness and a number of jurors engaged in a conversation in which neither the officer's testimony nor any aspect of the case was discussed.  (Id. at p. 1080, 211 Cal.Rptr. 140.)   The court found misconduct occurred, but found it to be nonprejudicial.  (Id. at pp. 1081–1082, 211 Cal.Rptr. 140.)   In so deciding, the court referred to several factors to determine whether the presumption of prejudice had been rebutted.   These included:  (1) the strength of the evidence misconduct occurred;  (2) the nature and seriousness of the misconduct;  (3) whether the prosecutor's burden was lightened by the misconduct upon the defense case;  and (4) the probability the defendant suffered actual prejudice.  (Id. at p. 1082, 211 Cal.Rptr. 140;  Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417, 185 Cal.Rptr. 654, 650 P.2d 1171.)

Here, as in Ryner, the presumption of prejudice has been rebutted.   As in Ryner the conversation was limited to topics unrelated to the case at hand.   The conversation was so brief and innocuous we regard it as trivial misconduct.   Also, as in Ryner, the officer was not a critical prosecution witness.   She simply participated in defendant's arrest and her testimony was merely cumulative.   Nor was the misconduct particularly damaging to the defense case.   Given the strength of the prosecution's case, the trifling nature of the misconduct and its minimal impact upon the case, we conclude the record demonstrates no actual prejudice to appellant for the indiscretions of the juror.  (People v. Ryner, supra, 164 Cal.App.3d at pp. 1083–1084, 211 Cal.Rptr. 140;  People v. Goff (1981) 127 Cal.App.3d 1039, 1045–1046, 179 Cal.Rptr. 190.)

The trial court concluded a juror's brief conversation in the hallway with the prosecution's witnesses during a recess as to matters unrelated to the trial did not constitute prejudicial error.   In addition, the court's admonition and assurances from the jurors they would have no difficulty being fair and impartial further cured any prejudice to defendant.   The jury was promptly admonished not to “give greater credibility to Officer Friedman's testimony because she conversed with the jurors.”   The trial court took proper, immediate action to ensure against prejudice.   Any misconduct being sufficiently cured, there was no error in denying a motion for mistrial.   The trial court was satisfied no injustice would result, and we are as well.   (People v. Craig (1978) 86 Cal.App.3d 905, 919–920, 150 Cal.Rptr. 676.)

B. Trial Court's Refusal to Grant Mistrial Based on the Jurors' Initial Hesitancy to Come Forward With Information Concerning Misconduct Was Not an Abuse of the Court's Discretion.

Appellant further contends the trial court committed reversible error in not dismissing additional jurors due to their failure to cooperate with the court's inquiries, their lack of candor and inability to follow the court's instructions with respect to the incident with Officer Friedman.

 Once a juror's ability to perform his or her duty is called into question, “the court must investigate reports of juror misconduct to determine whether cause exists to replace an offending juror with a substitute.”   (People v. Keenan (1988) 46 Cal.3d 478, 531, 250 Cal.Rptr. 550, 758 P.2d 1081.)   Here, after the court questioned juror number 2 and juror number 9, the problem of misconduct seemed to be growing, and the court decided to separately question the remaining jurors.   The court appropriately questioned all jurors and even requestioned some of the jurors regarding what they had seen or heard concerning the improper juror contact with Friedman.   When asked collectively, none of the jurors came forward with any information.   Not until they were questioned independently did the jurors come forward with the information.   Appellant claims this behavior constitutes misconduct and reversible error.   We disagree.

After questioning all the jurors, the judge indicated his initial hesitancy had dissipated due to the further questioning.   The only problem was several of the jurors, when asked in the group if they had observed any conversation, did not raise their hands.   However, when questioned separately, the jurors came forward and proceeded to answer the court's questions explaining all they remembered observing.   The trial court found the jurors came forward with everything they had observed when questioned separately giving the court the opportunity to cure the misconduct by admonition.   We have no basis for disturbing this finding of fact.

The court found juror 4 had committed serious misconduct raising doubts about his credibility and lack of candor to the court.   Therefore, the court removed juror 4, but denied the mistrial motion.   The judge noted, “looking at the effect on the jury, as it stands I do not think there is sufficient cause for mistrial.   Instead I will grant a very strong admonition against what Officer Friedman has done.”

 Although intentional concealment of material information by a potential juror may constitute implied bias justifying disqualification or removal, mere inadvertent or unintentional failure to disclose are not accorded the same effect.  (People v. McPeters (1992) 2 Cal.4th 1148, 1175, 9 Cal.Rptr.2d 834, 832 P.2d 146.)   The proper test to be applied to unintentional concealment is whether the juror is sufficiently biased to constitute good cause for the court to find he is unable to perform his duty.   (People v. Jackson (1985) 168 Cal.App.3d 700, 706, 214 Cal.Rptr. 346.)   “Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court.   Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror․”  (People v. McPeters, supra, 2 Cal.4th at p. 1175, 9 Cal.Rptr.2d 834, 832 P.2d 146.)   Applying these rules, we hold the trial court did not abuse its discretion in finding the jurors' nondisclosure to be inadvertent and in finding no bias on their part.

