P. v. Castillo

Filed 4/25/07 P. v. Castillo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Susanne S. Shaw, Judge. Reversed.

William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Marlon Jaime Castillo of three counts of assault with a semiautomatic firearm (Pen. Code,  245, subd. (b); all statutory references are to this code unless noted) and possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)). Castillo challenges the sufficiency of the evidence to support the verdict and argues he was entitled to an instruction on brandishing a firearm ( 417, subd. (a)(2)), as a lesser included offense to assault with a semiautomatic firearm. He also contends the trial courts comments during defense counsels cross-examination of key prosecution witnesses constituted misconduct. We agree with the latter contention and therefore reverse the judgment.

I

Facts and Procedural Background

On September 8, 2004, around 9:40 p.m., Joshua Chambers and Francisco Herrera drove into an Aliso Viejo apartment complex to visit their friend, Andrea Arizzola. As Herrera slowly proceeded through the complex looking for a parking spot, he spotted a six-foot tall, young white male, later identified as Saad,[1] accompanied by defendant and a young woman. Saad stared at them and Chambers returned the gaze.

According to Chambers, Herrera drove to the end of the roadway without finding a parking place and made a U-turn. They passed Saad again, who continued to stare and said what. Chambers responded what, as Herrera drove by slowly. Herrera parked the car. When Chambers climbed out of the car, Saad punched him in the face and a fight ensued. Herrera grabbed the beer they had purchased earlier and walked away from his truck. Defendant accosted him and the two exchanged blows. After less than a minute, Herrera ran off and jumped a fence into the swimming pool area. Defendant came to Saads aid and Chambers ran to join Herrera.

According to Herrera, they passed Saad just once. Chambers and Saad exchanged words. After he parked, Herrera walked to the back of the truck to wait for Chambers. Defendant and Saad appeared. Defendant said something and started swinging at Herrera. Herrera stepped back and then hit defendant in the head with the bag containing the beer. Herrera fell and defendant landed on top of him. Herrera pushed him off and jumped the fence to the pool area.

Chambers and Herrera ran to Arizzolas apartment. There they met Arizzola and another friend, Travis Fraser. Chambers and Herrera told them about the brawl and Fraser agreed to accompany them back to the scene to resume the confrontation. The three men and Arizzola returned to the area where the earlier fight occurred, but did not see the two men. As they turned to go back to the apartment, they heard defendant say something like, What fool[] [d]o you want some? Chambers turned and saw defendant and Saad about 75 to 100 feet away. The groups walked toward each other, closing the gap by about 25 feet.

Chambers testified defendant held his hand out sideways at shoulder level and pointed a handgun. Defendant fired one or two shots before Chambers turned and ran. He fired in Chambers direction [n]ot right at [him] specifically . . . . Chambers heard four shots in quick succession with a slight pause before a fifth shot, but later testified there were only four shots.

Herrera testified Saad threw up his hands and yelled something. Defendant had his hand under his shirt and extended his arm out with what looked like a gun. Herrera froze, then heard two or three shots. Two or three seconds elapsed between the first and second shot. The gun was pointed in his general direction. He ducked and ran to his right. He grabbed Arizzola and ran between some cars to her apartment. He identified defendant at the scene and in court.

According to Fraser, he joined Chambers and Herrera at the bottom of the stairs outside Arizzolas apartment. They wanted to squash or settle their dispute. The two groups exchanged harsh words and a Hispanic male with a white shirt, who he identified at the scene as defendant, reached down in his pants. Fraser took off running. He heard two bangs as he fled the scene, and immediately called 911 at Arizzolas apartment.

Mindy Mellenbruch stood a few feet outside her third-floor apartment when she heard a bang. Turning toward the parking lot, she saw two men slowly walking forward. The man in front held a gun in his right hand with his arm extended in front of him at shoulder level. He held the gun sideways, with the palm of his hand toward the ground, and pointed it straight ahead as he walked forward. He fired a shot and a light flashed from the barrel. The second shot followed the first by a second or two. When the men glanced in her direction, she dropped to the ground behind a cement railing. Her roommate let her into the apartment and telephoned the sheriffs department.

