People v. Rodriguez

MOSK, J.

I dissent.

As I shall explain, the trial court committed a serious error in violation of the rule of People v. Cook (1983) 33 Cal.3d 400 [ 189 Cal.Rptr. 159 , 658 P.2d 86 ], by delivering a comment on the evidence after the jury had reached a deadlock in deliberations that spanned 34 days. I cannot join the majority in their disregard of the doctrine of stare decisis and their consequent overruling of Cook . The trial court committed another serious error because the comment delivered was unfair, and I cannot join the majority in their specious assertion that it was innocuous. Because neither error can be deemed harmless on this record, the judgment should be reversed as a miscarriage of justice. (Cal. Const., art. VI, § 13.)

I

A

A core of facts relating to the case was not in serious dispute at trial.

At 3:36 a.m. on December 22, 1978, California Highway Patrol Officers Freeman and Blecher were shot to death on the shoulder of the eastbound lanes of Interstate Highway 80 in West Sacramento after they evidently made a traffic stop. Blecher suffered one wound, a fatal shot to the head; his hands were cuffed behind his back. Freeman received five shots: one in the right arm, one in the left shoulder, two in the back of the bulletproof vest he was wearing, and one—which was fatal—to the head. All the bullets could have been fired from a Smith and Wesson .38 caliber Model 67—the revolver issued to all California Highway Patrol officers—as well as from the kind of Smith and Wesson .38 caliber revolver available to the general public. The bullet Blecher received in his head and the bullet Freeman received in his left shoulder came from the same gun; the four other bullets Freeman received came from another gun. Blecher was physically robust, Freeman exceptionally so.

*796 Found at the scene was a Smith and Wesson .38 caliber revolver that Blecher carried in an ankle holster as a backup weapon; it had not fired any of the bullets that struck the officers. Also found were a Hi-Standard .22 caliber revolver—which was similar to a weapon defendant was seen carrying the day before the killings; a footprint made by a Famolare brand shoe—defendant was wearing Famolares when he was arrested; and a temporary driver’s license in the name of Anthony Peter Carlo—which defendant had obtained on the day before the killings. Defendant’s fingerprints, however, were not on the .22 caliber revolver, Blecher’s backup gun, the cuffs that secured his hands, or any other item. The murder weapons were never recovered. At the time of the killings, defendant was apparently about five feet seven inches in height and one hundred forty-five pounds in weight.

One crucial fact was in dispute from the beginning of the trial to its very end: the identity of the person or persons who killed Blecher and Freeman.

The prosecution sought to prove that defendant was the killer. Simply stated, its version of what happened was as follows: defendant was driving in excess of the speed limit from the home of Jeri Engel in Crockett to his room at the Bel Air Motel in West Sacramento; Blecher and Freeman pulled him over; defendant singlehandedly disarmed the officers, handcuffed Blecher, and killed both of them with their own weapons.

The principal evidentiary support for this theory came from Margaret Klaess. She testified that she met defendant in January 1978 and lived with him intermittently thereafter; about the end of November they moved into the Bel Air Motel in West Sacramento; shortly afterwards they were arrested by the Richmond police and defendant’s panel truck was impounded.

On December 20, Klaess continued, they began hitchhiking from West Sacramento to Richmond; they wanted to secure the release of the truck and intended to get the money they needed to pay the impoundment charges through robbery; on the evening of that day a man picked them up outside Davis; after defendant pulled a gun, they robbed the driver of his wallet and his truck and forced him out of the vehicle; they then drove to Richmond where they abandoned the truck and spent the night in a motel.

The next day, Klaess went on, they, were driven by a friend from Richmond to Vallejo, where defendant obtained a temporary driver’s license in the name of Anthony Peter Carlo; the pair then went to a used car lot and made off in a Volkswagen under the pretext of taking it for a test drive; they proceeded to another used car lot, abandoned the Volkswagen, and absconded with a 1977 dark brown Camaro under the same pretext.

