People v. Friend

GIBSON, C. J.

Defendant previously appealed from a judgment which imposed the death penalty in accordance with a jury verdict. We upheld his conviction of murder of the first degree, but, because ' of errors relating to the issue of punishment, we remanded the cause for the sole purpose of redetermining that issue. (People v. Friend, 47 Cal.2d 749, 772 [306 P.2d 463].) On retrial, the jury fixed the penalty at death, and the case is again before us automatically. (Pen. Code, § 1239, subd. (b).) The only question presented is whether defendant was deprived of a fair trial by the judge’s comments on the evidence.

One morning in 1936, Ruth Muir’s body was found on the beach in La Jolla about a block from the home of her parents. Her face was covered with blood, and a bench leg which had been used as a club lay nearby. An autopsy surgeon discovered numerous bruises, abrasions and lacerations on the body and head and determined that death had been caused by fracture of the skull and multiple injuries. Defendant was living in a tent on the beach, and, when the police questioned him, he denied knowing anything about the killing and was released. The crime remained unsolved until 1955, when defendant, an ex-convict who was 44 years of age, confessed to having committed it.

In the five years following the killing, defendant was convicted of burglary, contributing to the delinquency of a minor,¹ and rape. In connection with his conviction of rape, defendant was placed on probation for 25 years on condition that he serve six months in jail and undergo an orehidectomy. This operation was performed in 1941. Thereafter, until 1955, defendant’s record was clear with the exception of a $20 fine for stealing a relative’s dog in 1946 and an arrest in 1952 for causing a disturbance while drunk in a bar.

In 1955 defendant went to Detroit for two months in violation of the terms of his probation. About a week after he returned to California, his probation officer telephoned him, arranged to meet him in a few days, and told him that he had violated his probation and that there was a warrant for his arrest. According to defendant’s sister-in-law, when he hung up the telephone, he said, “Well, murder will out,” mentioned the existence of a warrant, and stated that he thought that he would take his suitcases and “start traveling.” The following evening, after spending several hours in a bar, defendant telephoned a newspaper reporter and said that he had killed Miss Muir. The record does not disclose the other circumstances leading to defendant’s arrest.

Upon being taken, into custody, defendant told the police that he had committed the crime but that he had not molested the victim or taken any valuables from her. In subsequent interviews he stated that he had been drinking and had lost his money playing pool and that, about 9 or 10 p. m., he went to the beach looking for someone to rob because he wanted money to buy more drinks. After removing a leg from a picnic bench to use as a club, he saw a woman who was seated facing the ocean, walked up behind her, and struck her a heavy blow on the head, knocking her to the ground. He then dragged her to a nearby gully, where he struck her several times about the face with his fists. He cut the laces of her corset with a knife and raped her, or tried to rape her. In explanation of his delay of 19 years in confessing the crime, he said that he wished to avoid hurting his parents and his wife, who were now dead.

Defendant did not take the witness stand at the first trial. At the second trial he testified that he had not been troubled by an excessive sex urge after undergoing the orehidectomy. He denied that, when he received the telephone call from his probation officer, he made the statements which his sister-in-law attributed to him or that he confessed because he thought the arrest warrant mentioned by the officer related to the killing. According to defendant, he decided to confess two weeks earlier in Detroit. He testified, “One reason I was tired, that is why I turned myself in. Seemed like I was running all these years, trying to get something settled in my mind. That was one way, to come out with the truth, because I had read once or twice in the Bible where the truth would set you free, and after I confessed to this last, this murder, this error in my life, well, I was free in my mind, although not in my body. ... It seemed to me there was only one way out and that was to tell the truth about it. At least you can’t go wrong by telling the truth. I could see that. I can’t see where I have lost anything by telling the truth, although I did sit up there close to the gas chamber for eighteen or nineteen months. That kind of opened my eyes up to what I had done.’’

Before giving formal instructions to the jury, the trial judge made the following remarks: “Under the law, ladies and gentlemen of the jury, and under the Constitution, I am entitled to comment on the evidence in this case. I am going to make a few comments and tell you certain things you can consider, and, of course, anything I say is not binding on you; you can disregard it. I will just point out various things and if it coincides with your views, accept it; if it doesn’t, why reject it.

