People v. Triplett ( 2020 )

Filed 5/1/20
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B298914
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA461402)
v.
YOSAYA JOHNSON TRIPLETT,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of
Los Angeles County, Drew E. Edwards, Judge. Affirmed as
modified.
Lenore De Vita, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Idan Ivri and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of the Discussion post, parts A., B., and D.
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In the unpublished portion of this opinion, we reject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/Batson2 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.
1 Subsequent statutory references are to the Penal Code.
2People v. Wheeler (1978) 22 Cal. 3d 258 (Wheeler);
Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
2
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
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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.
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DISCUSSION
A. Denial of Defendant’s Wheeler/Batson Motion
Defendant contends that the trial court erred in denying
her Wheeler/Batson motion with respect to the prosecutor’s
peremptory challenges of two prospective female African-
American jurors. We disagree.
The following additional facts are relevant to this inquiry.
Defendant is an African-American woman who was
20 years old at the time of trial. Young is African-American
and was 21 years old at the time of trial. The jury venire
consisted of 40 people, three of whom were African-American.
Each African-American was female. The trial court excused one
of the three for cause before jury selection began. The remaining
African-American jurors were designated Juror No. 7 and
Juror No. 16.
During voir dire, the prosecutor asked the prospective
jurors: “Just by looking at [the defendant] here, is there anyone
else who thinks they might not be a fair juror because they
can’t imagine her committing an assault with a deadly weapon,
carjacking? Is there anyone who looks at her and can’t imagine
she would have done that and can’t be fair to the prosecution?”
Juror No. 7 responded: “You are saying for me to agree
that she didn’t do it by looking at her? I don't think she would
put her life—I don’t think she did it.”
The prosecutor then asked Juror No. 7: “[I]f I call
witnesses and I prove my case beyond a reasonable doubt,
would you be able to convict, or would this idea just by looking
at her that you can’t imagine her doing these things, would that
prevent you from convicting?” Juror No. 7 responded: “I haven’t
heard anything. I can’t answer that.”
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Juror No. 16 informed the court during voir dire that she
had brothers who had been charged with crimes similar to those
charged against defendant. She also had a cousin who had been
murdered five or six years earlier, and the police investigation is
“still going on.”
In response to the question, “do you know anybody who
has been treated badly by the police or the courts,” Juror No. 16
answered: “Yes. Just growing up in L.A.” When asked about
this comment, she explained: “A black woman in L.A. with young
black brothers, I have been harassed many times” by officers.
Juror No. 16 said there was nothing about these
experiences that would impact her ability to evaluate police
testimony or to be fair in this case.
The prosecutor used two of his first four peremptory
challenges to dismiss Juror No. 7 and Juror No. 16. Defense
counsel then made a Wheeler/Batson motion.
The trial court found that the defense had established a
prima facie case of impermissible group bias and prompted the
prosecutor to state his reasons for excusing the jurors.
The prosecutor stated the following regarding Juror No. 7:
The juror “indicated she grew up in Los Angeles in the Inglewood
area and lived there her entire life. She was single, worked
retail, had not been a member of a jury, and had not been a
victim of a crime. [¶] Upon more questioning, she expressed she
lived in Inglewood her entire life—which is similar and close to
the area of where this crime occurred in South Los Angeles. [¶]
She appeared to me to be a little young. I asked questions about
what her life experience would be. She works at the Los Angeles
airport working retail. When I asked her what retail, she said
normal convenience items. It is a place she would run into
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people. Not in a managerial position or a judgment position.
[¶] She seemed to be inexperienced to me. She did not attend
any college or advanced education after high school. I don’t
know if the court noticed, yesterday afternoon she was chewing
gum during the duration of the jury instruction. That, to me,
indicated some immaturity and disrespect for the court
proceedings. [¶] She also . . . said that it was difficult to believe
the defendant had committed this crime, assault with a deadly
weapon and attempted murder, just based on her looks and
her sitting here. [¶] I understand the court denied the People’s
motion to strike that juror for cause, but I think her feelings
about the defendant being here and being charged with the crime
might make her unfair to the People.”
