THE PEOPLE OF THE STATE OF CALIFORNIA,                             5 Crim. F000000

JOHN DOE

                                Defendant and Appellant.
_____________________________________________/

HONORABLE ARTHUR E. WALLACE, JUDGE

THOMAS LUNDY
Attorney at Law
2500 Vallejo St.  #105
Santa Rosa, CA 95405
(707) 524-8112
Attorney for Appellant
JOHN DOE
By Appointment of Court of Appeal
Under the Fifth District Appellate Program's
Assisted Case System

    A.     Facts

    During its second day of deliberations, the jury sent the judge the following note:

    "We need further explanation as to filling out the verdict forms. Can Judge Wallace clarify the instructions and points of law to us without going into courtroom? If not, please let us know beforehand." (CT 672.)

    The judge did not inform counsel about the jury note until after the jury had announced it had reached its verdict. (CT 834-835.) Neither the Reporter's nor Clerk's Transcript contain any indication as to how the judge responded. (See, RT 2084-2085; CT 566.) Thus, the only "record" of the disposition is the following after-the-fact explanation by the trial judge:

    "At 1:34, we had a note from our jury, today. [‘] We need further explanation as to filling out the verdict forms . . . Can Judge Wallace clarify the instructions and points of law to us without going into the courtroom? If not please let us know beforehand.[']

    And [in] response to that: "I had Bill simply tell them no, we could not clarify anything without going into session, and we received no further communication on that subject from our jury." (CT 2086.)

    About one hour after it sent the note out the jury announced it had reached a verdict. (RT 2085-2087; CT 566.)

    In his motion for a new trial, Mr. Doe's counsel contended that the trial court's disposition of the note without contacting counsel violated Penal Code Section 1138 and appellants' right to representation of counsel. (CT 818-835, 866-889; RT 2100-2108, 2117-2122. ) The motion was denied after the court concluded that neither Evidence Code Section 1138 nor the defendant's right to counsel had been violated. (RT 2103-2104, 2118-2119.)

    The United States Supreme Court has warned that "[a]ny ex parte meeting or communication between the judge and foreman of the deliberating jury is pregnant with possibilities for error..... [E]ven an experienced trial judge cannot be certain to avoid all of the pitfalls inherent in such an enterprise." (U.S. v. Gypsum Company (1978) 438 U.S. 422, 460.)

    In California "it has long been the rule that the trial court should not entertain communications from the jury except in open court, with notification to counsel." (People v. Hogan (1982) 31 Cal.3d 815, 848.) "Ordinary procedure would require that the trial judge afford the parties an opportunity to be apprised of any such communication and to have the opportunity to make timely objection to any action by the court or jury which might be deemed irregular." (People v. Alcalde (1944) 24 Cal.2d 177, 189, quoted with approval in People v. Hogan, supra, at 848-849; Paulsen v. Superior Court (1962) 58 Cal.2d 1, 7; accord. People v. Weatherford (1945) 27 Cal.2d 401, 418-420.)

    Ex parte communications between judge and jury have been so consistently condemned because they implicate established statutory and constitutional principles.

    In California notification of counsel is required by Penal Code Section 1138 which provides that any information requested by the jury including clarifying instructions, be given to them "in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." [FOOTNOTE 1] This provision has been interpreted to require notification of counsel before the court provides the jury with "any information" requested by them. (People v. Lozano (1987) 192 Cal.App.3d 618, 623.) Hence, "[a]ny private communication between judge and jury is improper" and in direct violation of Penal Code Section 1138. (People v. Knighten (1980) 105 Cal.App.3d 128, 132; People v. Stewart (1983) 145 Cal.App.3d 967, 972.)

    Under Section 1138 "ordinary procedures require that the trial judge apprise the parties in a criminal case of any communications from the jury." [Emphasis added.] (People v. Brew (1984) 161 Cal.App.3d 1102, 1105.) This is to assure that timely objections may be made to any action by the court or jury. (People v. Hogan, supra, 31 Cal.3d at 848-849; People v. Brew, supra, 161 Cal.App.3d at 1105.

