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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Anthony D. SCOTT, Defendant and Appellant.


Decided: February 20, 1986

Phillip H. Pennypacker, Adm'r, Conflict Admin. Program, Deanna F. Lamb, San Jose, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant Anthony Scott appeals from a judgment of conviction following a jury verdict finding him guilty of violating Penal Code section 245, subdivision (a) 1 (assault with a deadly weapon).   The jury also found that defendant intentionally inflicted great bodily injury, within the meaning of section 12022.7, and that defendant committed the offense while armed with a firearm, said arming not being an element of the offense within the meaning of section 12022, subdivision (a).   Defendant was sentenced to five years in prison.

Defendant contends that the trial court's direction to the court reporter to enter the jury room and reread a portion of the testimony to the jury without the knowledge and consent of defendant or his counsel requires reversal.   We agree and accordingly do not address defendant's other contention.

The People produced evidence that at approximately 11 p.m. on September 23, 1983, a dice game was in progress outside a market in Seaside.   Defendant and Steve Lofton were among eight people placing bets on the ground.   After Lofton lost his bet, he began to walk away from the game.   Defendant, who had just won his bet, accused Lofton of taking his money.   Lofton denied the accusation.   An argument followed and defendant shot Lofton with a small handgun.

Defendant denied shooting Lofton and presented an alibi defense.

Defendant contends he was denied his Sixth Amendment right to counsel when the trial court, without notifying either defendant or his counsel, directed the court reporter to enter the jury room and read a portion of the testimony to the jury.

In the instant case, the trial court had asked counsel if they would waive their presence in the event the jury, during deliberation, were to request that testimony be read.   Defense counsel stated he wished to be notified of the nature of any such request and indicated he might not waive his presence at any such reading.   Deliberations began at 2:10 p.m.   The clerk's minutes reflect that at 2:20 p.m., the trial court received a note from the jury requesting that Lofton's testimony regarding the ejection of the unused round from the handgun be read back.   Although the official record is silent on the point, the People appear to concede that neither defendant nor his counsel were notified of the jury's request and that the trial court nevertheless instructed the court reporter to enter the jury room and read the requested testimony to the jury.   Nothing appears in the record of oral proceedings regarding the jury's request.   There is no evidence as to which portions of the testimony were read or what transpired in the jury room.   The jury returned its verdict at 3 p.m.

 It is established that in a criminal case the trial court should communicate with the jury only in open court and after counsel has been notified.  (People v. Hogan (1982) 31 Cal.3d 815, 848–849, 183 Cal.Rptr. 817, 647 P.2d 93;  § 1138.) 2  Such a procedure is required in order to provide the parties with the opportunity to make a timely objection to any action considered irregular.  (Ibid.)

 As stated by the court in People v. Knighten (1980) 105 Cal.App.3d 128, 132, 164 Cal.Rptr. 96, ‘ [i]t is obviously critically important that a defendant and his [or her] attorney be permitted to participate in decisions as to what testimony is to be reread to the jury;  the essence of the error in this action is its tendency to deprive the defendant of his fundamental constitutional right to the assistance of counsel at this critical stage of the proceedings.  [Citations.]‘

Thus, any such error warrants application of the standard of reversibility set forth in Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.  ‘  ’[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' ‘  (Knighten, supra, 105 Cal.App.3d at p. 133, 164 Cal.Rptr. 96.)   In People v. Dagnino (1978) 80 Cal.App.3d 981, 146 Cal.Rptr. 129, the court discussed the Chapman standard in the context of violations of section 1138.   It stated that ‘prejudice will be presumed where the denial 'may have affected’ the substantial rights of the accused.   Only the 'most compelling showing' to the contrary will suffice to overcome the presumption, and courts will not engage in 'nice calculations' in making such a determination.‘  (Id., at p. 989, 146 Cal.Rptr. 129.)  (Emphasis in original.)

In People v. Knighten, supra, 105 Cal.App.3d 128, 164 Cal.Rptr. 96, the judge entered the jury room during deliberations to clarify the jury's request for readback of testimony.   The conversation was not reported and the defendant and his counsel were not present.   However, the trial court expressed its willingness in open court to have all the requested testimony read and defense counsel participated in the proceedings and was given the opportunity to make suggestions and objections.   Thus, the court concluded the error was harmless.

In People v. Dagnino, supra, 80 Cal.App.3d 981, 146 Cal.Rptr. 129, the trial court gave previously read instructions to the jury without the knowledge or consent of the defendants or their counsel.   This error was held reversible.

