Opinion Bank # 176 (Re: NCJIC 285.1.7 [Record Of Supplemental Instruction Proceedings And Instructions Given To The Jury].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A057064
(Contra Costa County)
(Super. Ct.
No. 902403-5)
v.
JAVIER FRANCISCO GONZALES,
Defendant and Appellant.
______________________________________/
Javier Francisco Gonzales appeals his conviction of residential burglary, arguing that the trial court erred by failing to respond to the jury's request for instruction and by failing to alert appellant and his counsel that such a request had been made. We agree, and reverse with instructions to the trial court to hold a hearing to complete the record by establishing whether and in what manner the jury's request was answered. If it is established that the instructions were given to the jury or that counsel was contacted and agreed to a resolution of the question, no retrial is necessary.
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 1989, Patricia Dunn-Jahnke returned to her home in Orinda at approximately 11 p.m. She noticed that a padded jewelry box and a small television set were missing. Jewelry in the box was also missing. Another jewelry box on her dresser had been moved. Dunn-Jahnke's daughter, who had been home earlier, had noticed an unfamiliar brown older model Japanese car on the street. The daughter had heard noises downstairs earlier in the day, but had seen no one. One of the doors to the residence had been left unlocked.
Appellant's fingerprint was found on the other jewelry box. When first questioned by police, appellant denied that he had ever been to the Jahnke house. Appellant owned a 1975 and a 1977 Toyota at the time of the burglary. Appellant was charged with first degree burglary with two prior convictions pursuant to Penal Code section 1203, subdivision (e)(4), regarding probation ineligibility.
At trial, Ilsoig Kwak testified that in June of 1989, he employed appellant to do gardening work at the Jahnke's home. Kwak's employees were instructed not to enter the house. Appellant testified that one day while he was working, he went inside the house to use the bathroom. Afterwards, he spent several minutes looking around inside the house, but denied taking anything. He lied to the police because of his past record.
Prior to instructing the jury, counsel stipulated that if appellant was convicted of burglary, it was a first degree burglary, and the court need not instruct on the first degree elements of the crime. The court filed those instructions marked "withdrawn." Also included with the withdrawn instructions was CALJIC Number 17.45, which tells the jury that the instructions are available in written form. (Pen. Code, § 1093, subd. (f) [judge shall advise jury of availability of written instructions].) The jury was not told of the availability of written copies of the instructions.
After the jury retired, the court elicited two stipulations from counsel. Counsel agreed that if the jury requested instructions, the court could send in the entire set of instructions without the necessity of all parties reassembling in court. Counsel also agreed that if the jury requested partial instruction, the court would contact counsel and agree regarding what instructions would be sent in. Both counsel left telephone numbers with the court.
At some point during deliberations the jury sent a note to the court stating: "We need the interpretation of the law, statement of section 459-460-1 [first degree burglary]. Please deliver all admitted evidence to the jury & tape recorder. Please deliver the law interpretation of section 602.5 [unauthorized entry of dwelling]." Neither the clerk's minutes nor the reporter's transcript indicates any response to this request. The copy of the instructions in the clerk's transcript is marked with an "x" in the space indicating "given" but the space indicating "delivered to jury during deliberations" is not checked.
The jury returned a verdict of guilty of first degree burglary. Appellant was sentenced to the low term of two years.
DISCUSSION
Appellant argues that the trial court violated its duty to give serious consideration to the jury's request for reinstruction or clarification. (§ 1138; People v. Beardslee (1991) 53 Cal.3d 68, 96-98.) Section 1138 provides that if the jurors "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 . . . ." "The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.) . . . [A] court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee, supra, 53 Cal.3d 68, 97.) The fact that the record does not indicate any response to the jury's inquiry indicates error. The error is compounded by the violation of section 1093, subdivision (f), which requires the court to tell the jury that a written copy of the instructions is available.
Thus, even if the jury merely wished to receive copies of the instructions, the court never told them they could have a written copy. Judging solely by the state of the record on this issue, the instructions were never sent in to the jury room.Both a failure to further instruct and a section 1093 violation are harmless unless prejudice is shown. (People v. Beardslee, supra, 53 Cal.3d at p. 97; People v. Blakley (1992) 6 Cal.App.4th 1019, 1023.) In Beardslee, no prejudice was shown where the court refused to respond to a jury question about one instruction. The Supreme Court found that there was no indication the jury was confused as to any point of law that could have prejudiced the defendant. The same cannot be said in the instant case. In light of the error regarding copies of the instructions, and the lack of any record indicating that the court actually responded to the inquiry, we cannot find the absence of an attempt to address the jury's apparent confusion over the definition of the crime charged was harmless. The jury requested interpretation of the law governing burglary and the lesser included offense of unauthorized entry of property. Appellant's defense was that he entered the building with innocent intent. The critical inquiry for the jury was whether appellant had the intent to steal at the time he entered the house. The complete lack of a record indicating any action was taken prohibits us from assuming the proceedings were conducted in accordance with the law. In light of the present state of the record, all that is shown is a failure to explain or supply the two fundamental instructions, which, under these circumstances, is a prejudicial error.
We commend the trial court for utilizing the time saving procedure of stipulating to send in the full set of instructions and allowing for telephone conferences in the event of requests for partial instruction. However, any such procedure also should include some recitation on the record, or in the minutes of the clerk, of what transpired following the jury's inquiry. If the court conversed with the attorneys pursuant to the stipulation regarding partial instruction, that fact should be memorialized on the record later when all counsel are again present before the court. If all the instructions are sent to the jury, the record must somehow reflect that fact as well.
CONCLUSION
The judgment is reversed and the matter is remanded to the trial court with instructions to hold a hearing to establish, if possible, whether and in what manner the jury's question was answered. If the record cannot be clarified to show that all instructions were sent in or that pursuant to the stipulation counsel was contacted and partial instruction was given, appellant is entitled to a new trial.