PEOPLE v. COOK (1982)

A jury found Jerry Ray Cook guilty of preventing or dissuading a witness from attending a trial by means of force and threats of unlawful injury (former Pen.Code, § 136).   Cook appeals, contending principally that the trial judge erred in his comments to the jury concerning the credibility of prosecution witnesses and the guilt of the accused, and that the verdict was reached through improper agreement among the jurors.¹  As to the first contention, we will hold that the judge's comments regarding the credibility of witnesses were within the scope of comments permitted by article VI, section 10 of the state Constitution, and that his expression of opinion regarding the guilt of the accused, accompanied as it was by a discussion of the evidentiary basis for that opinion, was permissible under Supreme Court decisions by which we are bound.   As to the second contention, we will hold that there was insufficient evidence to support appellant's claim of improper agreement.   Consequently, we will affirm.

I.

The principal prosecution witness was Clemie McManus, who was expected to testify for the prosecution in a pending murder case in which appellant's brother, Randy Cook, was a defendant.   Randy and his codefendants had allegedly taken shelter in McManus' house after the murder, and held her and her children hostage.   According to McManus, appellant came to her apartment in the afternoon of March 26, 1980, asked why she was testifying against his brother, threatened that if she did testify she “wouldn't walk off the stand alive,” and told her that if she went to the police after he left “he'd see that the situation was taken care of.”   McManus testified she did not know for sure what he meant about having the situation “taken care of,” but was in fear for her life.   She believed appellant was concerned about her going to the police since he had just been released from jail and was on probation.   According to her, appellant appeared to be “very stern and serious,” and his voice “gruff, low, deep, stern,” and “very mean.”   After appellant left she went to the local police station, and though at first she was afraid to say who threatened her, she did so after receiving assurances from the police.

Jaine McManus, Mrs. McManus' ten-year-old daughter, testified that she was in the apartment when appellant arrived, that she opened the door for him, and that she overheard the conversation between appellant and her mother.   She heard appellant say that he would be in the courtroom and that if her mother said anything against his brother he would not let her come off the stand alive.   She also overheard the threat to “take care of” Mrs. McManus if she went to the police.

The judicial comments complained of occurred on the second and last day of jury deliberations.   During that day, the jury asked for and heard a rereading of testimony by Clemie and Jaine McManus.   Shortly after 4 p. m. on that day, the jury returned and the foreperson informed the court that the jury could not reach a verdict.   The judge then inquired as to whether he could be of any assistance in further explaining the applicable law.   He also called the jury's attention to “a provision ․ in the constitution of the State of California, that allows a trial judge, if he so wishes, that he might in fact comment upon the evidence.”   The foreperson asked to consult with the jury, and, apparently after doing so, asked for an explanation as to the difference between a misdemeanor and a felony, which the court provided.   The foreperson then responded “otherwise it is not a matter of law ․ it is the matter of the believability of a witness.”   When the court then inquired whether there was a reasonable possibility that further deliberations would result in a verdict, the foreperson replied, “No, I don't think so.”   The judge then observed that the jury might find it easier to communicate outside the courtroom, and suggested:  “[W]hy don't you 12 go upstairs and discuss that for a minute or two and we will wait here in session.”

The jury did as the judge suggested, and a few minutes later the foreperson returned with a note stating, “I believe we can resolve our differences if we can have an opinion or judgment on the credibility of both Clemie and Jaine McManus as witnesses.”

The judge, over objection by appellant's trial counsel, responded to this request as follows.   First, he quoted from CALJIC No. 17.32:  “I have not intended by anything I have said or done or by any questions I may have asked to intimate or suggest how you should decide any questions of fact submitted to you.  [¶]  If anything I have done or said has seemed to so indicate, you will disregard it and form your own opinion.  [¶]  At this time, however, and for the purpose of assisting you in deciding this case, I am permitted by the Constitution of California to comment on the evidence and the testimony and credibility of any witness.  [¶]  My comments are intended to be advisory only and are not binding on you as you are the exclusive judges of the questions of fact submitted to you and the credibility of the witnesses.  [¶]  You should disregard any or all of the comments if they do not agree with your views of the evidence and the credibility of the witnesses.”