Regarding Juror No. 16, the prosecutor stated the
following: “Juror number 16 indicated she lived in Leimert Park.
I believe she grew up in West L.A., married with no kids, a
registered nurse working in the emergency room. She does have
a managerial position and has been a charge nurse before. She
has not been a victim of a crime and has never served on a jury.
[¶] She said she had some relatives that were officers. She
grabbed my attention when she said some of her brothers had
been charged with similar crimes. That alone made me think I
may not want her on the jury. [¶] I tend to like jurors who have
not been a member of a jury at all. When my witnesses testify, I
want them to see testimony for the first time ever. [¶] She said
she had not talked to her brothers about the court cases or how
they turned out. I think she indicated to us the reason—or she
could be fair because she had no idea whether they were treated
fairly or not. [¶] To me, simply the fact that her brothers have
been charged with assault with a deadly weapon and attempted
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murder is one factor in the back of her mind when she listens to
how our officers have investigated this case and whether or not
the defendant is guilty in our case.”
The prosecutor further stated: “What really concerned
the People was her answer to the court’s question to number 16.
There are many people who have grown up in L.A. and may
feel like they could be fair, could not be fair, based on their
experience. Perhaps I haven't practiced here long enough.
I never heard a juror say as a response[,] ‘I can't be fair just
growing up in L.A.’ [¶] I understand what she means. When
I asked her, she clarified saying she is a black female. She has
been harassed. It sounds like she has seen both the good and
bad of society in general. In addition, her cousin was murdered.
Apparently, that investigation is still ongoing. [¶] She may be
a fair juror. I am not convinced of that mostly because of her
answer, ‘just growing up in L.A.,’ she might not be fair. Her
brothers were charged with similar crimes. That is the bulk
of the reason. [¶] In addition to that, although it is a smaller
reason, great bodily injury is an issue in our case. I know we do
have other nurses. Those nurses do not work in the emergency
room. This juror is in a position to see injuries that are more like
what we are going to see in our case relative to the other nurse
who works in the ICU or a nurse who works in surgery, which is
less of an emergency situation.”
The court then denied the defense Wheeler/Batson motion,
stating: “As to Juror [No.] 7, the one issue that stands out to me,
Juror [No.] 7 indicated she didn’t think the defendant looked like
a person who could be guilty in this case. In my judgment, that
is a very valid race neutral position. [¶] As to [Juror No.] 16,
as the People pointed out, just living in Los Angeles, she would
8
have bias against police officer testimony. She also indicated
she had brothers charged with a similar crime and a cousin who
was murdered. In my view, those are also very valid race neutral
reasons. [¶] For those reasons, the People have established race
neutral reasons for the exclusion of both jurors, [Juror No.] 7 and
Juror [No.] 16.”
Under Wheeler, supra, 22 Cal. 3d 258 and Batson, supra,
476 U.S. 79, the use of peremptory challenges to remove
prospective jurors solely on the basis of a group bias, such as
race or ethnicity, violates our state and federal constitutions.
(People v. Rhoades (2019) 8 Cal. 5th 393, 423.) In evaluating
a Wheeler/Batson motion, the trial court engages in a three-step
inquiry: First, the objecting party must make a prima facie
showing of prohibited group bias; second, the burden shifts
to the party who exercised the peremptory challenge to give a
nondiscriminatory reason; and third, the trial court evaluates
the proffered reasons and determines whether the objecting party
has proven purposeful discrimination. (People v. Silva (2001)
25 Cal. 4th 345, 384; Purkett v. Elem (1995) 514 U.S. 765, 767.)
“The ultimate burden of persuasion regarding [discriminatory]
motivation rests with, and never shifts from, the opponent of the
[peremptory challenge].” (People v. Lenix (2008) 44 Cal. 4th 602,
612–613 (Lenix).)
