A trial court judge’s unrecorded ex parte communications with a deliberating jury violates the defendant’s right to counsel and right to trial by jury. While the jury was deliberating in appellant’s murder trial, the trial court judge, unaccompanied by counsel or a court reporter, entered the jury room on five separate occasions and responded to juror questions about the instructions, on occasion giving inaccurate responses as to the elements of the charged offense. The appellate court noted that not only were these interactions highly improper, they also violated Penal Code section 1138, case law, and, importantly, appellant’s Sixth Amendment constitutional rights to have counsel present at all critical stages, and also the right to trial by jury as the jury was deprived of privacy in its deliberations. The issue was not waived or forfeited. The appellate court declined to decide which standard to apply in judging the error; i.e, Chapman (Chapman v. California (1967) 386 U.S. 18) or automatic reversal, because even under the Chapman standard, reversal was required due to the inadequate record. Despite the reversal, the court decided two other claims as they were likely to arise on retrial. First, the court ruled that the accusatory pleadings alleging murder, without reference to malice, along with evidence from the preliminary hearing, sufficiently informed appellant that the prosecution was seeking to establish that the killing was done with malice. Second, referencing established Supreme Court precedent (People v. Jurado (2006) 38 Ca.4th 72), the court rejected appellant’s argument that the trial court erred in instructing the jury that it must acquit appellant of murder before it could return a manslaughter conviction.