 Because the court has power to investigate and discharge jurors who refuse to adhere to their oaths, it may also take less drastic steps where appropriate to deter any misconduct or misunderstanding it has reason to suspect.  (People v. Keenan, supra, 46 Cal.3d at p. 585, 250 Cal.Rptr. 550, 758 P.2d 1081.)   Here, the trial court denied the requests for mistrial and decided an admonition would be sufficient.  “Where a ․ juror gives conflicting answers to questions relevant to his impartiality, the trial court's determination as to his state of mind is binding upon an appellate court․”  (People v. Bittaker (1989) 48 Cal.3d 1046, 1089, 259 Cal.Rptr. 630, 774 P.2d 659.)   From the record we cannot say the jurors' candor in admitting they had observed certain misconduct when questioned separately, but not when asked in a group, necessarily illustrates bias.   This is especially true when considered along with their assurances what they had observed would not affect their ability to be fair and impartial.   We find no abuse of discretion in denying the request for mistrial.

II. THE TRIAL COURT PREJUDICIALLY ERRED WHEN IT ALLOWED THE BAILIFF TO PERFORM A DEMONSTRATION FOR THE JURY WHICH GENERATED NEW EVIDENCE OUTSIDE APPELLANT'S PRESENCE WITHOUT HIS KNOWLEDGE AND CONSENT.

Baker took the stand in his own defense.   He admitted taking the purse and money from the victims.   He also admitted having a gun in his pocket at the time of the robberies but he steadfastly denied displaying the gun to the victims.   According to Baker he put the gun in his right-hand pants pocket when he left home that evening and the gun remained in his pocket until he tossed it out the window of Pullum's car just before he was arrested.   He conceded two bullets from the gun were in Pullum's car.   The reasonable inference from Baker's testimony is that the bullets must have fallen out of the gun when he removed it from his pocket to throw it out the window.   Baker's counsel argued this inference to the jury during closing argument.   Furthermore, Baker's attorney invited the jury to inspect the gun during deliberations and to observe how easily bullets could fall out of the chamber.

The jury took counsel up on her invitation.   During deliberations the jury sent the court a note requesting “a demonstration of loading and unloading of gun to determine the ability of bullets to escape.”   Baker's counsel waived Baker's presence at the demonstration.

The court permitted the bailiff to demonstrate, at the direction of the jury, the loading and unloading of the gun.   The foreman asked the court to order the bailiff to load the revolver with the ammunition recovered from the front passenger seat.   The bailiff complied.   The foreman then asked the bailiff to put the gun in his right pants pocket and sit down.   Next, the bailiff was asked to remain seated and retrieve the gun from his pocket.   Having done this, the bailiff was asked to put the gun in his right pants pocket with the handle down and sit.   Again the bailiff was asked to remain seated and retrieve the gun from his pocket.   This time one bullet fell out, apparently into the bailiff's pocket.2  Later that same day, the jury brought in a guilty verdict against appellant.   Baker contends the bailiff's demonstration amounted to the introduction of new evidence outside his presence without his knowledge and consent.   We agree.3

 It is well-established the jury, in the course of its deliberations, may examine the exhibits introduced at trial.  (See, e.g., People v. Turner (1971) 22 Cal.App.3d 174, 182, 99 Cal.Rptr. 186 [jurors examined evidence with magnifying glass];  People v. Balestieri (1914) 23 Cal.App. 708, 711–712, 139 P. 821 [jurors examined pistol in jury room].)   The jurors may even reenact an event if they do so within the scope of the evidence.  (See, e.g., People v. Cumpian (1991) 1 Cal.App.4th 307, 314, 1 Cal.Rptr.2d 861 [jurors reenacted manner in which defendant was carrying duffel bag as described by security guard's testimony];  People v. Cooper (1979) 95 Cal.App.3d 844, 853–854, 157 Cal.Rptr. 348 [jurors reenacted defendant's throwing away bag of heroin as described in police officer's testimony].)   What the jury cannot do is conduct an experiment which results in the generation of new evidence.  (See, e.g., Smoketree–Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1749, 286 Cal.Rptr. 435 [juror demonstrated for other jurors how concrete is poured—no such evidence introduced at trial];  People v. Conkling (1896) 111 Cal. 616, 627–628, 44 P. 314 [jurors conducted experiment to determine how close defendant was when he shot the deceased—no evidence introduced on this issue].)

The rule the jury is not permitted to develop its own evidence is based on the Sixth Amendment right of the accused “[i]n all criminal prosecutions ․ to be confronted with the witnesses against him.”   As our Supreme Court has long recognized:  “It is a fundamental rule that all evidence shall be taken in open court and that each party to a controversy shall have knowledge of, and thus be enabled to meet and answer, any evidence brought against him.   It is this fundamental rule which is to govern the use of ․ exhibits by the jury.   They may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter.   They may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence, then, manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain.”   (Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 656–657, 115 P. 313.)

