People v. Litteral

• Citation: 79 Cal.App.3d 790,145 Cal.Rptr. 186
• Decision Date: 14 March 1978
• Docket Number: Cr. 15604
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James Norman LITTERAL, Defendant and Appellant.
• Court: California Court of Appeals

Page 186

145 Cal.Rptr. 186

79 Cal.App.3d 790

PEOPLE of the State of California, Plaintiff and Respondent, v. James Norman LITTERAL, Defendant and Appellant.

Cr. 15604.

Court of Appeal, First District, Division 3, California.

March 14, 1978.

Hearing Denied June 1, 1978.

Paul N. Halvonic, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Ezra Hendon, Tanya Neiman, Deputy State Public Defenders, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen. Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Laurence M. May, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

TERRY, ^* Associate Justice.

Defendant, James N. Litteral, appeals his conviction for second degree burglary.

San Rafael police officer Fahy, while on patrol, saw and recognized codefendant Hickey and Gordon West on Second Street in the late evening hours of January 25, 1976. Officer Fahy parked his patrol car near an open convenience store, anticipating the arrival of Hickey and West in that area. When they did not arrive, he returned to Second Street, stopped and talked to West. The officer's attention was directed to a nearby auto painting shop, where he saw two persons inside. They stooped down and then started running. Officer Fahy radioed for assistance and with his partner, officer Dougherty, went to the rear of the building. As Fahy was looking for the suspects, officer Dougherty called his attention to a suspect coming out of a window. At trial, Dougherty described the individual exiting the window as being 5' 8"' to 6' tall, 150-160 pounds, wearing a three-quarter length dark green jacket, Levi-type pants and black shoes. The suspect also had collar length hair. A few minutes later, the defendant was arrested by a third officer when he was found crouched behind a nearby fence. He was wearing a pair of Levis, denim shirt, an olive green drab jacket, and black shoes.

Officer Fahy returned to the auto body shop and called for the other suspect to come out. Hickey came out and was arrested for burglary. At the trial, the defendant testified that he had been visiting his girlfriend who lived nearby and had left her residence after an argument. He intended to meet his friend Hickey and West at the convenience store and was coincidentally at the place where he was arrested when he was seeking a private place to relieve himself.

The defendant was charged with codefendant, Frank M. Hickey, in an information filed February 24, 1976, with violation of Penal Code section 459. Jury trial commenced April 19, 1976.

The jury was instructed and commenced its deliberation at 4:49 p. m. on April 27, 1976. It adjourned for the evening recess at 6 o'clock on the same day and resumed its deliberations at 9:30 the next morning. At 10:25 a. m., April 28, the court received a note from the foreman indicating a consensus of opinion that no unanimous verdict could be reached. The court further instructed the jury and ascertained that further deliberations might be productive in reaching a verdict. Thereafter, the following exchange occurred:

"THE FOREMAN: While we are here, could we have some testimony read back?

THE COURT: I was afraid of that. The reporter who took all of the testimony in the case is ill today, and there's just no way we can do it.

THE COURT: You will just have to rely on your memories. If there is any further discussions or anything else that you want I can give you that, but there is just no way I can get the testimony for you.

Well, I am going to ask you to resume your deliberations. Bear in mind that what I have said about the importance of considering the other fellow's point of view, and if, after you have done that you honestly can not reach a verdict, let me know. But at least give it a try.

THE FOREMAN: Okay."

The jury then retired for further deliberation at 10:55 a. m. and at 2:35 p. m., the same day, returned verdicts finding both defendants guilty of second degree burglary.

Among the contentions advanced by defendant, which we will sustain, is that the trial court committed prejudicial error by refusing the jury's request, midway in its deliberations, for the rereading of testimony.

Relying upon Penal Code section 1138 and People v. Butler (1975), 47 Cal.App.3d 273, 120 Cal.Rptr. 647 (hearing denied), appellant contends that reversible error occurred when the court refused to take the steps necessary to obtain a rereading of the testimony requested by the jury.

Penal Code section 1138 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 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."

In Butler, the trial court refused a request to reread the testimony of five witnesses on the ground that it would have been the equivalent of a retrial, since those were the primary witnesses in the case. The Butler court concluded that the error was reversible and noted that

" . . . No attempt was made by the court to attempt a narrowing down to portions of the particular witnesses' testimony in order to satisfy the jury's request (see, People v. Gordon (1963) 222 Cal.App.2d 687 (35 Cal.Rptr. 335)) or to "pinpoint" what the jurors wanted (see, People v. Sprinkle (1962) 201 Cal.App.2d 277 (19 Cal.Rptr. 304)). Had such attempts been made, successfully, it is at least conceivable that the court and counsel, acting together, might have been able to reach stipulations as to the testimony or to prepare a summary for the jury, as was done in People v. Dreyer (1945) 71 Cal.App.2d 181 (162 P.2d 468), where compliance with a jury request would have required four hours to read the requested testimony. Absent strong supervision by the trial court, and in the face of an outright rejection of the jury's request, the appellate court is put in that position that we cannot say, or even speculate, what effect the rereading of the requested testimony would have had or what effect was created by the failure to reread that testimony." (Butler, supra, at p. 281, 120 Cal.Rptr. at p. 651.)

In the present case too, the trial court rejected the request without explaining possible alternatives. The court merely stated "there is just no way I can get the testimony for you."

Several cases have dealt with the problem that arises when the court suggests that the requested testimony could be read at some later time but the jury continues to deliberate and reaches a verdict before the rereading had taken place. (People v. Gonzales (1968) 68 Cal.2d 467, 67 Cal.Rptr. 551, 439 P.2d 655; People v. Warren (1900) 130 Cal. 678, 63 P. 87; People v. Slaughter (1917) 33 Cal.App. 365, 165 P. 44.) In none of these cases did the court actually deny a request by the jury for the rereading of testimony.

In People v. Stafford (1973), 29 Cal.App.3d 940, 106 Cal.Rptr. 72, the jury made a late hour request to read a substantial portion of the testimony. The trial court stated that because of the lateness of the hour and the fact that no overnight lodgings were available for them a mistrial would have to be called unless the jury decided to continue deliberating without a rereading of the testimony. The jury decided to retire and shortly returned with a verdict. The Stafford court upheld the judgment on the ground that the defendant had been deprived of no substantial right by the court's expression of the true facts of the situation, including the fact that he would have to exercise his right to declare a mistrial. The court also noted that the record did not show the statutorily required "disagreement" among the jurors as to the testimony to be read. In Stafford, the jury was given the choice of being discharged or deliberating further, whereas the court in the present case directed the jurors to continue to deliberate. We do not suggest that it was at all improper to admonish a jury that had deliberated for only two hours after four days of trial to renew their efforts in deliberating towards a verdict. However, in the present case, the admonitions to the jury were coupled with an outright refusal to reread the requested testimony together with an inquiry as to the jurors' numerical division.

"On these facts, it is proper to characterize the trial court's action as one of jury coercion as opposed to a helpful attempt to accede to the jury's request in a manner reasonable under the exigencies of the situation . . . " (People v. Butler, 47 Cal.App.3d 273, 283, 120 Cal.Rptr. 647, 652.)

The People contend that the defendant waived any error in the judge's refusal to reread. It is true that defendant's counsel failed to object, to request a...