*1 Dist., 18, 1978.] No. First Div. One. May 16452. [Crim. PEOPLE,
THE Plaintiff and Respondent, DAGNINO, JR., al.,
JOSEPH et Defendants Appellants.
Counsel F. Halvonik, Defender,
Kenneth Coho and Paul N. State Public under Jeffers, the Court of R. Chief Assistant Clifton appointments by Appeal, Defender, Millman, State Public Michael G. Ezra Hendon and Isadora Lomhoff, W. Defenders, State and Public for Defendants Deputy Appellants. General, Winkler,
Evelle J. Jack R. Chief Assistant Younger, Attorney General, O’Brien, General, Edward P. Assistant Attorney Attorney Jr., Clifford K. Derald E. and Laurence M. Thompson, Granberg May, General, for Plaintiff and Attorneys Deputy Respondent.
Opinion By a Jr.,
ELKINGTON, verdicts was convict- jury’s Joseph Dagnino, J. Code, ed and Debra his of first (Pen. 459), § burglary Dagnino, degree wife, Code, to that He has an 32) § (Pen. burglary. being accessory she from an order from a granting probation, appealed judgment, thereafter entered. trial record. Error is found have read the briefs and the
We parties’ We to each defendant. to discuss reversal as proceed requires error. bailiff had reached announcement
Upon jury’s verdicts, and the had returned to the courtroom. their defendants out of the following proceedings Thereupon, were taken in court: open
“The All let record show that counsel and Court: right, and the is still in room. defendants are present, “At this I will indicate that I for the record received from point reasonable—well, three notes. The first one instructions on it requested ‘reasonable,’ that, then on the underneath says, ‘possible,’ *4 I asked Mr. to to the and ask that Holt return strength jury [the bailiff] doubt, wanted, what and them if it an instruction on was reasonable they was, the answer returned was it so I had Holt call counsel that Mr. they that I instruction on and indicate to them intended to them the give instruction, doubt, is, reasonable that the CALJIC and receiving upon I had I that. thereafter concurrence of counsel to do Shortly proceeded first another for the difference between and second degree request I them and then the definition of and accessory, gave burglary, received, I counsel. then instructions on that shortly notifying thereafter, ‘We like the definition a which read follows: would as request evidence,’ were two instruc- of circumstantial and there at least because tions, three, if that not bear subject directly upon particular possibly matter, instructions, I time that all of the to the those prior gave trial, taken, to the and also at the conclusion of those testimony I concur- did so without and counsel’s counsel jury, calling getting that, I there is to rence and understand that an regard, objection I and think that are the that voiced the Mr. one objection, you Stephens for [attorney Joseph Dagnino, Jr.]. I did communi- correct, That is Honor. receive a
“Mr. your Stephens: It is Holt in the reasonable doubt instruction. cation from Mr. to regard those that when the court to referring giving my understanding to instructions, have the the court allows physical actually this room for their consideration instructions in deciding it is incumbent matter, and that under Penal Code section 1138 I believe has communica- counsel of when there been the court to notify upon instructions, or for further tion with the request particularly, case, court and the this which was not for further requested testimony, did not do so. also,
“It is that the court did not CALJIC 17.45 my understanding, give instruction, instruction, which deals with the written cautionary how should consider the instructions essentially, instructing in, that were sent and it seems me that under 1138 the court has a duty and the court not has notify notifying simply me from effective to it at the time the prevented making any objection court sent those I now, instructions in. understand the has the verdict so it is difficult for tome make an at this very objection point sending the instructions in.
“The Court: All right. “Mr. I do to the which were used in this Stephens: object procedures matter, Honor. your
“The Court: All right. “Mr. Sieff for Debra On behalf of Mrs. I [attorney Dagnino]: Dagnino, will in that There was the same I was called join objection. pattern.
Mr. Holt with a reasonable doubt and burden regard only beyond *5 of instruction. proof
“The Court: All Mr. Randell district right. [deputy attorney]? I
“Mr. Randell: have no Honor.” objection, your No other record of the which the court during appears proceedings assume, the We instructions as “gave” actually subject jury. counsel, do read instructions were apparently previously handed to the Whether there were courtroom physically jury. attending we do not know. And the written communications to proceedings, jury’s court, were, if such were not at least were not they preserved; they recorded.
