P. v. Klein CA5

Filed 6/4/13 P. v. Klein CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F064628 Plaintiff and Respondent, (Super. Ct. No. 1412323) v.

DOUGLAS WAYNE KLEIN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. John D. Freeland, Judge. Michael L. Pinkerton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jeffrey Grant, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Gomes, J. and Peña, J.

Defendant and appellant Douglas Wayne Klein contends the trial court prejudicially erred in suggesting to the deadlocked jury that it might find helpful, among other things, asking for a readback of any trial testimony requested by any juror. We conclude the court‟s comments were neutral and did not intrude into the jury‟s deliberations. Accordingly, we affirm the judgment. FACTS AND PROCEDURAL HISTORY A jury found defendant guilty of one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)) and found that defendant engaged in substantial sexual conduct with his preteen victim. (See Pen. Code, § 1203.066, subd. (a)(8).) The court sentenced him to the lower term of six years in prison. At the trial, the jury sent a note out to the judge after it had deliberated for approximately five hours, reporting that “we cannot come to agreement on the first charge [i.e., the continuous sexual abuse charge]. We are not in agreement to move on [i.e., to lesser included offenses].” The court conferred with counsel and called the jury back into the courtroom.1 The court advised the jury: “[W]hat the Court has found is that sometimes a lunch break or an evening recess is helpful in the jury focusing on the issues that they need to focus on. Sometimes it‟s not helpful. I think what would be best, given the amount of time invested in this case, is if you folks come back tomorrow to continue your deliberations. [¶] … There were several witnesses that testified. There‟s been no request for read back. Is there any -- do any of you feel that there is any witness read back that might be helpful in discussing the issues in the case?” A juror replied, “Possibly,” and identified the victim (identified as Jane Doe) as the witness in question.