Orange County Deputy Sheriff William Torrez responded to the scene and found defendant and Saad in the latters apartment about 45 minutes after his arrival. Defendant appeared agitated and was perspiring. Deputies searched the apartment but did not find a gun. Deputies also surveyed the scene of the shooting and found two casings on the ground, but recovered no bullets. Herrera and Chambers identified defendant as the shooter. While searching defendant in the parking lot, officers found a baggie of methamphetamine next to his foot. At trial, the parties stipulated defendant was taken to the hospital for a fractured bone to his elbow.

A few days before he testified at trial, Orange County Sheriffs Investigator Sean Murphy examined the crime scene to look for bullet holes. He found a hole in stucco molding around a window along the roadway where the altercation occurred. The hole was consistent with a bullet hole, and was located 15- to 18-feet above street level. The distance between the casings and the base of the building below the hole was 130 feet.

Thomas Matsudaira, a forensic scientist and firearms expert employed by the Orange County Sheriffs Crime Lab, testified the casings were from nine-millimeter cartridges fired from the same gun. There were extractor and ejector marks on both that were consistent with being fired from an auto loading firearm. In laymans terms, this is a semiautomatic firearm. Matsudaira calculated a trajectory using Investigator Murphys measurements. Assuming the victims were 50 feet from the shooter, the bullet would have been nine and one-half feet off the ground at that point.

The prosecution charged defendant with three counts of attempted murder ( 664, 187, subd. (a)); three counts of assault with a semiautomatic firearm ( 245, subd. (b)); possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)); and possession of a controlled substance with a firearm (Health & Saf. Code,  11370.1, subd. (a)). The prosecution also alleged the attempted murder was deliberate and premeditated, and defendant personally discharged a firearm during the attempted murder ( 12022.53, subd. (c)) and personally used a firearm ( 12022.5, subd. (a)) while assaulting the victims with a semiautomatic firearm. During the trial, the trial court dismissed the premeditation allegations and the count charging defendant with possession of a controlled substance with a firearm. The jury acquitted defendant of attempted murder and the firearm allegations, but convicted him of three counts of assault with a semiautomatic firearm and found he personally used a firearm ( 12022.5). The court imposed a six-year aggregate prison term comprised of concurrent three-year low terms for the assaults, a consecutive three-year term for the firearm enhancement, and a concurrent 16-month term for possession of methamphetamine.

II

Discussion

A. Sufficiency of the Evidence

Castillo challenges the sufficiency of the evidence to support the assault convictions. He argues the evidence demonstrated defendant fired only a warning shot above the approaching group. He asserts neither Herrera nor Chambers saw a muzzle flash, but Mellenbruch observed one from the third floor apartment. From this, defendant infers the gun must have been pointed upward, and concludes this was a classic case of a person exhibiting or using a gun to frighten off people who are threatening to him. In this case, Fraser and the others coming toward [defendant] posed a serious threat of bodily injury to him because his elbow was already fractured from the earlier altercation. He could likely not have defended himself in any fist fight with the three. He therefore chose a course of action obviously designed to frighten off the approaching men.

In reviewing a criminal conviction challenged as lacking evidentiary support, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . (People v. Elliot (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) Thus, we presume in support of the judgment the existence of every fact the jury could have deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.] (Id. at p. 1054.)

An assault is an unlawful attempt, combined with a present ability, to do violent injury on the person of another. ( 240.) The California Supreme Court explains assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. (People v. Williams (2001) 26 Cal.4th 779, 790.)