Here, the court found that defendant made a prima facie
showing of discrimination and defendant does not dispute that
the prosecutor proffered nondiscriminatory reasons for excusing
Jurors No. 7 and No. 16. Defendant’s challenge is to the court’s
third-step determination that the prosecutor’s reasons for
dismissing the two African-American women were race neutral.
9
At the third step, “ ‘the issue comes down to whether
the trial court finds the prosecutor’s race-neutral explanations
to be credible. Credibility can be measured by, among other
factors, the prosecutor’s demeanor; by how reasonable, or
how improbable, the explanations are; and by whether the
proffered rationale has some basis in accepted trial strategy.’
[Citation.] In assessing credibility, the court draws upon its
contemporaneous observations of the voir dire.” (Lenix, supra,
44 Cal.4th at p. 613, fn. omitted.)
“Review of a trial court’s denial of a Wheeler/Batson
motion is deferential, examining only whether substantial
evidence supports its conclusions. [Citation.] ‘We review
a trial court’s determination regarding the sufficiency of a
prosecutor’s justifications for exercising peremptory challenges
“ ‘with great restraint.’ ” [Citation.] We presume that a
prosecutor uses peremptory challenges in a constitutional
manner and give great deference to the trial court’s ability to
distinguish bona fide reasons from sham excuses. [Citation.]
So long as the trial court makes a sincere and reasoned effort
to evaluate the nondiscriminatory justifications offered, its
conclusions are entitled to deference on appeal.’ ” (Lenix, supra,
44 Cal.4th at pp. 613–614.)
The court’s conclusion that the prosecutor provided a
race-neutral reason for excluding Juror No. 7 is supported by
the record. The prosecutor stated, among other reasons, that he
excused Juror No. 7 because the juror indicated it was difficult
for her “to believe the defendant had committed this crime,
assault with a deadly weapon and attempted murder, just based
on her looks and her sitting here.” The reason is patently race
neutral and the court’s determination of its validity is supported
10
by the prosecutor’s question to the prospective jury panel—“[i]s
there anyone who looks at [the defendant] and can’t imagine
she would have done that”—and Juror No. 7’s response: “I don’t
think she did it.” It is certainly permissible for a prosecutor to
excuse a juror who does not think the defendant “did it” based on
the mere appearance of the defendant.
Defendant contends that the particular reason the court
found credible should have been rejected because it was part
of a “laundry list” of reasons the prosecutor offered. As our
Supreme Court has explained, a prosecutor who employs the
“ ‘laundry list’ approach” at the second step of a Wheeler/Batson
motion by “positing of multiple reasons, some of which, upon
examination, prove implausible or unsupported by the facts,
can in some circumstances fatally impair the prosecutor’s
credibility.” (People v. Smith (2018) 4 Cal. 5th 1134, 1157–1158.)
Trial courts should therefore “attempt to evaluate the attorney’s
statement of reasons as a whole rather than focus exclusively
on one or two of the reasons offered.” (Id. at p. 1158.) The court
is not, however, required “to make detailed comments on every
[stated] reason.” (Ibid.) “This is particularly true where the
prosecutor’s race-neutral reason for exercising a peremptory
challenge is based on the prospective juror’s demeanor, or
similar intangible factors, while in the courtroom.” (People v.
Reynoso (2003) 31 Cal. 4th 903, 919.)
Here, in addition to Juror No. 7’s statement that she did
not “think [the defendant] did it,” the prosecutor pointed to facts
disclosed during voir dire that the juror lived near the location
of the crime, was young and lacked life experience, and displayed
immaturity and disrespect to the court by chewing gum during
voir dire. Defendant has not explained how any of these
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additional reasons are implausible or factually unsupported, and
the absence of express findings by the court on each reason does
not require reversal.
Regarding Juror No. 16, the court, apparently based on
its own observations during voir dire, agreed with the prosecutor
that the juror indicated a bias against police officer testimony
“just living in Los Angeles.” The court also commented on the
fact that the juror has two brothers charged with similar crimes.
