PETERS, J., Concurring and Dissenting I concur in the portion of the majority opinion that holds that defendant may raise his claims of error on this appeal. Although the failure to present the claims of error on appeal at the first opportunity to do so creates the risk that witnesses might be unavailable or their memories fade should a retrial be necessary, it is, at least, equally undesirable to require a defendant, who may be in favor of obtaining the medical treatment available under the narcotic commitment program, to appeal from an order denying his motion for new trial, which order was part of the proceedings resulting in the desired commitment. In any event the balancing of the two conflicting considerations is a matter for the Legislature, and, as the majority opinion ably demonstrates, the Legislature has resolved the conflict in favor of permitting the raising of errors at trial on the issue of guilt after the commitment proceedings have been terminated and judgment entered. I also concur in the majority’s solution of the evidence questions presented.
I cannot agree with the majority holding that it was not error for the court to coerce the jury to forgo its right to hear the reporter read testimony requested by it. Section 1138 of the Penal Code provides that if the jurors are in disagreement as to the testimony they can request that it be read to them and that, if they do so request, the court must read it to them. Any coercion to compel the jurors to forgo the right and duty set forth in section 1138, whether that coercion is the result of inadvertence or design, is improper. In the instant ease the "jury was coerced to forgo its right and duty to hear the transcript, and the error was clearly prejudicial.
Section 1138 of the Penal Code provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being [474]brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called. ’ ’
The rights and duties imposed by section 1138 are unqualified. There is nothing in the section to suggest by any means of construction, interpretation, or exception, that the command of the section may be ignored where the convenience of the trial judge, his whim, or the circumstances before him may indicate that it is desirable to ask the jurors to forget their disagreements as to the testimony, and make their decision without regard to those disagreements.
Thus, if a trial judge suggested by reason of whim or caprice, that he would not permit the jury to review the evidence, this court or any other appellate court would have no hesitancy to say that a refusal to permit the jury to review the evidence received constituted error. Similarly, if a trial judge suggested that because of inconvenience to himself or inconvenience to the jurors he would refuse to permit the jurors to review the evidence received, such procedure would be obvious error. The effect upon the parties and upon the jurors of a refusal to permit them to review the evidence to reconcile conflicting versions or uncertainties is no different when it is due to circumstances making immediate review impossible than when it is due to whim or convenience, and accordingly it seems clear to me that it is error to refuse the jurors their right to review the evidence when that refusal is due to a necessary delay in obtaining the reporter’s notes of the trial.
The same rule must apply when, as here, instead of an outright refusal to permit review, the trial judge tells the jury to reconsider its request to review evidence in the light of the fact that, if the jury persists in its request, it could not hear such evidence until the following day and that it would be kept together until then. The judge so told the jury at 3 :30 in the afternoon, and the coercive effect of his statement is shown by the fact that the jury returned with its verdict in 15 minutes. In these circumstances it would require unusual stamina on the part of one or more dissenting jurors to stand on their rights to review the evidence against the remaining jurors who would, of course, be more than somewhat rebellious at the thought of being locked up for the night at 3 :30 in the afternoon (see People v. Crowley, 101 Cal.App.2d 71, 78-79 [224 P.2d 748]), and we can never know whether the [475]minority jurors’ recollection of the evidence was the correct one.
Considerations of harmony or convenience must give way when the integrity of the decision-making process is called into account and when there is a danger that extraneous factors, which do not properly bear on the question of guilt or innocence, may compel those on whom we have placed the burden, however awesome, of determining truth to abdicate their duty and their right to review evidence and to properly determine the facts free from any coercion.
In the instant ease the error in coercing the jurors to forgo their right to review the evidence must be held prejudicial. The jurors requested the testimony of Officers Meraz and Hanks pertaining to the description of the person in the supermarket parking lot who sold the narcotics. Officer Hanks said that he did not see the man’s facial characteristics and could not positively identify defendant as the man. Although Officer Meraz identified defendant as the man, he testified that both he and the man were sitting in ears, that they were about 50 feet apart at the time of the observation, and that he had to look through the back window of a third car which was between them to see the person who made the sale. The identification testimony was of critical importance to the case of the prosecution, and in this state of the record it cannot be said that a review of the identification testimony would have supported the recollection of the majority or minority jurors.
People v. Warren, 130 Cal. 678 [63 P. 87], relied upon by the majority is distinguishable. Although the court there told the jury that the requested testimony could not be read until the following morning, the jury did not return its verdict until the following morning and thus it is clear that the jury could not have been coerced to forgo its right to hear the testimony by fear of being locked up for the night. The other ease relied upon by the majority, People v. Slaughter, 33 Cal. App. 365 [165 P. 44], is distinguishable for the same reason because again the verdict was returned early in the morning and there was no reason to believe that the jury felt compelled to forgo its desire to hear the testimony requested in order to avoid being locked up for the night.
I would reverse the judgment.
Appellant’s petition for a rehearing was denied May 15, 1968. Peters, J., was of the opinion that the petition should be granted.