 The bailiff's demonstration of loading and unloading the gun and putting the gun in his pants pocket handle down and then removing it to see if any bullets escaped constituted the taking of new demonstrative evidence before the trier of fact.   Baker did not testify he loaded the gun before leaving his house.   To the contrary, he testified “it was already loaded.”   Of even more significance was the jury's instruction to the bailiff to place the gun in his pocket with the barrel pointed up.   Baker had not testified he was carrying the gun in this manner.   The fact the bailiff put the gun in his pocket with the handle down and the barrel up could explain why a bullet fell out into the bailiff's pocket.   The demonstration did not show whether a bullet would have fallen out into the bailiff's pocket if he had been carrying the gun in the normal fashion with the barrel down and the handle up.4

We also agree with defendant's contention if the court was going to permit the introduction of new evidence he had a right to be present.

Article I, section 15 of the California Constitution states in pertinent part:  “The defendant in a criminal case has the right ․ to have the assistance of counsel for the defendant's defense, to be personally present with counsel.”   Furthermore, section 977(b)(1) provides:  “In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence.”  (Italics added.)

Absent a waiver, Baker's presence was required when the bailiff presented evidence which tended to impeach Baker's own testimony.   Under section 977(b)(2), “[t]he accused may execute a written waiver of his or her right to be personally present, approved by his or her counsel, and the waiver shall be filed with the court.”   Baker did not waive his right to be present;  his counsel waived it for him.   The record contains no written waiver by Baker of the right to be present during the demonstration.   Furthermore, a fair reading of the transcript leads us to the conclusion Baker was not even aware of the proposed demonstration.   Therefore, defense counsel's waiver of Baker's presence at the demonstration was not appropriate and error under section 977.

 Defendant's absence from the trial when evidence is being taken is prejudicial in situations where the defendant's presence bears a reasonably substantial relationship to the fullness of the opportunity to defend against the charge.  (Cf. People v. Medina, (1990) 51 Cal.3d 870, 902, 274 Cal.Rptr. 849, 799 P.2d 1282, quoting People v. Bloyd (1987) 43 Cal.3d 333, 359–360, 233 Cal.Rptr. 368, 729 P.2d 802.)   When the presence of the defendant will be useful, or of benefit to him and his counsel, the lack of his presence becomes a denial of due process of law.  (People v. Bloyd, supra, 43 Cal.3d at p. 360, 233 Cal.Rptr. 368, 729 P.2d 802.)   The defendant has the burden to demonstrate his absence prejudiced his case or denied him a fair and impartial trial.  (Ibid.)

 Appellant was prejudiced by the demonstration to the jury because he had no opportunity to rebut the demonstrative evidence or rehabilitate his own testimony.   Baker admitted he took a purse and money from the two victims.   The only allegation he contested was the use of the weapon.   The evidence requested by the jury and introduced through the demonstration was relevant only to the weapon enhancement and was direct impeachment evidence against Baker.   The jury was obviously testing the credibility of Baker's claim the gun remained in his pocket during the robbery and escape as Baker testified.   The jury could have concluded if Baker was telling the truth then one or more bullets would have fallen out into his pocket as one bullet did during the demonstration.   Had Baker been present during the demonstration by the bailiff, he would have had the opportunity to have the bailiff demonstrate different attributes of the gun, how the ammunition could have fallen out with specific handling and thereby support his testimony.   For example, as part of the demonstration, the jury asked the bailiff to put the gun in his pocket upside down with the handle in first.   If present, Baker might have pointed out this demonstration did not accurately represent the manner in which he was carrying the gun.   Common sense tells us it is unlikely, and extremely foolhardy, for Baker to have been carrying the gun with the barrel pointed toward his head.   Consequently, Baker could have disputed the results of the experiment because they did not reflect his actions during the night of the robbery, and therefore the jury could not use this information to discredit his testimony during trial.   By not being present to point out the inaccuracies and weaknesses of the demonstration, Baker's absence prejudiced his defense.

Baker has demonstrated he was wrongfully denied the right to be present during the taking of evidence in impeachment of his own testimony, and as a result, he was denied the ability to impeach the evidence or to rehabilitate his own testimony.   It is also important to note the jury came in with a guilty verdict against appellant shortly after the demonstration which adds to the possibility the demonstration influenced its verdict, and appellant's absence prejudiced his ability to defend himself.   Therefore, Baker has sufficiently demonstrated his absence prejudiced his case or denied him a fair and impartial trial.

Whether denial of the defendant's right to be present was prejudicial is judged under the standard of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.  (People v. Robertson (1989) 48 Cal.3d 18, 62, 255 Cal.Rptr. 631, 767 P.2d 1109;  People v. Benjamin (1975) 52 Cal.App.3d 63, 75, 124 Cal.Rptr. 799.)   In Chapman, the Supreme Court of the United States held before a “constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”   Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. at p. 828.   Applying the constitutional standard of Chapman, we cannot say in light of the entire record and beyond all reasonable doubt Baker's absence during the taking of this vital evidence did not contribute to the verdict.   See discussion supra p. 19.   Under the circumstances here, the error in procedure must be deemed harmful and prejudicial.5

Nevertheless, because Baker has confessed to being personally armed with a firearm (Pen.Code § 12022), the People may chose to accept a modification of the sentence rather than retry Baker on the allegations of personal use of a firearm.