It will be seen that with the consent of all counsel the trial court its instruction on the of reasonable repeated doubt. principle Then without the counsel, consent or of defendants’ and at the knowledge were instructions on “the jury’s subsequent they “given” request, difference between first and second and then the degree burglary, definition of ...” And another communication accessory, finally upon from the court all of the instructions that had “gave” previously
986 end, been them at the trial’s again given beginning consent, or or of counsel or the defendants. presence, knowledge, in than that Few rules are more fixed our criminal law firmly court in reiterated the state’s In re tersely by high Lopez, “ no P.2d as follows: can be doubt 257], ‘[T]here counsel at all constitutional the assistance of right [of] fundamental of the ....’” (Italics added.) stages proceedings Court rule, This it has held the United States been by Supreme Wade, 1149, 1156, 87 388 U.S. L.Ed.2d S.Ct. United States will ‘critical’ 1926], “apply stages proceedings.” communication of trial court’s on Authority bearing propriety counsel, of in relation to instructions with the absence defense law, on the follows. deliberation,
Penal Code
1138. “After the
have retired for
section
them
or if
if there be
between
as to
testimony,
disagreement
they
case,
on
law
desire to be informed
must
any point
arising
they
the officer to conduct them into court.
into
brought
Upon being
require
court,
or
must be
in the
of,
required
after
information
to,
or his
and the
notice
attorney,
prosecuting
defendant
after
”
been called.
(Italics added.)
have
789-790,
States,
L.Ed.
U.S.
Shields United
“
verdict,
to consider
its
S.Ct.
‘Where a
has retired
478].
either because asked for
required,
supplementary
*6
reasons,
to be
either
of
other
or for
they
given
presence
ought
jury
and written
counsel
after
and an
to be
notice
present;
opportunity
notice
an
to be sent
to
not
to
ought
jury
”
(Italics added.)
opportunity
object.’
Court,
1, 7
372 P.2d
58 Cal.2d
Paulson
Superior
the “bailiff
Here without defense counsel’s
reported
knowledge
641].
was
dead-
foreman’s opinion
jury
hopelessly
judge
information,
at
were
locked,”
which
least
jury
part,
upon
communications between
The court held: “Such informal
discharged.
be made
are
. . .
communications should
court and jury
improper.
‘[A]ll
trial
would
that the
court....
judge
Ordinary procedure
require
open
of
such communica-
afford the
an
to be apprised
any
parties
opportunity
tion and to have the
to make
action
opportunity
timely objection
any
”
be deemed
the court or
jury
might
irregular.’
by
Trim,
People Court, had retired for deliberation under instructions of instructions, were into Court for further which were in the brought that defendant’s absence of defendant’s it does not attorney, appear was in manner notified of such return of the for further attorney instructions, as section four hundred of required by eight Criminal Practice Act.” Held: “For these errors (P. 276.) appearing upon the face of the record of the action . .. the must be reversed and judgment cause remanded for retrial.” (P. 277.) “ P.2d are 753],
People Weatherford, ‘[C]ourts unanimous in communications between practically holding private court and and that all communications should be improper, ” made in court.’ open
United States v. 429 F.2d 742. the trial (D.C.Cir.) McCoy “[A]fter the District met with the in his chambers and her an Judge juror gave to state her But neither his opportunity question. appellant,, nor a court The Sixth Amendment prosecutor, reporter present. of defense counsel and the accused at all critical requires of the We think that raised stages prosecution. resolving questions is such a (Fns. omitted.) jurors during jury poll stage.” United States v. Smith 411 F.2d “We (6th Cir.) 736. view the evidence, the return of the presentation charge jury’s and the verdict of the sentence as one continuous imposition proceeding. Each interlocks with and is the other to make stage dependent upon up criminal complete prosecution.” Jenkins, 539-540 Cal.Rptr. 776]. from the foreman which was bailiff received piece paper “[T]he ‘What acts amount to first handed to the in the hallway judge inquiring, The then to the doorway degree burglary?’ judge ‘stepped *7 that the had been instructed to room and advised the foreman orally alternative, One, in the find the defendant not as to Count guilty in the and that the find the defendant of second guilty burglary degree, .’ was not to be concerned about first degree burglary... [The] have defendant and his were not ... For the court to attorney present. [¶] 988 in the