“The argument of counsel in this ease is not evidence. Neither is anything I tell you evidence in this case. Of course, both sides in this case put forward their best foot to try to get you to see their side of the ease. Now you have heard all the evidence. You are the judges of the evidence and it is up to you to decide what should be done with the defendant in this case.

“Now, of course, this was a brutal murder. You heard all the facts, the testimony here of the People, and the defendant took the witness stand. Now it is true that he called the newspapers and said he had committed this crime. He did say that the second time he called the newspapers he had no recollection of his call. How intoxicated he was the night he called the newspaper I do not know.

“You saw the defendant on the witness stand on two different occasions when he wouldn’t answer the questions on cross-examination. Now it has been stated here he made a confession. When certain questions were asked him why he didn’t want to answer them. When I ordered him to answer them he said, ‘I don’t remember,’ or ‘I don’t know.’ Those were questions relative to the rape and relative to the molesting of the minor children several years later and the rape on the elderly woman on which he was on probation at the time he was picked up for this offense.

“Now you can consider, of course, the various items of his confession, his history throughout his life, both before and after this event here, the fact that he had this operation. Now it has been said he wasn’t in any trouble since the operation, no serious trouble. Well, when we put people on probation— he was on 25 years probation—we expect them to comply with the law and if they violate it in any serious degree probation is revoked and the defendant is sentenced to the State Prison or County Jail, depending upon the character of the offense. Probation is a deterrent; at least I have always considered it such. You put a man on probation and you figure he is going to behave himself to a certain extent. Whether or not his behavior was the result of being on probation or the result of the operation, or a combination of both, is up to you to determine.

“You saw the defendant on the stand. You may consider whether he had any remorse for this crime. I heard his testimony. I seemed to feel as I heard it that Mr. Friend was concerned mostly about his own plight and not what he had done. He didn’t want to go to Capistrano on the day he went up there, according to his own statements. He made the statement that the dead would take care of themselves.² So I suppose they do. But that was his statement. It is up to you to determine whether he showed any remorse or whether he has told you everything from the witness stand that he knew.

“He was the only one there at the scene that survived and the only one that could give you the full details, if he saw fit so to do, but he said he didn’t remember much about the rape, didn’t remember much about this or about that.

“Now you may take all those things into consideration. As I said, the penalty is entirely up to you and let the evidence and your conscience be your guide.”

The question to be determined is whether the judge exceeded his authority in making the foregoing comments.

Section 19 of article VI of the Constitution, as amended in 1934, provides: “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 cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses.” Similar provisions are contained in statutes. (Pen. Code, § 1093, subd. 6, § 1127.)

It seems clear from the use of the word “comment” in section 19 of article VI.that a trial judge is empowered to do more than merely summarize the evidence and that he may analyze the testimony critically, giving his opinions for the guidance of the jury.³ If there can be any doubt in this respect, it is put to rest by resort to the history of the section and to the decisions which have considered the scope of the power conferred.

Prior to its amendment in 1934, section 19 of article VI provided that a judge could “state the testimony,” as well as declare the law, so that the change in language would be meaningless if viewed as permitting only such action. The purpose of the amendment is disclosed by the ballot argument in its favor, which stated, “This measure . . . enables the trial judge to comment to the jury on the facts of the case; to give the jurors his analysis of the evidence and to express his opinion on the merits of the case, but informing them at the same time, that his views are advisory only. . . ,”⁴

