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People v. Mayfield1/2/1997
iew, including the proposed gunfire demonstrations and the proposed testimony by the owner of the service station.
Defendant contends, next, that the waiver of personal presence is invalid under sections 977 and 1043. As this court recently explained, "a capital defendant may not voluntarily waive his right to be present during the proceedings listed in section 977, including those portions of the trial in which evidence is taken . . . ." ( People v. Jackson (1996) 13 Cal. 4th 1164, 1211 [56 Cal. Rptr. 2d 49, 920 P.2d 1254].) Because evidence was taken at the jury view, defendant is correct that the trial court erred under sections 977 and 1043 in granting defendant's request to voluntarily absent himself during the jury view.
The error being one "of purely statutory dimension" ( People v. Jackson, (supra) , 13 Cal. 4th 1164, 1211), reversal is required only if " 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error' " (ibid., quoting People v. Watson (1956) 46 Cal. 2d 818, 836 [299 P.2d 243]). Defendant does not persuade us that it is reasonably probable the guilt verdicts would have been more favorable to him had he been present at the jury view. He provides no sound basis to question the contemporaneous judgment of defense counsel, with which defendant then agreed, that defendant's trial interests would be better served by not attending the jury view. We therefore conclude that the error was not prejudicial.
Before leaving this subject, we sound a note of caution. Had the trial court obeyed the letter of the statutory commands by refusing to accept defendant's waiver of presence, defendant might well have argued on appeal that requiring him to attend the jury view, thereby exposing the jurors to the strict security precautions that would be necessary in such a situation, had so prejudiced him before the jury as to deny him his constitutional rights to due process and a fair trial. We do not imply any view on the merits of such a contention, which is not now before us; we suggest only that trial courts should proceed with caution and that the Legislature may wish to reconsider the wisdom of statutory provisions that deprive capital defendants of the ability to waive their presence at trial proceedings outside the courtroom.
3. Judicial Misconduct
Defendant contends that the trial Judge committed misconduct by his "active participation during the jury visit." In particular, defendant complains that the trial Judge: (1) answered questions posed by the jurors; and (2) asked questions of the attorneys and elicited stipulations from them. Defendant complains that "the court took on the role of a partisan advocate, much like a witness, through its questions and directives during the visit, especially its involvement in the placement of exhibits to demonstrate the location of Sergeant Wolfley's body."
We reject defendant's underlying assumption that a trial Judge, except when ruling on objections, must remain passive at the trial while the attorneys are presenting the evidence. "Numerous courts including our own have recognized that it is not merely the right but the duty of a trial Judge to see that the evidence is fully developed before the trier of fact and to assure that ambiguities and conflicts in the evidence are resolved insofar as possible." ( People v. Carlucci (1979) 23 Cal. 3d 249, 255 [152 Cal. Rptr. 439, 590 P.2d 15]; see generally, Gitelson, A Trial Judge's Credo (1966) 7 Santa Clara L.Rev. 1.)
Having carefully examined the record of the jury view, we conclude that the trial Judge committed no misconduct and, in particular, did not become an advo
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