*797 Afterwards, Klaess continued, they drove to San Francisco, selected a house at random, and robbed the occupant, defendant demanding his money at gunpoint; they then went to Sausalito and came across a prostitute, Teresa Frechette; they offered her a ride and she accepted; coming to a stop in an industrial area of San Rafael, they robbed her, defendant forcing her to hand over her money and jewelry at the point of a gun and she (Klaess) rifling her purse; they forced the woman out of the car and sped off.

That night, Klaess went on, after buying some 151 proof rum, they arrived at the house Engel and her boyfriend shared in Crockett; after a while defendant and Engel went to a local bar where defendant bought some cocaine; back at Engel’s house defendant shared the cocaine with her and with Engel and her boyfriend; about 2:30 a.m. they left Crockett for West Sacramento.

After leaving that area, Klaess continued, she and defendant traveled east on Route 80 in the brown Camaro, heading for their motel in West Sacramento; defendant was driving faster than the other cars on the road; as they neared West Sacramento, at a locale 56 miles distant from Engel’s house, they were pulled over by a police unit; the police car stopped behind their vehicle on the shoulder of the freeway; an officer appeared at the window on the driver’s side and, after about 20 seconds, asked defendant to get out of the car; she remained in the front passenger’s seat; a minute or two later she heard a shot ring out from behind her; she immediately turned and saw a police officer lying on the ground moaning; promptly after she heard the shot, defendant appeared at the driver’s side, opened the door, leaned in, and said he could not find the license; he did not have anything in his hands; he then left the car for a second time; immediately she heard a second shot, followed within two or three seconds by several others; some 30 seconds later, defendant returned and said repeatedly he could not find the license or the gun; again she saw nothing in his hands; he then left the car for a third time and returned in about 20 or 30 seconds with the officers’ two guns; she had remained in the car throughout the incident.

She and defendant, Klaess went on, then drove the Camaro off the freeway and abandoned it near some apartments; the officers’ guns were in her handbag; they walked along some railroad tracks, slid down an embankment, crossed a field where they hid from a hovering police helicopter, and eventually worked their way back to their room at the Bel Air Motel; she assisted defendant in placing the police guns in a dumpster which she believed was behind the motel.

Later, Klaess continued, defendant told her that he had pulled a gun on one of the officers when he turned his back, fought with both men, and *798 handcuffed one of them and shot him in the head—and did it because he did not want to go to jail again.

To support Klaess’ testimony on the critical point of the time the pair departed from Crockett, the prosecution called Engel, who testified in substance as follows: on December 21, 1978, defendant and Klaess arrived at the house she shared with her boyfriend about 11 p.m.; Klaess appeared intoxicated; the four began to drink some rum that the visitors had brought with them; some time later, defendant asked her to buy some cocaine for him; at first she refused but then agreed to go to a nearby bar, called the Club Tac, to try to make a purchase; about 1 a.m. defendant drove her to the Club Tac, she bought some cocaine with his money, and the two returned to her house; the four used some cocaine and continued to drink rum, and Klaess became extremely intoxicated; Klaess and defendant left about 2:30 a.m. Engel admitted, however, that the times she gave were all approximate and that her statement that the pair departed about 2:30 a.m. was only a general estimate.

The prosecution also introduced evidence that defendant had been in jail, did not want to return, hated the police, and said he would kill any officer who might interfere with him.

Defendant took the position that it was not he who killed Blecher and Freeman. His defense was three-pronged. First, he offered direct evidence—his own testimony—that he was innocent of the charged crimes, and supported that testimony with corroborative evidence from independent and disinterested witnesses. Second, he attacked the credibility of Klaess, the crucial prosecution witness. Finally, he introduced evidence suggesting the identity of the actual killers.

On the stand defendant testified that he left Sacramento with Klaess on December 20, 1978; he was wearing brown loafers, not the Famolares he also owned; he and Klaess committed three robberies on December 20 and 21, using a .38 caliber gun that Klaess carried in a large leather purse; on December 21, he obtained a temporary driver’s license in the name of Anthony Peter Carlo, which Klaess kept in her purse because he did not have a wallet.