Both of these reasons, the court concluded, are “very valid race
neutral reasons.” The reasons are race neutral and supported by
the record. Juror No. 16 stated that she had “brothers” who had
been charged with crimes similar to the charged crimes in this
case. She further stated that she knows people who have been
treated badly by the police or courts, and that she has been
harassed many times as a Black woman with two young Black
brothers. The prosecutor can reasonably infer that a juror with
such experiences may be biased against police officers who testify
for the prosecution.
Defendant points out that Juror No. 16 said she has a
cousin and a brother who work in law enforcement and could be
fair despite her and her brothers’ experiences with police officers.
As our Supreme Court has explained, however, “[t]he fact that
the objector thinks his opponent should feel comfortable with the
candidate is not the relevant question. The question is whether
the advocate exercising the challenge had an honest and racially
neutral reason for doing so.” (People v. Hensley (2014) 59 Cal. 4th
788, 803.) The trial court found that the prosecutor had such a
reason, and the reason is supported by the record.
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Defendant also asserts that another person who was
ultimately selected to be on the jury and was not African-
American, was a nurse, as was Juror No. 16, and whose father
had been charged with assault on a police officer. The father’s
crime and trial took place before the juror was born, and he had
never been told “any bad stories” of the government or the police.
Significantly, the other juror did not report that he or she had
been harassed or had known anyone who had been treated badly
by police. Because the two jurors are materially dissimilar, we
reject the defendant’s argument.
For the foregoing reasons, defendant has failed to show
that the trial court erred in denying her Wheeler/Batson motion.
B. Sufficiency of the Evidence of Attempted
Murder
Defendant contends that the evidence is insufficient
to support the jury’s verdict of attempted murder. More
particularly, defendant argues that there is no substantial
evidence that defendant acted with the intent to kill Young.
We disagree.
“Attempted murder requires the specific intent
to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.” (People v. Lee
(2003) 31 Cal. 4th 613, 623.) “Because direct evidence of a
defendant’s intent rarely exists, intent may be inferred from
the circumstances of the crime and the defendant’s acts.”
(People v. Sánchez (2016) 63 Cal. 4th 411, 457.)
When a defendant challenges the sufficiency of the
evidence to support a judgment, “we review the whole record in
the light most favorable to the judgment to determine whether
it discloses substantial evidence—that is, evidence that is
13
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Stanley (1995) 10 Cal. 4th 764, 792–793.)
“[S]ubstantial evidence encompasses circumstantial evidence
and any reasonable inferences to be drawn from such evidence.”
(People v. Lopez (2013) 56 Cal. 4th 1028, 1070.)
A jury could reasonably conclude from the evidence that
defendant intended to kill Young. Although defendant’s knife
was relatively small, the location of the stabs—to the head, neck,
and torso—were vulnerable areas; even a knife with a two-inch
blade could have caused Young’s death. In addition to the
multiple stabbings in vulnerable areas, defendant told Young as
she choked her that Young was “[f]ittin’ to die bleeding,” then left
her alone in the street as she fled. Rational jurors could conclude
that these acts, viewed in their entirety, established defendant’s
intent to kill beyond a reasonable doubt.
Defendant contends that the evidence is insufficient to
support the jury’s finding of intent to kill because the evidence
“established the knife and the frenzied stabbings were a
completely unplanned reaction to the highly-emotional situation
created when appellant saw [Young] leaving the home of
[defendant’s] boyfriend Faizon.” The fact that defendant carried
a knife into the fight, she argues, does not justify a finding of
intent to kill because she was armed “for defensive purposes.”
The incident, she concludes, was merely “a physical altercation
between two young women and once the first punch was thrown
it escalated to the point where [defendant] found it necessary
to jab at [Young] with a small knife.” The argument is based
on a view of the evidence favorable to the defense, contrary
to our standard of review. When, as here, “ ‘the circumstances
14
reasonably justify the jury’s findings, the judgment may not be
reversed simply because the circumstances might also reasonably
be reconciled with a contrary finding.’ ” (People v. Letner and
Tobin (2010) 50 Cal. 4th 99, 162.)