DISPOSITION

The judgment is reversed as to the use enhancements under Penal Code section 12022.5 and the cause remanded to the superior court with directions to impose enhancements instead for being armed with a firearm under Penal Code section 12022, subdivision (a)(1) if the prosecution consents to forego retrial on the use enhancements;  or in the alternative, to set the cause for retrial on the use enhancements if the prosecution does not so consent.   In all other respects, the judgment is affirmed.

The errors of the majority, by which they conditionally reverse the jury's firearm use finding, are fundamental.   I shall identify and explain these errors.   But first, because the majority omit, blur, and misstate facts, it will be useful to provide an accurate factual background.

FACTUAL BACKGROUND

On Tuesday night, about 10:50 p.m., March 23, 1993, Debra and Tina Levonian left Stratton's restaurant on Ventura Boulevard in Encino and walked toward their car in a brightly lit parking lot.   At the rear of the parking lot there was an alley.   As they got closer to their car they saw appellant, by the alley, walk toward them.   When they reached their car, with appellant still walking toward them, they saw a gun in appellant's left hand.

Appellant first approached Tina, who was by the driver's window, and holding the gun at his side demanded her purse.   She gave it to him.   Tina testified she was robbed “at gun point,” noticed appellant with the gun in his left hand, “looked at” the gun, and identified People's exhibit 1, appellant's .32 caliber revolver, as the gun appellant used to rob her.

Appellant then yelled at Debra that he wanted her money, walked to the passenger door where she was standing, and still holding the gun in his left hand, took the $11 Debra handed him.

Debra testified appellant “was right beside” her, within inches of her, when she saw him holding the gun pointed down, at his side, in his left hand.   She testified she “absolutely, positively saw it,” that it was a revolver, not an automatic, had a thin barrel and was black.   She further testified she “was watching the gun [appellant] had in his hand and it frightened [her].”   Moments after the robbery, when they called 911 on their car phone, Debra reported to the police they had been robbed “by a man with a gun.”   Later that night she described appellant's gun, not yet recovered, to the police.   She, as had Tina, identified People's exhibit 1, appellant's .32 caliber revolver, as the gun appellant used to rob her.

After taking the $11 appellant hurried toward the alley at the rear of the parking lot and disappeared from their view.

Debra and Tina entered their car and drove away from the parking lot as Debra immediately called 911 on their car phone.   She reported the robbery location and gave a detailed description of the short, male, Black robber wearing a blue “flora” short-sleeve, front buttoned shirt with a white t-shirt underneath.

Officer Park, 3–5 minutes after he heard the radio broadcast of the robbery and about 3 miles from the robbery scene, saw a red Ford with a passenger, appellant, who matched the robber's description.   Officer Park, in plain clothes, driving an unmarked vice unit car, followed the red Ford.   A chase ensued and Officer Park requested assistance.   Soon, two marked patrol cars—sirens blaring and colored lights flashing—joined the pursuit.   A police helicopter also assisted.   During the pursuit appellant threw his gun out the passenger window.

The pursuit ended in a cul de sac where appellant and the driver, Kevin Jerome Pullum, jumped from the red Ford, ran in opposite directions, and were both promptly arrested.

Debra and Tina Levonian were brought to the arrest scene and positively identified appellant as the robber.

Officer Liliane Martinez, after assisting in the arrest of the driver (codefendant Pullum), searched the red Ford and recovered Tina Levonian's purse with all her credit cards and personal effects.   Officer Martinez also recovered two .32 caliber bullets from the passenger seat.   The next morning, Officer Martinez searched for and found the .32 caliber revolver appellant had thrown during the pursuit.   The five cylinder weapon contained three bullets.

It was this evidence, when the prosecution rested, that confronted appellant and his codefendant Pullum.   Circumstantially, it showed that appellant and codefendant Pullum had arrived together, had selected the Stratton Restaurant parking lot as a promising robbery site, and that Pullum was the getaway driver 1 parked, unseen, in or near the parking lot alley.

Directly, and undeniably, it showed appellant was the person who had robbed Debra and Tina Levonian, who had worn the colored floral shirt they described, who Officer Park, from the victims' description recognized as the robber, who had been the passenger in the fleeing getaway car, who had put Tina's purse, wallet, credit cards, and personal effects by his feet on the floor of the getaway car, and who had fled on foot from pursuing police only to be arrested minutes after the robbery.

Thus confronted, appellant—not without experience in such matters 2 —chose to admit the undeniable (that he had robbed the victims) and deny the unadmittable:  a five year firearm use allegation.

He did so by spinning a vague, improbable tale rejected by the jury, not accepted by the trial court, believed only by the majority.

This was the tale.   Appellant testified that on the day of the robbery he aimlessly “hopped” on a bus with a loaded revolver hidden in the right front pocket of his Levis 501 jeans (no mean feat in itself).   He then got off the bus in Panorama City, drank a soda, walked a couple of blocks, hopped back on a bus, exited, reboarded a bus, and finally exited a couple of blocks from Stratton's.   Now, at 10:50 p.m., in an unfamiliar part of the city far from home, with few if any buses running and without a car or any other means of transportation appellant, empty handed, accosted and robbed the two victims, immediately hitched a ride with a good Samaritan who said nothing about the purse under appellant's arm and who agreed to follow his directions and drive him to an unknown location where a relative lived, and when police cars with lights flashing and sirens blaring tried to pull them over the good Samaritan asked no questions, fled, and later, on foot tried to escape.   Appellant also testified that during the police pursuit he threw the gun out the car window.