instructed the manner which it did under the circumstances case, constituted error and a of prejudicial miscarriage justice.” it that a trial court’s From the becomes foregoing patent a in a criminal case are at a “critical” instructions to stage therefore, of counsel and proceedings error. absent a both constitutional statutory stipulation, comprise There remains the whether the error was harmless. question found in The federal rule is Chapman California, controlling 705, 824, 24 The court there 87 S.Ct. A.L.R.3d U.S. 18 L.Ed.2d 1065]. [17 “there are some L.Ed.2d at 710]) although recognized p. (p. [17 that their infraction can never so basic to a fair trial constitutional rights error,” belief that all trial errors as harmless nevertheless be treated “any call for reversal” is incorrect. Without . .. automatically elaborating upon “basic,” so the court declared L.Ed.2d at constitutional (p. rights “that before a federal constitutional error can be held 710-711]) pp. harmless, the court must be able to declare a belief that it was harmless a reasonable doubt.” beyond
In a the state’s court perceptive analysis California, high Chapman 430 F.2d Coffey, Cal.Rptr. 15] “ see fn. stated: ... there are some constitutional 17), (and ‘Although so basic to a “is that of the to counsel at [among right rights trial”] error,’ .. . fair trial that their infraction can never be treated as harmless their infraction renders those their nature such rights a on the record.” Under assessment of meaningful prejudice impossible in a that of the case at hand where there is this context such as authority, with the it at least no record of the court’s communications jury, may, se. And it be said that error was debatably, reasonably prejudicial per held “untenable” that vindication of such constitutional has been rights rather than the trial should judge’s “memory reported depend upon Jenkins, events.” (People of In re
We observe also Dabney, holding a conclusion of error in the 452 P.2d where 924], upon the court said denial of accused’s “only criminally right can such error harmless most justify finding beyond compelling showing a reasonable doubt.” *8 has been stated the federal in
The substance of this rule
judiciary
of
this manner: “The
to have the assistance
is too
right
and absolute to allow courts to
in nice calculations
fundamental
indulge
to the amount of
from its denial.”
v.
(Glasser
as
United
prejudice arising
States,
680, 702,
315 U.S.
L.Ed.
457];
S.Ct.
Larry
[86
Buffalo
v. State
South Dakota
425 F.2d
It is also said
(8th Cir.)
Chief
of
that,
waiver,
the
in
absence of
of counsel “is
at every
presence
required
of a criminal
where
of a criminal
substantial
stage
proceeding
rights
ours;
accused
be affected.”
389 U.S.
(Italics
may
Mempa Rhay,
336, 340,
L.Ed.2d
As it must be concluded that pointed In such an event counsel’s read instructions to the jury. previously to overlook the order to is reasonably proceedings required instructions, all, and not and “modified” insure only, “given” “refused,” and that found those be given frequently Since the handwritten additions interlineations legible. changes, has been held a matter of of the written instructions to the jury handing Colburn, 544, 588, fn. 34 discretion Gherman v. (see Cal.App.3d Glass, 222, 227 330]; Cal.Rptr. Court (Hawkins) on other grounds, People Superior [disapproved 858] 757, 765, 281, 493 P.2d counsel should fn. 7 1145)]), (100 Cal.Rptr. discretion the court to exercise its had an to move have opportunity asked for have the instructions. favor They might properly rereading 17.45 CALJIC No. or juiy giving, reading, be less would instruction,* the written instructions without which *CALJIC No. 17.45 provides: will be made available room “The written instructions now being given be defaced in so must not any way. deliberations during your you request]. They [if or handwritten. “You will find that the instructions be either may printed, typewritten or be modified by Some of may typing printed typewritten *9 measures, And there are other
intelligible. undoubtedly precautions, able and counsel could have taken which conscientious reasonably “may have affected” their clients’ substantial rights.
