Filed 6/27/16 P. v. Nguyen CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G052002

         v.                                                            (Super. Ct. No. 15WF0439)

TUAN ANH NGUYEN,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, John R.
Zitny, Judge. Affirmed.
                   Arielle Bases, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland,
Scott C. Taylor and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
                  Appellant Tuan Anh Nguyen took a four-inch bottle of wine worth less than
two dollars from a drug store without paying for it. Nguyen was about ten feet out of the
store when the store’s loss protection manager approached him about the theft. Nguyen
took the bottle out of his pocket, unscrewed the cap and started drinking. When the loss
protection manager told him he was going to phone the police, Nguyen said if he did, he
would “come back and get” him. As the manager continued to phone the police, Nguyen
used the bottle to make a striking motion toward him. Nguyen was arrested, and
subsequently charged with one count of robbery. His defense was that he was too drunk
and too small physically in relation to the manager to have put the manager in any sort of
fear of harm. The jury did not convict him of robbery, but did convict him of the lesser
included offense of attempted robbery. He was sentenced to three years of formal
probation plus 180 days in jail, most of which (172 days) was consumed by time already
served. He was also required to pay $70 in fees and a $300 restitution fine.
                  On appeal, Nguyen does not challenge the substantiality of the evidence to
convict him of attempted robbery. That evidence was overwhelming given the testimony
of the loss protection manager who apprehended him. Rather, Nguyen points to a glitch
in the proceedings as regards the notebooks that were given out to the jurors prior to the
beginning of trial. Those notebooks were (inadvertently) not made available to them on
the morning of oral argument. The judge rejected the defense’s mistrial motion, ruling
the testimony that morning had been short, and in any event jurors could always ask for a
read back of the oral argument.1
                  The Attorney General concedes it was error for the jurors not to have their
notebooks available to them that morning. A California Rule of Court specifically
requires jurors to be provided materials with which to take notes: “Jurors must be

          1        The “short testimony” was indeed short. In our record, the direct and cross-examination takes less
than two pages of reporter’s transcript. The witness was the defense’s only one that morning, the arresting police
officer, who testified for the defense he found Nguyen sitting on the curb, drunk. The prosecution managed to add,
on cross-examination, that Nguyen had in his possession a small bottle of wine, partially full.


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permitted to take written notes in all civil and criminal trials. At the beginning of a trial,
a trial judge must inform jurors that they may take written notes during the trial. The
court must provide materials suitable for this purpose.” (Cal. Rules of Court, rule
2.1031.)
              The issue on appeal is whether the error requires reversal. Nguyen points
to our high court’s recent decision in People v. Blackburn (2015) 61 Cal.4th 1113
(Blackburn), and particularly to its language saying that “certain errors, which operate to
deny a defendant an ‘“orderly legal procedure”’ [citation], can entail a ‘miscarriage of
justice’ . . . [citation]” required under our state Constitution to reverse a case for
procedural error. (Id. at p. 1133.) He posits that deprivation of jurors’ notebooks, even
on just one morning on trial, amounts to an error depriving him of an orderly legal
procedure.
              We disagree. The kind of procedural errors about which the Blackburn
court was speaking are fundamental structural defects which implicate clear
constitutional rights. (See Blackburn, supra, 61 Cal.4th at p. 1134.) Blackburn involved
such a fundamental structural defect – the right to a jury trial in a mentally disordered
offender proceeding. (See id. at p. 1135.) Other kinds of fundamental structural defects
include deprivation of the right to counsel at trial, trial by a biased judge, denial of the
right to self-representation at trial, and denial of the right to a public trial. (See Arizona v.
Fulminante (1991) 499 U.S. 279, 309-310 [cataloging examples of fundamental
structural defects].) A morning’s deprivation of a notebook does not rise to the level of a
fundamental structural defect. There is, in fact, a strain of California case law which has
regarded note taking by jurors with a certain wariness (see People v. Marquez (1992) 1
Cal.4th 553, 578 (Marquez) [“defendant contends that the trial court erred in failing to
instruct sua sponte on the dangers of note-taking”]; People v. Whitt (1984) 36 Cal.3d 724,




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746 (Whitt).2) And a standard jury instruction, CALJIC No. 0.50 (Spring ed. 2016),
cautions jurors not to “permit note-taking to distract you from the ongoing proceedings.”
                  In short, however desirable note taking by jurors may be in the abstract,
there certainly is no constitutional right to having a jury provided with note-taking
materials. Moreover, the harmlessness of the error in this case is underscored by the fact
the only testimony given on the morning in question took but a few brief moments, and
the jurors knew they could ask for a read back of any testimony or oral argument they
had heard anyway.
                  The judgment is affirmed.




                                                               BEDSWORTH, ACTING P. J.
WE CONCUR:



ARONSON, J.



THOMPSON, J.




         2         The Whitt court cited the summary given in a New York appellate case, People v. Di Luca (1982)
85 A.D.2d 439, which worried that note taking may be a distraction to jurors or take precedence over their own
independent recollection. (Whitt, supra, 36 Cal.3d at p. 746.) To the degree that Whitt may have placed too much
emphasis on the dangers of note taking, Marquez, supra, 1 Cal.4th at page 578, has made it clear that a court is not
required to instruct sua sponte on those dangers.


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