People v. Dagnino
Decision Date | 27 March 1978 |
Docket Number | Cr. 16452 |
Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph DAGNINO, Jr., et al., Defendants and Appellants. |
Court | California Court of Appeals Court of Appeals |
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.
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:
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 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. (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: "
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. (Fns. omitted.)
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