
    [Crim. No. 13502.
    Second Dist., Div. One.
    Mar. 21, 1968.]
    THE PEOPLE, Plaintiff and Respondent, v. HAROLD WILLIAM SHANNON, Defendant and Appellant.
    
      Francis Sarguis, under appointment by the Court of Appeal, for Defendant and Appellant.
    Thomas C. Lynch, Attorney General, Roger E. Venturi and Marjory Winston Parker, Deputy Attorneys General, for Plaintiff and Respondent.
   LILLIE, J.

—A jury found defendant and Boss Thomas guilty of first degree robbery (Pen. Code, § 211) ; defendant admitted a prior felony conviction (escape from a state prison). Only defendant appeals from the judgment and order denying motion for new trial. The appeal from the order is dismissed.

■ William Cope was working as an attendant in a Mobil station on Sunset Boulevard on September 1,1966; around 11:20 p.m. Thomas drove a red car (Plymouth, Chevrolet or Dodge) with a black and white license plate into the station between the office and the pinups; defendant was seated on the passenger side. Cope walked over to defendant and asked if he could help them; defendant stuck a gun out of the window and said, “Give me the cash, you won’t get hurt.” Cope asked if he might finish waiting on his customer; defendant agreed and followed him around for about 10 minutes. After the customer paid Cope, who put the money in the cash box, defendant told him to leave the box open and open a second cash box; defendant took all of the money and they drove off at a high rate of speed, their tires squealing. Cope positively identified defendant as the man who sat on the passenger side of the car, followed him around with a gun and took the money.

Andrew Evans, the other attendant, had been out emptying rubbish when the men drove in; upon his return he saw a red late model Pontiac or Chevrolet parked between the pumps and the office. He saw Cope waiting on a customer and a man standing behind him; he stopped on the passenger side of the vehicle, looked in the open window through the car and asked Thomas if he could help him. The area was brightly lighted and he could see Thomas clearly, and positively identified him as the driver. Evans went into the station and after he heard the car leave, Cope ran up the driveway and told him they had just been robbed. Evans checked the cash boxes, then called the police.

Cope described defendant to the officers as having a mustache, wearing light blue tight Levis, high black beatnik-type boots and a light blue tacky shirt, sleeves rolled up and tail hanging out; he could not tell him how tall defendant was or how old. Cope could not tell the police much about the driver, although he said he was about 5 feet 9 to 5 feet 11, weighed 180 to 190 pounds, had light brown hair and a slight squint. Evans could give the police no information concerning defendant, but having looked at Thomas for 10 or more seconds, gave the officers a full description of his face and said Thomas had been wearing a light colored shirt.

Between 11 and 12 p.m. that evening, Mr. Chalme was at home on North Ogden Drive; he heard the loud screeching of brakes and a crash and went outside. Two men, one of whom was Thomas, were running around the corner; they stopped and brushed off their pants. Chalme asked them what had happened and one said, “God, somebody over there is trying to run us over. We’re going to get out.” Chalme asked if those who had tried to run them down were still there; they said, ‘1 No, they just left the ear over there and they took off, too. ’ ’ Mr. Monroe, who lived next door, also heard the crash and ran out of his house. In a few seconds he saw two men whom he identified as Thomas and defendant run around the corner where people in the neighborhood were standing outside; they slowed down to a brisk walk and Monroe asked what happened. One of them replied, “Some crazy son of a bitch tried to run us over”; the other said, “Come on, let’s get the hell out of here. We ’re going, ’ ’ then they started on up the block.

Around 11:30 p.m., Mr. Aston, a private patrolman on duty near Sunset Boulevard, saw defendant and Thomas walking down the street together about a block away from the Mobil station; they had walked out of Ogden Drive. Thomas was wearing a T-shirt and defendant was wearing a blue dress shirt with shirt tail hanging out and green denim pants, and had a mustache. They matched the description of two men who had been reported to him as creating a disturbance; he approached and asked them to stand by while he called the police. Defendant and Thomas denied being together or knowing each other. In a few minutes Officer Benel arrived and observed that defendant and Thomas matched the description he had received over the radio of the two persons who had robbed Cope at the Mobil station, arrested them and advised them of their constitutional rights. Defendant and Thomas denied knowing each other, seeing the ear before and knowing about the accident or the robbery. When searched each had approximately $70 on his person. He drove them to the scene of the accident where a late model red Chevrolet had collided with a palm tree; the ear had a Washington, D. C. license, a white plate with dark numerals. Officer Benel took defendant and Thomas to the Mobil station; Cope then identified defendant and Thomas as the two men who had robbed him. Evans identified Thomas. The officers then drove defendant and Thomas back to the scene of the accident where Officer Benel searched the vehicle. In the glove compartment was a social security card with defendant’s name on it; in the trunk was a suitcase with an identification tag bearing defendant’s name. When Officer Benel went on duty, in accord with standard practice, he inspected the police vehicle assigned to him by looking under the seat, removing the back seat and checking for contraband; everything was in order. When they delivered defendant and Thomas to the station, the officers checked the vehicle and found a blue steel .32 caliber revolver under the front passenger seat; other than the two officers, only defendant and Thomas had been in the vehicle between the time it had been checked out and when it was returned. Although Officer Benel had searched the two men, he did not check around defendant’s waistband under the shirt tail.

