I respectfully dissent. This case is before us for reconsideration in light of the recent Supreme Court decision in People v. Bonillas (1989) 48 Cal.3d 757 [257 Cal.Rptr. 895, 771 P.2d 844], Properly considered, I do not interpret that decision to control under these facts. The crucial difference is that here, the jury was not properly instructed that if it found the defendant guilty of murder it must also specify degree. Hence, the verdict was not “incomplete under the . . . instructions.” (Id. at p. 769.) Since the February 22 verdict was complete, I would find the defendant guilty of second degree murder as a matter of law under the settled and prevailing interpretation of section 1157 of the Penal Code. (Bonillas, supra, 48 Cal.3d at p. 804 (cone. opn. of Arguelles, J.).)1
An examination of pertinent recent decisions in this area is illuminating. In People v. Marks (1988) 45 Cal.3d 1335 [248 Cal.Rptr. 874, 756 P.2d *556260], the defendant was charged with murder and with two special circumstances: lying in wait and intentional murder for financial gain. The trial court failed to conduct a competency hearing after specifically questioning the defendant’s competency. The case was tried before a jury which found him guilty of murder—without specifying degree—and found one of the special circumstances to be true. The Supreme Court held the trial court committed reversible error by failing to hold the competency hearing and reversed on that basis. In addition, the court also found other reversible errors occurred at trial. The Supreme Court explained: “The jury’s verdict did not specify the degree of murder of which defendant was convicted. Indeed, the trial court inexplicably denied defendant’s requested instruction, CALJIC No. 8.70, that the jury must specify the degree of murder. Section 1157, whose predecessor statute was enacted more than a century ago, requires that a jury ‘must find the degree of crime or attempted crime of which he [the defendant] is guilty’ We have consistently held that section 1157 means that a jury must explicitly specify in its verdict the degree of the crime for which it convicts the defendant. (People v. McDonald (1984) 37 Cal.3d 351, 379-383 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011].)” (People v. Marks, supra, 45 Cal.3d 1335, 1344, italics in original, italics added.)
People v. McDonald, supra, 37 Cal.3d 351, was decided only four years before Marks and was the precedent on which the Marks court principally relied. In McDonald, the defendant was charged with robbery and murder, with a special circumstance alleging he committed the murder while in the commission of robbery or attempted robbery. The People’s only theory was felony murder. The jury was instructed solely on first degree murder and it returned a verdict of guilty “as charged in ... the information.” But the trial court failed to instruct the jury it must specify the degree of murder and the jury indeed failed to specify degree. (McDonald, supra, 37 Cal.3d at p. 379.) The jury was polled and the verdict was recorded.2
The trial court realized its error in failing to require the jury to specify the degree of murder. Three and a half weeks later when the jury was reconvened for the penalty phase, the court submitted a new guilty verdict form which required the jury to find “ ‘murder of the first degree to be true/not true.’ ” (McDonald, supra, 37 Cal.3d at p. 379.) The jury deliberated briefly and returned a finding of first degree murder.
*557The Supreme Court refused to accept this belated specification of degree. The court held Penal Code section 1157 required the guilty verdict to be second degree murder as a matter of law despite the jury’s implied finding of first degree murder. The court pointed out: “[Throughout its history the statute has been applied in cases in which the ‘failure’ of the jury to determine the degree of crime ‘consisted in an omission to perform that function because of mistake or inadvertence or in circumstances suggesting an intended act of leniency.’ [Citation.] The rule is thus firmly established that the statute applies whenever the jury neglects to explicitly specify the degree of the crime.” (McDonald, supra, 37 Cal.3d at p. 381; quoting People v. Dixon (1979) 24 Cal.3d 43, 51-52 [154 Cal.Rptr. 236, 592 P.2d 752].)
The court went on to consider other decisions and summed up the case law stating: “These decisions illustrate the rule that the statute applies to reduce the degree even in situations in which the jury’s intent to convict of the greater degree is demonstrated by its other actions, i.e., by signing a subsequent verdict form (Hughes) or making a finding on an enhancement (Beamon). Contrary to respondent’s assertion, the key is not whether the ‘true intent’ of the jury can be gleaned from circumstances outside the verdict form itself; instead, application of the statute turns only on whether the jury specified the degree in the verdict form. In the present case the verdict form failed to specify the degree; in the absence of such specification, the jury’s finding on the special circumstance allegation is irrelevant and the conviction must be deemed second degree murder as a matter of law pursuant to the unambiguous language of section 1157.” (McDonald, supra, 37 Cal.3d at p. 382.)
