Lugo

MEMORANDUM *

In this habeas appeal, the petitioner, California state prisoner Inez Tito Lugo, challenges his second-degree murder conviction on the ground that the district coui’t failed to obtain a waiver from the defendant of his right to be present at a playback of his interrogation and read-backs of two witnesses’ testimony to the jury. The district court denied the petition, holding that there had been no showing of harmful error. See Lugo v. Warden of Cal. Med. Facility, No. 99-1151, 2007 WL 662226 , at *6 (9th Cir. Feb. 28, 2007).

In our circuit, a defendant generally has a constitutionally protected right to be present during any readback or playback of testimony. See Turner v. Marshall, 63 F.3d 807, 814 (9th Cir.1995), overruled on other grounds by Tolbert v. Page, 182 F.3d 677, 685 (9th Cir.1999); United States v. Kupau, 781 F.2d 740, 743 (9th Cir.1986). In this case, the trial judge failed to obtain a waiver from the defendant of that right. See Turner, 63 F.3d at 815 . However, the trial judge obtained a stipulation to the readback procedure in advance from the defense attorney, provided that counsel was given notice of any request from the jury. When such notice was…