People v. Neufer

• Decision Date: 21 November 1994
• Docket Number: No. B075521,B075521
• Citation: 30 Cal.App.4th 244,35 Cal.Rptr.2d 386
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marc Lance NEUFER, Defendant and Appellant.

Page 386

35 Cal.Rptr.2d 386

30 Cal.App.4th 244

The PEOPLE, Plaintiff and Respondent, v. Marc Lance NEUFER, Defendant and Appellant.

No. B075521.

Court of Appeal, Second District, Division 7, California.

Nov. 21, 1994.

As Modified Dec. 1, 1994.

[30 Cal.App.4th 246] Elinor Dejez Burton, under appointment by the Court of Appeal, Van Nuys, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Senior Asst. Atty. Gen., Pamela C. Hamanaka, Supervising Deputy Atty. Gen., and Emilio E. Varanini IV, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

Before trial appellant admitted two alleged felony convictions--a 1991 robbery conviction in Los Angeles County and a 1988 receiving stolen property conviction in Ohio. After trial, a jury convicted appellant of robbery On appeal, appellant contends the trial court erred by conferring with the jury in the absence of defense counsel and by coercing the jury's verdict. We find defense counsel expressly waived his presence during testimony readback, the one jury question answered by the trial court in the absence of defense counsel was answered correctly and if error, was harmless, and there was no jury coercion. We affirm the judgment.

(PEN.CODE, § 211)¹, and he was sentenced to an 11-year state prison term.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim, the facts may be stated simply. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

At about 7 p.m. on September 28, 1992, Robert Rosen, the victim, went to Hunter's, a gay bar in West Hollywood. Within two or three minutes appellant approached the victim and said something to him. Even though appellant was standing only about two feet in front of the victim he couldn't understand what appellant said because the music was very loud. The victim, who didn't want to talk to appellant, said he had to go home, got up, and started to leave. Appellant preceded him out of the bar.

As the victim walked toward the parking lot where his car was parked, appellant and a black man with a turban stood on the parking lot steps. When the victim tried to walk between them appellant said "You are going to have to give it up," grabbed the victim, got him in a headlock, and dragged him into the alley by the bar. The black man punched the victim in the face. The victim struggled and yelled but appellant and the black man took his wallet.

Robert Burns, whose apartment was in the Hunter's Bar building, heard the struggle and looked out his kitchen window but couldn't see the victim or his assailants. Because he continued to hear the sounds of someone being beaten, Mr. Burns yelled "Stop it--I have already called the Sheriff." He then saw appellant and the black man walk from the alley into view, stop, and look to see where the yell had come from. They stood about 10 feet away in the well lighted walkway for 30 to 40 seconds, looking directly at Mr. Burns' dark window.

Appellant and the black man then left.

The police responded to the robbery scene, obtained descriptions of the robbers from the victim and Mr. Burns, but were unable to find the robbers.

Appellant was arrested in the neighborhood a few days later, on October 2, when the victim saw appellant and contacted the police. Appellant first gave a false name to the police before giving his true name.

The victim was positive in his identification of appellant who was 6'4"', had a blond pony-tail, and was usually with his transvestite lover, Robert Salas, a stocky Hispanic with a high pompadour who sometimes wore spandex pedal pushers and a halter top. The victim had seen appellant two days before the robbery when appellant was with Robert Salas in Hunter's Bar. The victim had also seen appellant in the neighborhood after the robbery, on October 1 near Plummer Park and again by a bus stop where appellant robbed a middle aged man (Edmund Tyler) and again on October 2 when appellant was with Robert Salas.

Mr. Burns was equally positive in his identification of appellant. He too had seen appellant before and after the robbery, twice before the robbery when appellant was hugging and kissing Robert Salas and once after the robbery when appellant suddenly approached him at a bus stop.

Appellant did not testify. The defense consisted of the preliminary hearing testimony of Edmund Tyler that he was robbed on October 1 by someone at least 6'3"', quite blond, with pronounced cheekbones and he didn't think appellant was the robber. Robert Salas also testified that he was "always" with appellant on September 28, the robbery date, but couldn't remember if appellant might have left the Sunset 8 Motel that evening to go to the store.