Defendant further asserts that “it was significant that
during deliberations the jury asked the trial court for a clearer
definition of ‘intent’ in regard to attempted murder.” Defendant
also refers us to the fact that the jury requested defendant’s and
Young’s testimony as an indication that the jury “struggle[d] over
the ‘intent’ element.” Although the jury’s question and request
may suggest that the jury had difficulty making its finding
of intent, our task is limited to determining whether there is
substantial evidence to support the finding it ultimately made,
and here there was.
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
15
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
3The 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.)
16
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 (Cox), disapproved on
another ground in People v. Doolin (2009) 45 Cal. 4th 390, 421,
fn. 22 (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 [only reasonable interpretation of jury’s request
for transcript during deliberations was that jury sought a
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 (Butler).)
5Defendant 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.
17
reading of the transcript]; accord, Smith v. Shankman (1962)
208 Cal. App. 2d 177, 184; People v. York (1969) 272 Cal. App. 2d
463, 465 (York).)
In Smith v. Shankman, supra, 208 Cal. App. 2d 177, the
jury asked a court bailiff during deliberations for the transcript
of the defendant’s testimony. (Id. at p. 181.) 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.) 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.) Smith’s
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reasoning was adopted and applied under similar facts in a
criminal case in York, supra, 272 Cal.App.2d at pages 465–466.
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
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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 (Frye), disapproved
on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22;
People v. Litteral (1978) 79 Cal. App. 3d 790, 797.) 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; accord, People v. Lucas (2014) 60 Cal. 4th
153, 301 (Lucas), disapproved on another ground in People v.
Romero and Self (2015) 62 Cal. 4th 1, 53–54, fn. 19.) 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,
disapproved on another ground in People v. Martinez (2010) 47
Cal. 4th 911, 948, fn. 10; People v. Roberts (1992) 2 Cal. 4th 271,
326 (Roberts); People v. Ainsworth (1988) 45 Cal. 3d 984, 1020
(Ainsworth).) Under that standard, we will reverse the judgment
only if, after an examination of the entire cause, it is reasonably
20
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 (Watson).) The defendant has the burden of
demonstrating prejudice under this standard. (Roberts, supra,
2 Cal.4th at p. 326; Lucas, supra, 60 Cal.4th at p. 263.)
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.) In evaluating prejudice, courts
have considered juror communications regarding the reason
for the readback request (see id. at pp. 277–279, 284) and the
reviewing court’s own evaluation of the testimony (see Frye,
supra, 18 Cal.4th at p. 1008, Ainsworth, supra, 45 Cal.3d at
p. 1020).
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
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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), 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,
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.) The trial court denied the request and
directed the jurors to “ ‘do your very best to arrive at a verdict
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based on the information that you have’ ” (id. at p. 279, italics
omitted)—a direction the Court of Appeal described as amounting
to “jury coercion” (id. at p. 283). 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.)
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.)
Defendant has failed to do so here.
D. Correction of Minute Order and Imposition of
Assessments
The jury found not true the enhancement allegation
that, in the commission of the carjacking, defendant personally
inflicted great bodily injury upon Young within the meaning
of section 12022.7. A minute order reflecting the verdicts,
however, incorrectly states that the jury found that allegation
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true. Defendant requests that we direct the court to correct
the clerical error. The People agree. We will so direct.
The court imposed a single court facilities assessment
of $30, pursuant to Government Code section 70373,
subdivision (a)(1), and a single court operations assessment
of $40, pursuant to section 1465.8, subdivision (a)(1). The
People contend, and defendant does not dispute, that the court
was required to impose these fees for each of the three felonies
of which defendant was convicted and that the sentence must
be corrected accordingly. We agree. (See People v. Hicks (2019)
40 Cal. App. 5th 320, 324; People v. Roa (2009) 171 Cal. App. 4th
1175, 1181.)
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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.
CERTIFIED FOR PARTIAL PUBLICATION.
ROTHSCHILD, P. J.
We concur:
BENDIX, J. WEINGART, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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