Filed 8/18/14 P. v. McElroy CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B249638

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA127183)
         v.

CHRISTOPHER A. McELROY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Ronald V. Skyers, Judge. Affirmed.


         Evan Charles Greenberg, under appointment by the Court of Appeal, for
Defendant and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION
       A jury found defendant and appellant Christopher A. McElroy guilty of second
degree robbery. On appeal, he contends that the trial court failed to notify his trial
counsel of jury questions before responding to them and that the prosecutor committed
misconduct. We reject these contentions and affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
I.     Factual background.
       During the early morning of February 27, 2013, Janae Mixon was on Long Beach
Boulevard, working as a prostitute. She saw a car speeding down the street towards her.
Defendant got out of the car. Mixon recognized defendant, having seen him in the area
before. When defendant ran toward Mixon, she became afraid and ran, but she was
pushed and fell. She dropped her cell phone, which defendant took. He left in his car.
       Mixon flagged down a police officer and gave him the suspect’s description.
Defendant was soon detained, and Mixon identified him as the man who took her phone.
Her cell phone was in defendant’s car.
       Video surveillance captured the incident, and the video was played for the jury.
II.    Procedural background.
       On May 31, 2013, a jury found defendant guilty of second degree robbery (Pen.
Code, § 211).1
       On June 19, 2013, after the trial court denied defendant’s new trial motion, the
court sentenced defendant to three years, doubled to six years based on a prior strike
found true by the court, plus five years under section 667, subdivision (a)(1).
Defendant’s total sentence therefore was 11 years in prison.




1
       All further undesignated statutory references are to the Penal Code.

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                                       DISCUSSION
I.      Request for read back.
        The jury asked to see the video of the incident and for read back of testimony.
Defendant contends that defense counsel was not given an opportunity to object and to
discuss with the court its responses to these requests. We find that no prejudicial error
occurred.
        A.     Additional facts.
        The jury retired for deliberations on Friday, May 31, 2013, at 2:45 p.m.
        According to defendant’s new trial motion, after the jury retired for deliberations,
the court clerk called defense counsel at approximately 3:30 p.m. and informed him that
the jury wanted to watch the video. At approximately 4:00 p.m., the court clerk called
defense counsel again and advised that the jury wanted read back of Mixon’s testimony
and that the court would have the jury return the next court day (Monday, June 3) for read
back. But a few minutes later, the court clerk called defense counsel and informed him
that the jury had reached a verdict. Defense counsel was never shown the jury question
form.
        According to the court’s minutes, the jury buzzed for a question, and the parties
were notified by phone. The jury buzzed again with another question and the parties
were again notified by phone. Without having received read back, the jury returned its
verdict at 3:45 p.m.
        The jury question forms show that the trial court wrote “yes,” in response to the
“[r]equest to see the video” and wrote “yes, for Monday at 9:00 a.m.” in response for a
“copy of the testimony [of] Ms. [M]ixon.”
        B.     No prejudicial error occurred.
        The jury asked to view the video of the incident and to have Mixon’s testimony
read back. The requests were made sometime around 3:30 p.m., on a Friday afternoon.
Due to the lateness of the hour, the trial court informed the jury it would have to return on
Monday for read back. Defendant argues that his trial counsel was not consulted before