He and Klaess, defendant continued, arrived at Engel’s home in Crockett at 10:30 p.m. on December 21; he and Engel went to the Club Tac about 11:45 p.m. to buy some cocaine, remained there until midnight, and then returned to Engel’s; he and Klaess stayed there using cocaine until 1:30 a.m.; they then left in the Camaro for West Sacramento; he took Route 80 and drove at 60 to 65 miles an hour until he exited from the *799 freeway in West Sacramento; he stopped the car two and a half blocks from the Bel Air Motel, intending to abandon it; Klaess insisted on getting more cocaine but he refused; Klaess drove off and he walked back to the motel and was in their room by 3 a.m.

He next saw Klaess, defendant went on, at 7:30 a.m. sitting on the floor of their motel room and doing something to her boots; Klaess’ pants were in the bathtub, which was filthy with dirt; she said that she had been with some people that night; that they would kill her if she talked about what happened; and that he would have to say she was with him the night before.

Three witnesses corroborated defendant’s testimony on the crucial issue of time—i.e., he was in the Club Tac about 12 midnight, not 1 a.m.; he left Engel’s at 1:30 a.m., not 2:30 a.m.; and he reached West Sacramento by about 2:30 a.m.

Wayne Madison stated that he was tending bar at the Club Tac on December 21, 1978, and that he saw defendant there between 11 p.m. and 12 midnight. Katie Kibbee testified that she was also at the bar and saw defendant there within the same time period. Wanda Hawthorne stated that about 1:30 a.m. on December 22, 1978, she and a friend set out in her car from San Francisco on their way home to Sacramento; on Route 80 near Vacaville about 2 a.m. she noticed a brown Camaro following her; the Camaro had a driver and one sleeping passenger; she remembered the car because it had been weaving behind and following her closely; after the Camaro passed her, she did not see it again as she proceeded on to Sacramento; nor did she see any police vehicles—for which she was on the lookout, since she had received a ticket earlier that night; she dropped her friend off about 3:45 a.m. and arrived home about 4 a.m. She admitted that the times she stated were approximate and that she was most certain about the time she left San Francisco.

The testimony of Joseph Berger, a defense investigator, undermined the reliability of Engel’s statement that defendant and Klaess left her house at 2:30 a.m. He testified that in an interview he conducted after she gave her testimony at trial she said that the pair arrived at her house between 10 p.m. and 11 p.m., that she and defendant returned to her house from the Club Tac by about 12:30 a.m., and that the pair departed about an hour and a half later.

The credibility of Margaret Klaess was severely impeached. First, she admitted at the preliminary hearing that she lied under oath about her history of prostitution simply to avoid personal embarrassment.

*800 Second, her interest in testifying against defendant could not have been greater: her life depended on it. Before she agreed to testify, she faced charges carrying the death penalty. She decided to become a prosecution witness because, in her own words, “I want a life; I don’t want to have to deal with going to a gas chamber. I wanted to take care of myself, looked out for myself.” In exchange for her testimony and her guilty plea to a charge carrying a maximum sentence of three years, she received immunity not only for the killings, but for all prior crimes.

Third, Klaess had developed a deep hostility towards defendant. While initially confined in jail, she maintained her own innocence and that of defendant, with whom she was in love and whom she wanted to marry. Later a love letter that defendant wrote to another woman was “misdirected” by jail authorities to her cell. On reading the letter she became extremely angry and jealous, called defendant a “motherfucker,” swore to make him pay dearly for his unfaithfulness, and decided to testify against him.

Finally, Klaess’s testimony that her pants were muddied while avoiding detection by a police helicopter during her return to the Bel Air Motel was impeached by the fact, established beyond dispute at trial, that no helicopter was or could have been in that area on the morning of December 22, 1978.