Next, the trial judge reread the instructions defining the elements of the crime, and stated:  “After I look at that instruction and apply it to my recollection of the evidence taken in this case, I am of the opinion that those ingredients have in fact been established beyond a reasonable doubt that we talked about.”  (Emphasis added.)   Recalling to the jury's attention the various standards he had previously discussed with them for judging credibility—“the character and quality of the testimony, the demeanor of the witness while testifying and the manner in which she testifies, the existence or nonexistence of a bias, interest or other motive, statements previously made by that witness that are consistent with their in-court testimony,”—he said, “when I apply those standards to both the little girl who testified and to her mother, the Court arrives at the opinion that their testimony is in fact believable and that the evidence given by both of those witnesses is credible to the extent that it satisfies this Court beyond a reasonable doubt that they have established the elements necessary and therefore I would be willing to arrive at a verdict in this matter.”  (Emphasis added.)

The trial judge then proceeded to explain to the jury how he arrived at that conclusion in terms of the applicable standards.   Referring to Clemie McManus, he observed:  “It just doesn't make any sense to me as I analyze that woman, her testimony, and how she testified, that she had any bias, interest or motive to do anything but tell the truth.   She can gain nothing by this action ․   I was convinced by her demeanor that she is just a plain, ordinary kind of witness that we see all the time, that she does not have any special training, skill or education that would put her in a position where we would not expect that she could answer those questions any more articulately than she did or without some of the inconsistencies that appeared in that testimony, because those, as I told you, is something we can expect in the normal course of events.   I also came to the conclusion that I would believe her simply because she had had other occasions to tell the same story and although there might be technical inconsistencies, that her stories have always been consistent ․   I think it is established beyond any doubt that [defendant's] brother was in fact a defendant in a capital offense, ․ and that the victim of that case was a ten-year-old girl, and that the purpose and motive of that killing was to keep that girl from testifying at a trial ․ and because of the fact that they are blood relatives, and the natural inclination is to protect one's family, that he would in fact have a motive to go to that establishment as soon as he was free to do so and tell her to knock it off and not do it again ․ [and] because I am of the opinion, after evaluating the witnesses who testified in this case, that she is in fact a truthful witness.   Well, then, I have to accept that those words of threat and use of force were actually uttered and therefore I would be of the opinion that he is in fact guilty of a violation of Section 136b of the Penal Code, a felony.”  (Emphasis added.)

At the conclusion of his analysis, the trial judge again admonished the jury that his comments were intended to be advisory, and not binding upon them, and that they were the “exclusive judges of the facts in this case.”

A. Propriety of the trial court's comments on credibility.

 Article VI, section 10 of the state Constitution provides that “[t]he 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.”   It has been held that under this provision “a trial judge is empowered to do more than merely summarize the evidence ․ he may analyze the testimony critically, giving his opinions for the guidance of the jury ․ the intent of the voters was to make the judge a real factor in the administration of justice.”  (People v. Friend (1958) 50 Cal.2d 570, 576–577, 327 P.2d 97;  see also, People v. Shannon (1968) 260 Cal.App.2d 320, 330, 67 Cal.Rptr. 207;  People v. Marrone (1962) 210 Cal.App.2d 299, 311, 26 Cal.Rptr. 721.)