By three cases which this court decided shortly after 1934, it was established that the intent of the voters was to make the judge a real factor in the administration of justice, rather than a mere referee, that the constitutional amendment removed the prior prohibition against his power to comment, and that he is no longer confined to a colorless recital of the evidence but may analyze the testimony and express his views with respect to its credibility. (People v. De Moss, 4 Cal.2d 469 [50 P.2d 1031] [upholding the narration of circumstances tending to militate against the defendant’s claim that he loved the victim and that the shooting was accidental]; People v. Ottey, 5 Cal.2d 714 [56 P.2d 193] [upholding, among other remarks relating to the defendant’s testimony, the comment that “things don’t happen that way”]; People v. Gosden, 6 Cal.2d 14 [56 P.2d 211] [upholding various remarks including the judge’s opinion that the defendant’s innocent purpose in signing the victim’s name to an insurance application had “not to my mind been satisfactorily explained” and that the defendant's explanation for purchasing strychnine did not “appeal to my mind as reasonably consistent with an honest mind ”].) There is a statement in People v. O’Donnell, 11 Cal.2d 666, 671 [81 P.2d 939], that a “trial judge is rigorously prohibited from action or words having the effect of conveying to the jury his personal opinion as to the truth or falsity of any evidence.” The opinion in the O’Donnell case does not mention section 19 of article VI. The quoted statement, which was made without the citation of any authority, is in conflict with the constitutional language expressly authorizing a judge to comment on “the credibility of any witness,” and it is disapproved.

A judge’s power to comment on the evidence, of course, is not unlimited. (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, 722 et seq. [56 P.2d 193] ; People v. Robinson, 73 Cal.App.2d 233, 237 [166 P.2d 17] ; People v. Ramos, 66 Cal.App.2d 731, 735 [152 P.2d 758] ; Kahn v. Commercial Union Fire Ins. Co., 16 Cal.App.2d 42, 45-47 [60 P.2d 177].) He 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.

The extent to which a judge is free to comment on the evidence is shown by the fact that it 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 is not invaded. (People v. Rupp, 41 Cal.2d 371, 383 [260 P.2d 1] ; People v. Daugherty, 40 Cal.2d 876, 893 [256 P.2d 911] ; People v. Dail, 22 Cal.2d 642, 658-659 [140 P.2d 828] ; People v. Warren, 16 Cal.2d 103, 114 [104 P.2d 1024] ; People v. Eudy, 12 Cal.2d 41, 47 [82 P.2d 359] ; People v. Ottey, 5 Cal.2d 714, 729 [56 P.2d 193] ; People v. Yokum, 145 Cal.App.2d 245, 258 [302 P.2d 406] ; People v. Huff, 134 Cal.App.2d 182, 187 [285 P.2d 17] ; Pomerantz v. Bryan Motors, Inc., 92 Cal.App.2d 114, 119 [206 P.2d 440]; People v. Busby, 40 Cal.App.2d 193, 202 [104 P.2d 531].)⁵

It is also settled that a judge may restrict his comments to portions of the evidence or to the credibility of a single witness and need not sum up all the testimony, both favorable and unfavorable. (People v. Gosden, 6 Cal.2d 14, 27-28 [56 P.2d 211] ; People v. Ottey, 5 Cal.2d 714, 728 [56 P.2d 193] ; People v. DeMoss, 4 Cal.2d 469, 476-477 [50 P.2d 1031] ; People v. Wellman, 141 Cal.App.2d 101, 106 [296 P.2d 82] ; People v. Garcia, 124 Cal.App.2d 822, 830 [269 P.2d 673] ; People v. Robinson, 73 Cal.App.2d 233, 238 [166 P.2d 17]; People v. Keys, 62 Cal.App.2d 903, 914 [145 P.2d 589] ; People v. King, 30 Cal.App.2d 185, 205 [85 P.2d 928] ; see People v. Dail, 22 Cal.2d 642, 657-658 [140 P.2d 828] ; People v. Ernst, 121 Cal.App.2d 287, 295 [263 P.2d 114] ; Kahn v. Commercial Union Fire Ins. Co., 16 Cal.App.2d 42, 47 [60 P.2d 177].) Any statements to the contrary in People v. Hooper, 92 Cal.App.2d 524, 531 [207 P.2d 117], People v. Mason, 72 Cal.App.2d 699, 711 [165 P.2d 481], and People v. Talkington, 8 Cal.App.2d 75, 99 [47 P.2d 368], are disapproved.

