Responding to a Jury’s Question about Another Juror’s Ability to Deliberate in English by Sending a Judicial Assistant into the Deliberation Room to Address the Note and Never Informing Trial Counsel of the Note was Reversible Error.

People v. Heaps, 2^nd Dist., Div.1, (02/02/2026)

Heaps was a UCLA gynecological oncologist on trial for sex crimes allegedly committed during medical examinations.  After receiving nearly two months of evidence and argument, the jury began its deliberations.  Per the judge’s instructions, the jury communicated via written notes.  Via notes, the jury requested readback of several witnesses’ testimony over several days.  The judge, after informing and consulting trial counsel, ordered the readbacks be provided as requested.

Nearly two weeks into deliberations, an alternate replaced one of the original jurors.  Not long after, the jury sent a note to the judge that the new juror may not speak English sufficiently to participate in the deliberations or understand the difference between guilty and not guilty.  Trial counsel was not informed of this note.  The jury then, by note, requested more readbacks and clarifications on certain legal definitions. Trial counsel was made aware of these notes and had an opportunity to be heard prior to the judge ordering the readbacks.  

Soon after the last readback, the jury reached a verdict.  It convicted Heaps of several offenses and acquitted him of others.  Heaps was sentenced to 11 years in prison.

Defense counsel subsequently learned of the note.  Because the record did not contain the note, or the judge's actions vis-a-vis the note, a hearing was conducted to settle the record.  Heaps subpoenaed the trial judge, but the fellow judge conducting the hearing, upon urging by the prosecutor, quashed it.  Instead, the trial judge submitted a vague declaration, continually referring to “the record,” without specifying to what he was referring.  He did admit he never informed trial counsel about the note and asked his judicial assistant to enter the deliberation room ex parte and talk to the jurors about whether they could continue to deliberate.  The judicial assistant did testify, providing answers qualified with plenty of “cannot recall exactly,” and “pretty sure.”  He did admit he spoke to the jury twice about the note, and that he spoke to one of the jurors in Spanish. 

With this “settled record,” Heaps appealed.  To no one’s surprise, the panel reverses and remands for a new trial.  “[T]he trial court should not entertain communications from the jury except in open court, with prior notification to counsel.”  People v. Hogan (1982) 31 Cal.3d 815.  Responding to a jury’s question is a critical stage of the proceedings to which a defendant is entitled to the assistance of counsel.  Because that right was blatantly violated here, prejudice is presumed unless shown harmless beyond a reasonable doubt. And here it wasn’t.

The right to a jury trial includes the right to jurors proficient enough in English to deliberate.  As the judicial assistant’s testimony was so qualified with “pretty sures,” the record does not reflect whether the issue of the juror's English proficiency was addressed, resolved, or if it was, how or by whom.  The upshot is the case will be tried again.