Neither defendant nor Thomas testified or called any witnesses for the defense.

Defendant’s sole contention is that the trial judge’s comments on the evidence to the jury were of a contentious, argumentativo and prejudicial nature and constituted reversible error.

Formerly, the strict rule in California was that the trial judge could charge the jury only as to matters of law. In 1934 section 19, article VI, California Constitution, was amended to make the trial judge “a real factor in the administration of justice” in jury cases (People v. Ottey, 5 Cal.2d 714, 722-726 [56 P.2d 193]); it provided: “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 case. The court shall inform the jury in all eases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses.” Further amendment effective November 8, 1966, resulted in a repeal of section 19 and an amendment to section 10, article VI, adding the following: “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.” Similar provisions are contained in sections 1093, subdivision 9, and 1127, Penal Code.

A judge’s power to comment on the evidence is not unlimited. (People v. Brock, 66 Cal.2d 645, 650 [58 Cal.Rptr. 321, 426 P.2d 889]; People v. Scott, 53 Cal.2d 558, 564 [2 Cal.Rptr. 274, 348 P.2d 882]; People v. Friend, 50 Cal.2d 570, 578 [327 P.2d 97]; People v. Dail, 22 Cal.2d 642, 658 [140 P.2d 828]; People v. Patubo, 9 Cal.2d 537, 543 [71 P.2d 270, 113 A.L.R. 1303]; People v. Ottey, 5 Cal.2d 714, 724 [56 P.2d 193].) However, no hard and fast rule determinative of what a trial judge may or may not say to a jury in commenting on the evidence and the credibility of witnesses can be laid down. What particular comment should be or should not be made in a criminal case depends upon the nature of the charge, the nature of the evidence and to some extent on arguments of counsel (People v. Scott, 53 Cal.2d 558, 564 [2 Cal.Rptr. 274, 348 P.2d 882]; People v. Patubo, 9 Cal.2d 537, 542 [71 P.2d 270, 113 A.L.R. 1303]; People v. Ottey, 5 Cal.2d 714, 724 [56 P.2d 193]); and whether a trial judge’s comment on testimony and the credibility of witnesses has gone beyond judicial discretion is to be determined upon all of the circumstances of the case.

The real purpose of the 1934 amendment was to permit a judge, who by reason of his training in analyzing testimony and experience in determining the credibility of witnesses is in a position to assist jurors in determining what evidence has a bearing on the disputed issues in the case and to aid them in weighing the evidence, and to comment on the evidence and the testimony and the credibility of any witness. (People v. Ottey, 5 Cal.2d 714, 722-726 [56 P.2d 193]; People v. Brock, 66 Cal.2d 645, 650 [58 Cal.Rptr. 321, 426 P.2d 889].) The word “comment” as used in the constitutional provision has been interpreted to empower the trial judge to do more than merely give ‘ a colorless recital, by way of summing up the facts.” (People v. De Moss, 4 Cal.2d 469, 477 [50 P.2d 1031].) For the guidance of the jury he may analyze the testimony critically and express his views and opinions with respect to its credibility and may comment on the evidence even to the extent of expressing liis opinion as to the guilt or innocence of the defendant, so long as the province of the jury is not invaded. (People v. Friend, 50 Cal.2d 570, 576, 578 [327 P.2d 97].) The phrase “so

long as the province of the jury is not invaded” has always been understood to mean that “He [the judge] may not withdraw material evidence from the jury’s consideration or distort the testimony, and his comments should be temperately and fairly made, rather than being argumentative or contentious to a degree amounting to partisan advocacy. The jury, as required by the constitutional provision, must remain as the exclusive arbiter of questions of fact and the credibility of witnesses, and the judge should make clear that his views are not binding but advisory only.” (People v. Friend, 50 Cal.2d 570, 577-578 [327 P.2d 97]; People v. Farnum, 242 Cal.App. 2d 310, 313 [51 Cal.Rptr. 327].) Too, comment must avoid the realm of advocacy. (People v. Robinson, 73 Cal.App. 2d 233, 238 [166 P.2d 17].) “The rule is well established that such comments on the evidence ‘must be fair, temperate, judicial, dispassionate, and free from apparent contentiousness, partisanship or advocacy. ’ (People v. Hooper, 92 Cal.App.2d 524 [207 P.2d 117].) Such comment must be fair and temperate and not argumentative to a degree that makes it characteristically an act of advocacy. (People v. Robinson, 73 Cal.2d 233 [166 P.2d 17]; People v. De Moss, 4 Cal.2d 469 [50 P.2d 1031].) ” (People v. Huff, 134 Cal.App.2d 182, 188 [285 P.2d 17].)

