Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of Riverside County No. RIF121530, J. Thompson Hanks, Bernard J. Schwartz, and Vincent O’Neill, Jr., Judges.
Judge Schwartz presided over defendant’s motion to represent himself while Judge Hanks presided over defendant’s trial. Judge O’Neill revisited defendant’s decision to represent himself on May 23, 2005. However, we note a discrepancy between the reporter’s transcript and the clerk’s transcript regarding the identity of the judge who presided over the May 23, 2005, appearance. The clerk’s transcript identifies Judge Schwartz, while the reporter’s transcript identifies Judge O’Neill.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Following a jury trial, defendant Arthur Moses Morales was convicted of attempted carjacking. (Pen. Code, §§ 664, 215, subd. (a).) The jury further found true the allegations that defendant had one prior strike (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), had previously been convicted of a serious or violent felony (§ 667, subd. (a)), and had served three prior prison terms (§ 667.5, subd. (b)). On July 12, 2005, the trial court sentenced defendant to a total of 17 years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals, contending: (1) the trial court failed to secure a knowing and intelligent waiver of counsel before allowing him to represent himself at trial; (2) the trial court violated his due process rights by limiting his closing argument; (3) the trial court invaded the province of the jury when it commented on the evidence after the jury appeared deadlocked; (4) the trial court improperly imposed the upper term in violation of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]; and (5) the cumulative error doctrine requires reversal. Because we agree with defendant’s third claim that the trial court invaded the province of the jury when it commented on the evidence after the jury appeared deadlocked, we reverse. Accordingly, we need not address defendant’s other contentions.
Defendant’s notice of appeal was filed on March 22, 2007. (In re Benoit (1973) 10 Cal.3d 72.)
I. PROCEDURAL BACKGROUND AND FACTS
On January 13, 2005, Mirafe Deramas and her mother, Teodora Deramas, drove to a Thrifty Gas Station in Corona to pick up Panahon (Mirafe’s brother, Teodora’s son), who worked there as a cashier. Mirafe parked in front of the mini-market at the gas station to wait for her brother. She left the engine running. A man, identified as defendant, walked towards her car from the back of the market, grabbed the driver’s door, and tried to open it. Defendant grabbed Mirafe’s arm and tried to pull her out of the car while demanding that she give her keys to him. She was hanging onto the top of the driver’s door, trying to pull the door closed. Defendant closed the door on Mirafe’s hands and then opened it again trying once more to get her out of the car.
When the attack began, Mirafe’s mother rolled the passenger window down and screamed for Panahon to come help them. Panahon approached and defendant walked away. Mirafe testified that she almost passed out. She had an asthma attack. Her hands were numb for several weeks. She and her mother identified defendant from a photographic array.
Mirafe’s mother testified that Mirafe did pass out.
II. TRIAL COURT’S COMMENTS ON THE EVIDENCE
Defendant contends the trial court’s comments to the jury went beyond fair comment and were tantamount to impermissibly directing a verdict of guilt. While conceding the court’s right to comment, fairly and accurately, on evidence, defendant contends the trial court’s comment went too far and “erroneously instructed the jury that the only apparent issue was one of identity.” According to defendant, this comment “all but removed from the prosecution the burden of proving each element of the charged offense, attempted carjacking, beyond a reasonable doubt.” Thus, defendant argues the trial court’s erroneous action of “usurping from the jury the duty to weigh and assess the evidence is reversible per se.”
A. Preliminary Background Facts.
Jury deliberations began on June 6, 2005, at 3:00 p.m. By 9:35 the next morning, the jury advised the court that it was deadlocked. The court stated:
“I’m going to give you some additional comments at this time.
“As I indicated to you, I haven’t intended by anything I have said or done or by any questions I may have asked to suggest what you should find to be the facts or that I believe or disbelieve any witness. Anything I have done or said or has [sic] seemed to so indicate, disregard it and form your own conclusions.
“At this time, however, for the purposes of assisting you in properly deciding the case, I will comment on the evidence and the testimony and believability of any witness.
“My comments are intended to be advisory only. They are not binding on you, as you must be the exclusive judges of the facts and the believability of a witness. You may disregard any or all of my comments if they do not coincide with your views of the evidence and the believability of the witnesses.
“In this case the only issue appears to be the identity of the person who tried to take the [victims’] vehicle. [One victim] made a positive identification of the perpetrator here in court. She was certain of the identification, and she appeared to be a very believable witness. Any discrepancies in her testimony were explained by her as caused by the stress of what she had just gone through. Any discrepancy as to the photo lineup was explained as an attempt to have her mother make an independent identification.
“Her mother also identified the perpetrator shortly after the incident in a photo lineup, but she could not make an I.D. here in court. I find it very compelling that the mother wasn’t simply identifying the person on trial but was trying to be as accurate as possible in her testimony.
“There was no other evidence as to who perpetrated the crime. The nontestimonial statements of the defendant that he did not commit the crime should be disregarded by the jury.
“Also, every person who testifies under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness.
“In determining the believability of a witness, you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following:
“The extent of the opportunity or the ability of the witness to see or hear or otherwise become aware of any matter about which the witness has testified; the ability of the witness to remember or to communicate any matter about which the witness has testified; the character and quality of that testimony; the demeanor and manner of the witness while testifying; the existence or nonexistence of a bias, interest, or other motive; the existence or nonexistence of any fact testified to by the witness; the attitude of the witness towards this action or towards the giving of testimony; and a statement previously made by the witness that is consistent or inconsistent with his or her testimony.
