PEOPLE v. SILVA (1977)

Appellant was found guilty of burglary in the second degree.

Appellant's conviction is supported by circumstantial and physical evidence the sufficiency, or conclusiveness of which is not challenged on appeal.

Interpreters were used during trial since the appellant and a key witness spoke only Spanish.

Appellant contends that an instruction as to the interpreter¹ left the jury with the understanding that the interpretation rendered could not be challenged and that there was no necessity to call to the court's attention any discrepancy jurors might recognize between the testimony as spoken in Spanish and as interpreted into English.

A reading of the instruction does not support this contention. The instruction does not imply, as appellant contends, that interpreters are not subject to the rules of law relating to witnesses, as required by Evidence Code section 750. The instruction unequivocally states that any juror was free to speak up if he heard significant discrepancies between the original testimony in Spanish and the English translation. Accordingly, the instruction did not deny appellant the protection of Penal Code section 1120 which requires that any juror with ‘Personal knowledge respecting a fact in controversy in a case * * * must declare the same in open court during the trial.’ On the other hand, were jurors required to stop the trial to report any variance, however slight, it could interminably lengthen and confuse trials. The sensible rule that interpreters are allowed to edit, explain, or interpolate is well settled. (People v. Jackson (1959) 53 Cal.2d 89, 95, 346 P.2d 389.)

People v. Sarazzawski (1945) 27 Cal.2d 7, 161 P.2d 934 does not apply since by its terms it required the jurors to conceal any grounds for disqualification which they may have thought of after the completion of voir dire. In this case, the jury instruction allowed the bi-lingual jurors to bring significant inaccuracies and discrepancies to light.

Appellant contends that the denial of his request to augment the record on appeal to include non-reported jury instructions and final argument of counsel, prevents appellate counsel from raising all viable issues on appeal.

California Rules of Court, Rule 33, states that the judge may, upon request, order inclusion in the record of as much additional material as ‘in his opinion’ is proper to ‘present fairly and fully’ the points of appellant's arguments. An appellant, however, must demonstrate the relevance of the material he is seeking to the points he will raise on appeal. (People v. Hill (1967) 67 Cal.2d 105, 123, 60 Cal.Rptr. 234, 429 P.2d 586; People v. James (1969) 274 Cal.App.2d 608, 614, 79 Cal.Rptr. 182.)

The motion to augment the record with the court's oral instructions to the jury was made on the ground that since certain discrepancies existed between the transcript reporting the trial judge's initial instruction (CALJIC 1.00) to the jury, and the same instruction as contained in the Clerk's Transcript, it was necessary ‘* * * to determine if the oral version deviated once again from the written instructions' given to the jury at the conclusion of the case.

The deviations noted in the motion were and are not alleged to be prejudicial or even erroneous.

A comparison of the initial oral and written instructions shows that, if anything, the oral instructions were clearer and more comprehensible than the written version.

The motion to augment also sought the inclusion of the prosecutor's argument in the record because ‘final argument by the prosecutor is an area of other common errors which often require reversal.’ However, no specific instance of such improper argument was cited.

Appellate defense counsel contends that absent the requested augmentation he is ‘helpless' in that he cannot discharge his constitutional duty to effectively represent defendant without the augmented transcript.

As noted, the only inference which can fairly be drawn from the deviations in the initial oral instructions is that the trial judge's rendition of the balance of the instructions rendered them more understandable to the jury. Appellant was represented at trial by a seasoned deputy public defender. We cannot assume that the trial judge misread the instructions, and that the deputy public defender tolerated the error without objection, especially where appellate defense counsel has nothing to point to except an inference that leads to the conclusions that court and counsel performed their duties well. Nor is it appropriate to refer to the ‘track record of prosecutors' in supposedly making improper argument to the jury. Defendants in criminal prosecutions are not to be judged by the ‘track records' of other defendants and neither are prosecutors to be stigmatized by the errors of their colleagues.

Appellate defense counsel is to advance issues which are arguable. (People v. Feggans (1967) 67 Cal.2d 444, 447, 62 Cal.Rptr. 419, 432 P.2d 21.) Appellate counsel was free to discuss both the instructions and the argument ‘with trial counsel and with defendant’ (Herick v. Municipal Court (1970) 8 Cal.App.3d 967, 976, 87 Cal.Rptr. 646, 652) and we must assume he has done so. The absence of a factual showing underlying both the motion to augment and the arguments predicated upon its denial indicate that the motion was correctly denied and that, in fact, nc arguable issues were precipitated either by the oral instructions or the prosecutor's argument.

Appellant finally contends, relying on People v. Gloria (1975) 47 Cal.App.3d 1, 6, 120 Cal.Rptr. 534, [court reporter must make phonographic notes of judge's instructions] that the trial court committed reversible error by failing to require the court reporter to record the jury instructions as they were delivered. However, unlike in Gloria, prior to giving the instructions, defense counsel specifically agreed that it was not necessary to record them. Error, if any, was invited by defense counsel, and he is estopped from asserting it as a ground for reversal. (Bondulich v. O. E. Anderson Co. (1962) 210 Cal.App.2d 12, 17, 26 Cal.Rptr. 147.) Appellant is, of course, bound by his counsel's decision on a matter which is as completely of a procedural nature as the decision not to require the reporting of written instructions.

The judgment is affirmed.

FOOTNOTES

1.  ‘Now, if during the course of this trial any question or any problem should arise which you think you should communicate to me or the attorneys, you are not to do that, but you are to take it up with the bailiff. And then the bailiff will in turn take it up with me, and I will take it up with counsel and see if we can resolve whatever your problem might conceivably be.‘Now, in this case, as counsel has already pointed out to you, we are using a Spanish interpreter for the defendant.‘Some of you speak Spanish. If you should disagree with the interpretation that you hear being given, for example, don't make any comment about it.‘If you wish, you can then tell the bailiff about it. And he will take it up with me, and we will resolve it.‘But other than that, any other kind of problem which might come up, tell the bailiff about it. He is the liaison officer between you and the court.‘We will then discuss it. I will discuss it and counsel will discuss it and see if we can resolve whatever that problem is.’The foregoing instruction did not as appellant argues, deny ‘* * * appellant the opportunity to attack the competency of the testimony of two central witnesses [or] * * * the interpreter's competency’—it encouraged the jurors to raise questions and told them how to do it.

ROTH, Presiding Justice.

FLEMING and BEACH, JJ., concur.