Here, the evidence supports the jurys conclusion defendant knew he would likely injure the victims by firing his gun at the group. There was no evidence defendant aimed the gun straight up or into the ground. Chambers and Herrera both testified defendant aimed in their direction when he fired at least two shots. As Mellenbruch described it, defendant fired as he slowly walked forward with the gun in his right hand and arm extended forward at shoulder level. Defendant was pointing it straight ahead and walking towards something, and [h]e was fixated on a target.

Defendant asserts the alleged bullet hole in one of the buildings demonstrated a bullet passed at least 12 feet above the victims. True, there was evidence to support the defense theory, but this does not negate the substantial evidence supporting the jurys verdict. For example, the firearm experts calculations based on the investigators measurements reflected the bullet would have passed a little over three feet above a potential victim who stood six feet tall. Consequently, the jury could have reasonably rejected defendants contention he fired the weapon over the heads of the victims to scare them off, and concluded he intentionally fired at Herreras group.

B. Judicial Misconduct

Defendant contends the trial courts misconduct denied him a fair trial. Specifically, he argues the judge made disparaging remarks to defense counsel, raised sua sponte objections to defense counsels cross-examination of various witnesses, undermined the defense by interfering with and restricting defense counsels cross-examination of key prosecution witnesses, suggested defense counsel was incompetent and/or unethical and conveyed the impression the court sided with the prosecution. We agree the cumulative impact of the courts conduct resulted in an unfair trial.

Criminal defendants have a fundamental right to a fair trial. Due process requires judges to protect the defendants right to a fair and impartial trial by conducting the proceedings without bias. (Bracy v. Gramley (1997) 520 U.S. 899, 904-905 (Bracey) [the floor established by the Due Process Clause requires a fair trial in a fair tribunal before an unbiased judge].) An accuseds Sixth Amendment right to an impartial jury hinges on the trial judges fairness. To this end, the California Code of Judicial Ethics requires judges to treat all parties with patience and courtesy, and perform their duties without bias. (Cal. Code Jud. Ethics, canon 3B(4) & (5).) Jurors expect no less, and rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials. (People v. Sturm (2006) 37 Cal.4th 1218, 1233 (Sturm).) Because judges can easily influence the decisions of jurors, the court must avoid even the appearance of favoring the prosecution or the defense. (United States v. Sheldon (5th Cir. 1976) 544 F.2d 213, 218.) Consequently, a trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression that it is allying itself with the prosecution. (Sturm, supra, 37 Cal.4th at p. 1233.)

We recognize courts may occasionally express irritation with trial counsel, and not all admonitions of counsel establish judicial misconduct, even if the courts comments are made in the jurys presence. (People v. Carpenter (1997) 15 Cal.4th 312, 353.) But repeatedly disparaging defense counsel may convey the impression the court favors the prosecution. (Sturm, supra, 37 Cal.4th at p. 1238.) Even one intemperate and highly prejudicial remark may violate a defendants right to a fair trial. We therefore review the propriety of judicial comment on a case-by-case basis in light of its content and the circumstances in which it occurs. (People v. Cash (2002) 28 Cal.4th 703, 730.)

1. Comments Suggesting the Court Allied Itself with the Prosecution

The trial court made comments that conveyed the impression it sided with the prosecution by either providing answers to defense counsels questions directed at the prosecution witness or, when the answers were ambiguous, summarizing the witnesss testimony in a way that undermined the defense. We describe several incidents to make the point. For example, during the cross-examination of Chambers, defense counsel asked whether the witness turned to run before defendant fired a shot. In a confusing colloquy, the witness denied telling the police he ran when defendant displayed the handgun, explaining the shots were fired before he fled the scene. Defense counsel pressed the point, asking [s]o you are now testifying that you did see him fire two shots, right? Before the witness could answer, the court interjected: Thats not what he testified. He said he cant see the bullet coming out of the gun. There was nothing wrong with counsels question, and the courts intervention to answer the question posed to the witness blunted any potential impeachment value on this issue. The witness never answered this particular question.