The defense also offered testimony suggesting that other persons may have been at the crime scene when Blecher and Freeman were slain, among them one Robert Sanchez. In November 1978 Klaess quarreled with defendant and left him. She moved from Crockett, where they had been living, to Sacramento. While there, she stayed with among others Robert Sanchez. Later, when defendant and Klaess reconciled defendant traded a white Ford Galaxie to Sanchez for the latter’s panel truck.

Further, several witnesses who passed the highway patrol vehicle about the time of the slayings described seeing a light-colored Ford parked near the unit, one specifically identifying it as a 1968 Ford Galaxie, while others described it as a white car of another make. Several of these witnesses also saw a second civilian car parked at the crime scene at the same time. The prosecution, however, called other passersby to rebut this testimony.

Finally, during one interview with the prosecutor prior to trial, Klaess stated that the .22 caliber revolver found at the crime scene came from Sanchez, although she quickly retracted the assertion during the interview and denied its truth at trial.

B

On the morning of Friday, January 23, 1981, after the parties had rested and the court had given its charge, the jury began deliberating. Later that *801 morning they asked to hear the testimony of Margaret Klaess concerning the events that occurred between the time she and defendant picked up Teresa Frechette in Sausalito and the time they left Engel’s home in Crockett.

On the morning of Monday, January 26, the jury requested that Engel’s testimony be read. On the afternoon of the same day, they asked for the testimony of Wayne Madison.

On Tuesday, January 27, the jury requested the testimony of Wanda Hawthorne.

On Wednesday, January 28, the jury asked for, among other things, a reading of testimony given by defendant, including the portion covering the events that occurred between the encounter with Frechette and the departure from Engel’s house.

On Thursday, January 29, the reading that began the previous day continued.

On Friday, January 30, the jury sent a note asking for testimony given by Katie Kibbee and Joseph Berger on the issue of time. The court, however, did not act on the request before the close of day.

On Monday, February 2, the court received information that one of the jurors had been hospitalized and substituted an alternate juror in his place. It then instructed the jurors to disregard their past deliberations and to begin anew and returned the note asking for the testimony of Kibbee and Berger. Later that day, the jury sent the note back to the court and the requested testimony was read.

On Tuesday, February 3, the jury requested Engel’s testimony on the amount of time that passed between defendant’s return from the Club Tac and his departure for West Sacramento.

On Wednesday, February 4, the jury asked for certain testimony on a variety of issues.

On Thursday, February 5, the jury sent a note to the court: “The jury cannot reach a unanimous verdict as to the guilt or innocence of the defendant, Luis Rodriguez.” The court advised them to leave for the day and to resume deliberations the next day.

On Friday, February 6, the jury sent the following note: “2-6-81; Your Honor, one of the jurors would like to hear the complete testimony of Ms. *802 Hawthorne.” The requested testimony was read. Later that day, the jury sent a second note: “Your Honor, the jury cannot agree unanimously as to the guilt or innocence of the defendant Luis Rodriguez.” Still later, they sent a third note: “To Judge Karesh, Your Honor, you have instructed us to continue to deliberate. We, the jury, have found ourselves at an impasse, and it’s been verbally expressed as final.” Defendant unsuccessfully moved for a mistrial. The court ordered the jury to cease deliberations, advised them to return the following Monday morning to continue, and said it would give them further instructions soon after they returned.

On the morning of Monday, February 9, the jury sent the following note: “One of the jurors would like to make a final effort to resolve our impasse with the request that you would hold your final instructions from us.” The jury continued their deliberations for about an hour and then sent another note: “Your Honor, the jury is ready for his Honor’s instructions.” The prosecutor suggested certain comments on the evidence by the court, to which defense counsel objected. Later that day, the court inquired whether the jurors were still deadlocked and was told they were. It then advised them to cease deliberations and to return to court the next morning for further instructions. For a second time defense counsel unsuccessfully moved for a mistrial.