People v. Brew (1984) 161 Cal.App.3d 1102, 208 Cal.Rptr. 11, presents a factual situation quite similar to the instant case.   In Brew, the trial court directed the court reporter to read portions of the testimony to the jury during its deliberations, without the knowledge or consent of defense counsel.   The court reviewed the record of the entire testimony and found there was nothing which could possibly be considered prejudicial if read to the jury.   Applying the rule of Chapman, the court concluded the error was harmless.

 We cannot reach the same conclusion in the case before us.   Defense counsel had insisted on knowing the nature of the jury's request and indicated that he might insist on being present during the reading of testimony.   He never had the opportunity to discuss with the trial court which portions of the testimony were to be read back.   While the record describes the jury's request, it does not disclose which portions of the testimony were actually read to the jury.   More importantly, neither defendant nor his counsel was given the opportunity to be present at the reading in order to monitor its accuracy and manner.   Accordingly, we are unable, short of speculation, to find the error was harmless beyond a reasonable doubt.

The judgment is reversed.

I concur under compulsion of People v. Hogan (1982) 31 Cal.3d 815, 848–850, 183 Cal.Rptr. 817, 647 P.2d 93.

During deliberation, the jury requested that certain portions of the trial testimony be reread.   The jury had the right to make that request.   At the court's direction, the reporter complied.   There is not the slightest indication that he read anything other than precisely what was requested or that he favored the prosecution by grimace or emphasis.   But because the reading took place in the jury room without the express consent of the defendant and his counsel rather than in open court and in their presence, this was error.  (Pen. Code § 1138.)

What is the consequence of that gaffe?   Under California Constitution article 6, section 13 error must not trigger a reversal unless it results in a miscarriage of justice.  “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   Were we free to apply the Watson standard, this judgment would be affirmed in a minute.   But Hogan teaches that the error here involved entails a deprivation of the right to counsel and therefore is of federal Constitutional dimension.   Invoking the principle enunciated in Chapman v. State of California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, our Supreme Court held that such error is reversible unless the People prove it harmless beyond a reasonable doubt.1  Because harmlessness cannot be demonstrated on an empty record, this court of necessity has to reverse.   It is the thesis of this concurrence that the Chapman principle has been extended far beyond the dictates of reason and sound policy.

It is pertinent, I suggest, to recall the facts of Chapman.   In the face of the defendant's Constitutional right to remain silent, the prosecutor devoted his summation to an endlessly repeated exhortation that the jury should draw adverse inferences from the failure of a man on trial for murder to take the stand.   Who can possibly fault that holding?   But since then, the Chapman rule has been extended so as to govern the most improbable situations, of which the case at bench is one of the more farfetched.

A review of the countless decisions invoking Chapman demonstrates that the process by which this expansion has been accomplished is the logical fallacy called the false analogy.2  It is proper to reason:  “If P, then by analogy Q” only if the resemblances between P and Q are essential and the differences insignificant.3  When Mr. Escobedo,4 in handcuffs, was questioned by police with a view to securing a confession for murder, when his plaintive request to see counsel and his attorney's demand for admission were refused, he was deprived of the Constitutional right to counsel.   When indigent Mr. Gideon 5 was required to defend himself pro per against felony charges at a jury trial, he was deprived of the Constitutional right to counsel.

And the defendant in the case at bench?   What happened to him can, I suppose, be called a denial of the right to counsel, but it was as analogous to Escobedo and Gideon as overparking is to murder.   There is some resemblance between homicide and failing to feed the meter;  after all, both are crimes.   But the differences are so immense that nobody in his right mind would suggest that overparkers be imprisoned for life.   There may be some points of similarity between Escobedo and our case, but to assert that the error here is of Constitutional magnitude is to trivialize the Constitution.   The person vigilant to preserve our fundamental rights who learns that a criminal conviction is reversed because a court reporter reread some testimony in the jury room rather than in open court must fancy himself transported to the country of Erewhon 6 where criminals are hospitalized and the sick imprisoned.

Contrary to the premise implicit in so many California decisions, the overturning of a criminal conviction has grave consequences.   It is true that such reversal usually constitutes a direction for retrial rather than for the outright discharge of the defendant.7  But witnesses have disappeared and memories grown dim two, three or four years downstream.   The assistant district attorney who tried the case the first time around has left the office or has a caseload of greater immediacy.   The victim's trauma has healed;  her voice vibrant with pain at the original trial is now wooden in tone, her delivery unspontaneous.   On retrial, the time lag has produced deviations from the earlier version of the testimony which the cross-examiner attributes to fabrication.   The enormous cost of retrying a major case, both in money and commitment of personnel, weighs heavily in the balance.   It would be instructive to learn what percentage of felonies overturned by the appellate courts is actually retried rather than being dismissed or dealt out, and how many of those cases retried result in conviction for the same and not a lesser offense.