    The failure to inform counsel about communications between the judge and jury violates the defendant's Sixth Amendment right to the assistance of counsel. (People v. Stewart, supra, 145 Cal.App.3d 972.) "In essence, the rule barring confidential communications between the court and jury protects a defendant's fundamental constitutional right to the assistance of counsel at all critical stages of the proceeding." (People v. Garcia (1984) 160 Cal.App.3d 82, 88; see also, People v. Hogan, supra, 31 Cal.3d at 849; People v. Dagnino (1978) 80 Cal.App.3d 981, 997.) "Jury deliberation constitutes one critical stage of a criminal trial." (People v. Rubalcava (1988) 200 Cal.App.3d 295, 299; People v. Stewart, supra, 145 Cal.App.3d at 972; see also, U.S. v. Smith (6th Cir. 1969) 411 F.2d 733, 736.)

    Hence, the failure to inform counsel about any significant communication from the jury during its deliberations violates the accused's right to counsel. (See, People v. Rubalcava, supra, 200 Cal.App.2d at 294; People v. Stewart, supra, 145 Cal.App.3d at 972.)

            1.     The Standard: Presumption Of Prejudice

    Denial of counsel by the judge's ex parte disposition of a juror request is "at least debatably . . . prejudicial per se" because there is "no record." (People v. Dagnino (1978) 80 Cal.App.3d 981, 988.) In fact, it has been held "untenable" that vindication of an accused's constitutional right should depend upon the trial judge’s "memory rather than reported events." (People v. Jenkins (1963) 223 Cal.App.3d 537, 540.)

    However, instead of applying a blanket per se reversal standard the courts have found a presumption of prejudice when the error "may have affected" the accused's rights:

"[W]hile denial of counsel . . . is not necessarily prejudicial as a. matter of law, prejudice will be presumed where the denial "may have effected" the substantial rights of the accused. Only the "most compelling showing" to the contrary will suffice to overcome the presumption, and courts will not engage in "nice calculations" in making such a determination." (People v. Dagnino, supra, 80 Cal.App.3d 981, 989 [original emphasis]; Accord. People v. Hogan, supra, 31 Cal.3d at 849; People v. Stewart, supra, 145 Cal.App.3d at 973.)

    This presumption is an application of the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24) under which the reviewing court "must reverse unless [it] find[s] it harmless beyond a reasonable doubt." (People v. Lozano, supra, 92 Cal.App.3d at 624; see also, People v. Hogan, supra, 31 Cal.App.3d at 850; People v. Brew, supra, 161 Cal.App.3d at 1106.)

            2.     Application Of The Standard: Could Counsel Have Done Anything?

    In evaluating whether the presumption of prejudice is rebutted the cases have consistently focused upon the question of what, if anything, could counsel have done if he had been privy to the court's action. Those cases which find the error harmless involve situations where counsel could not have helped his client. On the other hand, where counsel could have done something which "may have affected" his client's rights the courts have found that the presumption of prejudice requires reversal.

    In the cases finding the error harmless neither the content of the jury’s request nor the court’s response thereto provided any reasonable basis upon which counsel could have acted to protect his client's interest. None of the juror requests in these cases indicated any juror confusion about the instructions and typically the court's response was subject to neither objection nor supplementation by counsel.

    For example, in People v. Alcalde, supra, 24 Cal.2d 177, the jury sent the judge a note asking "may we render a decision of life imprisonment and not eligible for parole?" Because the jury requested to return an unauthorized verdict the ex parte answer of the trial judge "No" could not have been challenged or supplemented by defense counsel. Accordingly, the court concluded that the ex parte communication was not prejudicial. (Id. at 188.)

