Oliver

The People appeal from the trial court’s order granting defendant Joseph Francis Oliver a new trial after a jury convicted him of first degree robbery (Pen. Code, § 211) and found he used a firearm in the commission of the offense (Pen. Code, § 12022.5). We affirm the order because an improper, erroneous and prejudicial comment by the trial judge in the course of jury instructions deprived Oliver of a fair trial, and because the evidence supports the ruling.

The case comes to us in an unusual context. It is not necessary to discuss the evidence in detail. It is sufficient to state it was in conflict. Two men, one of whom wore a woman’s wig, were involved in the robbery. The eyewitness identification of Oliver as the robber who wore the wig and used the gun may have been legally sufficient, but it was arguably deficient in several respects. Both victims identified Oliver in court as the robber, but both had only a fleeting opportunity to make an identification during the course of the robbery. One of the victims was shown a picture of Oliver the day after the robbery occurred and failed to identify him.

Both victims identified Oliver when they were shown a series of five…