Neufer

WOODS (Fred), J.

Before trial appellant admitted two alleged felony convictions — a 1991 robbery conviction in Los Angeles County and a 1988 receiving stolen property conviction in Ohio. After trial, a jury convicted appellant of robbery (Pen. Code, [1] § 211), and he was sentenced to an 11-year state prison term.

On appeal, appellant contends the trial court erred by conferring with the jury in the absence of defense counsel and by coercing the jury's verdict. We find defense counsel expressly waived his presence during testimony readback, the one jury question answered by the trial court in the absence of defense counsel was answered correctly and if error, was harmless, and there was no jury coercion. We affirm the judgment.

There being no insufficiency of evidence claim, the facts may be stated simply. Our perspective favors the judgment. ( People v. Barnes (1986) 42 Cal.3d 284, 303-304 [ 228 Cal. Rptr. 228 , 721 P.2d 110 ].)

About 7 p.m. on September 28, 1992, Robert Rosen, the victim, went to Hunter's, a gay bar in West Hollywood. Within two or three minutes appellant approached the victim and said something to him. Even though appellant was standing only about…

Before trial appellant admitted two alleged felony convictions—a 1991 robbery conviction in Los Angeles County and a 1988 receiving stolen property conviction in Ohio. After trial, a jury convicted appellant of robbery (Pen. Code, 1 § 211), and he was sentenced to an 11-year state prison term.

On appeal, appellant contends the trial court erred by conferring with the jury in the absence of defense counsel and by coercing the jury’s verdict. We find defense counsel expressly waived his presence during testimony read-back, the one jury question answered by the trial court in the absence of defense counsel was answered correctly and if error, was harmless, and there was no jury coercion. We affirm the judgment.

Factual Background

There being no insufficiency of evidence claim, the facts may be stated simply. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [ 228 Cal.Rptr. 228 , 721 P.2d 110 ].)

About 7 p.m. on September 28, 1992, Robert Rosen, the victim, went to Hunter’s, a gay bar in West Hollywood. Within two or three minutes appellant approached the victim and said something to him. Even though appellant was standing only about two…

I respectfully dissent.

My colleagues and I agree the trial court committed both constitutional and statutory error when it entertained a juror’s question on the law and evidence in the case in the absence of defense counsel. We part company only on whether that clear constitutional and statutory error requires a retrial. By downplaying evidentiary discrepancies on the key factual issue in the case and ignoring controlling precedent, the majority manages to conclude this error was harmless. I am unable to do so.

Identity of appellant as one of the robbers was the primary issue in the case. However, the witnesses’ testimony regarding whether appellant was *255 the assailant was contradictory. Indeed, it was the testimony of one of the victims who testified appellant was not his assailant the jury requested for readback. The number of split votes in ballots taken over two days of deliberations on the single count of robbery underscores the fact this case was anything but open and shut. Nevertheless, the majority glosses over the probable prejudicial impact of the court’s error in communicating with the deliberating jury in the absence of defense counsel in what was already a close…