People v. Flores

• Decision Date: 17 May 1971
• Docket Number: Cr. 18845
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ignacio Ramirez FLORES, Defendant and Appellant.

Page 138

95 Cal.Rptr. 138

17 Cal.App.3d 579

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ignacio Ramirez FLORES, Defendant and Appellant.

Cr. 18845.

Court of Appeal, Second District, Division 2, California.

May 17, 1971.

Hearing Denied July 14, 1971.

Albert D. Silverman, Canoga Park, under appointment by the Court of Appeal, for appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Allan J. Besbris, Deputy Atty. Gen., for respondent.

ROTH, Presiding Justice.

This appeal is taken from a judgment convicting appellant for the possession of heroin (Health & Saf.Code, § 11500).

The sole assignment of error on appeal is as follows: 'The trial court's comments to the jury influenced their verdict, depriving the appellant of his constitutional rights to trial by an impartial jury and of due process of law.'

We conclude that the trial court transgressed the limits of permissible comments authorized by article VI, section 10 of the California Constitution ¹ as interpreted in People v. Brock, 66 Cal.2d 645, 58 Cal.Rptr. 321, 426 P.2d 889, and in People v. Friend, 50 Cal.2d 570, 327 P.2d 97.

Summary of the Incriminating Evidence

Officer Muntz testified for the prosecution, giving his version of what occurred on April 3, 1970. He stated that on that evening he observed the appellant walking down the center of the street and appeared to be staggering. His partner stopped the patrol car approximately 30 feet behind and he exited the passenger side and approached the appellant. When he was still some ten feet away he observed the appellant turn and look at him. He then turned back, put his right hand into his right-front pants pocket. He saw the hand come out and observed the appellant make a pitching motion at which time he saw an object leave his hand and slide toward the dirt parkway. He went over and retrieved the object, observing it to be a green colored balloon.

After pitching the object the appellant increased his pace to a fast walk towards the sidewalk. The officer's partner caught him and walked him back to where he was standing. In the meantime he had observed the contents of the balloon which consisted of a brown-white powder resembling heroin and he placed the appellant under arrest for the possession of heroin.

He stated further that the appellant was carrying a small paper sack which contained a half-pint of whiskey, a bar of soap and a pack of twenty rubber balloons. They observed one male and one female walking in their direction and the paper sack and the contents were given to the woman.

At the area where the balloon was found there was an overhead light about six feet away and the appellant was illumed by the headlights of the patrol car, according to the officer. The parties stipulated that an expert forensic chemist had examined the contents of the balloon and if called would testify that it contained 2.5 grams total weight of powdered heroin.

Appellant testifed that after he left work on April 3, 1970, he stopped at a store and purchased two bottles of whiskey, soap, toothpaste, milk, and cosmetics. These items, he said, were placed in a paper bag by the store keeper. He was on his way home which was about a block away from the store and was accompanied by three other persons who lived in the immediate vicinity but whose names he did not know.

He then heard an order from a police officer who was in a police unit about 30 feet away directing him to stop. However, he kept on walking, thinking he had better ditch the whiskey he was carrying. The police came over and started searching the area around him. They found a balloon on the ground a few feet from where he was standing. He denied throwing anything away from his person in the presence of the officer.

In the course of his direct examination given at the hearing on his motion to suppress the evidence appellant testified as follows: 'Q What happened to the groceries? A I threw them away. Q No. you were carrying them? A Yes. Q you didn't drop them? A No. Q Did you throw the whiskey away? A No. He (the officer) threw it out.'

A few days later at the trial appellant testified on direct examination as follows: 'Q Were you facing the officers when they asked you what you had in the bag? A Yes, but I kept walking. Q Why was it--why did you keep walking? A Because I had that bottle of whiskey. I was afraid of the bottle of whiskey I had. Q Did you keep the bottle of whiskey inside the bag? A Yes. Q Did you throw anything in the presence of the officers? A No. Q Did you have possession of any balloon of heroin? A No; if I had, I'd have swallowed it. * * * Q Do you recall what became of your bag that evening? A He took it away from me; he kept it.'

On cross-examination appellant testified as follows: 'Q Mr. Flores, besides that bottle of whiskey you had in that bag, what else did you have in the bag? A Toothpaste, soap, and dressing for my hair. Q Isn't it true that included in that bag were approximately 20 balloons? A It would only be if I could look into the bag now to say that that might be true; I don't know. Q Well, didn't you know what was in that bag? A No. Q Where did you get the bag? A I bought it, I got it when I bought all that stuff that I bought.'