Later in the cross-examination of Chambers, counsel tested the witnesss recollection that defendant pointed the gun straight at the group. Q Okay. And could you tell how high his arm was elevated when he fired the shots? [] A Shoulder level yeah, shoulder level. [] Q Okay. Well, you are indicating some uncertainty? Before the witness could answer, the court interjected: Excuse me, I dont think shoulder level is an uncertainty and I dont want you to qualify it. The answer to this question was crucial to the defense, which claimed the evidence showed defendant did not fire the gun at the group, but instead fired warning shots above their heads to stop their advance toward him. Chambers damaged this claim when he testified defendant pointed the gun directly at the group. Defendants reasonable doubt argument would have been bolstered had the witness acknowledged uncertainty about where defendant had pointed the weapon. But the judge prevented the witness from answering, and compounded this error by answering the question for the witness. Although the judge could not have known the degree of the witnesss certainty, her categorical claim the witness expressed no doubt strengthened the prosecutions version of the evidence and demonstrated for the jury where the courts sympathies rested.

The court enhanced the impression it had allied itself with the prosecution by raising sua sponte objections to defense counsels questions throughout the trial. For example, the court objected on hearsay grounds when defense counsel attempted to confront a prosecution witness with a prior inconsistent statement. When counsel explained he planned to ask the witness about an earlier inconsistent statement, the court responded, Well, I dont know whether its inconsistent, an issue that should concern the court only if defense counsel offered extrinsic evidence of the prior statement. Nevertheless, the court lectured counsel: In order to impeach somebody, you have to ask them whether they made a certain statement on a certain date at a different time. [] . . . [] You have to tell us first. I have to be able to pull out my preliminary hearing transcript, the D.A. does, and he has to be shown the statement and read it to himself before you do that.

The courts tutorial of defense counsel on the rules of impeachment was incorrect. Evidence Code section 769 provides: In examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the hearing, it is not necessary to disclose to him any information concerning the statement or other conduct. (Italics added.) Counsels reference to the preliminary hearing merely attempted to lay the foundation for the later introduction of the inconsistent statement by asking the witness about it as required by Evidence Code section 770.[2] The court determines whether the statement was inconsistent only if defendant moves to introduce the witnesss prior statement and the prosecutor objects.

The court again interrupted counsel when he attempted to follow the normal rules of impeachment. Remember what I told you? You have to show him your transcript and ask him to look at page 21 between lines whatever you want to talk about to another line, and ask him if that refreshes his recollection. Confusing the rules for refreshing the recollection of a witness (Evid. Code,  771) with those pertaining to inconsistent statements (Evid. Code,  769, 770), the court again explained to counsel its requirements as if it were dispensing a remedial lesson to a backward student, an impression that could not have helped defendant when his attorney was making closing argument.[3]

Other incidents telegraphed a sense of disdain for defense counsel to the jury. During cross-examination of Chambers, counsel attempted to learn what the witness recalled seeing when defendant fired the gun, but the court interrupted: Q  Okay. But in the instance where you saw people fire a weapon [] The Court:  What part of stricken didnt you understand? He said in this case, sir, that he did not see any bullets come from that weapon, but he heard them. And you know [counsel], can I talk to you for a minute? [] [Defense Counsel]: Please. With the court reporter? [] The Court: You got it.

In chambers, defense counsel objected to the court being a co-prosecutor. The court responded by threatening to hold counsel in contempt, apparently for not following its ruling and asking questions based on answers that had been stricken. Here, again, the court was incorrect because it had not stricken any material referred to by defense counsel.[4] The chilling effect of being threatened with a contempt citation for no reason seems obvious.

The courts disparagement of defense counsel reached its nadir during the cross-examination of Fraser concerning the witnesss actions during the confrontation. Fraser testified I just froze when he saw defendant with a handgun. Defense counsel pursued this line of inquiry: Q All right. And now did you also wait for shots to be fired before you took cover? [] A Yes. [] Q Okay. So you waited for the shot before you did anything? Before you moved [] A Yes. [] Q For your safety? And then you waited for a second shot and moved for your safety, right? [] A Yes, I was just froze [sic]. [] Q Sure. And then you waited for three shots while you are still frozen, is that right?