The court next rejected the prosecutor’s argument that because the jury was only instructed on first degree murder and was not instructed on the lesser included offense of second degree murder, any verdict of guilt on the murder charge could only be first degree: “First, the terms of the statute are unambiguous. No special exception is created for the situation presented by this case; had the Legislature chosen to make section 1157 inapplicable to cases in which the jury was instructed on only one degree of a crime, it could easily have so provided .... [The statute] ‘establishes a rule to which there is to be no exception, and the Courts have no authority to create an exception when the statute makes none.’ ” (McDonald, supra, 37 Cal.3d at p. 382; quoting People v. Campbell (1870) 40 Cal. 129, 138, italics added.)
The court then held because the jury failed to specify degree in its verdict, and a finding of degree could not be implied, any attempt to “correct” the verdict by resubmission of the question to the jury was inappropriate. “[I]t must be deemed as a matter of law that defendant was convicted of second *558degree murder. (See also People v. Johns (1983) 145 Cal.App.3d 281, 294-295 [193 Cal.Rptr. 182].)” (McDonald, supra, 37 Cal.3d at p. 383.)
In Bonillas, supra, 48 Cal.3d 757,3 the question for resolution as framed by the court was whether, under the circumstances of that case, the court was authorized to reconvene the jury for the purpose of correcting the omission and completing its verdict by specifying the degree of the murder. The defendant was charged with murder and burglary with a special circumstance allegation of murder in the commission of a burglary. The jury was instructed “that if it found the defendant guilty of murder it was required to find the degree of murder.” (Bonillas, supra, 48 Cal.3d. at p. 769, italics added.) The jury, however, was not furnished a verdict form by which to specify degree. The verdict the jury did return specified only that the defendant was “guilty of murder ‘as charged in the information.’ ” (Ibid.) The jury was then excused until February 2 when they were to call in to receive instructions on when to reconvene for the penalty phase. The next day, Friday, January 28, the defense brought to the court’s attention the jury’s failure to specify the degree of murder. On Monday, January 31, the court reconvened the jury, denied the defendant’s motion that the degree be fixed at second degree pursuant to Penal Code section 1157, and instructed the jury to reconsider the question of degree. The jury was provided with both first degree and second degree verdict forms and the jury promptly returned with a verdict of first degree.
The Supreme Court held that the January 31 verdict was lawful because: “Jr the first instance, the jury was instructed that if it found defendant guilty of murder it was required to find the degree of the murder. However, for some unknown reason it was not furnished a verdict form by which to specify the degree, and the guilty verdict it did return on January 27 specified only that defendant was guilty of murder ‘as charged in the information.’ Because the instructions required the jury to specify the degree of the murder and the verdict returned failed to do so, the verdict was incomplete under the law and the instructions.” (48 Cal.3d at p. 769, citations omitted, italics added.)
The court then held that under the circumstances of the case (a finding that the initial verdict was incomplete, further proceedings were to take place, jury had not been discharged and had been specifically admonished not to discuss the case) the trial court was authorized to reconvene the jury “for the purpose of correcting the omission and completing its verdict. . . .” (48 Cal.3d at p. 770.)
*559There is an obvious and critical factual distinction between this case and Bonillas. In Bonillas, by not specifying the degree of murder as instructed, the jury had not done all that it was asked to do. The jury’s failure to perform all the tasks asked of it under the instructions rendered the verdict incomplete in the opinion of the court. Once the threshold finding is made that the jury verdict is incomplete, only then does an analysis of the court’s control over the jury become crucial to a determination that the trial court had authority to reconvene the jury.
