People v. Dagnino, Cr. 16452

CourtCalifornia Court of Appeals
Writing for the CourtELKINGTON
Citation144 Cal.Rptr. 686,79 Cal.App.3d 82
Decision Date27 March 1978
Docket NumberCr. 16452
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Joseph DAGNINO, Jr., et al., Defendants and Appellants.

Page 686

144 Cal.Rptr. 686
79 Cal.App.3d 82
PEOPLE of the State of California, Plaintiff and Respondent,
Joseph DAGNINO, Jr., et al., Defendants and Appellants.
Cr. 16452.
Court of Appeal, First District, Division 1, California.
March 27, 1978.
For Opinion on Rehearing, see 146 Cal.Rptr. 129.

Page 687

Kenneth F. Coho (court-appointed), San Rafael, for defendant and appellant Joseph Dagnino, Jr.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Michael G. Millman, Isadora W. Lomhoff, Deputy State Public Defenders, San Francisco, for defendant and appellant Debra Dagnino.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Laurence M. May, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

ELKINGTON, Associate Justice.

By a jury's verdicts Joseph Dagnino, Jr., was convicted of first degree burglary (Pen.Code, § 459), and Debra Dagnino, his wife, of being an accessory (Pen.Code, § 32) to that burglary. He has appealed from a judgment, and she from an order granting probation, thereafter entered.

We have read the parties' briefs and the trial record. Error is found which requires a reversal as to each defendant. We proceed to discuss that error.

Upon the jury's announcement to the bailiff that they had reached their verdicts, counsel and the defendants had returned to the courtroom. Thereupon, out of the presence of the jury the following proceedings were taken in open court:

Page 688

"The Court: All right, let the record show that counsel and the defendants are present, and the jury is still in the jury room.

"At this point I will indicate for the record that I received from the jury three notes. The first one requested instructions on reasonable well, it says, 'reasonable,' and then underneath that, 'possible,' and on the strength of that I asked Mr. Holt (the bailiff) to return to the jury and ask them what they wanted, if it was an instruction on reasonable doubt, and the answer they returned was that it was, so I had Mr. Holt call counsel and indicate to them that I intended to give them the instruction on reasonable doubt, that is, the CALJIC instruction, and upon receiving the concurrence of counsel I proceeded to do that. Shortly thereafter I had another request for the difference between first and second degree burglary, and then the definition of accessory, and I gave them the instructions on that without notifying counsel. I then received, shortly thereafter, a request which read as follows: 'We would like the definition of circumstantial evidence,' and because there were at least two instructions, if not possibly three, that bear directly upon that particular subject matter, I gave all of the instructions, those given prior to the time that testimony was taken, and also those at the conclusion of the trial, to the jury, and I did so without calling counsel and getting counsel's concurrence in that regard, and I understand that there is an objection to that, and I think that you are the one that voiced the objection, Mr. Stephens (attorney for Joseph Dagnino, Jr.).

"Mr. Stephens: That is correct, your Honor. I did receive a communication from Mr. Holt in regard to the reasonable doubt instruction. It is my understanding that when the court is referring to giving those instructions, the court actually allows the jury to have the physical instructions in the jury room for their consideration in deciding this matter, and I believe that under Penal Code section 1138 it is incumbent upon the court to notify counsel of when there has been any communication with the jury, and particularly, a request for further instructions, or for further testimony, which was not requested in this case, and the court did not do so.

"It is my understanding, also, that the court did not give CALJIC 17.45 which deals with the written instruction, the cautionary instruction, and essentially, instructing the jury how they should consider the instructions that were sent in, and it seems to me that under 1138 the court has a duty to notify counsel, and the court not notifying counsel simply has prevented me from making any effective objection to it at the time the court sent those instructions in. I understand the jury has the verdict now, so it is very difficult for me to make an objection at this point to sending the instructions in.

"The Court: All right.

"Mr. Stephens: I do object to the procedures which were used in this matter, your Honor.

"The Court: All right.

