The opinion
AGLIANO, P. J.
I concur in the judgment but respectfully disagree with the majority’s characterization of the trial court’s conduct with respect to the jury.
In my view there is inadequate record support for the majority’s conclusion that the trial court may have coerced reconsideration of the verdict and that it directed continued deliberation without giving the jury guidance. The record indicates instead, that after lengthy discussion with counsel and thorough evaluation of this difficult problem, the trial court chose what was then a manifestly reasonable solution. It gave the jury a new form of verdict which, unlike the initial form, clearly explained that the jury should not determine the question of special circumstances upon deciding to acquit on the charge of murder. The court thus gave the jury the opportunity and means to itself purge the verdict of the inconsistent findings.
The court’s well-intentioned plan unfortunately went awry when a juror appeared to reconsider his vote, leading the court to declare a mistrial. We now conclude, in light of Penal Code section 1161, that the trial court should earlier have accepted and recorded the jury’s verdict. That conclusion, however, neither requires nor justifies the suggestion that the court in effect directed the jury to reconsider its verdict. As I view the record, the *1140 court merely sought the return of a facially consistent verdict, conduct which under the circumstances was not improper.
A petition for a rehearing was denied April 7, 1989. Agliano, J., was of the opinion that the petition should be granted. Petitioner’s application for review by the Supreme Court was denied June 22, 1989. Kaufman, J., was of the opinion that the application should be granted.