 The trend of recent decisions has been to limit the trial court's discretion to comment on the credibility of witnesses by insisting upon scrupulous fairness.   In People v. Oliver (1975) 46 Cal.App.3d 747, 120 Cal.Rptr. 368, the trial court commented, without further discussion of the testimony, that “[w]ith reference to defense witnesses, including the defendant himself, I have never in my experience as a lawyer and a judge seen an array of witnesses whose credibility is so doubtful.”  (Id., at p. 750, 120 Cal.Rptr. 368, emphasis deleted.)   The appellate court found this statement exceeded the bounds of permissible comment because it permitted the jurors to discredit defense testimony without reference to appropriate evidentiary factors, and because the evidence did not justify the broad discrediting comment made by the judge.  (Id., at p. 753, 120 Cal.Rptr. 368.)   Similarly, in People v. Moore (1974) 40 Cal.App.3d 56, 114 Cal.Rptr. 655, the trial court's comments were deemed impermissible because they contained inaccuracies, and because they failed to mention positive evidence favorable to the defendant's version of the facts.  (Id., at p. 65, 114 Cal.Rptr. 655.)

 No such defects are present in the trial court's comments in this case, however.   Appellant did not testify, and presented no evidence except for the testimony of a polygraph expert, who testified that a polygraph examination conducted pursuant to stipulation, and which purported to demonstrate that appellant was lying when he denied the alleged intimidation, was unreliable.   Nor does appellant claim that the judge's comments contain any misstatements of the evidence presented.   His sole contention is that the judge failed to mention the defendant's theories that Clemie McManus was an unreliable witness because of an assertedly inconsistent statement to the police that appellant threatened to see that “she” (rather than “the situation”) was “taken care of,” and because she was under a good deal of stress as a result of threats by other members of the family, such that she may have misinterpreted or forgotten exactly what appellant said.   The trial court's comments did, however, include evaluation of what it characterized as “technical inconsistencies”;  and while appellant's argument based upon confusion may have loomed large in the mind of defense counsel, there is no authority for the proposition that the trial judge was required to give it equal weight in his comments.   We conclude that the court's comments on credibility were within the scope of comments permitted by the state Constitution.

B. Propriety of the trial court's comments on guilt.

Appellant contends that even if the trial judge's comments as to the credibility of witnesses were permissible, he intruded improperly upon the province of the jury when he stated his opinion that the elements of the crime “have in fact been established beyond a reasonable doubt,” and that the defendant “is in fact guilty” of a felony as charged.

 Were this a case of first impression, we would be inclined to agree.   Nothing in the state Constitution permits a judge to comment upon the ultimate question of guilt or innocence, and such comment obviously places some strain upon the independent function of the jury.   Occurring at a time when the jury is deadlocked, such a comment is arguably analogous to the “dynamite charge” disapproved in People v. Gainer (1977) 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997, where the court stressed “the importance of restricting the foundation for the jury's decision to the evidence and arguments presented at trial,” “the right of both the People and the defendant to the individual judgment of each juror on the issue of guilt,” and the concomitant “requirement of independently achieved jury unanimity.”  (Id., at pp. 848–849, 139 Cal.Rptr. 861, 566 P.2d 997.)

 The issue is not one of first impression, however.   In People v. Friend, supra, 50 Cal.2d 570, 578, 327 P.2d 97, the Supreme Court in an opinion by Chief Justice Gibson stated:  “[I]t has frequently been recognized that a judge may express his opinion as to the guilt or innocence of the defendant, so long as the province of the jury as defined by the constitutional section [article VI, section 19] is not invaded.”

In People v. Brock (1967) 66 Cal.2d 645, 58 Cal.Rptr. 321, 426 P.2d 889, the Supreme Court, in an opinion by Justice Peters, reversed a conviction on the basis of an expression of opinion by the trial court, without analysis of the evidence, that the guilt of the defendant had been established beyond a reasonable doubt.   In reaching that conclusion, the court observed that “neither Friend nor any of the cases there cited upheld a comment by the trial judge that a defendant was guilty beyond a reasonable doubt where the comment was made prior to rendition of a jury verdict, where there was a conflict in the evidence, and where the evidentiary basis for the comment was not explained.”  (Id., at pp. 652–653, 58 Cal.Rptr. 321, 426 P.2d 889, emphasis added.)   The court explained the quoted language from Friend as meaning “that proper comments of the judge as to evidence are not erroneous merely because the jury might conceivably understand such comments as reflecting his opinion as to guilt or innocence, and the quoted language should not be understood as warranting general statements as to guilt or innocence where the evidentiary basis for the comment is not explained to the jury.”  (Id., at pp. 654–655, 58 Cal.Rptr. 321, 426 P.2d 889, emphasis added.)

