Opinion
WOODS (Fred), J. Before trial appellant admitted two alleged felony convictions—a 1991 robbery conviction in Los Angeles County and a 1988 receiving stolen property conviction in Ohio. After trial, a jury convicted appellant of robbery (Pen. Code,1 § 211), and he was sentenced to an 11-year state prison term.
On appeal, appellant contends the trial court erred by conferring with the jury in the absence of defense counsel and by coercing the jury’s verdict. We find defense counsel expressly waived his presence during testimony read-back, the one jury question answered by the trial court in the absence of defense counsel was answered correctly and if error, was harmless, and there was no jury coercion. We affirm the judgment.
Factual Background
There being no insufficiency of evidence claim, the facts may be stated simply. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [228 Cal.Rptr. 228, 721 P.2d 110].)
About 7 p.m. on September 28, 1992, Robert Rosen, the victim, went to Hunter’s, a gay bar in West Hollywood. Within two or three minutes appellant approached the victim and said something to him. Even though appellant was standing only about two feet in front of the victim he couldn’t understand what appellant said because the music was very loud. The victim, who didn’t want to talk to appellant, said he had to go home, got up, and started to leave. Appellant preceded him out of the bar.
As the victim walked toward the parking lot where his car was parked, appellant and a Black man with a turban stood on the parking lot steps. When the victim tried to walk between them appellant said “You are going to have to give it up,” grabbed the victim, got him in a headlock, and dragged him into the alley by the bar. The Black man punched the victim in the face. The victim struggled and yelled but appellant and the Black man took his wallet.
[248]Robert Burns, whose apartment was in the Hunter’s Bar building, heard the struggle and looked out his kitchen window but couldn’t see the victim or his assailants. Because he continued to hear the sounds of someone being beaten, Mr. Burns yelled “Stop it—I have already called the Sheriff.” He then saw appellant and the Black man walk from the alley into view, stop, and look to see where the yell had come from. They stood about 10 feet away in the well-lighted walkway for 30 to 40 seconds, looking directly at Mr. Burns’s dark window.
Appellant and the Black man then left.
The police responded to the robbery scene, obtained descriptions of the robbers from the victim and Mr. Burns, but were unable to find the robbers.
Appellant was arrested in the neighborhood a few days later, on October 2, when the victim saw appellant and contacted the police. Appellant first gave a false name to the police before giving his true name.
The victim was positive in his identification of appellant who was six feet four inches, had a blond ponytail, and was usually with his transvestite lover, Robert Salas, a stocky Hispanic with a high pompadour who sometimes wore spandex pedal pushers and a halter top. The victim had seen appellant two days before the robbery when appellant was with Robert Salas in Hunter’s Bar. The victim had also seen appellant in the neighborhood after the robbery, on October 1 near Plummer Park and again by a bus stop where appellant robbed a middle-aged man (Edmund Tyler) and again on October 2 when appellant was with Robert Salas.
Mr. Burns was equally positive in his identification of appellant. He too had seen appellant before and after the robbery, twice before the robbery when appellant was hugging and kissing Robert Salas and once after the robbery when appellant suddenly approached him at a bus stop.
Appellant did not testify. The defense consisted of the preliminary hearing testimony of Edmund Tyler that he was robbed on October 1 by someone at least six feet three inches, quite blond, with pronounced cheekbones and he didn’t think appellant was the robber. Robert Salas also testified that he was “always” with appellant on September 28, the robbery date, but couldn’t remember if appellant might have left the Sunset 8 Motel that evening to go to the store.
[249]Discussion
1. Trial court conferring with jury in absence of defense counsel
Appellant contends the trial court erred twice, first by having a “dialogue with the jurors about [their requested] readback” and second by answering a juror’s question—both in the absence of defense counsel.
This is what occurred. On March 16, when the jury began deliberations, defense counsel informed the trial court (in Santa Monica) he had a case trailing for trial in Pomona but wanted to be available if the instant jury had questions. Defense counsel requested the trial court to order him not to become engaged in trial on March 17. The trial court issued the order.