Codefendant Pullum—who according to appellant knew nothing of the robbery, did not see appellant's gun, asked no questions, was a good Samaritan with nothing to hide—did not testify.

DISCUSSION

1. Majority error:  Standard of review

“ ‘For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction.   Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him.’   This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary.”  (People v. Clifton (1969) 270 Cal.App.2d 860, 862, 76 Cal.Rptr. 193;  see also People v. Merriam (1967) 66 Cal.2d 390, 396–397, 58 Cal.Rptr. 1, 426 P.2d 161 [“It is elementary that the function of an appellate court, in reviewing a trial court judgment on direct appeal, is limited to a consideration of matters contained in the record of trial proceedings, and that ‘Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs.’ ”];  People v. Keligian (1960) 182 Cal.App.2d 771, 774, 6 Cal.Rptr. 680;  People v. Green (1979) 95 Cal.App.3d 991, 1000–1001, 157 Cal.Rptr. 520;  Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193;  People v. Siegenthaler (1972) 7 Cal.3d 465, 469, 103 Cal.Rptr. 243, 499 P.2d 499;  Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1360, 7 Cal.Rptr.2d 482 (dis. opn. of Johnson, J.).)

The majority violate these basic standard of review rules.

To find prejudice in the bailiff demonstration, and therefore justify its reversal, the majority do not “view the evidence in the light most favorable to the People” (People v. Miller (1990) 50 Cal.3d 954, 992, 269 Cal.Rptr. 492, 790 P.2d 1289;  People v. Bloom (1989) 48 Cal.3d 1194, 1208, 259 Cal.Rptr. 669, 774 P.2d 698;  People v. Bloyd (1987) 43 Cal.3d 333, 346–347, 233 Cal.Rptr. 368, 729 P.2d 802;  People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110;  People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738) but instead view it most favorable to the defendant.

Here, instead of resolving “any uncertainty in the record ․ against [appellant]” (People v. Clifton, supra, 270 Cal.App.2d at p. 862, 76 Cal.Rptr. 193) the majority resolve all uncertainties against the People.

Although “it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends” (People v. Barnes, supra, 42 Cal.3d at p. 303, 228 Cal.Rptr. 228, 721 P.2d 110) the majority “substitute its deductions for those of the trial court.”  (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183.)

Illustrative of the majority's violations are the following:

• The majority state when the bailiff removed the gun from his pocket, barrel first, “one bullet fell out, apparently into the bailiff's pocket.”  (Maj. opn., p. 698.)

The word “apparently” is camouflage for an uncertain, gap filled record.   The majority don't know, as I don't know, where the bullet fell.   In fact, most of what occurred—like a basketball game described on the radio—is unreported.

What preparations the bailiff made in anticipation of loading and unloading the gun for the jury is not clear.   It appears—but from the record I cannot be certain—that before the jury returned to the courtroom the bailiff obtained from the clerk the gun, the envelope with the two bullets recovered from the getaway car, and the envelope with the three bullets recovered from the gun.

Where the bailiff was during the demonstration is not clear.   At counsel table?   By a free-standing chair in front of the jury railing?   In the witness box?   The record fails to state.

Where the handkerchief was during the gun demonstration is not clear.   The majority assume it was in the bailiff's right front pants pocket.   It may or may not have been there.

It may not have been in the bailiff's pocket because the bailiff was preparing to demonstrate the loading and unloading of the gun.   Such a demonstration would involve the repeated handling and display of five loose bullets.   Depending upon where the demonstration was to occur (Counsel table?   By a free-standing chair in front of the jury railing?   In the witness box?) and whether or not a countertop was at hand, a handkerchief might be a very convenient prop.

I have read this record over and over and still am not certain where the bullet fell.   My uncertainty is based upon the following.

First, the record fails to reveal how much of the gun, handle first, was in the bailiff's pocket and how much was out.   If only the handle, but not the cylinders, was in the bailiff's pocket it is unlikely a bullet fell in the bailiff's pocket and likely it fell outside his pocket.

Second, the record fails to reveal the position of the exposed cylinder, whether toward or away from the bailiff's thigh.   If away from his thigh it is unlikely a bullet fell into his pocket.

Third, it appears the bailiff was seated both when Juror Anderson asked about the bullet and when the bailiff said “one bullet has fallen out. ”   Although possible, it is unlikely the bailiff while seated would have noticed and recovered a bullet from his pocket.

Fourth, if a bullet had fallen into the bailiff's pocket it is unlikely the bailiff would have stated, and only stated, “one bullet has fallen out.”

Fifth, if a bullet had fallen into the bailiff's pocket it is unlikely the bailiff would have stated “it was in the handkerchief.”   Such an impersonal reference, while appropriate for a handkerchief on one's lap, is not appropriate for one's handkerchief in one's pocket.