Sanguinetti v. Moore Dry Dock Co., 36 Cal.2d 812 [228 P.2d 557], did not involve the power to comment on the evidence but the making and granting, in the presence of the jury, of a motion to amend the complaint so as to increase the prayer for damages. None of the language there used was intended to limit the commenting power, as the opinion made clear by pointing out that there was no contention that section 19 of article VI was applicable. (36 Cal.2d at p. 823.)

There is no justification for holding that a judge has a lesser right to comment on the evidence where punishment is involved than where matters relating to guilt are in issue, and the same principles should be applied in determining whether the power has been properly exercised. Section 19 of article VI refers to “the evidence” generally, without setting forth any distinction or qualification as to the issue upon which the evidence bears. The evidence is, of course, important in fixing the punishment, and on the prior appeal in this ease it was pointed out that “the trend is toward the more liberal admission of evidence pertinent only to the selection of penalty.” (People v. Friend, 47 Cal.2d 749, 764 [306 P.2d 463].) Obviously, the judge’s analysis of evidence relating to punishment may be as necessary to assist the jury as his remarks on testimony touching upon guilt, so that the power to comment promotes the purpose of the constitutional amendment as much in one situation as in the other. It is true that the jury has exclusive discretion as to the punishment to be imposed, but no distinction can be made on this ground since the jury is also the exclusive judge of all questions of fact relating to guilt. In short, regardless of which issue is being tried, the respective functions of judge and jury as to factual questions are the same, and neither the language of the constitutional amendment nor the purpose underlying its adoption permits the imposition of different limitations on the power to comment on the evidence.

In the present ease the judge fully complied with the requirement that the jury be informed that his comments were not binding upon them. As we have seen, he pointed out at the beginning of his comment that the jurors were free to reject anything which did not coincide with their views, that they were the “judges of the evidence,” and that it was up to them to decide what was to be done with defendant. At the conclusion of his remarks the judge said, “The penalty is entirely up to you and let the evidence and your conscience be your guide.”

Moreover, in the course of the formal instructions which were subsequently given upon the law, the jurors were told: “In fixing the penalty, you are entirely free to act according to your own judgment. Your discretion in the selection of penalty is in no way circumscribed or limited by law. It is an absolute discretion. For example, there is no rule of law which calls for a sentence of death simply because you find that there are no mitigating or extenuating circumstances. Similarly, there is no rule of law which calls for a sentence of life imprisonment simply because you find that there are no aggravating circumstances.” The jury was also instructed that the choice must be a meaningful one, fundamentally based on the evidence, but that weight could be given to “any consideration whatever” which in the light of the evidence seemed important to the jury, and the judge, stressing that he was not attempting to indicate all of the matters which might be taken into account, listed examples of what might be considered, including many of the factors mentioned in People v. Friend, 47 Cal.2d 749, 768 [306 P.2d 463]. These instructions sufficiently set forth the principles declared on the earlier appeal, and no claim is made that any of them was incorrect.

It is urged that the judge misstated the evidence in the comment to the effect that defendant had on two occasions refused to answer questions “relative to the rape and relative to the molesting of the minor children several years later and the rape on the elderly woman” and that defendant was ordered to answer by the court and said, “I don’t remember’’ or “I don’t know.” The record discloses that the two questions which the court directed defendant to answer did not relate to rape or to molestation of children. The first of the two questions pertained to the location of two of defendant’s suitcases at about the time of the telephone conversation with his probation officer, and, after being directed to answer by the court, defendant stated that he did not recall. The second question, which referred to the night of the murder, was, “Did you go down to the La Jolla Park?” and, upon the court’s direction, defendant replied, “I think I did.” The record also shows, however, that, in response to a number of questions relating to the details of his sexual misconduct, defendant answered that he did not remember. The comment of the judge, therefore, was correct with respect to the general types of questions as to which defendant testified he could not remember. It was inaccurate as to which questions defendant at first refused to answer and was then directed to answer, but this constitutes no more than a minor inaccuracy which could not have prejudiced defendant.