    Similarly, in People v. Woods (1950) 35 Cal.2d 504, 512 the jury asked the judge, "What is a hung jury?" The judge explained that "in a criminal case you have to have twelve jurors reach a verdict of either guilty or not guilty. If all twelve jurors do not agree, it is a hung jury." (Id. at 512.) Hence, the ex parte procedure was harmless because the jury's request and the judge's response were innocuous. Even if defense counsel had been present there was no reasonable basis to conclude that he could have done anything on behalf of his client.

    In People v. Knighten (1980) 105 Cal.App.3d 128 the judge entered the jury room to clarify a readback request by the jury. However, thereafter defense counsel fully participated in an open court resolution of the readback request and therefore, the ex parte communication was harmless. (Id. at 133-134.)

    In People v. Stewart the judge received a note from the jury requesting a readback of the conspiracy instructions and asking for written copies thereof. (People v. Stewart, supra, 145 Cal.App.3d at 972.) Without contacting counsel the judge wrote on the note that he would furnish all instructions and thereafter he sent copies of the actual instructions into the jury room. (Id. at 973.) The Court of Appeal found the error harmless because the written instructions were remarkably free of cross-outs and interlineations and therefore -- with the exception of requesting CAL.JIC 17.45 -- there was nothing else that counsel could have done even if informed of the note. (Id. at 973-974.) (CALJIC 17.45 would have cautioned the jurors about modifications or to the printed instructions but, in light of the fact that the instructions had few modifications, 17.45 would have had "little efficacy." (Ibid.) In People v. Garcia (1984) 160 Cal.App.3d 82, 8889, two jurors during a private conversation with the trial judge on a collateral matter "expressed their personal concern about the defendant's courtroom behavior." (Id. at 89.) The court responded by admonishing the jurors to "predicate their decision only on the evidence . . . (Ibid.) The Court of Appeal held the error harmless because "the admonition of the trial court could have been given over the objection of defendant if the proper procedure had been followed." (Id.)

    In People v. Brew the trial court ordered a readback of a portion of the testimony without contacting defense counsel. The Court of Appeal found the error harmless because the readback record was "squeaky clean" and presumably defense counsel would not have been helpful to his client during the readback proceedings. (People v. Brew, supra, 161 Cal.App.3d at 1106; see also, People v. Thompson (1990) 50 Cal.3d 134 at 175 -- a readback proceeding "is one in which defendant and his counsel have no significant role."

    Finally, in People v. Thompson, supra, 50 Cal.3d at 134 the trial judge, after notifying counsel, entered the jury room and provided the jury with a verdict form which had been inadvertently omitted from the instructions. (People v. Thompson, supra, 50 Cal.3d at 174.) The court found this conduct harmless because the verdict form and "the judge's unreported comments to the jury" related to a count which, in light of another jury verdict and the admissions of the defendant, was clearly established. (Id. at 174.) Accordingly, the presence of counsel -- who had been notified anyway -- would not have benefitted the accused.

    In sum, none of these cases involve any indication of juror confusion or disagreement about the instruction. The cases illustrate that the question of prejudice in ex parte communication situations can be found harmless error when the nature of the request and the response thereto indicate that defense counsel could not have done anything even if he or she had known about the jury's request and the judge's response thereto.

    On the other hand, the cases which have found reversible error involve situations where the defense attorney could have taken action which "may have affected" the substantial rights of his client. These cases include the following:

    People v. Jenkins (1963) 223 Cal.App.3d 537, 539-540 -- ex parte discussion of burglary and admission instructions.

    People v. Dagnino, supra, 80 Cal.App.3d 989-990 -- ex parte transmittal of written instructions to the jury prejudicial because defense counsel could have requested reading of the instructions, requested additional instruction (e.g., CAIJIC 17.45), and reasonably could have taken other measures and precautions which "may have effected" their client's substantial rights.

    People v. Hogan, supra, 31 Cal.3d at 848-851 -- ex parte transmittal of exhibits to the jury prejudicial because counsel could have requested deletion of inadmissible and prejudicial portions thereof.