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the trial court gave this response, which prejudiced him because it made the jury “rush to
judgment” to avoid having to return on Monday.
       “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.” (§ 1138; see also People v. Nunez (1983) 144 Cal.App.3d 697, 701-703 [it was
error, albeit harmless error, for the trial court to read back testimony without first
notifying defense counsel].) A conviction will not be reversed for a violation of section
1138 unless the appellant establishes prejudice under the standard in Chapman v.
California (1967) 386 U.S. 18, that is, whether the error is harmless beyond a reasonable
doubt. (People v. Jennings (1991) 53 Cal.3d 334, 383-385.)
       There is no ground for reversal. First, the record does not clearly show that the
trial court failed to inform defense counsel of its responses to the questions before the
responses were given to the jury. According to the court’s minutes, after the jury buzzed
with a question, “[b]oth parties are notified via phone, the court response to question.”
Although defendant asserts that his counsel was not notified of the response until after it
was given, the record is not so clear.
       Second, even if we assume that the trial court told the jury it had to return on
Monday for read back without first consulting defense counsel,2 we discern no prejudicial
error. In People v. Hawthorne (1992) 4 Cal.4th 43, 61, for example, the jury asked,
“ ‘What do we do now?’ ” after indicating that a member of the jury could not decide
whether the defendant was guilty or not guilty. Without informing counsel, the trial court
told the jury to continue deliberating. (Id. at pp. 62-63.) Although Hawthorne noted that
there is a “general proscription against ex parte communications with a deliberating

2
       The focus of defendant’s argument is the court’s response to the jury telling it to
return on Monday for read back. Defendant neither argues that any prejudice arose from
informing the jury “yes,” it could watch the video of the incident, nor can we discern any.

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jury,” it could not find that any error was prejudicial or that defendant suffered any
impairment of his due process rights. (Id. at p. 70.)
       Here too we cannot find that defendant’s constitutional rights were violated.
Other than the bare written responses to the jury, the record shows that the trial court did
not have any discussions with the jury regarding the read back outside of defense
counsel’s presence. The court said it “had no discussion with the jury at any time
regarding what the content was or what the read back was, except that they mentioned
that it was all of the first witness’s testimony, the victim witness testimony. [¶] And then,
because of the lateness of the hour, it was getting to be near 4:00 o’clock, I told the bailiff
to tell them that they could come back on Monday because by the time they got the
transcript ready and read it would be after the 4:00 o’clock hour. [¶] So that was the
only communication, which is normal, and the fact that they decided not to wait for the
read back and that they had a verdict is very often the case, they don’t wait. [¶] There
have been many cases in this court where the jury decided on a verdict after asking for
read back, maybe they decided that they didn’t want it or they had enough, otherwise I
don’t know their reasoning because there was no discussion with them.”
       That the jury rendered its verdict before the court was able to read back the
requested testimony does not support a finding of prejudice. (See, e.g., People v. Stafford
(1973) 29 Cal.App.3d 940, 942-945 [no error occurred where jury reached a verdict
before hearing read back of testimony]; People v. Gonzales (1968) 68 Cal.2d 467, 472-
473 [no error where trial court told jury read back would not be available until next
morning and the jury could, in its discretion, continue deliberations until then]; People v.
Warren (1900) 130 Cal. 678, 681-682 [trial court informed jury that requested read back
of testimony could not take place until 9:00 a.m. the next day, and the jury returned with
its verdict shortly before 9:00 a.m.; no error found].)
       Other than the fact that the request for read back occurred late Friday afternoon
and the jury rendered its verdict Friday afternoon without hearing the read back, there is
no evidence that the verdict was based on any improper consideration, such as a desire to
avoid returning to court on Monday. If that were the case, it would be just as easy for a

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jury to render a not guilty verdict. As the trial court said, it often sees juries reach a
verdict without listening to requested read back. This was also a straightforward case,
with all testimony and argument completed in one day and no dispute that defendant took
the victim’s cell phone. We therefore find no prejudicial error.
II.      The prosecutor did not commit misconduct.
         Defendant contends that the prosecutor committed misconduct by disparaging
defense counsel and by referring to facts not in evidence. We find that no misconduct
occurred.
         “The applicable federal and state standards regarding prosecutorial misconduct are
well established. ‘ “A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.]”
(People v. Samayoa (1997) 15 Cal.4th 795, 841.) Misconduct that infringes upon a
defendant’s constitutional rights mandates reversal of the conviction unless the reviewing
court determines beyond a reasonable doubt that it did not affect the jury’s verdict.
(Chapman v. California, supra, 386 U.S. 18.) A violation of state law only is cause for
reversal when it is reasonably probable that a result more favorable to the defendant
would have occurred had the district attorney refrained from the untoward comment.
(People v. Watson (1956) 46 Cal.2d 818, 836.) Claims of prosecutorial misconduct are
ordinarily forfeited unless the defendant objects at trial. (People v. Martinez (2010) 47
Cal.4th 911, 956; People v. McKinzie (2012) 54 Cal.4th 1302, 1358.)3