Before the witness could answer, the court interjected, You know, waiting for a shot to be fired, nobody waits for a shot to be fired. This, precisely, was the point defense counsel hoped to develop to his clients advantage. According to the defense, Fraser was lying when he claimed he froze out of fear; rather his bold stance threatened confrontation, causing defendant to become afraid, draw his weapon, and fire. But defense counsel could not develop this view for the jury by cross-examining Fraser because the court proceeded to accuse counsel of underhanded tactics.

The Court: You are putting words in his mouth which Im having problems with here. [] [Defense Counsel]: Lets make sure the record is clear. [] The Court: No, I dont want you to misstate the testimony. He waits until the gun came out. He didnt wait for a shot to be fired because he didnt know whats at the other end. [] [Defense Counsel]: May I hear the witness testify now, your Honor? [] The Court: Pardon? [Defense Counsel]: May I continue? [] The Court: So everything you asked is stricken [] [Defense Counsel]: Okay. [] The Court: Because it calls for speculation because he is not the one holding the gun. [] [Defense Counsel]: Okay. [] The Court: So he cant know whether or not he is waiting for a shot to be fired. [] [Defense Counsel]: Your Honor, I just want to make sure I understand. My last question [] The Court: I want to make sure that the jury understands. Thats all. Thank you. [] Okay. You may re-ask your questions properly. [] [Defense Counsel]: Thank you. I will try. Thus, in one full swoop, the courts sua sponte intervention blunted defense counsels cross-examination, supplied an answer for the witness favorable to the prosecution and accused defense counsel of unethical conduct.

Sturm explains, It is completely improper for a judge to advise the jury of negative personal views concerning the competence, honesty, or ethics of the attorneys in a trial. . . . When the court embarks on a personal attack on an attorney, it is not the lawyer who pays the price, but the client. [Citation.] This principle holds true in instances involving a trial judges negative reaction to a particular question asked by defense counsel, regardless of whether the judges ruling on the prosecutors objection was correct; even if an evidentiary ruling is correct, that would not justify reprimanding defense counsel before the jury. (Sturm, supra, 37 Cal.4th at p. 1240.)

The court also increased the risk the jury would see the judge as a prosecution ally when it repeatedly objected sua sponte to defense counsels questions, but refrained from similar demonstrations when the prosecutor examined the witnesses. (See United States v. Tilghman (D.C. Cir. 1998) 134 F.3d 414, 421 [treatment of prosecution differed fundamentally from treatment of defendant].) We recognize the court has an obligation under section 1044 to control the proceedings and therefore may interrupt counsel to limit evidence and argument to only relevant matters. But here the courts numerous interruptions conveyed the impression of hostility to the defense. Accusing defense counsel of putting words in [the witnesss] mouth and denying counsels request to check the record because I dont want you to misstate the evidence suggests counsel is either unethical and/or incompetent. We also note the prosecutor remained mute during the majority of the courts interruptions of defense counsel, furthering the impression the court had usurped the prosecutors role. Indeed, after several sua sponte objections to defense questions of Chambers, the court felt compelled to tell the jury, I dont take sides, just so you know, but chided the prosecutor for remaining silent: any time you want to jump in, . . . feel free. As Sturm observed in a similar context, this comment in which the trial court noted that [it] was, in effect, filling in for an otherwise occupied prosecutor, communicated to the jury the message that the trial judge was collaborating with the prosecutor. (Sturm, supra, 37 Cal.4th at p. 1241.)

We conclude the courts constant interruption and objections to defense counsels questions, often to make an erroneous ruling, and its disparaging comments to counsel, constituted misconduct.