On redirect examination appellant answered questions put to him by his counsel as follows: 'Q Mr. Flores, if you did have a balloon, I am not saying you did, would you have thrown it in front of the police officer? A Of course not. Q If you threw it in front of the police officer, there is a good chance that he would see it, is that correct? A Yes. Q If you did have something that you shouldn't have, and it was about the size of that balloon, what would you do with it? A I would have kept it in my pocket. Q Or would you have tried to swallow it? A No. It's awful big. MR. WEBB: I have nothing further.'

The Court's Comment

After the jurors had deliberated approximately three hours they were re-called to the courtroom. Their foreman reported that they had not yet been able to reach a verdict and that they were divided '5 to 7'. The court thereupon proceeded to read to the jury a statement in language identical to that given by trial judges in the cases of People v. Baumgartner, 166 Cal.App.2d 103, 105--106, 332 P.2d 366; People v. Barnes, 210 Cal.App.2d 740, 26 Cal.Rptr. 793; People v. Ortega, 2 Cal.App.3d 884, 896, 83 Cal.Rptr. 260.

The court then analyzed the evidence of the two testifying witnesses, defendant and Officer Muntz, commented on their respective credibility and stated its convictions as to defendant's guilt in terms which are set forth in their entirety in the footnote. ²

The comments of the court made to the jury after it was advised that the jury was 'split five to seven', was 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.

No hard and fast rule can be evoked to arithmetically determine the extent to which a judge may or may not comment on the evidence or the credibility of the witnesses. Each case must necessarily turn upon the context and extent of the comments and the peculiar circumstances under which comment is made. (People v. Scott, 53 Cal.2d 558, 564, 2 Cal.Rptr. 274, 348 P.2d 882 (overruled on other grounds People v. Morse, 60 Cal.2d 631, 649, 36 Cal.Rptr. 201, 388 P.2d 33); People v. Marrone, 210 Cal.App.2d 299, 311, 26 Cal.Rptr. 721; People v. Schwenkner, 191 Cal.App.2d 46, 52, 12 Cal.Rptr. 408.)

In our opinion, however, the comments at bench contained a clear statement that the court believed defendant guilty.

People v. Friend, Supra, 50 Cal.2d 570, 327 P.2d 97, held that the judge 'May express his opinion as to the guilt or innocence of the defendant, so long as the province of the jury * * * is not invaded.' (Id. at 578, 327 P.2d at 101.) Friend cited a succession of authorities to support this holding. However, as one court has put it, 'Friend was clarified in Brock (People v. Brock, 66 Cal.2d 645, 58 Cal.Rptr. 321, 426 P.2d 889)' with the result that a naked statement of belief in a defendant's guilt is subject to vigorous scrutiny. (People v. George, 259 Cal.App.2d 424, 430--431, 66 Cal.Rptr. 442, 446.) Justice Peters, speaking for the court in Brock, distinguished or explained each of the authorities cited in Friend for the holding quoted above, and came to the conclusion that the 'quoted language (from Friend) 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.' (People v. Brock, Supra, 66 Cal.2d at 655, 58 Cal.Rptr. at 327, 426 P.2d at 895.)

A first reading of the trial judge's comments may indicate that here indeed was an instance where the trial judge assisted the jury 'in determining what evidence has a bearing on the disputed issues in the case and * * * in weighing the evidence * * *.' (People v. Brock, Supra, at 650, 58 Cal.Rptr. at 324, 426 P.2d at 892.) Such assistance, we have been told, should not be discouraged. (People v. Ottey, 5 Cal.2d 714, 722--726, 56 P.2d 193.) It is an exercise of a judicial right granted by our State Constitution (Cal.Const. art. VI, § 10) which has received statutory enactment. (Pen.Code, §§ 1093, 1127.) ³

Defendant's entire case rested on his testimony that he had not thrown the contraband away, that, in fact, he had never possessed it. Thus, as the trial judge pointed out initially, '* * * it's really a question of deciding who is telling the truth and who is not telling the truth in this particular case'--making reference to the testimony of the police officer that he saw defendant throw the contraband away. In its deliberations the jury was therefore faced with the naked question of whom to believe; and that it did not find this an easy one to answer, is shown by its return to court 'split five to seven'. ⁴

The trial judge's analysis of the...