Opinion Bank # O-204  (Re:  NCJIC  16.14.3.8 [Judge Should Not Praise Prosecutor And/Or Prosecution Witnesses].)

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COURT OF APPEAL, FOURTH DISTRICT
DIVISION TWO
STATE OF CALIFORNIA

PEOPLE OF THE STATE OF CALIFORNIA,

                                Plaintiff and Respondent,                                E015347
v.                                                                                                   (Super.Ct.No. ICR-19018)

JOSE PACHECO,                                                                        OPINION

                                Defendant and Appellant.
_________________________________________/

APPEAL from the Superior Court of Riverside County. Richard V. Lee, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 22.) Reversed.

David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, M. Howard Wayne, Supervising Deputy Attorney General, and Frederick B. Clark, Deputy Attorney General, for Plaintiff and Respondent.

    The sole issue raised by defendant in this appeal is whether defense counsels failure to object to the trial court's praise of the investigating police officer and the prosecutor in front of the jury constituted ineffective assistance of counsel.

    The People charged defendant and a codefendant with kidnapping for gain (Pen. Code, 209, subd. (a)) and codefendant: "This officer [Sergeant Singleterry] told you, one, that he did not think [codefendant] was involved, therefore, the case against him was dismissed." Defense counsel objected to this statement on the ground that the officer's testimony that codefendant was not involved in the crime and the subsequent dismissal were irrelevant and had nothing to do with defendant. The trial court overruled this objection.

    Defendant contends that his trial counsel did not assist him effectively at trial. He argues that counsels failure to object when the trial court praised the investigating officer and the prosecutor to the jury violated his right to counsel and his right to due process. As we explain below, this error, coupled with other related errors, requires that we reverse the judgment of conviction.

    Criminal defendants are guaranteed the-right to assistance of counsel by both our federal and state constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Lucas (1995) 12 Cal.4th 415, 436.) The right entitles defendants not just to bare assistance, but to effective assistance of counsel. (People v. Wharton (1991) 53 Cal.3d 522, 575.) Defendants bear the burden of demonstrating counsels' inadequacy. (People v. Pope (1979) 23 Cal.3d 412, 425.) To show ineffective assistance of counsel, defendants must first demonstrate that counsels' performances were deficient in that they "fell below an objective standard of reasonableness . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688.) Then defendants must show that prejudice flowed from counsels, ineffective performances. (Id., at pp. 691-692.)

    In Strickland v. Washington, supra, 466 U.S. at pp. 694-695, the United States Supreme Court explained in depth the stan ar to be applied when determining whether ineffective assistance of counsel was prejudicial to a defendant. The court noted that [a]n ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding was reliable, . . . . The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." (Id., at p. 694.) It then established that the question to be asked when assessing whether counsels errors were prejudicial is "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Id., at p. 695.)

    The Supreme Court also explained in Strickland v. Washington, supra, 466 U.S. at p. 696, that "[t]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." In a companion case decided the same day as Strickland, the Supreme Court observed that the right to effective assistance is "the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing," even in situations in which there is no bona fide defense to the crime charged. (United States v. Cronic (1984) 466 U.S. 648, 656, inc. fn. 19.)

    Applying the first prong of the Strickland test for ineffective assistance--that counsels performance was deficient--we examine first the specific error alleged in this appeal, that counsel provided ineffective assistance by failing to object to the trial court's praise of the prosecutor and witness Sergeant Singleterry to the jury for their roles in dismissing the charges against the codefendant. Defendant maintains that the trial court's gratuitous comments to and before the jury served unfairly to bolster the credibility of the government's case against defendant. To determine whether counsels performance was deficient, we must decide whether the court's praise constituted misconduct.

    "Our courts have on many occasions pointed out the duty of a trial judge before a jury, both in criminal and civil cases, not to do anything which would lead the jury to believe that the judge was of the opinion that one party or the other should receive the verdict, nor to appear to throw his [or her] judicial weight on one side or the other. [Citations.] These cases reiterate the fact that jurors are eager to find and quick to follow any supposed hint of the judge as to how they should decide-the case." (People v. Cole (1952) 113 Cal.App.2d 253, 261; see 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2893, p. 3535, and cases cited therein.) A case in point is People v. Frank (1925) 71 Cal.App. 575, 578-580, in which appellant charged that the trial judge had erred in allowing his and the prosecutor's praise of two prosecution witnesses as true patriots who had commendably performed their civic duty as witnesses of high standing, placed on the record in a preliminary hearing, to be read to the jury at trial. The appellate court determined that this error was prejudicial because the jurors' determination of the appellant's guilt hinged on whether or not they believed him or the two prosecution witnesses. (Id., at p. 586-587.) The court stated that the jury probably decided the case against the appellant because the trial judge "threw his judicial weight into the scales . . . . (Id., at p. 587.)