2. Prejudice

A judge with no actual bias against the defendant or interest in the outcome of the case is basic to a fair trial. (Bracy, supra, 520 U.S. at pp. 904-905.) A defendant is entitled to an automatic reversal if the judge harbors actual bias rooted in extrajudicial sources, such as racial prejudice toward the defendant or a conflict of interest where the judge stood to gain personally from the outcome. (Gray v. Mississippi (1987) 481 U.S. 648, 668; Tumey v. State of Ohio (1927) 273 U.S. 510, 532, 535.) The error is reversible per se because it is a structural defect constituting a fatal defect in the trial mechanism. (People v. Brown (1993) 6 Cal.4th 322, 333; Arizona v. Fulminante (1991) 499 U.S. 279, 309-310.)

Courts distinguish between bias arising from extrajudicial sources and bias stemming from events occurring during the course of a trial. (Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 740.) Here, there is no evidence the trial judge had a preexisting bias that would have disqualified her from hearing defendants case, and defendant does not raise such a claim. We therefore are not faced with a structural defect in the proceedings. Consequently, our review focuses on whether the trial courts misconduct fundamentally compromised the fairness of the trial. (Ibid.) In People v. Hefner (1981) 127 Cal.App.3d 88, 95 (Hefner), the court concluded judicial misconduct required reversal unless the record demonstrated overwhelming evidence of guilt. We construe this to mean the court employed a Chapman standard of review, which requires the government to prove beyond a reasonable doubt the error complained of did not contribute to the verdict obtained. (Chapman v. California (1967) 386 U.S. 18, 24; Sturm, supra, 37 Cal.4th at p. 1244 [death sentence reversed because cumulative effect of trial courts misconduct satisfied Chapman standard].)[5]

Here, although substantial evidence supports the verdicts, the record does not demonstrate overwhelming evidence of guilt. (Hefner, supra, 127 Cal.App.3d at p. 95 [judicial misconduct required reversal because evidence of guilt not overwhelming, although sufficient to support the verdict].) The defense argued the evidence showed defendant fired a warning shot in self-defense. Even if the jury rejected self-defense, defendant would have been entitled to an acquittal if the jury believed his warning shot posed no threat of harm to the advancing group because it passed well over their heads. The criminalists testimony concerning the location of the bullet hole supported an inference the bullets were fired in a manner not likely to harm the group. Whether the jury would adopt defendants version of the evidence depended on several key issues, including whether defendant acted because he feared imminent harm and whether he pointed the handgun at an upward angle or directly at the group. It was during cross-examination of Chambers and Herrera on these crucial issues that the courts comments created the unmistakable impression it had allied itself with the prosecution. (People v. Santana (2000) 80 Cal.App.4th 1194, 1207.)

When defense counsel attempted to test the certainty of Chambers claim defendant held the gun at shoulder level, the court intervened to proclaim, I dont think shoulder level is an uncertainty and I dont want you to qualify it. After Herrera testified he froze when defendant pulled the handgun, waiting to see if defendant would fire the weapon, defense counsel pressed the witness on whether he waited for defendant to fire a third shot. Before Herrera could answer, the court interrupted to comment, Nobody waits for a shot to be fired. This undermined defendants claim Herreras failure to move enhanced defendants sense of imminent harm and caused him to fire the warning shots. It also undermined a defense argument that the victim, frozen in place, was an easy target for defendant, but his failure to hit anyone demonstrated he fired a warning shot over their heads. These and other incidents previously discussed conveyed the message the court had shifted the prestige of its office behind the prosecution. As one court observed, [I]t should be remembered as an indisputable fact that every remark made by the trial court tending to disparage either party to a cause or counsel has more or less effect upon the jury, unskilled as a rule in court proceedings and, we think it may fairly be said, ever ready to accept any intimation from the court as to what their verdict should be. (People v. Zammora (1944) 66 Cal.App.2d 166, 209.)