While it is true that proper comments which “assist the jury are of substantial value and should not be discouraged” (People v. Ottey, 5 Cal.2d 714, 722-726 [56 P.2d 193]; People v. Brock, 66 Cal.2d 645, 650 [58 Cal.Rptr. 321, 426 P.2d 889]), a judge should be cautious to exercise the constitutional power to comment with wisdom and restraint and with a view to protecting the rights of defendant. (People v. De Moss, 4 Cal.2d 469, 477 [50 P.2d 1031]; People v. Robinson, 73 Cal.App.2d 233, 238-239 [166 P.2d 17].) It is clear from the language of the constitutional provision that the comments authorized are those which in the court’s opinion are “necessary for the proper determination of the cause” (§10, art. VI, Cal. Const.; People v. Brock, 66 Cal.2d 645, 651 [58 Cal.Rptr. 321, 426 P.2d 889]); and it is equally clear that the major purpose of permitting the judge to comment is to assist the jurors to clarify the issues (People v. Watso, 240 Cal.App.2d 773, 776 [50 Cal.Rptr. 31]; People v. Harris, 87 Cal.App.2d 818. 826-827 [198 P.2d 60]; People v. Calkins, 8 Cal.App.2d 251, 254 [47 P.2d 544]), determine what evidence has a bearing on the disputed issues in the ease and weigh the evidence. (People v. Ottey, 5 Cal.2d 714, 722-726 [56 P.2d 193].)

Herein the vice of the lengthy comment of the trial judge is its argumentative nature in a case in which comment was not necessary either “for a proper determination of the cause” or to assist the jury. Neither defendant nor Thomas took the stand or called any witnesses for the defense. That which was argued to the jury by defense counsel as a defense consisted of no more than “minor facte” which were gleaned from his cross-examination of the People’s witnesses in a wholly unsuccessful attempt to cast doubt on their identification of the defendants and which raised no substantial factual issue. The evidence was undisputed—two eyewitnesses positively identified defendant and Thomas as the robbers, and to corroborate this identification circumstantial evidence was adduced from the testimony of the police officer and three other witnesses who saw defendant and Thomas immediately after the robbery in the vicinity of the Mobil gas station. The overwhelming evidence of guilt gave the jury no reasonable opportunity to acquit defendants. There is but one issue as pointed out by all counsel and the trial judge—the simple, uncomplicated issue of identity and it was on this that the greater part of the testimony was taken.

What assistance then did the jury need in clarifying the only issue in the case or in determining what evidence had a bearing on it or in weighing the undisputed evidence, and in what manner were the judge’s comments “necessary for a proper determination of the cause?” The necessity for comment simply did not exist. After all of the evidence was in, the arguments made and the jury fully instructed, and just before the jurors were taken to the jury room for deliberation, the trial judge made a comment on the evidence consisting of 13 pages of reporter’s transcript. While at the outset and throughout his comment he disavowed any purpose of invading the fact-finding power of the jury and at the conclusion reread the last instruction previously given, the judge embarked on a lengthy and thorough recapitulation of the People’s evidence directed to the sole issue involved interspersed with comments thereon that can be construed as nothing more than strong arguments for conviction approaching the realm of advocacy which exceeds the province of the pouyt in such matters,

However, it is our view that the error, if any, in the court’s comment was not prejudicial for the same reason that made the comment unnecessary in the first instance—the overwhelming evidence of guilt. In the light of the record, regardless of the trial judge’s comments, we cannot escape the conclusion that the jury could and would not have brought in any other verdict than that defendant and Thomas were guilty of first degree robbery and defendant was personally armed; the evidence admitted no other verdict.

The judgment is affirmed.

Wood, P. J., and Fourt, J., concurred. 
      
       Cope later testified: “Both of them in the police car. But I wasn’t for sure about the other one [Thomas], but the little guy [defendant] I was sure it was him. The other guy I—that I don’t know. X mean I am completely sure it was him. But I know the little guy, Shannon [defendant] . ’ ’
     