3
         Although defense counsel did not object to the alleged misconduct, we address the
issue.

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       Here, in response to defense counsel’s argument that the jury should convict
defendant of only the lesser included offense of petty theft, the prosecutor argued that
where the crime is caught on camera, “the only choice for the defense is to mitigate,
mitigate, mitigate. Let’s find out what little tiny thing we can do to not get him off, but
lessen the blunt of the force. It happens all the time.” The prosecutor then said:
“Somebody walks up and shoots somebody in the head, we charge murder, because when
you shoot somebody in the head, you intend to kill them. Well, they’re always going to
say, it wasn’t really a murder; he didn’t say, I want to kill you. It was more of a
manslaughter, something like that. They argue that until they’re blue in the face.”
       Defendant argues that these comments both disparaged his trial counsel and
misstated the evidence. A prosecutor may not attack defense counsel’s integrity or cast
aspersions on defense counsel. (People v. Hill (1998) 17 Cal.4th 800, 832.) But “ ‘ “ ‘a
prosecutor is given wide latitude during argument. The argument may be vigorous as
long as it amounts to fair comment on the evidence, which can include reasonable
inferences, or deductions to be drawn therefrom. [Citations.] . . .’ [Citation.] ‘A
prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian
politeness’ ” [citation], and he may “use appropriate epithets . . . .” ’ ” [Citation.]’
[Citation.]” (Id. at p. 819.) Thus, a prosecutor may give his or her opinion on the state of
the evidence, vigorously attack the defense case, and focus on the deficiencies in defense
counsel’s tactics and factual account. (People v. Redd (2010) 48 Cal.4th 691, 735; see
also People v. Wharton (1991) 53 Cal.3d 522, 567.)
       In People v. Sandoval (1992) 4 Cal.4th 155, 183, for example, the prosecutor
repeatedly referred to defense counsel’s alleged attempts to mislead the jury, accused
counsel of perpetrating a fraud on the court, and referred to the defense theories as
“ ‘ridiculous’ ” and “ ‘nonsense.’ ” Sandoval found that the comments were improper but
not prejudicial. (Id. at p. 184.)
       The comments here, however, did not disparage defense counsel. They were a fair
comment on the defense strategy, which was that defendant was guilty, at most, of the
lesser offense of petty theft. Nor did the comments refer to facts not in evidence; namely,

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that defense counsel “always” rely on a mitigation strategy, and that it “happens all the
time.” (See, e.g., People v. Hill, supra, 17 Cal.4th at pp. 827-828 [statements of fact not
in evidence are worthless as a matter of law but can be “dynamite” to a jury].) This too
was nothing more than acceptable “advocate’s hyperbole.” (People v. Sandoval, supra,
4 Cal.4th at p. 184.) The jury would have understood that the prosecutor was not stating
as “fact” that all defense counsel ask that their clients be convicted of a lesser included
offense. Instead, the prosecutor was being hyperbolic in commenting on the defense
tactics. There is no reasonable likelihood that the jury construed or applied the
challenged comments in an objectionable fashion. (People v. Samayoa, supra, 15 Cal.4th
at p. 841.)
       We therefore conclude that no misconduct occurred.




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                                 DISPOSITION
     The judgment is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          ALDRICH, J.


We concur:


             KLEIN, P. J.




             KITCHING, J.




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