Oliver

This is an appeal by the People (Pen. Code, § 1238, subd. (a)(3)) from an order granting the defendant’s motion for a new trial on grounds of jury misconduct. (Pen. Code, § 1181, subd. 3.) The narrow issue before us is whether the mere presence of a court reporter in the jury room during a portion of the jury’s deliberations constitutes reversible error per se under either the federal or state Constitutions. We hold that it does not. Instead, we conclude that the nature of the court reporter’s duties, peculiar to that officer of the court, makes a prejudicial per se standard wholly inappropriate. Consequently, we shall apply the rebuttable presumption of prejudice test to this variation on the theme of unauthorized persons in the jury room. Because the uncontradicted showing made below by the People rebuts the presumption of prejudice beyond a reasonable doubt, we shall reverse the lower court’s order and remand the case for further proceedings.

The Deliberations and Motion for New Trial

We are entirely unconcerned with the facts surrounding defendant’s offenses. Suffice it to say that he was accused, and ultimately convicted, of two counts of forcible rape. (Pen. Code,…