We find ourselves unable to declare a belief trial court’s error in instructions to the in the absence of defendants and giving jury, their was harmless a reasonable doubt. attorneys, beyond
It becomes to consider other contentions raised unnecessary by parties. Jr.,
The as to defendant and the order judgment Joseph Dagnino, as to defendant Debra and each are is granting probation Dagnino, reversed.
Racanelli, J.,P. concurred.
SIMS, J.* dissent. I respectfully reflect, court,
The minutes In with the and the “... open defendants at Court instructs the the Bailiff is sworn and present, juiy, 11:35 AM the retires for At for deliberations. 12:40 recesses juiy court, lunch to deliberations at 1:57 PM. In with counsel returning open defendants ensues in re: discussion communications present, received Court from the Mr. and Mr. Sieff jury. Stephens object the manner in which the Court handled the communications from the At 5:05 PM the to the returns Court with the juiy. juiy following verdicts....”
The forth in the contains set reporter’s transcript proceedings That majority opinion. part transcript following preceded by recital, which refers to the withdrawal of the apparently original jury: for Bailiff conducted the room juiy “(Whereupon, Blanks in instructions be filled in or handwriting. handwriting. printed may by typing Also, have been deleted out. portions printed typewritten may by lining “You are not to be with the have been concerned reasons for modifications any Also, made. must deleted of an instruction and not you disregard part speculate either what it was or what is the reason for its deletion. of an instruction whether it is or handwritten is of “Every part printed, typed equal You to be final whether instruction in its importance. governed only by wording or handwritten.” printed, typed *Retired Associate Justice of the Court of under sitting Appeal assignment by of the Judicial Council. Chairperson deliberation, which time the were had: following during proceedings it that the . the recital those ..)” Following proceedings appears *10 its have no on to the courtroom announced verdicts. We other returning below, as to what that it to be record actually transpired except appears on doubt the court in that the instruction reasonable was by agreed given of, counsel, both the absence but with notice to and the concurrence of and that when the court refers to it refers to instructions giving written in the have the actually permitting jury for their in each room consideration matter. On deciding appeal defendant claims that the action of the court in with so communicating was error. reversible
Penal Code section 1138
“After the
have retired for
provides:
deliberation,
if
be
there
between them as to the
any disagreement
ifor
desire to be informed on
lawof
in
testimony,
they
any point
arising
case,
must
the officer
conduct
them into court.
they
require
Upon
court, the
into
information
being
must be
in the
brought
required
of,
to,
or after notice
and the
attorney,
prosecuting
counsel,
defendant or his
or after
have been called.”
The instruction
of the
in the absence of
presumably
defendants,
in
absence of the
to the second and third
response
violative of the
section
obviously
procedure
questions
by
prescribed
1138, and of defendants’
under section
to be
1043
statutory rights
present
at all
v.
27 Cal.2d
(1945)
stages
proceedings. (People Weatherford
401,
274,
753];
276-277;
417-418
P.2d
v. Trim
37 Cal.
(1869)
People
[164
537,
v.
223
Jenkins
539
(1963)
776];
People
Cal.App.2d
Cal.Rptr.
[35
555,
v.
213
560
See
(1963)
People Rodriquez
Cal.App.2d
Cal.Rptr.
[29
83].
504,
also
v.
35 Cal.2d
512
P.2d
(1950)
981];
Woods
v.
People
People
[218
177,
Alcalde
24
189
P.2d
Manson
627];
v.
(1944)
(1976)
People
[148
102,
61
den.];
213
v. House
Cal.App.3d
Cal.Rptr.
People
[132
265] [cert.
12
756
on another
(1970)
Cal.App.3d
Cal.Rptr.
[disapproved
[90
831]
issue,
441,
313,
v.
6 Cal.3d
451
(1972)
(99
492
People
Cal.Rptr.
Beagle
260,
P.2d 1)];
217
263
(1963)
Cal.App.2d
People Aguilar
Cal.Rptr.
