Beltran

dissenting.

I respectfully dissent.

This case deals with ordinary error that was cured by timely instruction to the jury. Under California law, a jury’s inadvertent receipt of information from the court is ordinary error, not constitutional error. See People v. Rose, 46 Cal.App.4th 257, 264 , 53 Cal.Rptr.2d 559 (1996). The majority concludes the jury’s accidental receipt of information from the court in this case was constitutional error, which thereby raises a presumption of prejudice, citing Turner v. Lousiana, 379 U.S. 466, 472-73 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965). Turner , and the other cases on which Beltran relies, do not apply to the facts of this case. Instead, they concern impermissible communication between jurors and witnesses or interested parties and/or exposure to evidence entirely extraneous to the trial. A presumption of prejudice attaches where jurors obtain information extraneous to the trial. People v. Cooper, 53 Cal.3d 771, 836 , 281 CahRptr. 90, 809 P.2d 865 (1991). There is no Supreme Court precedent, however, establishing that the presumption attaches when a jury innocently considers evidence mistakenly provided by the court itself.

Ordinary error…

MEMORANDUM **

Adelmo Sais Beltran appeals from the January 21, 2003, order of the United States District Court for the Northern District of California, Hon. Marilyn Hall Patel, denying his pro se application for habeas relief pursuant to 28 U.S.C. § 2254 . The district court certified for appeal appellant’s claim that the jury was exposed to extrinsic evidence in violation of his Sixth Amendment rights.

We reverse the denial of the petition and remand with instructions that Beltran either be released or granted a new trial.

At trial in Superior Court, the prosecution proved that Beltran’s two co-defendants drove from San Francisco to Beltran’s home in Los Angeles County, where they and Beltran loaded ten kilograms of cocaine into a car door. The two co-defendants then drove back to San Francisco. There was no direct evidence that the defendants knew the packages contained cocaine, but the prosecution argued that, under the circumstances, it should have been obvious. The defense argued, and one defendant testified, that the defendants thought they were handling an illegal black powder used in making fireworks.

During deliberations, the jury read aloud a government agent’s…