PEOPLE v. TRIPLETT (2020)

A jury convicted defendant Yosaya Johnson Triplett of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),¹ carjacking (§ 215, subd. (a)), and attempted murder (§§ 211, subd. (a), 664). The jury also found true allegations that defendant personally inflicted great bodily injury in the commission of the assault and attempted murder. (§ 12022.7, subd. (a).) The court sentenced defendant to a prison term of 11 years 8 months.

During jury deliberations, the court denied the jury's request for transcripts of testimony of certain witnesses and defense counsel's request to inform the jurors that they could have the testimony read back to them. In the published portion of this opinion, we hold that the court erred by denying defense counsel's request. We further hold that, under the circumstances in this case, the error was harmless.

In the unpublished portion of this opinion, we reject defendant's contentions that the trial court erred in denying his Wheeler/Batson ² motion during jury selection and that the evidence was insufficient to support the attempted murder conviction. We also agree with defendant that a clerical error in a sentencing minute order must be corrected, and agree with the People that the defendant's sentence must be corrected to include certain assessments.

We affirm the judgment as modified to correct the sentence.

FACTUAL AND PROCEDURAL SUMMARY

A. Prosecution Evidence

In September 2017, defendant was living with her boyfriend, Donnie Faizon, at the home of Faizon's uncle, Russell Allen. On the evening of September 8, 2017, while defendant was working at a nightclub, Dalilah Young visited with Allen and Faizon at Allen's home.

Young testified that she left Allen's home at 11:30 p.m. and crossed the street to her car. A truck or sports utility vehicle pulled up close to her car. As Young got into her car and put her key into the ignition, defendant got out of the other vehicle, walked to Young's car, and pulled the car door open. When Young stepped out of the car, defendant stabbed Young in the head with a knife with a two-inch blade.

Young “fought back” in “[s]elf-defense.” During the fight, defendant stabbed Young repeatedly, inflicting wounds in Young's temple, cheek, wrist, neck, and the side of her torso. Defendant grabbed Young's phone from her car and threw it into the street. Defendant then began to choke Young, and told her, “Look at you bitch. Fittin’ to die bleeding and shit.”

Defendant got in the driver's seat of Young's car and drove forward and backward, hitting parked cars. When Young grabbed the driver's car door, defendant drove forward, causing Young to hit the ground. Defendant then drove away in Young's car.

Young returned to Allen's residence and Allen called 911.

Young was hospitalized for a week as a result of the injuries she suffered in the assault. Lacerations from the eight stab wounds varied in length from one-third of an inch to three inches. One cut pierced Young's lung and could have been fatal if untreated. The other lacerations were superficial.

Young's car was located five months later in a parking lot, vandalized and damaged.

B. Defense Evidence

Defendant testified that on the night of the incident her grandfather picked her up from the nightclub where she worked. As they pulled up to Allen's home, Young opened the car door, pulled defendant out by her hair, and began beating her. Defendant pulled a knife from her waistband and stabbed Young to defend herself. Defendant then ran upstairs and told Allen to call an ambulance because she had stabbed “this girl outside.” Defendant waited for the ambulance, then left with her grandfather, who took her to her mother's home and then to a motel.

Defendant explained that she keeps the knife with her because she carries large amounts of cash when she comes home from her work at a nightclub and she lives in a “rough” area. She denied that she threw Young's phone or took her car.

DISCUSSION

A.-B.**

C. Jury's Request for Trial Transcripts

During jury deliberations, the jury asked the court for “transcripts of witnesses: D[a]lilah Young and Yosaya Johnson Triplett.” (Capitalization omitted.) The court informed counsel that it intended to respond by informing the jury: “If you have a specific question about witness testimony, ask the question. The jury will not receive transcripts of testimony.”

Defense counsel did not object to the denial of transcripts as such, but asked if “the court [would] let them know they could have readback.” The court stated that doing so would be “verging on [in]vading the jury's province.” The jurors had been instructed under CALCRIM Nos. 202 and 222 that they “are entitled to have readback of testimony,” the court noted, and “it would be inviting error to tell them they can ask for readback, as they have been instructed as to that in two prior jury instructions.”³

After some colloquy among the court and counsel, the court stated: “I am going to make a ruling[.] I am going to give the jury the note that I intended. The jury, in my view, has been instructed they are entitled to readback. If they want readback they can simply ask for it.” The court then responded to the jury, stating: “If you a [sic] specific question about witness testimony ask the question. The jury will not receive transcripts of testimony.” The court submitted this response to the jury at 10:50 a.m. on the second day of deliberations. The jurors asked no further questions of the court and, at 11:37 a.m., the jury informed the court that it had reached a verdict.

