P. v. Hawkins

Filed 7/14/09 P. v. Hawkins CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

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The sole issue in this case is whether the trial court deprived defendant Daniel Leland Hawkins of his constitutional rights when it allowed a readback of one witnesss testimony outside the presence of defendant and his attorney. Based on California Supreme Court precedent, the answer is no.[1] (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

FACTUAL AND PROCEDURAL BACKGROUND

One afternoon in May 2006, defendant entered the El Dorado Savings Bank in San Andreas with a gun demanding that everybody give [him their] money. He waved the gun around, pointing it at the tellers and two of the banks customers. He took $6,958 and fled. He was arrested by police a short distance away.

Defendant went to trial for robbery, commercial burglary, assault with a firearm, and various enhancements. During deliberations, the jury asked for a readback of the testimony of four witnesses. When defense counsel learned that the readback of one of the witnesss testimony was taking place outside his and defendants presence, he moved for a mistrial on the ground that the court had granted his request that he and defendant be present and a criminal defendant is entitled to be present at all critical stages of his trial. The court denied the motion, but stated that [h]enceforth, the remainder of the read back will take place here in open court with the defendant present, counsel present. It also ordered the testimony that had previously been read outside of counsels and defendants presence be re-read in their presence.

After the readback, the jury found defendant guilty of commercial burglary and four counts of assault with a firearm. The jury could not reach verdicts on two counts of robbery and attached enhancements for personal use of a firearm, so the court declared a mistrial on those counts and enhancements. Defendant then pled guilty to one count of robbery and the attached enhancement, and the court dismissed the remaining robbery charge and enhancement.

The court sentenced defendant to 10 years in prison. Defendant filed a timely notice of appeal from the judgment.

DISCUSSION

Defendant contends the court deprived him of his federal and state constitutional rights to due process and the presence of counsel when the court allowed the readback of testimony when neither he nor his attorney was present. He is wrong.

The United States Supreme Court has never held that allowing a readback of witness testimony outside the presence of a defendant and his attorney is a violation of the federal Constitution. (People v. McCoy (2005) 133 Cal.App.4th 974, 982.) California Supreme Court decisions that have considered the issue have uniformly held there is no federal or state constitutional violation when a readback occurs outside the presence of a defendant or his attorney. (McCoy, at pp. 982-983, citing, e.g., People v. Cox (2003) 30 Cal.4th 916, 963 [rereading of testimony is not a critical stage of the proceedings] and People v. Pride (1992) 3 Cal.4th 195, 251 [no violation of a defendants rights to counsel and due process even though no one was present (the court, counsel, or defendant) to monitor or report the readback].) Contrary to defendants claim, the fact that defense counsel specifically stated he wanted to be present, along with defendant, at any readback does not change the equation. While the court should have waited to conduct the readback in their presence because it had acquiesced in defense counsels request that they be present, there was no constitutional violation in the courts failure to do so.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P. J.

SIMS , J.

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[1] Defendant states he is raising this issue to preserve it for federal review.