But those circumstances are not present in this case. Here the jury was never instructed that it had to specifically make a finding of the degree of murder if it found the defendant guilty of murder. Nor was the jury instructed that alternate findings of degree were possible on the murder count.4 Since the jury was not told it needed to specify the degree of murder if it found the defendant guilty of murder, and since the verdict forms provided did not specify degree,5 the jury did all that it was instructed to by returning a general verdict of guilty. Because the jury did all that was asked of it, i.e., its verdict stated everything the jurors were told they should state under the instructions, the verdict is complete. From the jurors’ viewpoint, there was no omission and the February 22 verdict was complete and the guilt phase terminated when they assented to the verdict and the verdict was accepted by the court and recorded pursuant to Penal Code section 1164.6
*560In sum, because here the initial jury verdict was complete, Bonillas’s guidance as to when a court is authorized to reconvene the jury to correct an incomplete verdict is inapplicable.7
McDonald, supra, 37 Cal.3d 351, by contrast, is both factually and legally indistinguishable from the case at bench. Based on the identity of facts, the resolution of this case should be no different. Here as in McDonald the defendant was charged with felony murder with special circumstance allegations. As in McDonald the jury was instructed solely on first degree murder. Again, as in McDonald there was no instruction requiring the jury to specify degree nor did the verdict form provide for the specification of degree. In both cases the jury found the special circumstances true and found the defendant guilty of “murder as charged ... in the information.” Here as in McDonald, the jury was polled, no disagreement was noted and the verdict was recorded. In both cases the jury was reconvened several days later at which time the trial court informed the jurors the verdict forms “should have specified murder in the first degree instead of simply murder. Revised forms of verdicts as to count I will now be given you specifying murder in the first degree.” As in McDonald the jurors promptly returned a verdict of first degree murder.
Thus, the instant case is like McDonald and unlike Bonillas. Here as in McDonald the court failed to instruct the jury it was required to specify the degree. Consequently unlike Bonillas the jury did all that was required of it and the original verdict was complete. Under the authority of McDonald, any attempt to correct the omission by resubmitting it to the jury is unavailing. According to McDonald, the express terms of the statute operate in this instance to render the original jury verdict second degree as a matter of law.
*561Prior to 1949, Penal Code section 1157 required the jury to determine degree, but did not specify the consequences of its failure to do so. In numerous cases it was held that such failure required that the verdict be set aside and a new trial held. See, e.g., People v. Lee Yung Chong, supra, 94 Cal. 379. The effect of the 1949 amendments, automatically fixing the degree of the crime at second degree, reduced the impact of a failure to specify degree. The Legislature, however, retained the mandatory provision that the jury must specify degree.
I find merit in the suggestion Presiding Justice Lillie offered in her concurring opinion when this court initially considered this writ and before the Supreme Court remanded it to us. Presiding Justice Lillie urged the Legislature to give serious consideration to amending Penal Code section 1157 to make it easier for a trial court to correct this type of error. While I agree the Legislature should consider rewriting the statute, I do not agree it is appropriate for this court to rewrite the statute, and along the way overturn over 100 years of precedent.
Courts of this state have consistently held Penal Code section 1157 requires the degree be explicitly specified by the jury’s initial, accepted verdict.8 Bonillas carved out a narrow, justifiable exception to Penal Code section 1157 where the jury has not yet completed the duties the trial court instructed it to perform. The majority opinion in the instant case, however, opens up an exception which nearly swallows the statute, at least in capital cases. Completed verdicts can be reopened for the giving of new instructions and the specification of degree at any time until the jury has been formally discharged from the case. This means jurors who have already committed themselves to finding the defendant guilty of murder and thought they were through with their deliberations on the issue of guilt can suddenly be told hours, days or weeks later they now must go a step further and find the defendant guilty of murder in the first degree.
The Legislature may sometime elect to sanction this form of sequential verdict. But the existing versions of Penal Code sections 1157 and 1164 do not allow a defendant’s guilt of a single crime to be decided in stages, a *562degree at a time. Nor do I believe this court should undertake on its own such a drastic revision of the settled law of this state.
For the foregoing reasons, I would have granted the writ in this case.
Petitioner’s application for review by the Supreme Court was denied January 4, 1990. Mosk, J., was of the opinion that the application should be granted.
Penal Code section 1157 provides: “Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.”
The jury found the special circumstance true, but nevertheless acquitted him of the substantive charge of robbery. In a footnote, the Supreme Court explained the apparent inconsistency in the verdict by the fact that it was not instructed it could acquit on the robbery charge but convict for attempted robbery. Hence the jury apparently based the special circumstance verdict on a finding of attempted robbery, as it properly could. (McDonald, supra, 37 Cal.3d at p. 378, fn. 25.)