On Tuesday, February 10, the court delivered what the People and defendant refer to as the “Hawthorne Comment,” which generally discussed factors the jurors should consider in weighing the testimony on the question of time and then isolated the material points of Hawthorne’s testimony and suggested they might wish to scrutinize them for accuracy. 1

On Wednesday, February 11, the jury asked for written copies of the Hawthorne Comment. Later that day, they sent a note: “The jury cannot come to a unanimous decision as to the innocence or guilt of the defendant, Luis Rodriguez.” For a third time defense counsel unsuccessfully moved for a mistrial.

On Friday, February 13—the next court day after Lincoln’s Birthday— the court, over defense objection, gave a supplemental charge, in which it reread instructions on such matters as the presumption of innocence, reasonable doubt, the credibility of witnesses, and the duty of each juror to arrive at an independent decision. The jury then sent the court the following note: “Instructions regarding our requests for reading of testimony relative to time helped our deliberations considerably. The jury would now like to hear your instructions regarding the use of testimony of passersby *803 who passed the crime scene in the early morning hours of 12-22-78. Also, please give us instructions related to jurors using the ‘feelings’ and ‘beliefs’ to justify the credibility of Rodriguez and Klaess’ testimony. Please provide a written copy of instructions relative to the aforementioned.”

On Tuesday, February 17—the next court day after the President’s Day three-day weekend—the court gave another supplemental charge, which was responsive to concerns suggested by the jury’s note of February 13.

On the morning of February 18, the jury sent the court the following note: “Your Honor, the jury still cannot come to a unanimous decision as to the innocence or guilt of the defendant. The jury consideres [sic] itself hopelessly deadlocked after the Court’s instructions, and to continue deliberations is fruitless.” The court stated its intention to instruct the jurors to continue deliberations until lunch and then to ask how many ballots they had taken and the numerical division. Defense counsel opposed any query concerning ballots or numerical division, and for a fourth time moved for a mistrial. The court denied the motion and stated that it would ask the jury to continue deliberations and decide later whether to poll them. That afternoon, the court gave the jury a questionnaire that asked (1) the number of ballots taken, (2) the numerical division on each ballot since February 2—the date the alternate juror was seated—without disclosing which way the division went, and (3) the date of their last ballot. The jury responded that they had taken five ballots since February 2, that the vote had been eleven to one on each, and that the last ballot had been taken on February 11. For a fifth time defense counsel unsuccessfully moved for a mistrial.

On Thursday, February 19, the jury requested certain testimony that related to a gray 1940’s-style jacket. Defendant had testified that he was wearing the jacket on December 21 and 22, 1978, had taken it to a dry-cleaning establishment near the Bel Air Motel probably on December 23, 1978, and regained possession of it while in custody. In rebuttal the prosecution called witnesses to undermine the credibility of defendant’s testimony on this point. The court instructed the jury not to resume deliberation until told to do so and proceeded to excuse them for the weekend.

On the morning of Monday, February 23, the testimony requested by the jury on February 19 was reread. Later that day the jury asked for other testimony on the issue.

On the morning of February 24, the testimony requested the previous day was reread. The jury then asked to hear the other testimony relating to the jacket.

*804 Finally, on Wednesday, February 25, the jury returned verdicts of guilty on both murders and findings of true on all the special circumstances allegations.

II

A

In People v. Cook, supra, 33 Cal.3d 400 , we held that “Comment at a time when the jury is deadlocked is so likely to invade the jury’s province and control its verdict that such comment must be deemed erroneous.” (Id., at p. 413, italics added.) We plainly implied that the rule was a prophylactic designed to prevent the trial court from invading the jury’s province and thereby to safeguard the right to trial by jury of every person charged with crime.

The need for such a prophylactic rule is clear. First, the injury threatened—violation of the defendant’s constitutional right to a jury trial—is great. As the United States Supreme Court reaffirmed in holding that the due process clause of the Fourteenth Amendment makes the Sixth Amendment jury-trial right applicable to the states, “trial by jury in criminal cases is fundamental to the American scheme of justice” (Duncan v. Louisiana (1968) 391 U.S. 145, 149 [ 20 L.Ed.2d 491, 496 , 88 S.Ct. 1444 ]).

