People v. Knighten

• Decision Date: 22 April 1980
• Docket Number: Cr. 19195
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. Jay Donald KNIGHTEN, Defendant and Appellant.

Page 96

164 Cal.Rptr. 96

105 Cal.App.3d 128

THE PEOPLE, Plaintiff and Respondent, v. Jay Donald KNIGHTEN, Defendant and Appellant.

Cr. 19195.

Court of Appeal, First District, Division 4, California.

April 22, 1980.

As Modified May 2, 1980.

Rehearing Denied May 16, 1980.

Hearing Denied June 19, 1980.

Quin Denvir, State Public Defender, Phyllis J. Hamilton, Deputy State Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen. of the State of California, Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Robert R. Granucci, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CHRISTIAN, Associate Justice.

Jay Donald Knighten appeals from a judgment of imprisonment which was rendered after a jury found him guilty of sale of cocaine (Health & Saf.Code, § 11352).

There is no challenge to the sufficiency of the evidence. The prosecution's evidence may be summarized as showing that a citizen volunteer, Alison Seever, arranged through a police officer Schepp, for police surveillance of a planned cocaine transaction between appellant and Seever. Appellant sold cocaine to Seever and was immediately arrested. The jury rejected appellant's entrapment defense.

The information contained allegations that appellant had suffered two prior felony convictions. At first, appellant denied the priors. At a later hearing, the court ruled that the priors would not be admissible for the purpose of impeachment (see People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1) but that they could be used for the purpose of enhancing the penalty if appellant were found guilty. Before trial commenced, appellant admitted the priors.

On appeal appellant contends, citing In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, that the admission of priors was ineffective because the court did not expressly and specifically inform appellant of the constitutional rights being waived by an admission and because there was no advice concerning the precise increase in penalty which might result. (See In re Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.) The record supports this contention. The Attorney General points out that the validity of the priors was contested in pretrial hearings, and suggests an inference that appellant must have been aware of his rights and of the adverse consequences of admitting the priors. Yurko does not permit use of such a process of inference to dispense with the requirement that an explicit statement of rights and of the consequences of any ensuing waiver must be placed in the record. The priors resulted in a two-year enhancement of appellant's term. Hence, it cannot be held that the error was not prejudicial. (See People v. Fisk (1975) 50 Cal.App.3d 364, 123 Cal.Rptr. 414.) The cause must therefore be remanded to the trial court for further proceedings to determine the validity of the alleged prior convictions. (See In re Sanchez (1979) 89 Cal.App.3d 631, 152 Cal.Rptr. 681.)

Appellant also contends that it was error for the trial judge to enter the jury room, during deliberation, ostensibly to clarify a request from the jury for rereading of certain testimony. The judge's conversation in the jury room was not reported and appellant and counsel were not present. Unquestionably the procedure adopted by the trial judge was error: Any private communication between judge and jury is improper (cf. Paulson v. Superior Court (1962) 58 Cal.2d 1, 7, 22 Cal.Rptr. 649, 372 P.2d 641; People v. Woods (1950) 35 Cal.2d 504, 512, 218 P.2d 981; People v. Alcalde (1944) 24 Cal.2d 177, 189, 148 P.2d 627; People v. Fiore (1959) 176 Cal.App.2d 536, 540, 1 Cal.Rptr. 351), and, in context, the communication in this action also directly violated Penal Code section 1138. ¹ It is obviously critically important that a defendant and his attorney be permitted to participate in decisions as to what testimony is to be reread to the jury; the essence of the error in this action is its tendency to deprive the defendant of his fundamental constitutional right to the assistance of counsel at this critical stage of the proceedings. (Cf. People v. Dagnino (1978) 80 Cal.App.3d 981, 986, 146 Cal.Rptr. 129; In re Lopez (1970) 2 Cal.3d 141, 145, 84 Cal.Rptr. 361, 465 P.2d 257; United States v. Wade (1967) 388 U.S. 218, 224-225, 87 S.Ct. 1926, 1930-1931, 18 L.Ed.2d 1149.) The potential significance of the error is arguably sufficient to negate the waiver which would otherwise be implicit in appellant's failure to make any objection in the trial court, either when the judge first disclosed the communication or as part of appellant's subsequent motion for a new trial. (Cf. People v. House (1970) 12 Cal.App.3d 756, 765-766, 90 Cal.Rptr. 831, disapproved as to unrelated issue in People v. Beagle, supra, 6 Cal.3d at p. 451, 99 Cal.Rptr. 313, 492 P.2d 1; Hale v. Morgan (1978) 22 Cal.3d 388, 394, 149 Cal.Rptr. 375, 584 P.2d 512.) It remains to be determined whether the error requires reversal.

Because the error implicit in private communication between judge and jury at a critical stage of the proceedings is of constitutional dimension, the applicable standard of reversibility is that stated in Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705: "(B)efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Application of the Chapman standard to cases such as this was analyzed in People v. Dagnino, supra, 80 Cal.App.3d 981, 146 Cal.Rptr. 129. While denial of counsel at the critical stage of a criminal proceeding is not prejudicial as a matter of law, prejudice will be presumed if the denial may have affected the substantial rights of the accused. Only the most compelling showing to the contrary will overcome the presumption. The court must be able to declare a belief the denial of counsel was harmless beyond a reasonable...