People v. Triplett

48 Cal.App.5th 655

267 Cal.Rptr.3d 675

The PEOPLE, Plaintiff and Respondent,

v.Yosaya Johnson TRIPLETT, Defendant and Appellant.

B298914

Court of Appeal, Second District, Division 1, California.

Filed May 1, 2020

Certified for Partial Publication.^*

Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

ROTHSCHILD, P. J.

A jury convicted defendant Yosaya Johnson Triplett of assault with a deadly weapon ( Pen. Code, § 245, subd. (a)(1) ),¹ carjacking (§ 215, subd. (a)), and attempted murder (§§ 187, subd. (a), 664). The jury also found true allegations that defendant personally inflicted great bodily injury in the commission of the assault and attempted murder. (§ 12022.7, subd. (a).) The court sentenced defendant to a prison term of 11 years eight months.

During jury deliberations, the court denied the jury's request for transcripts of testimony of certain witnesses and defense counsel's request to inform the jurors that they could have the testimony read back to them. In the published portion of this opinion, we hold that the court erred by denying defense counsel's request. We further hold that, under the circumstances in this case, the error was harmless.

In the unpublished portion of this opinion, we reject defendant's contentions that the trial court erred in denying his Wheeler / Batson² motion during jury selection and that the evidence was insufficient to support the attempted murder conviction. We also agree with defendant that a clerical error in a sentencing minute order must be corrected, and agree with the People that defendant's sentence must be corrected to include certain assessments.

We affirm the judgment as modified to correct the sentence.

FACTUAL AND PROCEDURAL SUMMARY

A. Prosecution Evidence

In September 2017, defendant was living with her boyfriend, Donnie Faizon, at the home of Faizon's uncle, Russell Allen. On the evening of September 8, 2017, while defendant was working at a nightclub, Dalilah Young visited with Allen and Faizon at Allen's home.

Young testified that she left Allen's home at 11:30 p.m. and crossed the street to her car. A truck or sports utility vehicle pulled up close to her car. As Young got into her car and put her key into the ignition, defendant got out of the other vehicle, walked to Young's car, and pulled the car door open. When Young stepped out of the car, defendant stabbed Young in the head with a knife with a two-inch blade.

Young "fought back" in "[s]elf-defense." During the fight, defendant stabbed Young repeatedly, inflicting wounds in Young's temple, cheek, wrist, neck, and the side of her torso. Defendant grabbed Young's phone from her car and threw it into the street. Defendant then began to choke Young, and told her, "Look at you bitch. Fittin’ to die bleeding and shit."

Defendant got in the driver's seat of Young's car and drove forward and backward, hitting parked cars. When Young grabbed the driver's car door, defendant drove forward, causing Young to hit the ground.

Defendant then drove away in Young's car.

Young returned to Allen's residence and Allen called 911.

Young was hospitalized for a week as a result of the injuries she suffered in the assault. Lacerations from the eight stab wounds varied in length from one-third of an inch to three inches. One cut pierced Young's lung and could have been fatal if untreated. The other lacerations were superficial.

Young's car was located five months later in a parking lot, vandalized and damaged.

B. Defense Evidence

Defendant testified that on the night of the incident her grandfather picked her up from the nightclub where she worked. As they pulled up to Allen's home, Young opened the car door, pulled defendant out by her hair, and began beating her. Defendant pulled a knife from her waistband and stabbed Young to defend herself. Defendant then ran upstairs and told Allen to call an ambulance because she had stabbed "this girl outside." Defendant waited for the ambulance, then left with her grandfather, who took her to her mother's home and then to a motel.

Defendant explained that she keeps the knife with her because she carries large amounts of cash when she comes home from her work at a nightclub and she lives in a "rough" area. She denied that she threw Young's phone or took her car.

DISCUSSION

A., B.^** [NOT CERTIFIED FOR PUBLICATION]

C. Jury's Request for Trial Transcripts

During jury deliberations, the jury asked the court for "transcripts of witnesses: D[a]lilah Young and Yosaya Johnson Triplett." (Capitalization omitted.) The court informed counsel that it intended to respond by informing the jury: "If you have a specific question about witness testimony, ask the question. The jury will not receive transcripts of testimony."