[31
536,
893];
v. Fiore
176
540
(1959)
351];
People
Cal.App.2d
Cal.Rptr.
[1
675,
v. Horowitz
70
703-704
P.2d 833]; and
(1945)
People
Cal.App.2d
[161
196,
Note,
Morales
200
(1943)
P.2d
[140
461].
649,
1,
Paulson v.
Court
372 P.2d
(1962)
Superior
[22
The
641].)
United States
and the
Court
federal courts follow the
Supreme
same rule.
35,
v. United
422 U.S.
States
38-39
L.Ed.2d
(1945)
(Rogers
5-6,
S.Ct. 2091]; Shields v. United States
273 U.S.
(1927)
587-589
787, 788-790,
L.Ed.
(1919) 435]. 26, 29-30; and United 1969) v. Schor Cir. 418 F.2d United States (2d also, F.2d 736. See United States v. Cir. (6th 1969) States Smith den.].) Cir. 545 F.2d 1976) (2d Rodriguez [cert. Co., Albion Vein Slate as
The federal rule is stated
Fillippon
a trial
doubt that the
conduct of
follows: “We entertain no
orderly
by
heard,
be
entitles
essential to the
right
proper protection
to be
who attend for the
present
person
parties
purpose
until it
at
the time
is
all
from
the jury
impaneled
proceedings
*11
a
has retired to
the verdict. Where
after
jury
discharged
rendering
verdict,
are
its
and
consider of
required,
supplementary
reasons,
to
asked for
the
other
be
either because
for
they ought
an
either in the
of counsel or after notice and
opportunity
given
to the
to be
and written instructions
not to be sent
present;
ought
to
an
to
Under
without notice
counsel and
opportunity
object.
ordinary
circumstances, and wherever
the
to be recalled to
ought
practicable,
room,
court
bound
the
where counsel
entitled to
and
to
anticipate,
in the absence of notice to
that
in
all
contrary,
presume,
proceedings
the trial
be had.
this case
court
in
a
will
In
the trial
erred
giving
instruction to
in the absence of the
and
supplementary
parties
them
to
an
either to be
or make
affording
opportunity
present
to the
at
instruction.
U.S.
(250
timely
p.
objection
[63
[Citations.]”
L.Ed. at
The court
the decision of the circuit
855-856].)
overruled
pp.
no
been
because the
court
concluded
harm had
done
appeals
asked
had been
and
answered
had been
and
accurately
question
plainly
to
was not
It held that
the subsequent
right
object
writing.
It
to be
of present during
proceedings.
opportunity
equivalent
stated,
hold
be to
and essential
“To so
would
overlook
primary
to
to
the mind of the trial
an
which is
direct
function of
judge
exception,
law,
that he
it is
erred
so
in which
he has
may
point
supposed
error, and that
if convinced of
it and
his
reconsider
ruling
change
be obviated.
mistrials due to inadvertent errors
thus
and
may
injustice
case, however,
at
In
856].)
L.Ed.
{Id.,
p.
p.
[Citations.]”
[63
accurate, but
was not
found that
instruction
court
mislead the
“erroneous and calculated to
jury.”
rule,
to
situation where
A
of the
further rationalization
applicable
is
is
oral communication from
there
an
judge
unreported
trial,
Jenkins,
There,
motion for a new
on
found
supra.
People
own
that of one
was called
his
affidavit against
upon weigh
judge
The court
to the nature of the
stated:
with
communication.
jurors
respect
situation of the court
both witness
“This
anomalous
being
presented
rather than
of his own
on his
memory
judge
testimony, relying
of either
events. The
was in the untenable
judge
position
reported
another, thus
it in
his own affidavit or rejecting
preference
believing
at
own evidence
his
(223
p.
ruling
untrustworthy.”
