Flores

This appeal is taken from a judgment convicting appellant for the possession of heroin (Health & Saf. Code, § 11500).

The sole assignment of error on appeal is as follows: "The trial court's comments to the jury influenced their verdict, depriving the appellant of his constitutional rights to trial by an impartial jury and of due process of law."

We conclude that the trial court transgressed the limits of permissible comments authorized by article VI, section 10 of the California Constitution [1] as interpreted in People v. Brock, 66 Cal.2d 645 [ 58 Cal. Rptr. 321 , 426 P.2d 889 ], and in People v. Friend, 50 Cal.2d 570 [ 327 P.2d 97 ].

Officer Muntz testified for the prosecution, giving his version of what occurred on April 3, 1970. He stated that on that evening he observed the appellant walking down the center of the street and that he appeared to be staggering. His partner stopped the patrol car approximately 30 feet behind and he exited the passenger side and approached the appellant. When he was still some 10 feet away he observed the appellant turn and look at him. He then turned back, put his right hand into his right-front pants pocket. He saw the…

This appeal is taken from a judgment convicting appellant for the possession of heroin (Health & Saf. Code, § 11500).

The sole assignment of error on appeal is as follows: “The trial court’s comments to the jury influenced their verdict, depriving the appellant of his constitutional rights to trial by an impartial jury and of due process of law.”

We conclude that the trial court transgressed the limits of permissible comments authorized by article VI, section 10 of the California Constitution 1 as interpreted in People v. Brock, 66 Cal.2d 645 [ 58 Cal.Rptr. 321 , 426 P.2d 889 ], and in People v. Friend, 50 Cal.2d 570 [ 327 P.2d 97 ].

Summary of the Incriminating Evidence

Officer Muntz testified for the prosecution, giving his version of what occurred on April 3, 1970. He stated that on that evening he observed the appellant walking down the center of the street and that he appeared to be staggering. His partner stopped the patrol car approximately 30 feet behind and he exited the passenger side and approached the appellant. When he was still some 10 feet away he observed the appellant turn and look at him. He then turned back, put his right hand into his right-front…

I dissent. Applying the law as enunciated in People v. Brock, 66 Cal.2d 645 [ 58 Cal.Rptr. 321 , 426 P.2d 889 ], and in People v. Friend, 50 Cal.2d 570 [ 327 P.2d 97 ], and in the numerous other precedents cited and discussed in those two decisions, I conclude that the trial court did not transgress the limits of permissible comment authorized by article VI, section 10 of the California Constitution in its provision that “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 cause.”

It is my opinion that in the evidentiary context of this case the comment of the trial judge was entirely reasonable. Undoubtedly it was his laudable purpose to avoid the necessity for a retrial of this case of classic simplicity with the attendant cost to the suffering taxpapers of this county and state and the additional burden upon our already failing judicial system, staggering as it is under an intolerable backlog of untried cases.

In People v. Friend, supra, 50 Cal.2d 570 , at page 578, the Supreme Court stated: “The extent to which a judge is free to comment on the evidence is shown by…