The Attorney General at oral argument acknowledged many of the trial courts comments were ill-advised, but argued these remarks did not harm defendant. This position fails to account for the judges influence, as the preeminent figure in the courtroom, over the jury. The jury looks to the court for guidance on the law and how to interpret the evidence. Here, the judges intervention conveyed the impression the court favored the prosecution, and therefore adversely affected the deliberative process.

In applying the Chapman standard, the issue is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Under these circumstances, we cannot say beyond a reasonable doubt the trial courts missteps had no effect on the verdict. Accordingly, we reverse.

Disposition

The judgment is reversed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1] No one mentioned Saads first name at trial. Nor was there evidence of his precise relationship to defendant.

[2] Evidence Code section 770 provides: Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [] (b) The witness has not been excused from giving further testimony in the action.

[3] The following colloquy occurred after the court explained its procedure: [Defense Counsel]: Very good. May I ask him just independent [] The Court: No, you cant. [] [Defense Counsel]: All right. [] The Court: I dont know what I said fifteen minutes ago, so thats why one has to do it this way.

[4] The following is the entire in Chambers discussion between the court and counsel. The Court: Okay. We are in chambers. [] [Counsel], who makes the rulings here in court? [] [Defense Counsel]: That is your sole role and responsibility, your Honor. [] The Court: Thank you. And what is your role when I make a ruling? [] [Defense Counsel]: To try to get a [] The Court: No, no, what is your role when I make a ruling? To abide by it, right? [] [Defense Counsel]: Are you expecting a response from me? [] The Court: Yes, Im expecting a response from you. [] [Defense Counsel]: Okay, I object to the court being a co-prosecutor in this case. [] The Court: Excuse me, Im asking you whether youre going to abide by my rulings? [] [Defense Counsel]: I think its very difficult for my client to get a fair trial if the court is going to constantly interrupt cross-examination. [] The Court: Im asking you a question right now because we are in chambers because Im about to see whether or not Im going to hold you in contempt. So what is your role as [] [Defense Counsel]: Frankly, thats not going to intimidate me in the performance of [] The Court: Im not trying to intimidate you. Im asking you what your role is. [] [Defense Counsel]: Your Honor, on behalf of my client [] The Court: Okay. Let me show you something. [] [Defense Counsel]: I feel that I need to cross-examine this witness and not accept his conclusions at face value. [] The Court: Okay. [] [Defense Counsel]: All right. [] The Court: Are you going to accept my rulings at face value? [] [Defense Counsel]: Yes. [] The Court: And are you supposed to abide by them? [] [Defense Counsel]: Yes, and Im trying to do that. [] The Court: No, you are not trying very hard and Im going to show you what your ethical obligations are in a minute because Im going to show them to you because they came from the Im going to look for them for you and that you are to conduct yourself properly. [] And the point is that if you dont ask comparative questions and I tell you that you cant ask them, you cant ask comparative questions. If you were to hear that something calls for speculation, calls for a conclusion, you are not allowed to do it. You continue to do that anyway no matter what my rulings are and Im upset about it. Thats why we are here in chambers and I want to know whether you are going to abide by my rulings or not? [] [Defense Counsel]: Yes, I will endeavor to do that. [] The Court: Thank you.

[5] Several commentators have argued that improper judicial intervention constitutes structural error entitling defendant to an automatic reversal. (See, e.g., Pinard, Limitations on Judicial Activism in Criminal Trials 33 Conn. L.Rev. 243, 293-295 (2000).) Pinard also argues appellate courts are ill-equipped to evaluate the context and impact of judicial misconduct because the record cannot capture the judges tone of voice or facial expression, nor evaluate the prejudicial effect on the jurys deliberations. (Id. at pp. 292-297.) Consequently, an automatic reversal is warranted where a trial judges comments could have affected the jurys ability to evaluate the evidence independently. (Id. at pp. 296-297.) We are not unmindful of these concerns, but the Chapman reasonable doubt standard allows us to take these factors into account along with other appropriate circumstances.