• The majority state “it was undisputed defendant was right-handed and carrying the gun in his right pocket.”  (Maj. opn., p. 701, fn. 5.)

If—but only if—one ignores the testimony of two victims, believed by the jury, that appellant held a black, thin barrelled revolver in his left hand (not concealed in his right pocket)—was the subject statement “undisputed.”

• The majority state, after the robbery, appellant “made his way to Ventura Boulevard and hitched a ride with codefendant Kevin Pullum.”  (Maj. opn., p. 694.)

This statement flaunts the circumstantial evidence indicating Pullum was the getaway driver and is based upon a gullibility not shared by the jury, six of whom believed beyond a reasonable doubt Pullum was the getaway driver, five of whom had a reasonable doubt, and one of whom was undecided.

• The majority state appellant “admitted having a gun in his pocket at the time of the robberies․”  (Maj. opn., p. 698.)

With nothing to lose, appellant took the stand for the sole purpose of claiming his gun was concealed in his pocket, not used during the robberies—thus saving himself five years in state prison.

Characteristic of the majority's perspective is its view that this claim was an “admission.”

2. Majority error:  finding of prejudice.

By contradiction and incoherence the majority find prejudice where none is present.

Even if, during the bailiff demonstration, a bullet fell into the bailiff's pocket—there was no prejudice to appellant.

Appellant's testimony concerning the gun and the two fallen bullets was brief and general.   He was not asked and did not say how the gun was in his pocket, whether barrel first or handle first.   To the one question concerning the two fallen bullets (“․ how did they fall out?”) his entire answer was:  “I guess they slipped through the chamber.”

The plain fact is that nothing in the demonstration impeached, contradicted, or was inconsistent with appellant's testimony.   Only by contradiction and incoherence do the majority conclude otherwise.

On the one hand the majority indicate appellant had the gun, barrel first, in his pocket.   They state:  “Common sense tells us it is unlikely, and extremely foolhardy, for Baker to have been carrying the gun with the barrel pointed toward his head.”  (Maj. opn., p. ––––.)  Further, the majority state:  “The reasonable inference from Baker's testimony is that the bullets must have fallen out of the gun when he removed it from his pocket to throw it out the window.”  (Maj. opn., p. 698.)

On the other hand, the majority state:  “The jury could have concluded if Baker was telling the truth then one or more bullets would have fallen out into his pocket as one bullet did during the demonstration.”  (Maj. opn., p. 700.)

These statements by the majority are contradictory.   If, as the majority believe, the gun was barrel down in appellant's pocket no bullet “would have fallen out into his pocket as one bullet did during the demonstration.”   Not even the majority can reverse the law of gravity.   Bullets fall down, not up.   Therefore, that part of the demonstration when the bailiff had the gun, barrel down, in his pocket and no bullet fell out, perfectly tracked what the majority believe to be appellant's testimony.

If appellant “was telling the truth,” as the majority understand his testimony, then the other part of the demonstration when the bailiff had the gun, handle down, in his pocket and a bullet fell out—did not impeach or contradict appellant's testimony because appellant did not testify he had the gun in his pocket that way.

Further, since the demonstration did not include a throwing motion simulating appellant's throwing the gun out the window, nothing contradicted the majority's “reasonable inference” it was then “the bullets must have fallen out of the gun.”

Thus, only by contradiction do the majority find prejudice.

Coupled with its contradiction is this incoherence:  “Had Baker been present during the demonstration ․ [he could have had] the bailiff demonstrate different attributes of the gun, how the ammunition could have fallen out with specific handling and thereby support his testimony.”  (Maj. opn., p. 700.)

The revolver had only one pertinent attribute, an obvious and agreed upon one:  when it pointed up at a sufficiently acute angle a bullet would slide out of the one exposed chamber;  when the cylinders were rotated, exposing another chamber, another bullet could slide out.

It was this self-evident attribute that caused a bullet to fall out when, during the demonstration, the barrel was pointing up and the handle down.   Equally obvious, if in throwing the gun the barrel was pointing up and the handle down, a bullet could slide out of the exposed chamber.

If, beyond this rudimentary application of the law of gravity, appellant's presence at the demonstration would have added anything, the majority fail to explain what it might have been.

3. Majority error:  prohibited jury experiment.

Although obfuscated, the majority holding is that the demonstration was an improper jury experiment.  (Maj. opn., p. 699 and fn. 4.)   It is not appellant's absence from the “bailiff demonstration” which, in the majority view, condemns the judgment but rather the demonstration itself which the majority regard as “the taking of new demonstrative evidence.”  (Maj. opn., p. ––––.)  Thus, if during their deliberations in the jury room the jury had themselves handled the gun as the bailiff did during the demonstration, the majority would reverse the firearm use finding.

This holding by the majority is mistaken and without support.

In examining the admitted gun and bullet exhibits, with the assistance of the bailiff, the jury did no more than what Penal Code section 1137 (“Upon retiring for deliberation, the jury may take with them all papers ․ which have been received as evidence in the cause ․”) and case law authorized.   As our Supreme Court noted in Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 656, 115 P. 313, a seminal and still vital decision, the statutory reference to “all papers” was not a restriction of common law which permitted jury access to all non-writing exhibits but an “extension of the common-law rule touching exhibits containing writings.”  (Ibid.)

