Hutchins

Albert Hutchins appeals his convictions for robbery (Pen. Code, 2 § 211), burglary in the first degree (§ 459), assault with a deadly weapon (§ 245, subd. (a)(1)), three counts of forcible oral copulation (§ 288a, subd. (c)), and two counts of forcible rape (§ 261, subd. (2)). The jury found true an allegation of weapons use (§ 12022.3) during one of the acts of oral copulation. Hutchins admitted a prior out-of-state rape conviction pursuant to sections 667, subdivision (a), 667.5, subdivision (a), and 667.6, subdivision (a).

The trial court imposed the upper term of five years for the robbery conviction as well as a full, consecutive term of eight years on one of the *1221 oral copulation counts which was further enhanced with the weapons use finding. Full, consecutive terms of eight years were imposed for the rape convictions. A five-year enhancement pursuant to section 667.6, subdivision (a), was added based on appellant’s prior conviction. Sentence on the remaining oral copulation counts was imposed concurrently. Sentencing on the burglary and assault convictions was stayed pursuant to section 654.

Hutchins argues the trial court improperly allowed impeachment with…

In the majority opinion we conclude the trial court did not direct a verdict but rather made improper comments to the jury concerning the degree of the offense. The majority further concludes the error harmless. While I agree, I believe it is necessary to identify the mechanism by which I have reached these conclusions since in my opinion the law in this area is unclear.

I begin with the proposition that, no matter how conclusive the evidence, it is federal constitutional error for a trial court to direct a verdict of guilt (Rose v. Clark (1986) 478 U.S. 570 [ 92 L.Ed.2d 460 , 106 S.Ct. 3101 ]) or to comment on or offer an opinion concerning the ultimate issue of guilt or innocence (People v. Rodriguez (1986) 42 Cal.3d 730, 765 [ 230 Cal.Rptr. 667 , 726 P.2d 113 ]; People v. Figueroa (1986) 41 Cal.3d 714, 724-741 [ 224 Cal.Rptr. 719 , 715 P.2d 680 ]; People v. Lawson (1987) 189 Cal.App.3d 741 -748 [ 234 Cal.Rptr. 557 ]). While both types of situations constitute error however, they do not both result in per se reversal.

When a verdict of guilt is directed, the error is automatically reversible. (Rose v. Clark, supra, 478 U.S. at p. 578 [ 92 L.Ed.2d at p. 471 ].) When the error…