    People v. Lozano, supra, 192 Cal.App.3d 623-626 -- ex parte instruction on self-defense theory was prejudicial because counsel "should have been given the opportunity to propose an instruction that was both responsive to the jury's question and consistent with his defense."

    People v. Rubalcava (1988) 200 Cal.App.3d 295, 299-302 court's extemporaneous definition of "moral certainty" found prejudicial because "a reasonable attorney would have objected." [FOOTNOTE 2]

            3.     In The Present Case Counsel Co-ald Have Acted To Protect His Clients 
                    Interests

    In the present case the nature of the jury's request and the judge's response thereto is much more analogous to those cases in which prejudice has been found than those in which it hasn't.

    The court's response to the note -- though obviously a good faith attempt to comply with Section 1138 -- was "pregnant with possibilities for error . . . " (U.S. v. Gypsum Company, supra, 438 U.S. at 460.) The jury's request was not in a preliminary or procedural context. Rather, the note revealed an obvious divergence of opinion or confusion regarding the instructions. Therefore, without affirmative clarification of the jurors' confusion there could be no assurance that the jury rejected the incorrect interpretation of the instructions. In this context reasonably competent defense counsel would have recognized several available options to assure that his client's rights were not adversely affected.

                    a.     Counsel Could Have Requested Inquiry Into The Jury's confusion

    One obvious option available to counsel would have been to request open court inquiry into the nature of the jury's confusion. The note stated that the jury "need[ed] further explanation" as to "the instructions and points of law" relating to completion of the verdict forms. (RT 2086; CT 672.) Counsel quite reasonably could have requested that the jury be ordered into open court forthwith for the purpose of inquiring into the nature of its confusion. (See, e. g., People v. Thompkins (1987) 195 Cal.App.3d 195, 250.)

                    b.     Counsel Could Have Proposed Alternatives To Open Court Inquiry

    Had he been privy to the juror note counsel would have been capable of evaluating it in light of his personal knowledge of the jurors -- through voir dire -- and his assessment of the courtroom dynamics of this trial. Specifically, counsel could have considered whether, under the circumstances, the requirement of open court instruction might deter the jury from seeking clarification. Depending upon his assessment of these factors counsel could have reasoned that the court's instruction requiring the jury to seek clarification in open court would not protect appellant's rights.

    For example, it might be reasonable for counsel to conclude that the jury might be reluctant to discuss the verdict forms in front of the accused -- especially if the jury had already reached a finding of guilt on one count.

    In this event counsel could have waived the "open court" procedures, and suggested that the judge and counsel make the inquiry in the jury room. (See, People v. Thompson, supra, 50 Cal.3d at 175.)

    Alternatively, counsel could have proposed that additional inquiry into the jury confusion be conducted in writing without the necessity of bringing the jury into open court. It is certainly a proper and common procedure to reinstruct the jury through the use of written notes between the court and the jury.

    Besides requesting inquiry into the jury's confusion - either in open court or by alternative means -- counsel could have requested supplemental instruction of the jury in light of the jury note.

    For example, because the jury confusion related to the verdicts counsel reasonably could have requested that the jury be instructed in the language of CALJIC 17.02 as follows:

"Each count charges a distinct crime. You must decide each count separately. The defendant may be found guilty or not guilty of [any or all] [either or both] of the crimes charged. Your finding as to each count must be stated in a separate verdict." (CALJIC 17.02 (1988 Version).)

    The use note which accompanies this instruction states that it "must be given when each offense charged is a separate offense and defendant legally can be convicted of all offenses charged. (Ibid.)

    The omission of this instruction from the original charge could have contributed to the jury's confusion.

    It is beyond dispute that counsel should fully participate in any determination of what actions to take or not to take in response to a jury note which indicates a potential for jury confusion about the instructions. In the present case, counsel had several reasonable and efficacious options available to him to protect his client's rights had he been informed about the jury note. Hence, because counsel was not privy to the note Mr. Doe’s substantial rights "may have been affected" and the presumed prejudice from this Sixth Amendment violation is not rebutted.