In what circumstances will a jury be allowed to send a letter to the judge asking for a decision of life imprisonment and not eligible for parole?

A similar situation was presented in People v. Alcalde (1944) 24 Cal.2d 177, 188--189, 148 P.2d 627, 633. The jury delivered a note to the judge asking, 'May we render a decision of life imprisonment And not eligible for parole?' The court returned the note with the reply, 'No.' Although the court stated that this was improper in that all communications between court and jury should be made in open court, the court stated (p. 189): 'But in this instance the court could not have responded by any other answer than 'No' or its equivalent, namely, that the jury was to be guided solely by the instructions already given. The answer of the trial judge could properly have been made over the objection of the defendant or his counsel if the ordinary procedure had been followed.' Consequently, the 'episode may not be deemed to be prejudicial' necessitating a reversal.

The failure of defendant's counsel to object or move for a mistrial upon the court frankly informing him of the court's action might also be construed to be a tacit approval. Approval of the court's action, even though it might have been a technical violation of section 1138 of the Penal Code, [12 Cal.App.3d 766] cures any possible error. (People v. Winkelspecht (1965) 237 Cal.App.2d 227, 231, 46 Cal.Rptr. 697.) ⁴