DISCUSSION

1. Trial court conferring with jury in absence of defense counsel

Appellant contends the trial court erred twice, first by having a "dialogue with the jurors about [their requested] readback" and second by answering a juror's question--both in the absence of defense counsel.

This is what occurred. On March 16, when the jury began deliberations, defense counsel informed the trial court (in Santa Monica) he had a case trailing for trial in Pomona but wanted to be available if the instant jury had questions. Defense counsel requested the trial court to order him not to become engaged in trial on March 17. The trial court issued the order.

Despite the order, on March 17 defense counsel did become engaged in trial in Pomona ² and thus was unavailable when the jury requested witness readback.

On March 17, in open court, out of the presence of the jury, with appellant and the prosecutor present, the trial court informed the parties of the jury's readback request. The trial court also stated "I have spoken to Mr. Catalano [defense counsel] who has said to me that its agreeable with him to simply send the reporter into the jury room to read the testimony that the jury has requested." The trial court indicated he made defense counsel "aware of what [the jury] ha[d] requested" and had "discussed" the matter with defense counsel.

The trial court then asked if this procedure was agreeable with the prosecutor and with appellant. Both said it was. Notwithstanding appellant's personal acceptance of this procedure, the trial court asked appellant if he would like to talk to defense counsel on the phone "about this." When appellant said he would the trial court stated the "[r]ecord will indicate I'm calling Mr. Catalano in Pomona to give his client the opportunity to speak with him ... [and] I have now put Mr. Neufer on the line with Mr. Catalano."

After a pause in the proceedings, while appellant spoke with his attorney, the trial court again asked appellant if the readback procedure, without the presence of defense counsel, was acceptable to him. Appellant said it was.

The trial court had the jury brought into court and read aloud their note, as follows: "We, the jury in the above entitled action, request the following: 1. Testimony of Edmund Tyler. 2. Mr. Rosen's testimony in Hunter's Bar and as he left the premises."

The trial court then asked, "this request about Mr. Rosen's testimony, are you requesting the testimony from the beginning up to what point?" The requesting juror [Ms. Martinez] answered "[f]rom inside the bar to the back of the gate. Just--just before he was mugged" and confirmed it was "[w]hen he got to the top of the stairs from--leading to the parking lot."

Having determined what testimony the jury wanted read, the trial court explained to the jury the procedure that would be followed: the court reporter who reported Mr. Rosen's testimony would go into the jury room with them and read the requested testimony, the jury would listen, take notes if they cared to but not engage in discussions with each other, that court reporter would leave the jury room, the reporter who reported Mr. Tyler's testimony would enter the jury room and read his testimony, that reporter and the alternate jurors would then leave the jury room, and the jurors would resume their deliberations.

Immediately following this explanation Juror Gordon said she had a question and this colloquy occurred.

"JUROR GORDON: Well, I had the question about Mr. Tyler's testimony, but also I wanted to know in the legal way that discrepancies in the testimony, is that enough cause for a reasonable doubt.

"THE COURT: That's something for the juror to decide.

"JUROR GORDON: Okay.

"THE COURT: I can only refer you to the instruction that deals with discrepancies between one witness' testimony and another. It outlines it's something to be considered, whether it's a fact of importance or a trivial We now consider appellant's claim that the trial court erred by bringing the jury into the courtroom, asking them what part of Mr. Rosen's testimony they wanted read, and explaining the readback procedure to them. Appellant asserts "the waiver of counsel's presence did not extend farther than for the trial court to 'simply send the reporter into the jury room to read the testimony that the jury has requested.' " Appellant's claim does not bear scrutiny.

detail, that you have to consider. It's up to you to make those decisions."

Section 1138 ³ prescribes that when a jury wants testimony read or a legal question answered they shall be "conduct[ed] ... into court." The trial court, by bringing the jury into the courtroom, merely complied with this statutory mandate.

As to the trial court asking the jury what part of Mr. Rosen's testimony they wanted read, there was no error. As the trial court indicated, it had informed defense counsel of the jury's request and discussed that request with defense counsel. Because the request concerning Mr. Rosen's testimony was obviously unclear ("Mr. Rosen's testimony in Hunter's Bar and as he left the premises") defense counsel, by agreeing to have the requested...