Second, the risk that this fundamental constitutional right will be violated by such a comment is high.

Under all circumstances, as the United States Supreme Court has observed, ‘“The influence of the trial judge on the jury is necessarily and properly of great weight,’ . . . and jurors are ever watchful of the words that fall from him. Particularly in a criminal trial, the judge’s last word is apt to be the decisive word.” (Bollenbach v. United States (1946) 326 U.S. 607, 612 [ 90 L.Ed. 350, 354 , 66 S.Ct. 402 ].)

When the jurors have reached a deadlock, however, the influence of the judge is greater still: in that event, it is inevitable that the proper resolution of the issue or at least the termination of the proceedings turns largely on what the judge does or says. Moreover, it is precisely when there is an impasse that the judge may be most inclined to make, and the jurors most inclined to be affected by, an unfair comment on the evidence. In such a situation, even the fairest judge is under pressure—which may be imperceptible to all and therefore hard to counteract—to obtain a verdict simply to avoid a mistrial. That the judge in the case at bar felt this pressure is evident. On several occasions during trial he announced to counsel that it *805 was not his practice to comment on the evidence and that in fact he had never done so. On one occasion, for example, he stated: “I have, under the law of California, the Constitution of California, the Judge has a right to comment on the evidence. I want to advise you now I don’t follow that practice. I do not comment upon the evidence. I don’t do it. [IT] I let the jury decide facts without any guidance from me as to the facts. I give them the law, but not the facts. How they should treat the evidence, I don’t do that. Some judges do, I don’t.” Despite such-statements, when the impasse appeared hopeless the judge did comment on the evidence.

In the face of their own deadlock and the court’s refusal to declare a mistrial, even the most responsible jurors are under similar pressure to return a verdict if only to end their deliberations. Under such circumstances, even such a degree of unfairness as would otherwise be de minimis must be deemed substantial: when there is deadlock, the issue is close and the judge may improperly tilt the balance by an otherwise insignificant word said or unsaid, or even by the manner in which he makes his comment.

Third, without the Cook rule the danger that the court may invade the jury’s province cannot adequately be minimized and the injury flowing from that invasion cannot in all cases be redressed. Whenever the court comments on the evidence, there is a risk that the comment will be unfair, and that an appellate court will be unable to detect its impropriety. The reason is plain: because the fairness of a comment necessarily depends on the peculiar facts of the individual case, it is a difficult and uncertain task for a trial court to find the line between fairness and unfairness as it attempts to fashion its comment, and it is a similarly difficult and uncertain task for an appellate court to review that comment and to offer guidance for comments in future cases. But when the trial court comments on the evidence after the jury has reached a deadlock, the risk that the comment will be unfair and that an appellate court will be unable to detect its impropriety is intolerable: as I have explained, in that event there is unavoidable pressure on the trial court to obtain, and on the jury to return, a verdict solely to end the proceedings, and even such a degree of unfairness as would otherwise be de minimis is substantial.

In this case it is undisputed that the court commented at a time when the jury was deadlocked. It thereby erred under Cook .

Evidently recognizing that Cook governs this case, the majority are compelled to overrule what they cannot distinguish. I do not doubt their power to do so; I do, however, object to their unjustifiable exercise of that power here.

*806 Under the doctrine of stare decisis, a court should refrain from overruling a rule declared in a prior decision unless that decision is manifestly erroneous and compelling reasons appear. The doctrine has a vital function within our system of jurisprudence. As applicable to this court are the words written by Justice Felix Frankfurter with reference to the United States Supreme Court: “We should not be so unmindful, even when constitutional questions are involved, of the principle of stare decisis, by whose circumspect observance the wisdom of this Court as an institution transcending the moment can alone be brought to bear on the difficult problems that confront us.” (Green v. United States (1957) 355 U.S. 184, 215 [ 2 L.Ed.2d 199, 220 , 78 S.Ct. 221 ].)

