Filed 8/21/14 P. v. Bean CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Lassen)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C072954

          v.                                                                     (Super. Ct. No. CH027894)

ERICK BEAN,

                   Defendant and Appellant.

          A jury convicted defendant Erick Bean of battery by a prisoner on a non-confined
person (Pen. Code, § 4501.5)1 and sustained three prior strike convictions. (§§ 667,
subd. (b)-(i), 1170.12.) The trial court sentenced defendant to serve six years in state
prison.
          On appeal, defendant contends the trial court’s comments to the jury regarding the
testimony of a prosecution witness constituted prejudicial error. We conclude the trial



1         Undesignated statutory references are to the Penal Code.


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court’s comments were improper because they vouched for the credibility of a witness
based on facts not in the record. However, based on the other testimony and evidence,
we conclude the error was harmless. Accordingly, we affirm the judgment.
                    FACTUAL AND PROCEDURAL BACKGROUND
                                         The Crime
       On the morning of January 5, 2010, Correctional Officer Brett Schaake was
retrieving meal trays from the prisoners’ cells at High Desert State Prison. He would go
to the cell door, slide the security port open, and the prisoners would pass the trays
through the port. When he arrived at defendant’s cell, defendant was standing next to the
door and inmate Rivera was sitting on the top bunk, leaning against the back wall.
       Officer Schaake opened the security port and took the trays from defendant. Next,
defendant swung his arm back and forward towards the cell door and Officer Schaake felt
a liquid hit him. After telling the inmates to get down, Officer Schaake determined the
liquid hit him on the waist, chest, arm, and upper leg.
       Correctional Officer Jason Robinette responded to defendant’s cell after hearing
Officer Schaake’s order to get down. Upon arrival, he saw a wet spot on Officer
Schaake’s jumpsuit, and a milk carton, ketchup packet, and paper cup on the floor outside
defendant’s cell.
       Correctional Officer Adelaio Rodriguez observed the liquid on Officer Schaake’s
jumpsuit and the wet spot, milk carton, and other food items on the floor by defendant’s
cell. Rodriguez questioned defendant about the incident. Defendant said he was agitated
and upset for not receiving psychiatric care.
                                 Procedural Background
       Rodriguez testified on direct examination that defendant told him he had been
“agitated and upset for not receiving psychiatric care.” He wrote two reports in the case,
one public and one confidential. He wrote a confidential report because he considered


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defendant’s statement regarding the lack of psychiatric care to be medical information
and therefore confidential. In the public report, he wrote defendant was agitated and
upset, while in the confidential report Rodriguez wrote defendant was upset for not
receiving any psychiatric care.
       During cross-examination, Rodriguez admitted to having a conversation with
defense counsel about two weeks prior, when the officer was on his way to training.
Counsel had asked Rodriguez if everything was contained in his report, and he had told
counsel it was. He also admitted he had left out matters in the report given to defense
counsel that were included in the confidential report.
       Defense counsel continued cross-examination of Rodriguez as follows:
       “Q. [Defense Counsel]: So you knew at the time, didn’t you, that you had already
done another report and it had some other statements in it, but you didn’t disclose those
to me, did you?
       A. [Officer Rodriguez]: Correct, it’s on the bottom portion of my report that I had
made another report.
       Q. But it doesn’t say in that other report that there were other things that
[defendant] said, did it?
       A. No.
       Q. So when I asked you again does this report that you filled out, . . . does that
contain all the stuff that [defendant] said? Your response was yes; am I correct?
       A. Correct.
       Q. Then I asked you again is that everything that [defendant] said? And your
response was yes; is that correct?
       A. Correct.
       Q. But that wasn’t true, was it?
       A. No, with the exception of the confidential.


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       Q. And then a week later or so you discovered that oh yeah, I did do a report or
confidential report and there’s other stuff in it; is that true?
       A. It was actually the next day I reviewed my confidential.
       Q. Did you call me or tell me and let me know that oh, I now discovered that
there’s some additional information that I didn’t tell you about?
       A. No.
       Q. Why not?
       A. I didn’t think I could tell the defense that there was a confidential, disclose any
confidential information.
       Q. That’s a decision you made on your own, right?
       A. Yes.
       Q. But even after you told me there was no other information, you decided . . . to
withhold that from me; is that correct?
       A. Yes.”
       On redirect, Rodriguez testified he had been trained not to give confidential
information to defense counsel, either orally or in writing. The prosecutor asked
Rodriguez, “Are you aware that defense attorneys have to go through court to get
confidential information?” Defense counsel objected because the question asked for a
legal conclusion from Rodriguez. The prosecutor asked for an instruction in the
alternative and the parties then addressed the matter outside the jury’s presence.
       The prosecutor admitted his question called for a legal conclusion from the
witness, so he asked the trial court “to give the statement of law to the jury that
confidential information does have to go through the Court. We’ve done it many times
and there has to be a formal motion made, the attorney general’s office usually appears
for the Department of Corrections, the Court usually reviews it in chambers before it’s
given.” The prosecutor normally would not “want to get into all this morass, . . . but