While the relevant language in both Friend and Brock is dicta, one of the cases relied upon in Friend was People v. Yokum (1956) 145 Cal.App.2d 245, 302 P.2d 406, in which the appellate court affirmed a murder conviction despite the trial court's statement to the jury:  “[I]t is my conclusion ․ that the fatal shooting was not discharged in self-defense,” as the defendant claimed.  (Id., at p. 257, 302 P.2d 406.)   The Supreme Court in Brock distinguished Yokum on the following basis:  “The court's comment did not merely state that the defendant was guilty but explained the reasons for the conclusion that the killing was not in self-defense in such a manner that, if the jury disagreed with his analysis of the evidence or the inference to be drawn from it, the jury could reject the judge's view.”  (People v. Brock, supra, 66 Cal.2d at p. 654, 58 Cal.Rptr. 321, 426 P.2d 889.)

Several cases since Brock have considered the propriety of trial court comments upon the guilt of the accused.   In People v. George (1968) 259 Cal.App.2d 424, 431, 66 Cal.Rptr. 442, the court held it was error for the trial court to tell the jury that in its opinion one defendant robbed and assaulted the victim and that a second defendant aided and abetted both offenses, where the court “did not discuss or evaluate the testimony of any of the various witnesses or indicate to the jury on what evidence it based its conclusion that defendant [George] was an aider and abettor,” nor did it indicate clearly that they could find George guilty only if they first found the principal guilty or that the jury could reject its views if it so chose.  (Id., at p. 431, 66 Cal.Rptr. 442.)

In People v. Flores (1971) 17 Cal.App.3d 579, 95 Cal.Rptr. 138, the trial court had analyzed the evidence of the two testifying witnesses, the defendant and a police officer, in terms highly favorable to the latter, and stated, “For my own sake, I would not have spent two minutes in deciding this case because I would have decided that the defendant was guilty.”  (Id., at p. 584, fn. 2, 95 Cal.Rptr. 138, emphasis deleted.)   The appellate court found this to be error, stating:  “The summary destruction of defendant's entire case—his credibility—and the forceful demonstration of the officer's probity, clinched with the judicial imprimatur of guilt, was tantamount to a prosecutor's plea, and exceeded the bounds of even ‘colorful’ analysis․   When the trial judge's remarks transgress the bounds of critical comment and assume the complexion of partisan advocacy and conclude with an expression of a defendant's guilt such comment is prejudicial as a matter of law.   This is the tenor of the Brock decision.”  (Id., at p. 587, 95 Cal.Rptr. 138.)

In People v. Moore, supra, 40 Cal.App.3d 56, 114 Cal.Rptr. 655, the trial court, after only three hours of jury deliberation, and in the context of trial calendar pressures, commented upon the evidence in a manner favorable to the prosecution's view and expressed the opinion that “the evidence has established [defendant's] guilt beyond a reasonable doubt and to a moral certainty.”  (Id., at p. 63, 114 Cal.Rptr. 655.)   The appellate court, reversing, found the judge's comments ignored “a great deal of evidence which was favorable to the defendant,” and concluded that “the court's statement on the evidence did not constitute either a fair or an accurate comment on the evidence.”  (Id., at p. 65, 114 Cal.Rptr. 655.)

Each of these post-Brock cases is factually distinguishable.   In each of them the trial court either failed to explain the evidentiary basis for its conclusion of guilt, or did so in a manner which was unfair or incomplete.   There is language in People v. Moore, supra, which suggests that it is independently erroneous for a judge to tell the jury how they should decide the case (40 Cal.App.3d at p. 66, 114 Cal.Rptr. 655).   While we are sympathetic to that view, we do not consider ourselves free to adopt it absent further guidance from the Supreme Court.

II.