Because reversal often has such undesirable results it ought not lightly to be undertaken.   Such a step can be justified only in order to vindicate a policy even more compelling than that the rules cementing a civilized society must not be flouted, and that people who defy those rules should be brought to account.   Obviously, reversal is required where Constitutional rights have been violated, but I am certainly not referring to some peccadillo which can be brought under the umbrella of Constitutional error only by stretching similitude beyond recognition.   Reversal is also fitting where a servant of the king has acted ignobly.   It is appropriate, as well, where significant prejudice to a defendant is demonstrated, or where such prejudice is likely as a matter of common experience and the record does not permit the court to ascertain whether it has in fact occurred.   Only the last mentioned circumstance is even arguably involved here, but in fact neither prong of the test is met.

First.  While appellate courts have viewed informal communications with a jury as so pernicious that ‘’ ‘[o]nly the most compelling showing to the contrary will overcome the presumption’ [of prejudice]” (see e.g., People v. Hogan, supra, 31 Cal.3d 815, 849, 183 Cal.Rptr. 817, 647 P.2d 93;  People v. Dagnino (1978) 80 Cal.App.3d 981, 989, 146 Cal.Rptr. 129) the fact is that in my county of Santa Cruz the court reporter is routinely sent into the jury room to reread testimony after the defendant and his counsel memorialize their consent on the record.   In more than 20 years on the trial bench, I cannot recall a single instance of the defense declining to approve this procedure.   The last thing attorneys want is to sit in court while the reporter drones on for hours.   I have reason to believe that Santa Cruz is by no means alone.   My point is not that practice confers legitimacy but that able, experienced and conscientious criminal defense counsel would not adopt this course with such glee if they were apprehensive of prejudice to their clients.   I submit that the perceptions of trial judges and lawyers who labor in the pits are more reliable in this regard than those of appellate justices.

Second.  Switching the burden to the People to prove harmlessness is particularly distressing here because once the error has occurred there is no machinery available to the prosecution with which to meet that burden.8  On the other hand, if the onus of proving prejudice were placed on the person who asserts it, as mandated by the California Constitution,9 the defendant had twelve percipient and attentive witnesses whose declarations would have been competent on motion for new trial to establish the court reporter's misconduct or mistake, had there been any basis for such a claim.   (In re Stankewitz (1985) 40 Cal.3d 391, 397, 400, 220 Cal.Rptr. 382, 708 P.2d 1260;  People v. Hutchinson (1969) 71 Cal.2d 342, 346, 78 Cal.Rptr. 196, 455 P.2d 132.)   I note that defense counsel scheduled a motion for new trial and then abandoned it.10  Who can blame him?   Given the state of the law, he is better off not making the effort.


1.   All further statutory references are to the Penal Code unless otherwise noted.

2.   Section 1138 provides as follows:  ‘After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court.   Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.‘

1.   While only two justices joined in the relevant portion of the Hogan opinion (part IV), the dissenting justices also reviewed the error by the Chapman yardstick.

2.   “The argument by analogy is not necessarily a dishonest or crooked method of thought, although it is a dangerous one always requiring careful examination.․  To an extraordinary extent, otherwise intelligent people become convinced of highly improbable things because they have heard them supported by an analogy whose unsoundness should be apparent to an imbecile.”  (Thouless, Straight and Crooked Thinking, Simon & Schuster (1932) pp. 146, 157.)

3.   Castell, A College Logic, MacMillan (1947) pp. 59–60.

4.   Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

5.   Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

6.   Samuel Butler, Erewhon, The Modern Library Inc. (1927) Ch. X.

7.   Chief Justice Bird in a recent press conference has made this point with specific reference to capital cases.  (Los Angeles Daily Journal, November 27, 1985.)

8.   People v. Brew (1984) 161 Cal.App.3d 1102, 208 Cal.Rptr. 11 is an example of a court having to stretch and strain, in the face of the Chapman standard, in order to affirm a conviction which should be affirmed.   There the error was found to be harmless because only admissible testimony was reread in the jury room.   But you have not proved the absence of prejudice by demonstrating that one of several possible errors did not occur.   I therefore agree with my brethren's refusal to follow Brew.

9.   In his scholarly dissent in People v. Dagnino, supra, 80 Cal.App.3d 981, 990, 146 Cal.Rptr. 129, the late Justice Sims argued forcefully for applicability of the Watson standard.

10.   No contention is made that the defense was unaware of the error in time to bring it before the trial court on motion for new trial.   As the majority opinion states, the possibility of testimony rereading was discussed on the record.   Also, the jury's request for rereading of testimony was spread upon the minutes.

AGLIANO, Acting Presiding Justice.

O'FARRELL, J.*, concurs.

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