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defense [counsel] opened this door and left it hanging that Officer Rodriguez did
something wrong by not advising defense counsel and his investigator of this confidential
information and that’s what’s left.”
       The trial court asked defense counsel what was wrong with advising the jury
counsel needed a hearing to get confidential information. Counsel replied, “Tell me what
statutory authority is for that, Your Honor.” The court replied it did not know, but that
did not mean such authority did not exist. Defense counsel replied he was not aware of
any statute that forbids disclosure of confidential records from the Department of
Corrections and Rehabilitation (CDCR) without a court order. Instead, according to
defense counsel, “It’s a policy of the [CDCR].”
       The trial court agreed it may not be statutory, but asked defense counsel what was
wrong with “advising the jury that it is the procedure, it is the policy and procedures of
High Desert State Prison that an officer cannot convey to you, but that you should file a
motion?” Defense counsel said that would be wrong because what mattered was not
whether it was prison policy, but “whether or not it’s statutorily required.” Continuing,
defense counsel said Rodriguez “unilaterally made a decision that because the defendant
used the word psychiatric care, that shouldn’t go in his statement. He made the decision,
not the [CDCR], he left it out of the report.” When the trial court suggested having the
prosecutor ask Rodriguez if he believed he was following the policy when he omitted the
confidential report, defense counsel had problems with that because the information,
which was eventually disclosed to the defense by the prosecution, should have been given
to him from the beginning. Defense counsel argued it did not matter whether Rodriguez
believed he was following policy, “it’s whether he had a legal right.”
       The prosecutor argued that authorities other than statutes, such as case law, also
limited the duty to disclose information. According to the prosecutor, Rodriguez would
have been fired if he disclosed the confidential information to defense counsel on his


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own. The prosecutor did not want to have the trial court tell the jury “what defense
counsel should do if they want to get the confidential information.” However, it had been
“left hanging” that “Officer Rodriguez did something wrong by not disclosing the
confidential information to the defense counsel when defense counsel asked” even
though the officer would have done something wrong had he disclosed the information.
       The trial court agreed with the prosecutor and, over defense counsel’s due process
objection, made the following comments to the jury: “You’ve heard [Rodriguez] several
times acknowledge to [defense counsel] that when they met a few weeks ago or any time
prior to that, that [Rodriguez] ever advised him there was a confidential, a separate report
which had a few extra words in it regarding the upset, agitated situation and in fact, I
want to advise you that [Rodriguez] believed that at that time, he was not free to disclose
the confidential report, the few extra words that were in that report, so I didn’t want you
to have the feeling that he was hiding anything or being improper in this matter, but that
he did not feel at that time he could release the information.”
                                         DISCUSSION
       Defendant contends the trial court’s comments to the jury on Rodriguez’s failure
to inform defense counsel of the confidential report usurped the jury’s function and
violated his due process right to a fair trial.
       “Article VI, section 10 of the California Constitution provides, in pertinent part:
‘The court may make any 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.’ We
have interpreted this provision to require that such comment ‘ “be accurate, temperate,
nonargumentative, and scrupulously fair. The trial court may not, in the guise of
privileged comment, withdraw material evidence from the jury’s consideration, distort
the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate
factfinding power.” ’ [Citations.] Thus, a trial court has ‘broad latitude in fair


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commentary, so long as it does not effectively control the verdict.’ [Citation.] ‘We
determine the propriety of judicial comment on a case-by-case basis.’ [Citation.]”
(People v. Monterroso (2004) 34 Cal.4th 743, 780 (Monterroso).)
       Defendant asserts “there was no evidence in the record to corroborate
[Rodriguez]’s testimony that he was trained that any reference to psychiatric care may
not be disclosed to the defense, nor was there any specific evidence concerning the policy
of the prison to not disclose confidential matters.” Defendant concludes the trial court
vouched for Rodriguez’s credibility when it told the jury he was complying with prison
policy when he failed to inform defense counsel of the confidential report. Claiming this
was a close case and the jury would likely take defendant’s statement to Rodriguez as an
admission he threw the liquid at Officer Schaake, defendant claims the alleged error was
prejudicial.
       The Attorney General notes the trial court’s broad authority to exclude evidence
pursuant to Evidence Code section 352. (Evid. Code, § 352; see also People v. Ayala
(2000) 23 Cal.4th 225, 301.) The Attorney General contends the trial court’s decision
was based on its stated desire to avoid confusion that would result from addressing in
detail the requirements for disclosing CDCR documents. The Attorney General asserts
this was a correct conclusion, and the trial court’s comments “effectively mooted the
attempted impeachment of [Rodriguez] by defense counsel.” Characterizing the trial
court’s actions as the proper exclusion of impeachment pertaining to a collateral matter
that “touched on confusing and time consuming issues,” the Attorney General argues the
trial court committed no error.
       While the Attorney General argues the trial court’s comments on the evidence had
the same effect as excluding the evidence, the trial court did not exclude the evidence but
instead commented to the jury that Rodriguez’s explanation for not disclosing the
confidential report was credible. By informing the jury Rodriguez was credible on one