Under the Sixth Amendment of the United States Constitution the
accused
entitled
to the assistance of counsel at all critical
stages
In United States v. Wade
Coffey 15] I, Article section of the California text.) Constitu- accompanying tion states in “The defendant in a criminal cause has the pertinent part: *12 to have assistance of defense, counsel for the defendant’s right... be with 5, counsel ....” (See, 1974, former personally present pre-Nov. 13; Code, 686, 2; Pen. 78, § subd. In re Cortez 6 § Cal.3d (1971) 88 [98 307, 490 P.2d In re 819]; 141, 2 Cal.3d 145-146 (1970) Cal.Rptr. Lopez [84 361, 465 P.2d 257]; Clemensen v. Court 18 Cal.Rptr. (1971) Municipal 492, 497-500 126].) Cal.App.3d Cal.Rptr. [96
Nevertheless, the cases that the harmless error uniformally recognize rule to the situation where there has been a communication applies between that is unauthorized because made out of the judge counsel, of the defendant or his or both. v. United (See presence Rogers States, 35, 422 1, U.S. 40 L.Ed.2d 6]; United States v. supra, Rodriguez, [45 829, 545 831; Schor, F.2d 26, United States v. 418 F.2d 30 supra, supra, States, Woods, v. United v. 35 [approved Rogers supra]; People supra, 504, 512; 401, 418-419; v. 27 Cal.2d Weatherford, People supra, Manson, House, 102, 213-214; v. 61 v. People supra, Cal.App.3d People Jenkins, 756, 765-766; 12 223 v. supra, Cal.App.3d People supra, 537, 539; 260, 264; v. 217 Cal.App.2d Aguilar, Cal.App.2d People supra, 555, 560; Fiore, v. 213 v. People Rodriquez, supra, Cal.App.2d People Horowitz, 536, 540; 176 v. 70 supra, Cal.App.2d People supra, Cal.App.2d 675, 704; Morales, 196, v. 200-201.)1 People supra, Cal.App.2d 1An examination of cases where reversals were found indicates that necessary States, (See error was articulated in each case. v. United 422 U.S. prejudicial Rogers supra, L.Ed.2d indication he would verdict [judge’s recommending accept 6-7] House, v. as follows:
The situation was summarized People supra, a do warrant a of “Violations of section 1138 Penal Code not reversal unless v. Woods of conviction shown. (People judgment prejudice .; 504, 512 . . (1963) (1950) Aguilar Cal.App.2d People 13; Code, .; Const., VI, (12 1258.)” § art. Pen. § 264 . . Cal. Jenkins, where at In 766.) prejudice p. People Cal.App.3d out the court conversation with the of found from unreported court defendant or his of knowledge of error in a stated: “Whether there is resulting miscarriage prejudicial must, facts of the in the last analysis, justice depend upon particular case.” at here one must look at (223 individual So Cal.App.2d p. defendants, to the record to determine whether there was prejudice constituting miscarriage justice.
It
consent of the defendants’
vitiated
is clear
any
attorneys
first
error because the court answered the
claim of
by
jurors’
question
them the
instruction on reasonable doubt.
standard
(People
giving
230-231
697].)
(1965)
Cal.Rptr.
Cal.App.2d
Winkelspecht
fails to show that
to the other
record
With
questions
respect
instructions which
did
than
written
trial
more
give
jurors
judge
law
he had
and were identical with the
embodied
principles
contains
The clerk’s transcript
orally given
jury.
already
thereon, as
action
to show his
endorsed
judge
Code. (See
and 1176 of the Penal
sections 1127
required by
of6
Subdivision
534].)
Gloria (1975)
*13
of instructions
cause
“The trial
section 1093 concludes:
may
copies
judge
Section
the
at the time
to be delivered to
given.”
so
they
jurors
given
deliberation,
...
the
for
1137
in
jury
states
retiring
part:
pertinent
“Upon
. ...” Whether
instructions
take with them the written
also
given
may
instructions
with them to the
room
written
take
given
jury
jury may
v.
266
Glass (1968)
to the trial court’s discretion.
a matter
(People
subject
on
issue
222,
another
227
[disapproved
Cal.Rptr. 858]
Cal.App.2d
[71
States,
that
have
v.
995 765, v. Court fn. 7 (Hawkins) (1972) (100 People Superior 281, 493 P.2d See also 72 Gherman v. Colburn 1145)]. (1977) Cal.Rptr. 544, 330].) Cal.App.3d Cal.Rptr.