Appellant contends that the jurors in this case engaged in reversible misconduct by entering into an agreement that they would abide by the judge's comments on the credibility of witnesses.   This assertion is based on the affidavit of one juror, who states that during deliberations she was “of the belief that the defendant was not guilty,” because she felt the complaining witness was “not credible”;  but after hearing the judge order the jury to deliberate further she “felt [she] must show the jury my good-faith,” and was therefore “willing to forego my belief of defendant's innocence only if the judge were to side with the rest of the members of the jury․   I felt that if a judge of the Superior Court would believe the complaining witness, who am I to oppose such a conclusion.”   Consequently, the affidavit recites, after the judge rendered his comments on credibility, “I felt compelled to change my stand and side with the rest of the jurors pursuant to the agreement stated above.”  (Emphasis added.)

 The affidavit makes no other reference to any “agreement,” nor does it recite any observable facts establishing the existence or contents of an agreement.   Under Evidence Code section 1150, evidence to impeach a jury's verdict is limited to proof of overt conduct, conditions, events, and statements, and does not extend to evidence of a juror's mental processes or reasons for assent or dissent.  (People v. Hutchinson (1969) 71 Cal.2d 342, 349–350, 78 Cal.Rptr. 196, 455 P.2d 132;  see also People v. Hall (1980) 108 Cal.App.3d 373, 378–379, 166 Cal.Rptr. 578.)   If the jurors had a discussion leading to an improper agreement, “such discussion and agreement would appear to constitute matters objectively verifiable, subject to corroboration, and thus conduct which would lie within the scope of section 1150.”  (Krouse v. Graham (1977) 19 Cal.3d 59, 80, 81, 137 Cal.Rptr. 863, 562 P.2d 1022.)   This juror's affidavit, consisting entirely of a description of her own state of mind, does not meet that test.

The judgment is affirmed.

FOOTNOTES

1.   Appellant contends also that he was denied his speedy trial rights under Penal Code section 1382, which requires, in the absence of a showing of good cause, that a defendant be brought to trial within 60 days after the filing of the information.   The information in this case was filed April 22, 1980.   The case was set for trial on June 23, 1980, and on that date the court announced that the trial had begun, but jury selection did not commence until the following day, one day beyond the 60-day period.   The People contend that defendant was “brought to trial” within the meaning of section 1382 on June 23;  that he waived any objection to the delay;  and that no prejudice was shown.   We find no reason to consider the first two contentions, since we find the third contention dispositive.In People v. Johnson (1980) 26 Cal.3d 557, 574, 162 Cal.Rptr. 431, 606 P.2d 738, the Supreme Court reaffirmed its holding in People v. Wilson (1963) 60 Cal.2d 139, 151–152, 32 Cal.Rptr. 44, 383 P.2d 452, that a defendant seeking reversal of a conviction through appeal, based on violation of Penal Code section 1382, must show that prejudice arose from the delay.   Appellant does not claim prejudice.   Rather, he relies upon two recent cases—Overby v. Municipal Court (1981) 121 Cal.App.3d 377, 382, 175 Cal.Rptr. 352;  and Owens v. Superior Court (1980) 28 Cal.3d 238, 252, 168 Cal.Rptr. 466, 617 P.2d 1098—as standing for the proposition that Johnson notwithstanding, no showing of prejudice is required.   Both cases, however, involved pretrial relief by writ of mandate, rather than appeal from a conviction, and in both cases that well-established distinction (e.g., People v. Wilson, supra, 60 Cal.2d 139, 151–152, 32 Cal.Rptr. 44, 383 P.2d 452) was recognized (Overby v. Municipal Court, supra, 121 Cal.App.3d 377, 382, fn. 3, 175 Cal.Rptr. 352;  Owens v. Superior Court, supra, 28 Cal.3d 238, 252, fn. 15, 168 Cal.Rptr. 466, 617 P.2d 1098).

GRODIN, Associate Justice.

ELKINGTON, Acting P. J., and RAGAN, J.,* concur.