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point, the comments allowed the jury to infer he was generally credible. Since the court’s
comments had more consequence than the simple exclusion of evidence, we cannot
evaluate the comment as an exercise of the court’s discretion under Evidence Code
section 352.
       A trial court’s commentary on a witness’s credibility cannot rely on evidence
outside the record. Vouching for a witness, personally attesting to a witness’s credibility
by reference to facts outside the record (People v. Williams (1997) 16 Cal. 4th 153, 257),
is a type of improper judicial commentary on the evidence. (See People v. Coddington
(2000) 23 Cal.4th 529, 615-616, disapproved on another ground in Price v. Superior
Court (2001) 25 Cal.4th 1046, 1069, fn. 13. [analyzing allegations of judicial vouching
under the heading “Judicial Comment”].) Any form of judicial commentary is improper
when it relies on facts not in evidence. A trial court’s comments on the evidence must be
“accurate, temperate, nonargumentative, and scrupulously fair.” (Monterroso, supra,
34 Cal.4th at p. 780.) A comment on the evidence that relies on some fact not in the
record or subject to judicial notice is neither accurate nor fair.
       Here, the trial court’s comments to the jury regarding Rodriguez’s testimony were
improper judicial commentary because the comments vouched for the officer’s credibility
based on facts not in the record. Defense counsel did admit to the trial court that CDCR
policy was to not disclose confidential information without court action. However,
defense counsel took issue with Rodriguez’s decision to determine on his own that
defendant’s statement regarding psychiatric care was confidential, and there is no
evidence in the record regarding an officer’s discretion to conclude an inmate’s statement




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is confidential. Thus, we conclude it was error for the trial court to comment to the jury
on Rodriguez’s credibility based on facts not in the record.2
       Improper judicial commentary on the evidence is evaluated under the standard of
review set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Flores (1971)
17 Cal.App.3d 579, 588 (Flores).) We must determine whether it is reasonably probable
a result more favorable to the defendant would have been reached in the absence of the
error. (Watson, at p. 837.) Based on the other testimony and evidence, we conclude the
error was harmless.
       The statement Rodriguez took from defendant, that he was agitated and upset at
the time of the incident for not receiving psychiatric care, provided a motive for the
attack. By admitting the motive for the attack, defendant’s statement could be viewed as
an admission of guilt by the jury. Officer Rodriquez also testified to authenticate
photographs taken during the investigation of the area in front of defendant’s cell and of
Officer Schaake after the attack. Impeaching Rodriguez would not diminish the jury’s
consideration of those photographs.
       Officer Schaake was the victim. While he did not see defendant throw the liquid,
he saw defendant swinging his arm back and forward toward the cell door and then felt a
liquid hit him. The jury had to find him credible in order to convict defendant. His
testimony was supported by evidence that was not dependent on Rodriguez’s credibility,
namely the photographic evidence and Officer Robinette’s testimony he saw a wet spot
on Officer Schaake’s jumpsuit and food debris in front of defendant’s cell.




2      While this error may be invited because defense counsel objected to evidence
about prison policy being admitted, we do not need to reach this issue because we
conclude the error is harmless.


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        Finally, the information in the two reports was virtually the same. The public
report stated defendant was agitated and upset. The confidential report stated defendant
was upset for not receiving any psychiatric care. Both reports conveyed the fact
defendant was agitated and/or upset. Even if the trial court did not vouch for Rodriguez’s
testimony, the jury may well have believed his testimony that he did not give the second
report to defense counsel because he believed it was confidential.
        The error in this case stands in sharp contrast to the case on which defendant
relies, Flores. Flores involved a trial with two witnesses, the defendant and the arresting
officer. (Flores, supra, 17 Cal.App.3d at pp. 581-583.) The officer testified to seeing the
defendant first throw away a balloon containing heroin after seeing the officer, and then
give a sack containing whiskey and other groceries to a couple walking in the opposite
direction. (Id. at pp. 581-582.) The defendant testified he did not drop a balloon of
heroin and kept walking with the bag of whiskey and other items after hearing an order
by the officer to stop. (Id. at pp. 582-583.) When the jury announced it was deadlocked
seven to five, the trial court informed the jury if it believed the officer’s testimony it had
to convict, and the court found the defendant not credible and the officer credible so it
would vote to convict. (Id. at p. 583.) Since the jury was deadlocked and the court’s
instruction all but directed a verdict of guilty, the error was not harmless under the
Watson standard. (Flores, supra, at p. 588.) Unlike Flores, the trial court’s comments
here did not involve an issue that would lead a jury to find defendant guilty. Rodriguez’s
reasons for not disclosing a confidential report that was consistent with the public report
was a collateral issue; it was not an issue that would decide defendant’s guilt or
innocence.
        We conclude the error is harmless because it is not reasonably probable defendant
would obtain a more favorable result in the absence of the trial court’s comments to the
jury.


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                                 DISPOSITION
     The judgment is affirmed.



                                               HOCH   , J.



We concur:



    BLEASE      , Acting P. J.



     HULL       , J.




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