On appeal, defendant argues that the court should have either provided the jury with the requested testimony via readback or reminded the jury to consult the instructions given under CALCRIM Nos. 202 and 222—which informed the jurors that they could request a readback of trial testimony.

Both sides point to section 1138 as the statutory authority governing the issue. That section provides: “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.”⁴ (§ 1138.) Our Supreme Court has held that section 1138 requires the trial court to “ ‘ “satisfy requests by the jury for rereading of testimony.” ’ ” (People v. Cox (2003) 30 Cal.4th 916, 968, 135 Cal.Rptr.2d 272, 70 P.3d 277 (Cox), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, 87 Cal.Rptr.3d 209, 198 P.3d 11 (Doolin).)⁵

As the People point out, the jurors did not request a rereading of testimony; they asked for the transcripts of the testimony. Defendant interprets the request more broadly—“Yes, the jury used the term ‘transcripts’ but the record makes clear the jury wanted to consider the testimony again. It wanted to ‘know the words’ of the two most important witnesses, [defendant] and the alleged victim.” We agree with defendant. There is no conceivable purpose for requesting the transcripts other than to review and consider the words the witnesses spoke. (See James v. Key System Transit Lines (1954) 125 Cal.App.2d 278, 283, 270 P.2d 116 [only reasonable interpretation of jury's request for transcript during deliberations was that jury sought a reading of the transcript]; accord, Smith v. Shankman (1962) 208 Cal.App.2d 177, 184, 25 Cal.Rptr. 195; People v. York (1969) 272 Cal.App.2d 463, 465, 77 Cal.Rptr. 441 (York).)

In Smith v. Shankman, supra, 208 Cal.App.2d 177, 25 Cal.Rptr. 195, the jury asked a court bailiff during deliberations for the transcript of the defendant's testimony. (Id. at p. 181, 25 Cal.Rptr. 195.) The bailiff informed them they could not have it. (Ibid.) This was error because the bailiff was not permitted to communicate with the jurors on a matter other than to determine whether they had reached a verdict. (Id. at p. 184, 25 Cal.Rptr. 195.) Relevant here is the court's discussion of prejudice. “Although it is true,” the court explained, “that the bailiff was technically correct in instructing the jurors that the written transcript itself could not be given to them, it does not follow that his misconduct was of no consequence. ‘While the jury's action did not constitute in so many words a request for a reading of some portion of the transcript, such action can reasonably be interpreted only as such a request․’ [Citation.] Had the bailiff properly deferred action on the jury's request until the trial judge had returned ․, the jury could then have been brought into open court ․ and the judge could have inquired whether they desired to have portions of the relevant testimony reread. As a result of the bailiff's failure to follow this procedure, the jury's request for the transcript was denied in such a manner as to indicate that there was no alternative method by which they could review testimony which they obviously considered important.” (Ibid.) If, however, the court had been informed of the request and “offered to have the relevant testimony reread to the jury, it is entirely possible, as a practical matter, that its verdict might have been affected.” (Id. at p. 185, 25 Cal.Rptr. 195.) Smith’s reasoning was adopted and applied under similar facts in a criminal case in York, supra, 272 Cal.App.2d at pages 465–466, 77 Cal.Rptr. 441.

Neither side has referred us to any California decision factually on point. The Supreme Court of Florida, however, addressed the issue under similar circumstances in Hazuri v. State (Fla. 2012) 91 So.3d 836 (Hazuri). In that case, the jury asked the trial court if “ ‘they get transcripts from the trial.’ ” (Id. at p. 839.) Defense counsel requested the trial court “ ‘advise them that they have a right to have the transcript read back.’ ” (Ibid.) The court rejected the request, stating: “ ‘Certainly portions of the record could be read, however, I do believe that the accurate and correct response is that they must rely on their own collective recollection of the evidence and we will answer the question that way.’ ” (Ibid.) The jury returned a guilty verdict, and the Florida Supreme Court reversed.

