Right to counsel is violated when judge communicates with jury with lawyer not present.

People v. Heaps (Cal. Ct. App., Feb. 2, 2026, No. B329296) 2026 WL 266465, at *1–4

Summary: The Sixth Amendment’s right to counsel applies in state criminal trials. (Gideon v. Wainwright (1963) 372 U.S.) That right is violated when a judge communicates with a jury during deliberations “without affording defendant and counsel an opportunity to be present.  (People v. Hawthorne (1992) 4 Cal.4th 43, 69. (Hawthorne).)

Here, the trial court judge sent the judicial assistant, (the JA), into the jury room to speak to the jury about the foreperson’s (Juror No. 4’s) note describing the jurors’ collective concern that a juror (Juror No. 15) did not speak English sufficiently to deliberate and had already made up his mind (the Note). The trial judge did not inquire of the jury or inform trial counsel of the Note’s existence. The JA’s conversations about the Note with the jury were not transcribed.

Respondent conceded that the trial court’s handling of the Note deprived defendant of his constitutional right to counsel. Respondent also concedes it has the burden to prove, beyond a reasonable doubt, the absence of prejudice from this constitutional error.

Respondent did not satisfy its burden to demonstrate, beyond a reasonable doubt, that the deprivation of counsel at a critical stage in the proceedings was not prejudicial. The Court reversed the judgment and remand for a new trial.

Instructions on jury deliberation process

The  trial judge emphasized all communications with the court had to be by written note and if the jury had a question, the court would first have to discuss the question and its response with counsel: “It is your duty to talk with one another and to deliberate in the jury room.” “If you need to communicate with me while you are deliberating, send a note through the bailiff signed by the foreperson or by one or more members of the jury. To have a complete record of this trial, it is important that you not communicate with me except by a written note.”

“If you have questions, I will talk with the attorneys before I answer so it may take some time. You should continue your deliberations while you wait for my answer. I will answer any questions in writing or orally here in open court.”

The court instructed the alternate jurors, “Do not have any contact with the deliberating jurors. Do not decide how you would vote if you were deliberating. Do not form or express an opinion about the issues in this case, unless you are substituted for one of the deliberating jurors.” (As noted below, Juror No. 15 previously had been an alternate juror.)

On October 18, Juror No. 15 replaced Juror No. 8. About an hour later, the jury sent the Note signed by Juror No. 4, the foreperson. The Note stated, “We have observed that the language barrier with Juror [No.] 15 is preventing us from properly deliberating. Juror [No.] 15 was not able to understand calls to vote guilty or not guilty, and expressed to us that his limited English interfered with his understanding of the testimony, resulting in every case being the same, and his mind is already made up.” No one informed counsel about the Note. The minute order dated October 18, 2022 does not reference the Note.

On appeal, it is undisputed that the trial judge did not inform trial counsel about the Note. This court granted defendant’s request to augment and settle the record regarding the Note and also granted defendant’s subsequent request that a judge other than the trial judge do so.

The trial judge acknowledged, “I did not notify the parties nor did I inquire with the jury about the ‘Note to Judge’.” The trial judge stated that in September 2024, he had a conversation with the JA about whether “any part of his conversation with the jury about the ‘Note to Judge’ was in Spanish. The JA responded that he did not recall.”

Denial of Sixth Amendment right to counsel during jury deliberations

Criminal defendants have the right to be represented by counsel at all critical stages of the prosecution]; People v. Rubalcava (1988) 200 Cal.App.3d 295, 299.  Jury deliberation is a critical stage of trial.

Well-Established Legal Precedent Prohibits Ex Parte Communications With a Deliberating Jury and Requires Reversal Unless the People Can Demonstrate Lack of Prejudice Beyond a Reasonable Doubt

“[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, 848  (Hogan).

“[W]hen faced with a record of a proceeding conducted without counsel, a reviewing court assessing possible prejudice is compelled to speculate as to what might have occurred had counsel been present. The uncertain nature of such a determination requires the strong presumption of prejudice.” (Hogan, at p. 850, 183 Cal.Rptr. 817)

Heap was denied his right to counsel when the trial judge failed to inform counsel of the N Note. Respondents has failed to demonstrate that that this constitutional error was harmless beyond a reasonable doubt because the JA’s testimony does not inform as to what the JA told the jury that caused the jurors to change their mind about Juror No. 15’s ability to deliberate or otherwise show how the jury resolved the issues raised in the Note.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.