Despite the order, on March 17 defense counsel did become engaged in trial in Pomona2 and thus was unavailable when the jury requested witness readback.
On March 17, in open court, out of the presence of the jury, with appellant and the prosecutor present, the trial court informed the parties of the jury’s readback request. Tlie trial court also stated “I have spoken to Mr. Catalano [defense counsel] who has said to me that its agreeable with him to simply send the reporter into the jury room to read the testimony that the jury has requested.” The trial court indicated he made defense counsel “aware of what [the jury] ha[d] requested” and had “discussed” the matter with defense counsel.
The trial court then asked if this procedure was agreeable with the prosecutor and with appellant. Both said it was. Notwithstanding appellant’s personal acceptance of this procedure, the trial court asked appellant if he would like to talk to defense counsel on the phone “about this.” When appellant said he would, the trial court stated the “[r]ecord will indicate I’m calling Mr. Catalano in Pomona to give his client the opportunity to speak with him . . . [and] I have now put Mr. Neufer on the line with Mr. Catalano.”
After a pause in the proceedings, while appellant spoke with his attorney, the trial court again asked appellant if the readback procedure, without the presence of defense counsel, was acceptable to him. Appellant said it was.
The trial court had the jury brought into court and read aloud their note, as follows: “We, the jury in the above entitled action, request the following: 1. Testimony of Edmund Tyler. 2. Mr. Rosen’s testimony in Hunter’s Bar and as he left the premises.”
[250]The trial court then asked, “this request about Mr. Rosen’s testimony, are you requesting the testimony from the beginning up to what point?” The requesting juror [Ms. Martinez] answered “[f]rom inside the bar to the back of the gate. Just—just before he was mugged” and confirmed it was “[w]hen he got to the top of the stairs from—leading to the parking lot.”
Having determined what testimony the jury wanted read, the trial court explained to the jury the procedure that would be followed: the court reporter who reported Mr. Rosen’s testimony would go into the jury room with them and read the requested testimony, the jury would listen, take notes if they cared to but not engage in discussions with each other, that court reporter would leave the jury room, the reporter who reported Mr. Tyler’s testimony would enter the jury room and read his testimony, that reporter and the alternate jurors would then leave the jury room, and the jurors would resume their deliberations.
Immediately following this explanation Juror Gordon said she had a question and this colloquy occurred.
“Juror Gordon: Well, I had the question about Mr. Tyler’s testimony, but also I wanted to know in the legal way that discrepancies in the testimony, is that enough cause for a reasonable doubt.
“The Court: That’s something for the juror to decide.
“Juror Gordon: Okay.
“The Court: I can only refer you to the instruction that deals with discrepancies between one witness’ testimony and another. It outlines it’s something to be considered, whether it’s a fact of importance or a trivial detail, that you have to consider. It’s up to you to make those decisions.”
We now consider appellant’s claim that the trial court erred by bringing the jury into the courtroom, asking them what part of Mr. Rosen’s testimony they wanted read, and explaining the readback procedure to them. Appellant asserts “the waiver of counsel’s presence did not extend farther than for the trial court to ‘simply send the reporter into the jury room to read the testimony that the jury has requested.’ ” Appellant’s claim does not bear scrutiny.
[251]Section 11383 prescribes that when a jury wants testimony read or a legal question answered they shall be “conducted] . . . into court.” The trial court, by bringing the jury into the courtroom, merely complied with this statutory mandate.
As to the trial court asking the jury what part of Mr. Rosen’s testimony they wanted read, there was no error. As the trial court indicated, it had informed defense counsel of the jury’s request and discussed that request with defense counsel. Because the request concerning Mr. Rosen’s testimony was obviously unclear (“Mr. Rosen’s testimony in Hunter’s Bar and as he left the premises"), defense counsel, by agreeing to have the requested testimony read in his absence, also agreed to have the trial court determine what readback testimony was requested. Such jury request clarifications are both common and essential. Under the instant circumstances it defies common sense to suggest defense counsel agreed to the requested readback but not to determining what readback was requested. The improbability of this suggestion is underscored by defense counsel’s failure to object to the trial court’s clarification when defense counsel was present the next morning, March 18, or afternoon (when the verdict was received), or 12 days later, March 30, át the probation and sentence hearing.4
Similarly, defense counsel impliedly agreed to having the trial court explain the readback procedure to the jury in his absence. That explanation was designed to protect appellant’s rights by ensuring, for example, the jury did not conduct deliberations in the presence of the court reporter. Such explanations are also common and essential and defense counsel made no objection to the explanation at any post-readback proceeding.