“Exhibits introduced in evidence may be taken into the jury room and examined by the jurors in their deliberations.”  (3 Witkin, Cal.Evidence (3d ed. 1986) § 1808, pp. 1769–1770;  People v. Douglas (1977) 66 Cal.App.3d 998, 1006, 136 Cal.Rptr. 358.)

If admitted into evidence, “all parts of the exhibit will be deemed to have been admitted into evidence.”  (People v. Caruth (1965) 237 Cal.App.2d 401, 404, 47 Cal.Rptr. 29.)

The scope of what exhibits a jury may examine and how they may examine them is broad.   A jury may listen to tape recordings (People v. Douglas, supra, 66 Cal.App.3d 998, 1006, 136 Cal.Rptr. 358;  People v. Walker (1957) 150 Cal.App.2d 594, 602–603, 310 P.2d 110), examine gruesome photographs, (People v. Balestieri (1914) 23 Cal.App. 708, 711, 139 P. 821), take with them and inspect an overcoat, revolver, and piece of flooring (People v. Barrett (1913) 22 Cal.App. 780, 785, 136 P. 520), create a murder scene diagram based upon their recollection of the evidence (People v. Gallaner (1906) 3 Cal.App. 431, 433, 86 P. 814), scrutinize a photograph with their own magnifying glass (People v. Turner (1971) 22 Cal.App.3d 174, 99 Cal.Rptr. 186), reenact the defendant's throwing away of heroin (People v. Cooper (1979) 95 Cal.App.3d 844, 157 Cal.Rptr. 348), consider a bottle of Valium they found in the victim's bathrobe (People v. Bloyd, supra, 43 Cal.3d 333, 360, 233 Cal.Rptr. 368, 729 P.2d 802), and dismantle a gun and examine its plunger or firing pin.  (Higgins v. L.A. Gas & Electric Co., supra, 159 Cal. 651, 658, 115 P. 313).  “They may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter.”  (Id. at p. 657, 115 P. 313;  see generally 31 A.L.R.4th 566.)

Thus, jury safety aside, because the gun and bullets were admitted exhibits, the jury was entitled to examine them, touch them, and reenact testimony with them, all outside the presence of the trial court, counsel, and appellant.

The trial court, and apparently counsel, acknowledged as much.   The trial court stated, “Since it is a gun and since we have li[v]e bullets, we can't easily do that [allow a loading and unloading demonstration] by just giving them the gun and the bullets.”

Solely because of jury safety, rather than send the gun and live bullets into the jury room, the trial court stated, “what we've decided in talking to the bailiff then and counsel is to bring the jury out here and the bailiff will follow [their] directions․”  (Emphasis added.)

In examining the gun and bullets the jury used the exhibits “according to [their] nature [and] to aid them in weighing the evidence․”  (Higgins v. L.A. Gas & Electric Co., supra, 159 Cal. 651, 656–657, 115 P. 313.)

Appellant testified he had the gun in his pocket but didn't say how.   So the jury tried putting it in a pocket (the bailiff's pocket) every way it could fit in a pocket.

Appellant testified that he “guess[ed] [the two bullets] slipped through the chamber.”   So the jury tried to replicate that “slipping.”

The jury did not receive new evidence.   Our Supreme Court condoned jury dismantling of a gun (Higgins v. L.A. Gas & Electric Co., supra ), the majority condemn a jury for putting a gun in a pocket.

4. Majority error:  appellant had a right to be present.

The majority state appellant had a right to be present during the bailiff demonstration.  (Maj. opn., pp. 698–699.)   The majority are mistaken.

“Section 977, subdivision (b), provides in pertinent part that in felony cases ‘the accused must be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence.   The accused shall be personally present at all other proceedings unless he shall, with leave of court, execute in open court, a written waiver․’  Furthermore, section 1043, subdivision (a), recites in part that ‘Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.’

“The cases which have interpreted the foregoing sections uniformly have held that the accused is not entitled to be personally present either in chambers or at bench discussions which occur outside of the jury's presence on questions of law or other matters in which defendant's presence does not bear a ‘ “ ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’ ” '  [Citations.]  Stated in another way, ‘[W]hen the presence of the defendant will be useful, or of benefit to him and his counsel, the lack of his presence becomes a denial of due process of law.’   [Citations.]  The burden is upon defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial.”  (Emphasis added.)  (People v. Jackson (1980) 28 Cal.3d 264, 309–310, 168 Cal.Rptr. 603, 618 P.2d 149.)

People v. Lang (1989) 49 Cal.3d 991, 1028, 264 Cal.Rptr. 386, 782 P.2d 627 held a defendant has no right to be present during a discussion of a jury's readback request of four witnesses and that defense counsel could properly waive defendant's presence and his own at the readback even though the public was excluded during the readback and it was not reported.

People v. Johnson (1993) 6 Cal.4th 1, 16–20, 23 Cal.Rptr.2d 593, 859 P.2d 673 held a defendant had no right to be present during a chambers discussion concerning the removal of a juror for, among other things, consistently smiling at defendant.  Johnson further held defendant had no constitutional right, only a statutory one, to be present at the juror removal hearing.  (Id. at p. 17–20, 23 Cal.Rptr.2d 593, 859 P.2d 673.)