The Hazuri court held that “when a jury requests trial transcripts, the trial judge should deny the request, but inform the jury of the possibility of a read-back.” (Hazuri, supra, 91 So.3d at p. 846.) The court explained that “a jury cannot properly fulfill its constitutionally mandated role [as factfinder] if it cannot recall or is confused about the testimony presented in a case. Thus, in order to assist the jury in completing its fact–finding mission, trial courts should apply a liberal construction to a jury's request for transcripts. In other words, a jury's request for transcripts of testimony should prompt a judge to inform the jury of the potential availability of a read–back of testimony.” (Id. at p. 845.) “Whether a jury asks for transcripts of witness testimony or rather uses the term ‘read–back,’ ” the court continued, “it is clear that the jury is requesting a review of trial testimony. A jury is composed of laypersons often unfamiliar with legal terms of art, and there should be no magic words required for a read-back request, especially when the intent of the jury's request for transcripts is clear. Failing to require further instruction concerning a read–back after a jury has requested transcripts leaves the jury without the means to refresh its memory of witness testimony—testimony that could be critical to the outcome of the verdict.” (Ibid., fn. omitted.) We find this reasoning persuasive and hold that the court in this case erred in construing the jury's request narrowly as a request for transcripts—not a request for a readback of testimony—and in failing to inform or remind the jury of their right to a readback of testimony.

This error requires reversal only if prejudice is shown. (People v. Frye (1998) 18 Cal.4th 894, 1007, 77 Cal.Rptr.2d 25, 959 P.2d 183 (Frye), disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22, 87 Cal.Rptr.3d 209, 198 P.3d 11; People v. Litteral (1978) 79 Cal.App.3d 790, 797, 145 Cal.Rptr. 186.) Although defendant contends that “the error is of federal constitutional dimension,” our Supreme Court has held that errors in the readback requirement are errors of state law that do not implicate federal constitutional rights. (See, e.g., Cox, supra, 30 Cal.4th at p. 968, 135 Cal.Rptr.2d 272, 70 P.3d 277; accord, People v. Lucas (2014) 60 Cal.4th 153, 301, 177 Cal.Rptr.3d 378, 333 P.3d 587 (Lucas), disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53–54, fn. 19, 191 Cal.Rptr.3d 855, 354 P.3d 983.) Because the error is a violation of state law, prejudice is determined under the Watson standard. (People v. Box (2000) 23 Cal.4th 1153, 1214, 99 Cal.Rptr.2d 69, 5 P.3d 130, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10, 105 Cal.Rptr.3d 131, 224 P.3d 877; People v. Roberts (1992) 2 Cal.4th 271, 326, 6 Cal.Rptr.2d 276, 826 P.2d 274 (Roberts); People v. Ainsworth (1988) 45 Cal.3d 984, 1020, 248 Cal.Rptr. 568, 755 P.2d 1017 (Ainsworth).) Under that standard, we will reverse the judgment only if, after an examination of the entire cause, it is reasonably probable that defendant would have obtained a more favorable result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836–837, 299 P.2d 243 (Watson).) The defendant has the burden of demonstrating prejudice under this standard. (Roberts, supra, 2 Cal.4th at p. 326, 6 Cal.Rptr.2d 276, 826 P.2d 274; Lucas, supra, 60 Cal.4th at p. 263, 177 Cal.Rptr.3d 378, 333 P.3d 587.)

Whether the denial of a readback of testimony is prejudicial depends upon the circumstances of the particular case. (Butler, supra, 47 Cal.App.3d at p. 284, 120 Cal.Rptr. 647.) In evaluating prejudice, courts have considered juror communications regarding the reason for the readback request (see id. at pp. 277–279, 284, 120 Cal.Rptr. 647) and the reviewing court's own evaluation of the testimony (see Frye, supra, 18 Cal.4th at p. 1008, 77 Cal.Rptr.2d 25, 959 P.2d 183, Ainsworth, supra, 45 Cal.3d at p. 1020, 248 Cal.Rptr. 568, 755 P.2d 1017).

Here, defendant points out that “the testimony requested was that of the key witnesses in the case”—Young and defendant—and argues that the refusal to read back their testimony “affected the outcome and verdict, and as such, it is reasonably probable that a result more favorable to appellant would have occurred had the requested testimony been reread.” The argument, however, is conclusory and asserted without citation to the record or evaluation of the evidence adduced at trial. Even were we to consider the entirety of the testimony of both witnesses, defendant has failed to show that the outcome at trial would have been different given the utter implausibility of defendant's testimony.