The second claimed error—the trial court’s answering Juror Gordon’s question concerning discrepancies and reasonable doubt—is another matter. We agree with appellant that defense counsel’s consent to having testimony read back in his absence did not embrace having jury questions— not yet asked or formulated—answered in his absence. Section 1138 (see fn. 3) requires that counsel be given notice of information requested by the jury. The trial court, by answering the juror’s question without first notifying [252]defense counsel, failed to comply with the statute. The question is whether that failure was prejudicial or harmless.
As our Supreme Court observed: “The standard of review in assessing the impact of an improper communication between the court and a deliberating jury is not clear.” (People v. Hawthorne (1992) 4 Cal.4th 43, 68, fn. 14 [14 Cal.Rptr.2d 133, 841 P.2d 118].) Because Hawthorne declined to resolve the issue we apply the more onerous review standard: whether the error was harmless beyond a reasonable doubt. (Ibid.) We are satisfied the error was harmless.
The trial court’s response to Juror Gordon’s question was balanced, neutral, and correct. It referred the juror to the appropriate CALJIC instruction (CALJIC No. 2.21.1) which addressed discrepancies in testimony. The answer also correctly synopsized the instruction by noting that whether a discrepancy is important or trivial is something to be considered. Finally, the trial court’s response correctly told the jury that “It’s up to you to make those decisions.”
Defense counsel, at subsequent trial court proceedings, did not object to the trial court’s response and appellate counsel does not fault the response. Rather, appellate counsel speculates about what the trial court did not say: “Had trial counsel been present to discuss the response to be given, instructions focusing the jury’s attention upon the issue of identification and the prosecution’s burden to prove appellant’s guilt beyond a reasonable doubt could have been offered.”
Appellant mistakes the function of the trial court. Its function is to provide the jury with applicable law (CALJIC No. 17.31), not to intimate what the facts are (CALJIC No. 17.30), nor suggest what instructions deserve “jury focus” (CALJIC No. 17.31).
The trial court fully and correctly instructed the jury, including instructions concerning reasonable doubt5 (CALJIC No. 2.90), eyewitness identification (CALJIC Nos. 2.91, 2.92), and discrepancies in testimony (CALJIC No. 2.21.1 (mod.)).
We hold that the trial court’s error in answering the juror’s question in the absence of defense counsel was harmless beyond a reasonable doubt. (See [253]People v. Jennings (1991) 53 Cal.3d 334 [279 Cal.Rptr. 780, 807 P.2d 1009] [trial court, ex parte, explained hung jury procedure to the jury; error not prejudicial]; People v. Conrad (1973) 31 Cal.App.3d 308 [107 Cal.Rptr. 421] [prosecutor’s opening statement read to new juror in defendant’s absence; error not prejudicial]; People v. Stewart (1983) 145 Cal.App.3d 967 [193 Cal.Rptr. 799] [jury requests specified instructions be reread slowly; trial court, without notice to counsel, sends all instructions, replete with cross-outs, into jury room; error not prejudicial]; People v. Bloyd (1987) 43 Cal.3d 333 [233 Cal.Rptr. 368, 729 P.2d 802] [both counsel, but not defendant, stipulate court reporter may read defendant’s testimony to jury in jury room; error not prejudicial]; People v. Brew (1984) 161 Cal.App.3d 1102 [208 Cal.Rptr. 11] [during deliberations the jury requested that certain testimony be read to them; the trial court, without notice to counsel or to the defendant, had the testimony read; error not prejudicial]; People v. Hovey (1988) 44 Cal.3d 543 [244 Cal.Rptr. 121, 749 P.2d 776] [requested testimony read to jury in counsel’s presence but defendant’s absence; error not prejudicial]; People v. Lang (1989) 49 Cal.3d 991 [264 Cal.Rptr. 386, 782 P.2d 627] [counsel stipulated that requested testimony (including defendant’s) could be read to jury in their absence; no personal waiver from defendant; error not prejudicial]; People v. Douglas (1990) 50 Cal.3d 468 [268 Cal.Rptr. 126, 788 P.2d 640] [requested testimony read to jury in counsel’s presence but defendant’s absence; error not prejudicial].)