There was no error in the comment, “It is up to you to determine whether he showed any remorse or whether he has told you everything from the witness stand that he knew.” It was preceded by the direction that the jury “may consider” whether defendant had any remorse and was followed by the remark that “you may take all those things into consideration.” These are correct statements of the law, in accord with the principles discussed in People v. Friend, 47 Cal.2d 749 [306 P.2d 463], The jury was thus informed that these matters could properly be considered; it was not told that a determination of them, one way or the other, was required in order to select the penalty; and, as stated above, the court subsequently instructed that a finding of either mitigating or aggravating circumstances was not necessary in choosing between death or life imprisonment as the punishment.

It is not true, as asserted by defendant, that the comments were limited to evidence which was unfavorable to him. The judge pointed out that defendant had made a confession, that he had undergone the orehidectomy, that the jury could consider his history after the operation, and that it did not appear that he had been in any serious trouble since then. It may also be noted that the judge did not comment on some evidence which was very unfavorable to defendant. For example, no reference was made to the testimony of defendant’s sister-in-law or to the extremely damaging inference permitted by it. Moreover, even if the comments as a whole are regarded as placing the greater stress on matters adverse to defendant, it is settled, as we have seen, that a judge need not sum up all the evidence, both favorable and unfavorable.

The judge at no time expressed an opinion as to the penalty which should be imposed, and none of his statements could be reasonably regarded as contentious to a degree amounting to partisan advocacy. He not only mentioned factors favorable to defendant and pointed out that the jury could consider them but, in addition, expressed his views with respect to adverse considerations in temperate language. Finally, it should again be emphasized that he made clear that the comments were advisory only and that the question of penalty was entirely within the absolute discretion of the jury.

Under the circumstances, to hold that the judge’s comments warrant a reversal would require a determination that a judge has a lesser right to comment on evidence relating to punishment than on evidence affecting guilt, and, as previously discussed, no such distinction can be made without ignoring the authorization contained in section 19' of article VI of the Constitution. With the exception of the minor inaccuracy noted above, which could not have been harmful, the comments of the judge were in keeping with the Constitution and the established limitations on his power, and there is no sound basis for concluding that the question of penalty was not fairly tried.

The judgment and the order denying a new trial are affirmed.

Shenk, J., Traynor, J., and Spence, J., concurred.

1 Defendant was charged with misconduct of a sexual nature with two little girls-and pleaded guilty to one count of contributing to the delinquency of a minor.

2 This comment apparently refers to testimony by defendant that on the day following the telephone call from his probation officer he agreed to go with his brother and sister-in-law to decorate his mother's grave, although he did not want to go, and at that time stated that he “kind of more or less believed that when a person was buried you forget about them, let the dead take care of the dead. ...”

3 The noun “comment” is defined by Webster’s New International Dictionary, 2d ed. unabridged, 1942, as follows: “2. A note or observation intended to explain, illustrate, or criticize the meaning of a writing. . . . 3. Act or instance of commenting; remark or criticism. .- . .” Further explanation is given in Webster’s Dictionary of Synonyms, 1942, p. 690, under the general heading of “remark,” where it is said: “Comment stresses interpretation, as by bringing out what is not apparent or by adding details that help to clarify. . . . Very frequently, in modern use, the word implies unfavorable interpretation. . . . Comment applies to a remark, or an observation made in criticism, in interpretation, or in elucidation of something. ...”

4 It should be noted in this connection that the amendment was submitted to the voters together with another proposal, which was also adopted, namely, an amendment to section 13 of article I giving the judge the right to comment"on a criminal defendant’s failure to testify.

5 The cited decisions do not always use the same language to describe the limitation on a judge’s power to express his opinion regarding guilt or innocence. For example, instead of saying, “so long as the province of the jury as defined by the constitutional section is not invaded, ’ ’ some courts have used the qualification “in proper eases,’’ but it seems clear that nothing substantially different is meant. People v. Ottey, 5 Cal.2d 714, 729 [56 P.2d 193], which is the leading ease on the point, employed the phrase, “so long as the province of the jury as defined by the constitutional section is not invaded, ’ ’ and it has usually been cited as authority in the subsequent decisions, including those which use different Qualifying language.