Both the Marks and McDonald decisions were cited with approval in Bonillas, supra, 48 Cal.3d 757.
The court denied the defense’s request for a second degree felony murder instruction based on the sodomy count although the prosecution admitted the information as pled would not automatically make it first degree as a matter of law but that it could be murder of the second degree.
The majority opinion concedes the trial court “did not explicitly instruct the jury that if it found petitioner guilty of murder it should specify first degree. . . .” (Maj. opn., ante, at p. 550.) However, the majority seeks to avoid the logical consequence of that failure by linking together unconnected pieces from various parts of the court’s instructions. Yet none of these instructions tells the jury it is to make a finding which specifies the degree. Indeed the quoted instructions tell the jury they are only required to arrive at a verdict “and any finding you are instructed to include in your verdict.” (In no way can the “[i]f you find the defendant guilty of murder in the first degree. . .” clause buried in the instructions relating to special circumstances be tortured into an instruction to include a finding as to degree in the verdict.) Since they were not instructed to include a finding of degree, the jurors in this case complied fully with the requirement they come back with all the findings they had been instructed to include.
Penal Code section 1164 provides in pertinent part: “When the verdict is receivable by the Court, the clerk . . . shall record it in full upon the minutes, and if requested by any party shall read it to the jury, and inquire of them whether it is their verdict. . . . [I]f no disagreement is expressed, the verdict is complete, and the jury shall ... be discharged from the case.”
The rule cited by the majority as to when the trial court may reconvene the jury can be better understood with reference to the cases cited therein. A trial court is empowered to reconvene the jury for further deliberations when the error is discovered while the jurors are still in the box. (People v. Powell (1950) 99 Cal.App.2d 178 [221 P.2d 117]; People v. Ham (1970) 7 Cal.App.3d 768 [86 Cal.Rptr. 906] [the original verdicts in these cases have been characterized as “incomplete”].)
However, if the error was not discovered until after the verdict was acknowledged, recorded and the jury had left the box, reconvening the jury was held to be invalid due to the possible taint on the jury from outside influences. The Supreme Court referred to such verdicts as “irregular.” (People v. Hendricks (1987) 43 Cal.3d 584 [238 Cal.Rptr. 66, 737 P.2d 1350] [court without jurisdiction to reempanel original jurors to sit in second sanity hearing after dismissal from the guilt phase five months earlier]; People v. Hughes (1959) 171 Cal.App.2d 362 [340 P.2d 679] [although jury twice instructed as to the various degrees of murder, court’s attempt to reconvene the jury to complete the verdict by specifying degree held invalid after penalty phase evidence had been received].) This is true even though the jury had only been dismissed for minutes and were still present in the court house. (People v. Grider (1966) 246 Cal.App.2d 149 [54 Cal.Rptr. 497]; People v. Lee Yung Chong (1892) 94 Cal. 379 [29 P. 776].)
See, e.g., People v. Dixon, supra, 24 Cal.3d 43, 51-52; People v. Flores (1974) 12 Cal.3d 85, 94-95 [115 Cal.Rptr. 225, 524 P.2d 353]; People v. Beamon (1973) 8 Cal.3d 625, 629, footnote 2 [105 Cal.Rptr. 681, 504 P.2d 905]; People v. Thomas (1978) 84 Cal.App.3d 281 [148 Cal.Rptr. 532]; People v. Baeske (1976) 58 Cal.App.3d 775, 778, footnote 1 [130 Cal.Rptr. 35]; People v. Doran (1974) 36 Cal.App.3d 592 [111 Cal.Rptr. 793]; People v. Cox (1973) 33 Cal.App.3d 378, 381-382 [109 Cal.Rptr. 43]; People v. Fernandez (1963) 222 Cal.App.2d 760, 769 [35 Cal.Rptr. 370]; People v. Hughes (1959) 171 Cal.App.2d 362, 369-370 [340 P.2d 679]; In re Candelario (1970) 3 Cal.3d 702, 706, footnote 2 [91 Cal.Rptr. 497, 477 P.2d 729]; People v. McDonald, supra, 37 Cal.3d 351, 379-383.