"Mr. Sieff (attorney for Debra Dagnino): On behalf of Mrs. Dagnino, I will join in that objection. There was the same pattern. I was called by Mr. Holt with regard only to the beyond a reasonable doubt and burden of proof instruction.

"The Court: All right. Mr. Randell (deputy district attorney)?

"Mr. Randall: I have no objection, your Honor."

No other record appears of the proceedings during which the court actually "gave" the subject instructions to the jury. We assume, as apparently do counsel, that the previously read instructions were physically handed to the jury. Whether there were attending courtroom proceedings, we do not know. And the jury's written communications to the court, if such they were, were not preserved; at least they were not recorded.

It will be seen that with the consent of all counsel the trial court repeated its instruction to the jury on the principle of reasonable doubt. Then without the consent

Page 689

or knowledge of defendants' counsel, and at the jury's subsequent request, they were "given" instructions on "the difference between first and second degree burglary, and then the definition of accessory, . . . " And finally upon another communication from the jury, the court "gave" all of the instructions that had previously been given them at the trial's beginning and end, again without the presence, or consent, or knowledge, of counsel or the defendants.

Few rules are more firmly fixed in our criminal law than that tersely reiterated by the state's high court in In re Lopez, 2 Cal.3d 141, 145, 84 Cal.Rptr. 361, 363, 465 P.2d 257, 259, as follows:

" '(T)here can be no doubt (of) the fundamental constitutional right to the assistance of counsel at all stages of the proceedings . . . .' " (Emphasis added.)

This rule, it has been held by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149, will "apply to 'critical' stages of the proceedings."

Authority bearing on the propriety of a trial court's communication with the jury in the absence of defense counsel, in relation to instructions on the law, follows.

Penal Code section 1138. "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." (Emphasis added.)

Shields v. United States, 273 U.S. 583, 588, 47 S.Ct. 478, 479, 71 L.Ed. 787. " 'Where a jury has retired to consider of its verdict, and supplementary instructions are required, either because asked for by the jury or for other reasons, they ought to be given either in the presence of counsel or after notice and an opportunity to be present; and written instructions ought not to be sent to the jury without notice to counsel and an opportunity to object.' " (Emphasis added.)

Paulson v. Superior Court, 58 Cal.2d 1, 7, 22 Cal.Rptr. 649, 652, 372 P.2d 641-644. Here without defense counsel's knowledge the "bailiff reported to the judge the foreman's opinion that the jury was hopelessly deadlocked," upon which information, at least in part, the jury were discharged. The court held: "Such informal communications between court and jury are improper. . . . '(A)ll communications should be made in open court. . . . Ordinary procedure would require that the trial judge afford the parties an opportunity to be apprised of any such communication and to have the opportunity to make timely objection to any action by the court or jury which might be deemed irregular.' "

People v. Trim, 37 Cal. 274. "It . . . appears affirmatively that after the jury had retired for deliberation under instructions of the Court, they were brought into Court for further instructions, which were given in the absence of defendant's attorney, and it does not appear that defendant's attorney was in any manner notified of such return of the jury for further instructions, as required by section four hundred and eight of the Criminal Practice Act." (P. 276.) Held: "For these errors appearing upon the face of the record of the action . . . the judgment must be reversed and cause remanded for retrial." (P. 277.)

People v. Weatherford, 27 Cal.2d 401, 419, 164 P.2d 753, 762. " '(C)ourts are practically unanimous in holding that private communications between court and jury are improper, and that all communications should be made in open court.' "

United States v. McCoy, 139 U.S.App.D.C. 60, 63, 429 F.2d 739, 742. "(A)fter the trial the District Judge met with the juror in his chambers and gave her an opportunity to state her question. But neither appellant, his counsel, the prosecutor, nor a court reporter was present. The Sixth Amendment requires the presence of defense counsel and the accused at all critical stages of

Page 690

the prosecution. We think that resolving questions raised by jurors during the jury poll is such a stage." (Fns. omitted.)

United States v. Smith (6th Cir.) 411 F.2d 733, 736. "We view the presentation of evidence, the charge to the jury, the return of the jury's verdict and the imposition of the sentence as one continuous...

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