Defense counsel did not object to the denial of transcripts as such, but asked if "the court [would] let them know they could have readback."

The court stated that doing so would be "verging on [in]vading the jury's province." The jurors had been instructed under CALCRIM Nos. 202 and 222 that they "are entitled to have readback of testimony," the court noted, and "it would be inviting error to tell them they can ask for readback, as they have been instructed as to that in two prior jury instructions."³

After some colloquy among the court and counsel, the court stated: "I am going to make a ruling[.] I am going to give the jury the note that I intended. The jury, in my view, has been instructed they are entitled to readback. If they want readback they can simply ask for it." The court then responded to the jury, stating: "If you a [sic ] specific question about witness testimony ask the question. The jury will not receive transcripts of testimony." The court submitted this response to the jury at 10:50 a.m. on the second day of deliberations. The jurors asked no further questions of the court and, at 11:37 a.m., the jury informed the court that it had reached a verdict.

On appeal, defendant argues that the court should have either provided the jury with the requested testimony via readback or reminded the jury to consult the instructions given under CALCRIM Nos. 202 and 222—which informed the jurors that they could request a readback of trial testimony.

Both sides point to section 1138 as the statutory authority governing the issue. That section 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."⁴ ( § 1138.) Our Supreme Court has held that section 1138 requires the trial court to " ‘ "satisfy requests by the jury for rereading of testimony." ’ " ( People v. Cox (2003) 30 Cal.4th 916, 968, 135 Cal.Rptr.2d 272, 70 P.3d 277 ( Cox ), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, 87 Cal.Rptr.3d 209, 198 P.3d 11 ( Doolin ).)⁵

As the People point out, the jurors did not request a rereading of testimony; they asked for the transcripts of the testimony. Defendant interprets the request more broadly—"Yes, the jury used the term ‘transcripts’ but the record makes clear the jury wanted to consider the testimony again. It wanted to ‘know the words’ of the two most important witnesses, [defendant] and the alleged victim." We agree with defendant. There is no conceivable purpose for requesting the transcripts other than to review and consider the words the witnesses spoke. (See James v. Key System Transit Lines (1954) 125 Cal.App.2d 278, 283, 270 P.2d 116 [only reasonable interpretation of jury's request for transcript during deliberations was that jury sought a reading of the transcript]; accord, Smith v. Shankman (1962) 208 Cal.App.2d 177, 184, 25 Cal.Rptr. 195 ; People v. York (1969) 272 Cal.App.2d 463, 465, 77 Cal.Rptr. 441 ( York ).)

In Smith v. Shankman , supra , 208 Cal.App.2d 177, 25 Cal.Rptr. 195, the jury asked a court bailiff during deliberations for the transcript of the defendant's testimony. ( Id. at p. 181, 25 Cal.Rptr. 195.) The bailiff informed them they could not have it. ( Ibid. ) This was error because the bailiff was not permitted to communicate with the jurors on a matter other than to determine whether they had reached a verdict. ( Id. at p. 184, 25 Cal.Rptr. 195.) Relevant here is the court's discussion of prejudice. "Although it is true," the court explained, "that the bailiff was technically correct in instructing the jurors that the written transcript itself could not be given to them, it does not follow that his misconduct was of no consequence. ‘While the jury's action did not constitute in so many words a request for a reading of some portion of the transcript, such action can reasonably be interpreted only as such a request....’ [Citation.] Had the bailiff properly deferred action on the jury's request until the trial judge had returned ..., the jury could then have been brought into open court ... and the judge could have inquired whether they desired to have portions of the relevant testimony reread. As a result of the bailiff ’s failure to follow this procedure, the jury's request for the transcript was denied in such a manner as to indicate that there was no alternative method by which they could review testimony which they obviously considered important." ( Ibid. ) If, however, the court had been informed of the request and "offered to have the relevant testimony reread to the jury, it is entirely possible, as a practical matter, that its verdict might have been affected." ( Id. at p. 185...