In the instant case, since the exhibits “at issue had already been placed in evidence in defendant's presence, it is difficult to conceive of any substantial reason why defendant's continued presence would have been of any aid to his counsel․”  (People v. Jackson, supra, 28 Cal.3d 264, 310, 168 Cal.Rptr. 603, 618 P.2d 149.)

5. Majority error:  prejudice standard.

The majority apply the wrong prejudice standard.   Since a criminal defendant has only a statutory not a constitutional right to be present when a jury views a crime scene (People v. Lang, supra, 49 Cal.3d 991, 1025, 264 Cal.Rptr. 386, 782 P.2d 627), the review standard for infringement of an “exhibit view” is not Chapman (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705) as the majority claim but People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.

6. Majority error:  waiver.

When the jury returned to the courtroom with their verdicts, appellant failed to object to the bailiff demonstration.   Similarly, appellant made no motion for a new trial.   The majority avoid discussion of appellant's failure to object in the trial court (Evid.Code, § 353) and the preclusive effect of this omission.

Apparently, the majority assume trial counsel neglected to ever inform appellant of the jury requested demonstration.   As to their apparent assumption I note the following:  (1) neither appellant nor his counsel claim such neglect (2) the demonstration concerned the only vital subject of appellant's testimony (3) trial counsel met with appellant almost immediately after the demonstration and (4) appellant had a five-year state prison stake in the demonstration.

7. Majority error:  why not remand instead of reverse?

The majority's reversal is based upon their inference that the bullet fell into the bailiff's pocket (otherwise not even the majority could find prejudice).   But it is an inference.   A courtroom full of people know whether or not the inference is right or wrong.   They were there and saw what happened.   Among the people who saw and know what happened is the trial court.

What the majority should do, rather than reverse as it does, is remand the matter to the trial court with directions.  (Cf. People v. Von Villas (1992) 11 Cal.App.4th 175, 257–261, 15 Cal.Rptr.2d 112.)   The trial court should state for the record whether or not the bullet fell into the bailiff's pocket.   If not, the judgment would be affirmed.   If so, the judgment would be conditionally reversed.

CONCLUSION

On the record before this court, to reverse the gun use enhancement is no less than a miscarriage of justice.

I must dissent.

FOOTNOTES

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

2.   We believe this is the only reasonable inference which can be drawn from the record.   After the bailiff placed the gun in his pocket handle down and then retrieved it, a juror asked the bailiff if any bullets had fallen out.   The bailiff responded, “One bullet has fallen out.   It was in the handkerchief.”   The dissent argues the bullet might not have fallen out in the bailiff's pocket but in a handkerchief the bailiff had spread on his lap.   Nothing in the record supports this supposition.   There is no reference in the record to the bailiff having a handkerchief in his lap.   The logical place for a handkerchief would be in the bailiff's pocket.   Furthermore, if the bullet had fallen into the bailiff's lap after he removed the gun from his pocket it is likely the jurors would have seen this happen.   The only logical reason a juror would have asked if a bullet fell out is if the bullet fell unobserved out into the bailiff's pocket.

3.   The dissent argues Baker waived any error by failing to object to his absence from the demonstration.   The dissent admits this waiver argument is not supported by the record but rests merely on the dissent's “presumption” Baker's counsel informed him of the demonstration after it occurred.   The dissent offers no authority for our engaging in a presumption drawn out of thin air and we decline to do so.  (See Evid.Code § 600, subd. (a).)

4.   For these reasons we believe the dissent is in error in characterizing the bailiff's demonstration as a mere examination of the evidence by the jury.   The demonstration clearly went beyond the evidence introduced at trial.   The dissent concedes as much in noting defendant testified he did not load or unload the gun and did not testify to the manner in which he was carrying the gun.   Furthermore, unlike the dissent, we fail to see any significance in the fact the demonstration was conducted by the bailiff rather than one of the jurors.   As the dissent admits, the bailiff “merely did as commanded” by the jury.

5.   The dissent argues the Chapman standard is satisfied in this case because immediately after the robbery the victims described the gun defendant had used to the police and the police found a gun matching that description when they retraced the route defendant took following the robbery.   The dissent asks why the victims would claim defendant had a gun if he did not and how the victims could have accurately described to the police a gun they never saw.   Our review of the record shows Debra Levonian testified she described the type of gun and its color to the police but we have found no evidence in the record her description matched the gun the police found.   In assessing the credibility of the victims' testimony, the jury may have found it disturbing both victims testified defendant was holding the gun in his left hand when it was undisputed defendant was right-handed and carrying the gun in his right pocket.   In any event, it is clear the jury was pondering the credibility of the victims and the defendant on the gun issue or it would not have requested the demonstration described above.

1.   The parties stipulated Pullum did not have a driver's license.

2.   Appellant, after the guilty verdicts, admitted three state prison felony allegations.  (Pen.Code, § 667.5, subd. (b).)

JOHNSON, Associate Justice.

LILLIE, P.J., concurs.