“Evidence in a case is produced from the witness stand. You should only consider as evidence in the case the matters that were testified to at the witness stand and had an opportunity to be cross-examined. You should not consider as evidence anything else.
“Does that assist you at all? You think so?
“I’ll send you back out and let you further deliberate.”
Deliberations resumed at 9:38 a.m., and by 10:14 a.m., the jury returned its verdict.
B. Discussion.
Article VI, section 10 of the California Constitution provides that the court may “‘make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.’ (Italics added.)” This provision allows the court “‘to utilize its experience and training in analyzing evidence to assist the jury in reaching a just verdict. [Citations.]’ [Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 541-542.) The same is permitted by statute. (§§ 1093, subd. (f), 1127.)
Here, the court’s comments on the evidence were made after the jury reported that it was deadlocked. Given this particular circumstance, defendant references People v. Flores (1971) 17 Cal.App.3d 579 (Flores) and People v. Moore (1974) 40 Cal.App.3d 56 (Moore). In Flores, after deliberating for three hours, the jury informed the trial court that it was unable to reach a verdict. The trial court analyzed the credibility of the witnesses and stated its conviction as to defendant’s guilt. The jury continued deliberations and rendered a guilty verdict. (Flores, supra, at p. 583.) The appellate court reversed, concluding that “[t]he comments of the court made to the jury after it was advised that the jury was ‘split five to seven,’ were an error which had the effect of usurping the jury’s constitutional function as the sole judge of the facts to determine defendant’s guilt or innocence.” (Id. at pp. 583-584.) The appellate court applied the state standard set out in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Flores, supra, at p. 588.)
In Moore, the circumstances were similar to Flores. The jury was deadlocked after three hours of deliberations and the trial court reviewed the testimony and opined that the defendant was guilty of the charged offense. Less than a few hours later, the jury convicted defendant. (Moore, supra, 40 Cal.App.3d at pp. 62-64.) On appeal the defendant’s conviction was reversed. The appellate court concluded that “the court’s remarks . . . exceeded the constitutional authority conferred on trial judges to comment on the evidence.” (Id. at p. 67.) While the court found that the trial judge’s review of the testimony was inaccurate (see id. at p. 65) it emphasized the significance of the timing of the comments, namely, during the course of the jury’s deliberations. This circumstance led the appellate court to conclude that “the judge [had] usurped the jury’s function” to decide the facts of the case. (Id. at p. 67.)
While neither Flores nor Moore suggests that a fair comment to a deadlocked jury is prohibited, they do seem to suggest that such comments (to a deadlocked jury) are more likely to coerce a verdict. However, as our Supreme Court has noted, such is not the law. “[U]nder our Constitution, the right to independent jury determination of facts does not mean that a jury must be free of all judicial influence during its deliberations. The very purpose of the privilege of fair comment by the most influential person in the courtroom is to give jurors the benefit of his [or her] experience in evaluating evidence.” (People v. Rodriguez (1986) 42 Cal.3d 730, 768 (Rodriguez).) Nonetheless, any comments by the trial court “must be accurate, temperate, nonargumentative, and scrupulously fair.” (People v. Slaughter (2002) 27 Cal.4th 1187, 1218, quoting Rodriguez, supra, at p. 766.) “Thus, a trial court has ‘broad latitude in fair commentary, so long as it does not effectively control the verdict.’ [Citation.] ‘We determine the propriety of judicial comment on a case-by-case basis.’ [Citation.]” (People v. Monterroso (2004) 34 Cal.4th 743, 780.)
Here, we are persuaded that the trial court’s comments usurped the jury’s function. The court reminded the jury that the only issue in the case was identity. While summarizing the testimony of the two eyewitnesses, it noted that one positively identified defendant, while the other identified him shortly after the incident in a photographic lineup. Although the People claim that the court did not comment on defendant’s “guilt or innocence, nor did it direct that the jury reach a given verdict,” and that its comments were “bookended with cautionary instructions and reminders of how the jury should determine credibility,” we cannot dismiss the court’s proffered opinions. Specifically, the court stated that one witness “appeared to be a very believable witness,” and the other was “trying to be as accurate as possible in her testimony,” which the court found to be “very compelling[.]” As defense counsel observed at oral argument, these comments were not fair, neutral, or objective.
Having found that the trial court erred in its comments to the jury, we next determine whether the error was harmless. (Watson, supra, 46 Cal.2d at p. 836.) Applying the Watson standard, we conclude that there is a reasonable probability that the error affected the outcome in this case. In our opinion, the trial court’s comments conveyed the court’s belief that defendant was guilty. The jury had advised the court that it was hopelessly deadlocked, and in response, the court opined that the main issue in the case was identity and that both witnesses identified defendant as the perpetrator. Moments later, the jury returned its verdict convicting defendant. Had the court refrained from making its comments, it is reasonably probable that defendant would have achieved a more favorable result. The resolution of conflicts in the evidence is a jury decision. “When the jury is dispossessed of that decision by remarks from the bench which effectively dispose of it, the error is prejudicial. [Citations.]” (Flores, supra, 17 Cal.App.3d at p. 588.)
III DISPOSITION
The judgment is reversed.
We concur: GAUT, J., KING, J.