    In this case, as in Frank, the trial court praised a prosecution witness, Sergeant Singleterry, extolling his honesty and good faith to the jury. (People v. Frank, supra, 71 Cal.App. at pp. 578-580.) The trial court also praised the prosecutor, pointing out that it had only seen such good faith, in moving for dismissal of the charges against codefendant, twice in its career. Though Sergeant Singleterry did not witness the events of the kidnapping, he did testify to hearsay statements by Mr. Peru indicating that defendant was the perpetrator and that neither he nor codefendant was culpable in the offense. Thus, in praising the sergeant for his honesty, the trial court effectively vouched for the truthfulness of the exculpatory hearsay statements of a person implicated in the crime. We conclude that the court's statements, though very well intentioned, constituted error.

    The People argue that the trial court did not err in making the above-described statements because a trial court has broad latitude in fair commentary and may comment on the evidence, testimony, and credibility of any witness. While the court may comment on the credibility of a witness under the provisions of the California Constitution, it may do so only when in its opinion such commentary is necessary for proper determination of the case, to assist the jury in reaching a fair verdict. (E.g., People v. Proctor (1992) 4 Cal.4th 499, 542; People v. Rodriguez (1986) 42 Cal.3d 730, 765-770.) Taken in their proper context, based on the appellate record in this case, it is clear that the trial court's comments were made, not to assist the jurors in their determinations, but only to commend the officer and prosecutor for fulfilling their duties to be honest and act in good faith.

    Perhaps these comments would not have been particularly egregious had they not been accompanied by other errors. The first such error was denial of defendant's repeated objections to introducing Mr. Peru’s hearsay statements to Sergeant Singleterry into evidence. Mr. Peru told the sergeant that defendant was the perpetrator and that Mr. Peru had been forced by defendant to help him to commit the crime charged. Defense counsel objected that such statements were inadmissible hearsay and could not be admitted under any exception to the hearsay rule. However, the court allowed the sergeant to testify that Mr. Peru’s statement had corroborated the victim's account of the crime, apparently thinking that such a general statement did not constitute hearsay.

    Sergeant Singleterry's testimony about Mr. Peru’s statements to him was indeed hearsay, because it was "evidence of a statement that was made other than by a witness while testifying at the hearing and that [was] offered to prove the truth of the matter stated." (Evid. Code, § 1200.) The prosecutor did not cite to the trial court any hearsay exception which would have allowed the testimony. [Footnote 1] Such out-of-court hearsay statements are admissible only if made by a declarant unavailable as a witness at trial and clearly against the declarant's penal interest. (Evid. Code, § 1230; People v. Cudjo (1993) 6 Cal.4th 585, 606-607.) The trial court was never asked to and made no finding that Mr. Peru was unavailable as a witness, and the statements Mr. Peru made to Sergeant Singleterry were clearly exculpatory, in his own penal interest. Thus, the trial court erred in allowing the hearsay testimony which corroborated the sole witness to the alleged kidnapping, and timely objections preserved the issue for review.

    There was no objection, however, to another such inadmissible hearsay statement. Defense counsel performed ineffectively when he failed to object to Mr. Nunez's testimony that the codefendant had told him repeatedly that the codefendant had no part in the crime and it was defendant who was guilty. The codefendant was not unavailable as a witness, though he might have chosen to invoke the fifth amendment if asked to testify before the charges against him were dismissed, nor were his statements against his own penal interest. (People v. Cudjo, supra, 6 Cal.4th at pp. 606-607.) The failure to object permitted the jurors to hear further inadmissible hearsay statements corroborating Mr. Nunez's evidence against defendant.

    The prosecutor's comments in argument exploited judicial errors and also helped to render the proceedings in which defendant was convicted unreliable. Without objections, the prosecutor first stated that the codefendant was dismissed from the case because of lack of evidence, while there was "ample evidence" that defendant was guilty, then later remarked that there was reasonable doubt as to the codefendant's guilt, but not defendant's. Thus, building on the trial court's comments concerning the honesty and good faith of Sergeant Singleterry and the prosecution, the prosecutor urged the jurors to draw the inference that if there had been a dearth of evidence or any reasonable doubt as to defendant's guilt he would have asked the court to drop the charges against defendant as well. The People might argue that the statements encouraged permissible inferences based on the facts of the case, but, coupled with the errors committed earlier in the trial, the jurors could well have perceived the statements as urging the jury to convict based on the People's special knowledge of the evidence and expertise in weighing it. "[S]tatements by the prosecuting attorney, not based upon legitimate inferences from the evidence, to the effect that he has personal knowledge of the defendant's guilt and that he would not conduct the prosecution unless he believed the defendant to be guilty, constitute misconduct." (People v. Dillinger (1968) 268 Cal.App.2d 140, 144, emphasis added; People v. Alverson (1964) 60 Cal.2d 803, 808. ) [Footnote 2]