Although defendant testified that her multiple stabbings of Young were in self-defense, her explanation is implausible. Defendant's uncorroborated testimony implies that Young was lying in wait for defendant to arrive home and decided to assault defendant, without a weapon, in the presence of defendant's grandfather. After the assault, defendant remained in the area while police and paramedics tended to Young, but she never reported Young's alleged assault of her, preferring, she explained, to wait until the police came to her one or two weeks later. Although she was living at Allen's home with Faizon at the time, she left the scene that night to go, eventually, to a motel. Such behavior is inconsistent with being the victim of an assault and supports Young's version that defendant was the aggressor. Young's testimony, by contrast, provided a coherent and plausible narrative of events that was consistent with the prosecution's theory that defendant attacked Young in a fit of jealous rage upon seeing Young leaving her boyfriend's home.

In short, whatever the jury's disagreement or confusion prompting it to request the transcript, a readback of the testimony would only have made obvious the porous quality of defendant's defense and confirmed Young's testimony that defendant was the aggressor. Stated differently, after reviewing the transcripts as part of our “ ‘examination of the entire cause’ ” (Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243), we are of the opinion that if the testimony had been read to the jury, it is not reasonably probable the result would have been more favorable to the defendant. The error, therefore, was not prejudicial.

Defendant relies on Butler, supra, 47 Cal.App.3d 273, 120 Cal.Rptr. 647, in which the Court of Appeal held that an erroneous denial of a jury's request to reread the testimony of five witnesses was prejudicial. Significantly, the jury foreman in that case, in making the request for the readback, explained that “ ‘[s]ome of [the testimony] was so faint we couldn't really hear it correctly, clear.’ ” (Id. at p. 278, 120 Cal.Rptr. 647.) The trial court denied the request and directed the jurors to “ ‘do your very best to arrive at a verdict based on the information that you have’ ” (id. at p. 279, 120 Cal.Rptr. 647, italics omitted)—a direction the Court of Appeal described as amounting to “jury coercion” (id. at p. 283, 120 Cal.Rptr. 647). Under these circumstances, the Court of Appeal held that the error was prejudicial because “the outright refusal of the jury's request committed the jury to the questionable task of reaching its decisions on the basis of incomplete evidence imperfectly heard.” (Id. at p. 284, 120 Cal.Rptr. 647.)

Here, by contrast, our record does not reveal what prompted the jury's request for transcripts and there is no reason to believe that any juror was unable to hear or understand the testimony during trial. Moreover, in denying the request for transcripts, the court in this case informed the jurors that they could ask any specific question they had about witness testimony. The fact that no question was thereafter posed implies that whatever prompted the request for transcripts was either resolved or ultimately unnecessary to the jury's decision.

Defendant also asserts that the People “cannot establish the error was harmless.” As stated above, however, errors in failing to comply with section 1138's readback requirement are errors of state law for which defendant must demonstrate prejudice. (See Ainsworth, supra, 45 Cal.3d at p. 1020, 248 Cal.Rptr. 568, 755 P.2d 1017.) Defendant has failed to do so here.

D. Correction of Minute Order and Imposition of Assessments ***

DISPOSITION

The court shall issue a minute order correcting nunc pro tunc to April 18, 2019, the minute order issued that date to reflect the jury's not true finding as to the allegation that the defendant personally inflicted great bodily injury upon Young in the commission of the carjacking charged in count 2 of the information.

The judgment is modified such that a $30 court facilities assessment, pursuant to Government Code section 70373, subdivision (a)(1), and a $40 court operations assessment, pursuant to Penal Code section 1465.8, subdivision (a)(1), is imposed as to each of the three counts of which defendant stands convicted. The court shall issue a minute order reflecting this modification, amend the abstract of judgment accordingly, and send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

As modified, the judgment is affirmed.

FOOTNOTES

1.   Subsequent statutory references are to the Penal Code.

2.   People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (Batson).

3.   The court had given the following two instructions relevant to this issue: “ ‘If there is a disagreement about the testimony at trial, you may ask that the court reporter's record be read to you’ ”; and “ ‘The court reporter has made a record of everything that was said during the trial. If you decide that it is necessary, you may ask that the court reporter's [sic] be read to you. You must accept the court reporter's record as accurate.’ ” (See CALCRIM Nos. 202 & 222.)

4.   Although the statute's text indicates that a “disagreement” among the jurors is a prerequisite to the right provided by the statute, jurors have the right to have testimony read to them even without a showing of disagreement. (People v. Butler (1975) 47 Cal.App.3d 273, 280, 120 Cal.Rptr. 647 (Butler).)

5.   Defendant does not contend that the court erred by refusing to provide the requested transcripts of testimony to the jury. We do not, therefore, express any view on that question.

ROTHSCHILD, P. J.

We concur: BENDIX, J. WEINGART, J.†