Carter

When faced with making a difficult ruling or decision, some trial court judges, like anyone else, voice aloud the conflicting arguments in favor of one choice over the other. A judge’s remarks may suggest one result, yet the judge arrives at the opposite result. In such circumstances, the appellate court does not use the judge’s remarks to impeach the ruling. (People v. Borchers (1958) 50 Cal.2d 321, 329-330 [ 325 P.2d 97 ].)

But when a judge’s remarks preceding a ruling reflect a misapprehension of the law upon which that ruling is based, the appellate court must consider the judge’s remarks in its review. That is what we do here.

Eddie Roy Carter appeals a judgment following conviction of second degree commercial burglary, with a finding of a prior serious felony strike conviction. (Pen. Code, §§459, 667, subd. (b)-(i), 1170.12, subds. (a)-(d).) We vacate the trial court’s order denying a new trial, and order the court to grant a new trial.

FACTS AND PROCEDURAL HISTORY

In the morning of May 20, 2010, Christopher Cruz, manager of the Wells Fargo Bank located on North Moorpark Road in Thousand Oaks, arrived at the bank and discovered that the door locks had been…