As even a cursory review of the majority’s discussion reveals, they fail to show Cook is erroneous or to give any reasons for overruling that decision. At its foundation the majority’s holding is premised on the following assertion: “we doubt courts may apply such potent preventive medicine [as the Cook rule] against a privilege expressly endorsed by our Constitution. When countervailing constitutional principles are at stake, we must tread carefully, intruding on the one no further than is necessary to sustain the other.” (Ante, p. 770.) This assertion, however, is hollow.

To begin with, we applied the Cook rule not “against a privilege expressly endorsed by our Constitution” but—as the majority must surely recognize but refuse to admit—against the high risk that post-deadlock comment would effectively invade the jury’s province and inflict on the defendant the grievous injury of a violation of his constitutional right to trial by jury.

More important, whatever “intrusion” the Cook rule makes is clearly justified. As between the defendant’s right to trial by jury and the trial court’s “privilege” of comment, the latter plainly must yield to the former. While the “privilege” is of state constitutional dimensions, the jury-trial right is of federal constitutional dimensions and as such is superior. Moreover, whereas the “privilege” is designed to promote efficiency in the administration of justice (People v. Ottey (1936) 5 Cal.2d 714, 723 [ 56 P.2d 193 ]), the jury-trial right is a “fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants” (Duncan v. Louisiana, supra, 391 U.S. at p. 158 [ 20 L.Ed.2d at p. 501 ]).

Finally, the Cook rule’s “intrusion” is, in any event, minimal. In the vast majority of cases the rule has no application at all, because deadlock occurs only rarely. And in the rare cases in which deadlock does occur, the rule merely prohibits comment after deadlock. In such cases the court retains the power to comment at any time before deadlock; and in virtual *807 ly—if not absolutely—all of them, it can infer from the jury’s requests or questions that impasse is possible and hence is put on notice that unless it exercises its power sooner rather than later it may not be able to exercise it at all.

For all these reasons I am compelled to conclude that the majority’s overruling of Cook is unjustifiable on any ground, and therefore I cannot join in their holding.

B

Under settled law, when “a trial court . . . chooses to comment to the jury[,] [it] must be extremely careful to exercise its power ‘with wisdom and restraint and with a view to protecting the rights of the defendant.’ (People v. Shannon [(1968)] 260 Cal.App.2d [320,] . . .331 [ 67 Cal.Rptr. 207 ]; see also People v. Rincon-Pineda (1975) 14 Cal.3d 864, 886 [ 123 Cal.Rptr. 119 , 538 P.2d 247 , 92 A.L.R.3d 845 ]; People v. Friend [(1958)] 50 Cal.2d [570,] ... 587 [ 327 P.2d 97 ]; People v. De Moss [(1935)] 4 Cal.2d [469,] . . . [4]77 [ 50 P.2d 1031 ].) The court’s comments must be scrupulously fair and may not invade the province of the jury as the exclusive trier of fact. (People v. Friend, supra, 50 Cal.2d at pp. 577-578.)” (People v. Cook, supra, 33 Cal.3d at p. 408 .) As will appear, under these principles the court clearly erred in making the Hawthorne Comment.

Before the court delivered this comment, the jury had twice stated without ambiguity that it was deadlocked. The point of dispute was evident— when did defendant leave Crockett and when did he arrive in West Sacramento. The jury had requested rereading of testimony on this issue given by Jeri Engel, Wanda Hawthorne, Wayne Madison, Katie Kibbee, and Joseph Berger—twice with regard to the testimony of Engel and Hawthorne. Engel’s testimony generally supported the prosecution’s theory of the case, while that given by Madison, Kibbee, Berger, and especially Hawthorne supported defendant’s.