    Though belatedly, defense counsel did try during the People's closing argument to dispel the idea that such an inference was permissible. Counsel objected to the prosecutor's third reference to the dismissal of the charges against the codefendant on the ground that it was irrelevant and had nothing to do with defendant. The trial court overruled this objection without comment. This court can conceive of no ground upon which the court could have overruled the objection. Certainly it is not within the broad acceptable range of argument to urge the jury to infer that because the People requested dismissal of the charges against only one codefendant, the other codefendant must be guilty of the charges. By overruling the objection, the court lent credence to the inference that the dismissal was indeed relevant on the issue of defendant's guilt. [Footnote 3]

    Applying the second prong of the Strickland test for inadequate representation--whether there is a reasonable probability that without counsels deficiencies there would have been a reasonable doubt as to defendant's guilt--we conclude, as we explain below, that the deficiencies, along with errors committed by the trial court over objection, prejudiced defendant. (Strickland v. Washington, supra, 466 U.S. at p. 695.)

    Without Sergeant Singleterry's hearsay testimony, the prosecution's case against defendant would have been based entirely on the testimony of Mr. Nunez. Mr. Nunez, despite his denial on the stand, was known to gamble, and his wife could think of no reason for his needing the money except for gambling. His testimony that he was driving about town at random when accosted and kidnapped by an acquaintance waiting in a yard with a handgun appears anomalous. His belated report to the police that the codefendant was involved in the kidnapping could have given rise to an inference that he was not averse to falsely accusing another of criminal activity. At trial he testified that defendant and Mr. Peru had moved him significantly by taking him to a store at gunpoint, but he had not told Sergeant Singleterry about the trip to the store when interviewed after the incident. Thus, the jury could reasonably have harbored some doubt that Mr. Nunez was telling the truth about having been kidnapped. (Strickland v. Washington, supra, 466 U.S. at p. 695.)

    Sergeant Singleterry's hearsay testimony was followed by the court's high praise of him and the prosecutor, the prosecutor's comments in argument juxtaposing the dismissal of the charges against the codefendant with defendant's guilt beyond a reasonable doubt, and the court's overruling of defense counsels objection to the last of these comments. The People might argue that these errors and misconduct were not prejudicial because defendant presented no case in his own defense. Defendant did, however, present a theory of defense to the jury, that Mr. Nunez had engineered a sham kidnapping, then told a ridiculous story to cover his duplicity. Moreover, the Supreme Court has held that the accused is entitled to the benefit of a "fair adversarial process" even if he or she has raised no defense at trial. (United States v. Cronic, supra, 466 U.S. at p. 656.)

    The People argue that the judicial misconduct in this trial constituted harmless error because the trial court instructed the jurors, pursuant to CALJIC Nos. 2.20 and 17.30, that they were the sole judges of the credibility of a witness and were not to take a cue from the trial judge about the truth of the charges or the believability of a witness. The fundamental disruption of the adversarial process caused by the errors, misconduct, and ineffective assistance of counsel could not be offset, however, by recital of the above instructions. The prejudicial nature of the proceedings requires reversal in this case. (Strickland v. Washington, supra, 466 U.S. at p. 695.)

DISPOSITION

The judgment is reversed.

/s/ McKinster J.

We concur:

/s/ Ramirez P.J.
/s/ McDaniel J.*

*Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

Footnote 1: The prosecutor did suggest at one point that this evidence might be admissible "as res gestae of the kidnapping," but offered no argument or authority for this assertion. The archaic general "res gestae" exception to the hearsay rule, however, remains in our law only in the exception for spontaneous, contemporaneous, or dying declarations. (Evid. Code, § 1240; 2 Strong, McCormick on Evidence (4th ed. 1992) § 268, pp. 206-208.) An exculpatory statement made to an officer while in custody at the police station cannot be made to fit into this exception.

Footnote 2: In People v. Alverson, supra, 60 Cal.2d at p. 808, the Supreme Court explained: "The tactics used by the prosecuting attorney necessarily disturbed the delicate balance between the defense and the prosecution to the disadvantage of [defendant].

Footnote 3: The court's overruling of the objection also suggests that it would have been useless for counsel to object to the prosecutor's two earlier comments about the dismissal of the charges against the codefendant.