We therefore conclude that the trial court did not err by allowing the prosecution
to impeach defendant with evidence that he took a car without the owner’s permission.
II
JURY INSTRUCTIONS REGARDING READBACKS OF TESTIMONY
Defendant contends that the trial court improperly discouraged the jury from
requesting a readback.
A. Additional Factual and Procedural Background.
Immediately after the jurors were sworn, the trial court pointed out to them that
they had notebooks. It told them that they had no obligation to take notes, but that doing
so would help them remember the evidence. It then said:
“[E]verything that is said in the courtroom is captured by the court reporter. It’s
called a verbatim record. . . . And so obviously all the testimony that you hear is going to
be captured in that verbatim record. And as you go out and deliberate, if you hit a sticky
patch, and to help you get through that, if you want some testimony read to you, you have
a right to have it read back to you so that maybe that will push you through that sticky
patch. I frown on that request. And I say that to every jury that I have ever been
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associated with. He just said we have that right, now he frowns on it. What’s going on
here?
“Well, when you’re out deliberating, I’m going to get something else to do. . . .
And that case is entitled to a verbatim record, and my court reporter is going to be taking
down everything we say in that case. So when you make a request, then we have to stop
doing what we’re doing in that other matter, she has to get her rough notes, put it in a
booklet-type form, then physically read it to you. So make no mistake, we’re here to
help. When you’re out deliberating, if you need it, you’re going to get it. But if I tell you
now the value of you taking your own notes on what you think is important, maybe we
can avoid that later as you’re out deliberating.”
At the close of trial, the trial court instructed the jury: “The court reporter has
made a record of everything that was said during the trial. If you decide it is necessary,
you may ask that the court reporter’s record be read to you.” (CALCRIM No. 222.)
The jury took three hours and 10 minutes to reach a verdict. (This may have
included a break for lunch.) The jurors did not request any readbacks.
B. Discussion.
Penal Code section 1138, as relevant here, provides: “After the jury have retired
for deliberation, if there be any disagreement between them as to the testimony, . . . they
must require the officer to conduct them into court. Upon being brought into court, the
information required must be given . . . .”
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“[Penal Code s]ection 1138 gives deliberating jurors the right to rehear testimony
. . . on request. [Citation.] It also implicates a defendant’s fair trial rights. [Citations.]”
(People v. Solomon (2010) 49 Cal.4th 792, 824.)
A refusal of a reasonable request for a readback is error. (People v. Litteral (1978)
79 Cal.App.3d 790, 794-797; People v. Butler (1975) 47 Cal.App.3d 273, 280-284.)
However, “[m]erely informing the jury of the time it may take for rehearing testimony is
not impermissible jury coercion. [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th
469, 506-507.)
For example, in People v. Anjell (1979) 100 Cal.App.3d 189, disapproved on other
grounds in People v. Mason (1991) 52 Cal.3d 909, 942-943, the jurors requested a
readback of three witnesses’ testimony. (People v. Anjell, supra, at p. 202.) The trial
court responded: “‘[Y]ou are entitled to have the testimony of any or all of the witnesses
read to you . . . . However, many times I have found that jurors do not understand the
length of time that would be involved in reading it and I thought I would explain it to you
now.
“‘The reporter has checked her notes, and to read Detective Fonda’s testimony
would take about an hour and a half to two hours. To read Mr. Harper’s testimony would
take about three to three and a half hours. To read Miss Schneider’s testimony would
take one to one and a half hours. So you can see that if you add up those three you have
got an awful lot of hours of testimony. Now that is not to say that you can’t have that if
that’s what you need in your deliberations. . . . And what I am going to ask you to do is
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retire to the jury room and have a discussion as to what you need and then you write me
another note and let me know and whatever it is that the jury decides they need, that’s
what you’re entitled to have if you need it. . . .’” (People v. Anjell, supra, 100
Cal.App.3d at p. 202, fn. 4, italics in original.)
The appellate court held: “A fair reading of the comments . . . shows no violation
of [Penal Code] section 1138. They went no further than to inform the jurors of the time
involved in rereading the requested testimony, so that they could make a knowledgeable
decision as to whether they desired to hear it. The court did not attempt to discourage a
reading, and in fact emphasized that the jurors were ‘entitled’ to have the testimony
reread if they felt it was needed. [Citation.]” (People v. Anjell, supra, 100 Cal.App.3d at
pp. 202-203.) “Because the trial judge stressed the facts that a rereading of testimony
was both feasible and would be ordered if requested . . . , his comments concerning the
length of time involved cannot properly be characterized as ‘coercion.’” (Id. at p. 203.)
Similarly, in this case, the trial court truthfully explained that a readback was a
somewhat time-consuming process that had an impact on other court business. Plainly its
central point was that, if the jurors took notes diligently, they were less likely to need a
readback. And while the court did say that it “frowned on” readback requests, because
they were time-consuming, it never indicated that it would not honor them. To the
contrary, it said repeatedly that a readback would be given if requested. It repeated this
yet again in its final instructions.
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“‘A defendant challenging an instruction as being subject to erroneous
interpretation by the jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant. [Citations.]’ [Citation.]”
(People v. Solomon, supra, 49 Cal.4th at p. 822.) Defendant has shown no reasonable
likelihood that the challenged instructions dissuaded the jurors from requesting a
readback.
III
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION RAMIREZ P. J.
We concur:
MILLER J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the conduct underlying a prior felony conviction is admissible for impeachment purposes if it involves moral turpitude and is not more prejudicial than probative under Evidence Code section 352. Additionally, the court held that a trial judge's comments regarding the time-consuming nature of testimony readbacks did not constitute improper jury coercion.
Issues
Whether the trial court erred by allowing the prosecution to impeach the defendant with the facts underlying a prior felony conviction.
Whether the trial court improperly discouraged the jury from requesting a readback of testimony.
Disposition. affirmed
Quotations verified verbatim against the opinion
“We therefore conclude that the trial court did not err by allowing the prosecution to impeach defendant with evidence that he took a car without the owner’s permission.”
“Defendant has shown no reasonable likelihood that the challenged instructions dissuaded the jurors from requesting a readback.”