People v. Dagnino

80 Cal. App. 3d 981, 146 Cal. Rptr. 129, 1978 Cal. App. LEXIS 1482

• Court: California Court of Appeal
• Decided: May 18, 1978
• Docket: Crim. 16452
• Status: Published

Opinions

Opinion

ELKINGTON, J.

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:

“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. Randell: 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 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, 465 P.2d 257], as follows: “ ‘[T]here can be no doubt [of] the fundamental constitutional right to the assistance of counsel at all stages of the proceedings ....’” (Italics added.)

This rule, it has been held by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 224 [18 L.Ed.2d 1149, 1156, 87 S.Ct. 1926], 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. ” (Italics added.)

Shields v. United States, 273 U.S. 583, 588 [71 L.Ed. 787, 789-790, 47 S.Ct. 478]. “ ‘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.’ ” (Italics added.)

Paulson v. Superior Court, 58 Cal.2d 1, 7 [22 Cal.Rptr. 649, 372 P.2d 641]. 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], “ ‘[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 (D.C.Cir.) 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 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 proceeding. Each stage interlocks with and is dependent upon the other to make up the complete criminal prosecution.”

People v. Jenkins, 223 Cal.App.2d 537, 539-540 [35 Cal.Rptr. 776]. “[T]he bailiff received a piece of paper from the foreman which was handed to the judge in the hallway inquiring, ‘What acts amount to first degree burglary?’ The judge then ‘stepped to the doorway of the jury room and advised the foreman orally that the jury had been instructed to find the defendant not guilty as to Count One, or in the alternative, to find the defendant guilty of burglary in the second degree, and that the jury was not to be concerned about first degree burglary... .’ [The] defendant and his attorney were not present. ... [¶] For the court to have instructed the jury in the manner in which it did under the circumstances of the case, constituted prejudicial error and a miscarriage of justice.”

From the foregoing it becomes patent that a trial court’s instructions to a jury in a criminal case are given at a “critical” stage of the proceedings and therefore, without the presence of counsel and absent a stipulation, comprise both constitutional and statutory error.

There remains the question whether the error was harmless.

The controlling federal rule is found in Chapman v. California, 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]. The court there recognized (p. 23 [17 L.Ed.2d at p. 710]) that although “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,” nevertheless “any belief that all trial errors . .. automatically call for reversal” is incorrect. Without elaborating upon constitutional rights so “basic,” the court declared (p. 24 [17 L.Ed.2d at pp. 710-711]) “that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”

In a perceptive analysis of Chapman v. California, the state’s high court in People v. Coffey, 67 Cal.2d 204, 219 [60 Cal.Rptr. 457, 430 F.2d 15] (and see fn. 17), stated: “ ‘Although ... there are some constitutional rights [among which “is that of the right to counsel at trial”] so basic to a fair trial that their infraction can never be treated as harmless error,’ .. . those rights are by their nature such that their infraction renders impossible a meaningful assessment of prejudice on the record.” Under this authority, in a context such as that of the case at hand where there is no record of the court’s communications with the jury, it may, at least debatably, reasonably be said that the error was prejudicial per se. And it has been held “untenable” that vindication of such constitutional rights should depend upon the trial judge’s “memory rather than reported events.” (People v. Jenkins, supra, 223 Cal.App.2d 537, 540.)

We observe also the holding of In re Dabney, 71 Cal.2d 1, 8 [76 Cal.Rptr. 636, 452 P.2d 924], where upon a conclusion of error in the denial of a criminally accused’s right to counsel, the court said “only the most compelling showing can justify finding such error harmless beyond a reasonable doubt.”

The substance of this rule has been stated by the federal judiciary in this manner: “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” (Glasser v. United States, 315 U.S. 60, 76 [86 L.Ed. 680, 702, 62 S.Ct. 457]; Larry Buffalo Chief v. State of South Dakota (8th Cir.) 425 F.2d 271, 279.) It is also said that, in the absence of waiver, presence of counsel “is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” (Italics ours; Mempa v. Rhay, 389 U.S. 128, 134 [19 L.Ed.2d 336, 340, 88 S.Ct. 254].)

It thus appears that while denial of counsel at the “critical stage” of a criminal proceeding is not necessarily prejudicial as a matter of law, prejudice will be presumed where the denial “may have affected” the substantial rights of the accused. Only the “most compelling showing” to the contrary will suffice to overcome the presumption, and courts will not engage in “nice calculations” in making such a determination. And of course the foundational constitutional requirement, in determining the harmlessness of such error, is Chapman v. California's mandate that the “court must be able to declare a belief that [the denial of counsel] was harmless beyond a reasonable doubt.”

As pointed out, it must be concluded that the trial court handed the previously read instructions to the jury. In such an event counsel’s presence is reasonably required to overlook the proceedings in order to insure that all, and only, the “given” and “modified” instructions, and not those “refused,” be given the jury, and that the frequently found handwritten changes, additions and interlineations are legible. Since the handing of the written instructions to the jury has been held a matter of discretion (see Gherman v. Colburn, 72 Cal.App.3d 544, 588, fn. 34 [140 Cal.Rptr. 330]; People v. Glass, 266 Cal.App.2d 222, 227 [71 Cal.Rptr. 858] [disapproved on other grounds, People v. Superior Court (Hawkins) 6 Cal.3d 757, 765, fn. 7 (100 Cal.Rptr. 281, 493 P.2d 1145)]), counsel should have had an opportunity to move the court to exercise its discretion in favor of rereading the instructions. They might properly have asked for the reading, or the giving, to the juiy of the CALJIC No. 17.45 instruction,

* without which the written instructions would be less intelligible. And there are undoubtedly other measures, and precautions, able and conscientious counsel could reasonably have taken which “may have affected” their clients’ substantial rights.

We find ourselves unable to declare a belief that the trial court’s error in giving instructions to the jury, in the absence of defendants and their attorneys, was harmless beyond a reasonable doubt.

It becomes unnecessary to consider other contentions raised by the parties.

The judgment as to defendant Joseph Dagnino, Jr., and the order granting probation as to defendant Debra Dagnino, are and each is reversed.

Racanelli, P. J., concurred.

CALJIC No. 17.45 provides: “The written instructions now being given will be made available in the jury room during your deliberations [if you so request]. They must not be defaced in any way. “You will find that the instructions may be either printed, typewritten or handwritten. Some of the printed or typewritten instructions may be modified by typing or handwriting. Blanks in the printed instructions may be filled in by typing or handwriting. Also, portions of printed or typewritten instructions may have been deleted by lining out. “You are not to be concerned with the reasons for any modifications that have been made. Also, you must disregard any deleted part of an instruction and not speculate either what it was or what is the reason for its deletion. “Every part of an instruction whether it is printed, typed or handwritten is of equal importance. You are to be governed only by the instruction in its final wording whether printed, typed or handwritten.”

Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.