2. Jury coercion
On the morning of March 18, after slightly more than one day of deliberation, the jury sent a note to the trial court indicating it was hung. The note also disclosed that 5 votes had been taken with the numerical count changing from 6-3-3 to 10-1-1 to 11-1. The note further disclosed, in violation of the trial court’s instruction,6 that the 11-to-l vote favored guilt.
The trial court, in the presence of appellant and counsel, questioned the foreperson about the five jury votes and their numerical division. The trial court made clear it did not want the foreperson to disclose whether the division favored guilty or not guilty and no such oral disclosure was made. Immediately after the foreperson reported the 11-to-l vote the trial court stated, “The jury will retire and resume their deliberations.” That afternoon the jury returned their guilty verdict.
Appellant contends the trial court coerced the jury’s verdict by having them resume deliberations after he learned their last 11-to-l vote favored guilt. Appellant is mistaken.
[254]First, by failing to object, promptly or at all, appellant waived any error. (Evid. Code, § 353; see People v. Saunders (1993) 5 Cal.4th 580, 589-591 [20 Cal.Rptr.2d 638, 853 P.2d 1093].)
Second, there was no coercion. “The applicable legal principles are well established. Under section 1140, the trial court is precluded from discharging the jury without reaching a verdict unless both parties consent or ‘unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.’ We have explained that ‘[t]he determination whether there is reasonable probability of agreement rests in the sound discretion of the trial court. [Citation.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment “in favor of considerations of compromise and expediency.” [Citation.]’ . . . [ft] No improper coercion occurred here. The trial court made no coercive remarks and exerted no undue pressure on the minority juror to change his vote.” (People v. Sheldon (1989) 48 Cal.3d 935, 959 [258 Cal.Rptr. 242, 771 P.2d 1330] internal citations omitted [during penalty phase jury informed the trial court it was deadlocked in favor of death 11-1; no error in having jury resume deliberations and arrive at verdict of death]; see also United States v. Akbar (9th Cir. 1983) 698 F.2d 378.)
Disposition
As respondent correctly notes appellant has been credited with one more custody day credit than he was entitled to. Accordingly, the abstract of judgment is ordered modified by correcting “268” days’ total custody to 267, and “89” good time days to 88. As modified, the judgment is affirmed.
Lillie, P. J., concurred.
Statutory references, unless otherwise noted, are to the Penal Code.
No explanation for this occurrence is provided in the record.
The section reads: “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.”
Appellant’s suggestion that had defense counsel been present he might have urged portions of cross-examination be read back is refuted by the record. The cross-examination of Mr. Rosen was unrelated to the jury request. It merely confirmed the positiveness of Mr. Rosen’s identification of appellant as the person who had robbed him.
As Justice Johnson wisely observed for this unanimous court, “ ‘Well intentioned efforts to “clarify” and “explain” these [reasonable doubt] criteria have had the result of creating confusion and uncertainty, and have repeatedly been struck down by the courts of review of this state.’ ” (People v. Rubalcava (1988) 200 Cal.App.3d 295, 300 [246 Cal.Rptr. 75], quoting People v. Garcia (1975) 54 Cal.App.3d 61, 63 [126 Cal.Rptr. 275].)
The trial court stated, “I’m not going to read the communication because it sets forth the jury division, which it should not. As I indicated in my instructions, you are not to communicate, until specifically directed to do so, how you are divided on any issue. Not even to me.”