Dagnino

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.

*984 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…

I respectfully dissent.

The minutes reflect, “... In open court, with the jury, counsel and the defendants present, the Court instructs the juiy, the Bailiff is sworn and at 11:35 AM the jury retires for deliberations. At 12:40 the juiy recesses for lunch returning to deliberations at 1:57 PM. In open court, with counsel and the defendants present, a discussion ensues in re: communications received by the Court from the jury. Mr. Stephens and Mr. Sieff object to the manner in which the Court handled the communications from the juiy. At 5:05 PM the juiy returns to the Court with the following verdicts....”

The reporter’s transcript contains the proceedings set forth in the majority opinion. That part of the transcript is preceded by the following recital, which apparently refers to the original withdrawal of the jury: “(Whereupon, the Bailiff conducted the jury to the juiy room for *991 deliberation, during which time the following proceedings were had: . ..)” Following the recital of those proceedings it appears that the jury on returning to the courtroom announced its verdicts. We have no other record as to what actually transpired below, except that it appears to be agreed…

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…