After opening with certain general remarks, the court proceeded to make the two specific points that constitute the core of the Hawthorne Comment:

“First, most of the witnesses are giving time estimates within a range, such estimates may or may not be accurate and, therefore, may or may not be determinative of the ultimate issues before you. Secondly, as the testimony regarding time may not be determinative, you should keep in mind all of the evidence bearing on the issues before you and not necessarily single out any one piece of evidence. As you have singled out the testimony of Wanda Hawthorne for re-reading twice, you may wish to decide whether her testimony that she left San Francisco at 1:30 a.m., the same *808 time that the defendant said he left Crockett, and that the Camaro came from behind her is accurate. As she said, she was more sure of her time of leaving San Francisco than her arrival time, or whether her estimates of seeing a Camaro near Vacaville at about 2:00 a.m. and of arriving home at about 4:00 a.m. are more accurate. You should also consider whether or not you believe from the evidence that the car that Wanda Hawthorne saw was the defendant’s car, and if so, the effect, if any, of her testimony that she did not see that car again.”

The first point, to be sure, is “scrupulously fair.” Not so the second, which overshadows it and deprives it of effect. Both Hawthorne and Engel had admitted to some uncertainty in their estimates of time. Yet in the second point the court suggested that the jury give further specific scrutiny to Hawthorne’s testimony—but failed to make a similar suggestion with regard to Engel’s. 2

The majority’s attempt to justify the comment is altogether specious. Initially, if the first point, as they claim, adequately addressed the time problem in Engel’s testimony and thus obviated the need for further comment, it must have done the same as to the time problem in Hawthorne’s; the second point, therefore, was unnecessary and served merely to unfairly strengthen the prosecution’s case and undermine defendant’s. Moreover, contrary to the majority’s assertion, Hawthorne’s testimony simply did “not presentí] more complex issues which the court was entitled to explore” (ante, p. 773), and in any event did not justify the unfair comment that the court actually made. Finally, to state, as the majority do, that the trial court may in general restrict its remarks to the testimony of a single witness begs the question: regardless of how many witnesses’ testimony it discusses in its comment, the court must always be “scrupulously fair”— and here the court plainly was not.

C

Under any standard the error committed in this case must be deemed prejudicial. As shown by the substantial evidence presented by each side and confirmed by the long and clearly difficult deliberations—spanning 34 days and producing no fewer than 5 expressions of deadlock—the case was *809 extremely close. Moreover, it is evident that the improper comment caused one or more jurors to sacrifice a legitimate belief that Hawthorne’s testimony raised a reasonable doubt as to defendant’s guilt: after the comment was made, the jury never again asked to hear testimony relating to the time issue and indeed stated that “Instructions regarding our requests for reading of testimony relative to time helped our deliberations considerably.” The fact the jury continued at an impasse for two more weeks—evidently attempting to determine whether defendant lied on a point not directly material to guilt or innocence and, therefore, whether he should be distrusted on other points—establishes that had the Hawthorne Comment not been made it is at least reasonably probable that a result more favorable to defendant would have been reached.

A conviction obtained under such circumstances is a miscarriage of justice within the meaning of our Constitution. (Art. VI, § 13.) Defendant is thus entitled to a new trial before a jury not exposed to unfair comment on the part of the court.

Bird, C. J., and Broussard, J., concurred.

Appellant’s petition for a rehearing was denied December 31, 1986, and the opinion was modified to read as printed above. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.

The full text of the Hawthorne Comment appears in footnote 10 of the majority opinion.

Such a comment might have run as follows: “As you have also singled out the testimony of Jeri Engel for rereading twice, you may wish to decide whether her testimony was accurate on the following points: that she arrived home at 10:30 p.m., that Margaret Klaess and the defendant came by at 11 p.m., that she and the defendant went to the Club Tac at 12:30 a.m. and returned to her house at 1 a.m., and that Margaret Klaess and the defendant left at 2:30 a.m. She said that she had been drinking rum and snorting cocaine in the relevant time period, and that in general she gave only an estimate of when each event happened and did not consult a clock.”