In (1973) 448], People Wingo Cal.App.3d made defendant to the court’s timely objection delivering procedure of two instructions to the than them to rather back copies calling reread the two instructions on of its This court subject inquiry. on concluded “These statutes subd. 6 and have § appeal: [§ 1137] reference to all of the instructions since to certain of the given permit only be instructions to taken into the room would undue jury place on such (See instructions. emphasis Lyons, People situation, however, 320-323 ... In the instant we no .) prejudice. perceive Not were balanced, i.e., the instructions one was only prodefendant the other but both instructions had proprosecution, comprised been on the of its Had previously orally given jury subject query. returned courtroom for a rereading requested these instructions instructions reread to them. would have been Under the circumstances there would not be an since the overemphasis itself had be reread.” at In (34 requested p. Cal.App.3d this case each defendant he or she although signified objecting followed, which the he had neither procedure judge acknowledged a mistrial, moved for nor did either that the court address itself request matter of the and reread the subject questions proper court to the in the defendants and their open jurors counsel. (See Soto Cal. (1884) 664]; P. People Morales, I 198-200.) whether question verdict, defendants should be to sit back and await a permitted which, an cited, then assert error within the of the cases last principles could have been corrected on to the court. it was proper request Although verdict, known that the had at a its arrived tenor was apparently unknown. of the verdict could been deferred have Receipt pending further instructions.
After out failure to with the of section pointing comply provisions 1138, counsel for stated the counsel Joseph grounds, following also, for Debra “It is that the Court did not joined: my understanding, CALJIC instruction, 17.45 which deals with the written give instruction, and how cautionary essentially, instructing jury they in, should consider the instructions that were sent and it seems to me that under 1138 the has a to Court and the Court not duty notify has from me effective notifying simply prevented making any to it at time Court sent those instructions in. I objection now, understand the has the verdict so it is difficult for me to very make an at this to the instructions in.” There was objection point sending no abuse of discretion in to have the written permitting jurors instructions. There was no contention that the written instructions did not law, state the or that tended to the case one accurately they prejudice way or another. Nor was it that the court should have other urged instructions, CALJIC No. 17.45. neither defendant except Finally, by motion for new trial to show that there was in fact. attempted prejudice Jenkins, 537, (Cf. 539; People supra, Cal.App.2d Aguilar, supra,
CALJIC No. 17.452 cautions the that the manner of recording instruction is of no and that the content I have significance, only governs. examined the written instructions as found in the clerk’s tran- copied I find in the or deletions on the or .instructions script. nothing handwriting in them which would lead to concern himself with the reason any juror modification, for or to what was or is reason for any speculate any deletion. The instruction in favorable to the one only handwriting Debra, defendant that it would first have to find required of reasonable doubt before Joseph guilty burglary beyond proceeding to examine her case. The defendants were not because prejudiced were an denied the instruction below. opportunity request suggested Schor,
In United States v.
the court left
open
question
test to be used to determine harmless error in a case of this kind. It stated:
“Whether in a case like the
one the
standard with
present
proper
respect
California,
harmless error is that of
386 U.S.
87 S.Ct.
Chapman
824, 17 L.Ed.2d
California,
395 U.S.
(1967),
Harrington
S.Ct.
766; and cf. 418 and It People Weatherford, supra, case, examination is clear that after an entire including evidence, it is not that a result more favorable to the reasonably probable defendants would have been reached had the court refrained from he did second and following procedure answering jury’s third v. Watson (See P.2d (1956) questions. Insofar as 243].) language People Weatherford, supra, suggests constitutional due concerned, to counsel I can process right rights error, declare a belief that the the written instructions to the giving with the was, defendants or their communicating attorneys, case, under the circumstances of this harmless a reasonable beyond doubt.
I have examined the other contentions of error advanced defendants on and have concluded fail to show reversible appeal, I error. would therefore affirm the of conviction of judgment Joseph order Debra Dagnino, admitting Dagnino probation. for a Court was denied hearing by
Respondent’s petition Supreme Clark, J., Richardson, J., 1978. were of the that the July opinion should be petition granted.