BENKE, J., Concurring. 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 consists of commenting on the issue of guilt or innocence, it may be harmless if beyond a reasonable doubt the comments could not have affected the verdict. (Henderson v. U.S. (D.C.App. 1987) 527 A.2d 1262; see also People v. Figueroa, supra, 41 Cal. 3d at p. 734, fn. 24; People v. Lawson, supra, 189 Cal.App.3d at pp. 751-754; cf., Connecticut v. Johnson (1983) 460 U.S. 73, 78, 84-86 [74 L.Ed.2d 823, 828-829, 832-834, 103 S.Ct. 969].)1
[1224]A helpful case in dealing with the problem of directed verdicts and improper comments concerning guilt or innocence is Henderson v. U.S., supra, 527 A.2d 1262. In Henderson, the defendant was charged with the malicious destruction of property. Among the elements of the offense were those requiring that the subject property have value and that it was destroyed maliciously. In instructing the jury the court stated “ ‘there is no evidence to show that the window was broken without malice.’” (Id. at p. 1266.) The court further instructed the jury “ ‘the only genuine dispute in the case is the one of identity.’ ” (Ibid.) The court, however, also made clear to the jury they were the sole judges of the facts.
The defendant in Henderson argued his case was identical to Minor v. United States (D.C.App. 1984) 475 A.2d 414, a case earlier decided by the District of Columbia Circuit. In Minor the defendant was charged with receiving stolen property valued at more than $100. The judge in Minor instructed the jury that “ ‘as a matter of law, I find that the value is in excess of $100.00.’ ” (Id. at p. 415.) The circuit court reversed holding that the court’s instruction was a partial directed verdict on the element of the value of the property. (Id. at p. 416.)
The court in Henderson refused to apply the holding of Minor, noting that while in Henderson the trial court had clearly commented on the issue of guilt, it had left ultimate determination of the elements of the offense to the jury; the jury was instructed on the elements of the offense and its determination of the facts was not foreclosed. (Cf. People v. Lawson, supra, 189 Cal.App.3d at pp. 752-754.)
The Henderson court, however, noted this conclusion did not end its inquiry. While a partial verdict had not been directed, the trial court, nonetheless, had expressed an opinion that the window had been broken with malice and had created a substantial barrier to the jury’s independent resolution of the facts. The court found such an error had constitutional implications and that the situation fell somewhere between a partial directed verdict and the full discretion given to the jury to determine facts. The court stated: “We believe the trial court’s comment upon the evidence here, while not formally withdrawing the issue of malice, did not ‘clearly’ leave that issue to the jury. The court’s comment was sufficiently authoritative that, if it did not partially direct a verdict as a legal matter, it at least, as a practical matter, shifted the burden of persuasion on an element of the crime from the government to appellant. This violated due process.” (527 A.2d at p. 1265.)
The court noted the error was analogous to the burden-shifting error condemned in Sandstrom v. Montana (1979) 442 U.S. 510 [61 L.Ed.2d 39, [122599] S.Ct. 2450].2 Since the error was analogous to that in Sandstrom, the standard of harmless error was that defined for such error in Rose v. Clark. The test, therefore, was the beyond a reasonable doubt test defined in Chapman v. California, supra, 386 U.S. 18, 22-24 [17 L.Ed.2d 705, 709-711].3
The court then applied Rose and Chapman to the legal and factual situation facing it, noting that while the failure of the defense to contest a fact was not dispositive, it was a relevant consideration. The court further noted defense counsel during argument had conceded the window had been broken by someone but argued the “someone” was not the defendant. The court concluded it would have been irrational for the jury to conclude the window was not maliciously broken and the court refused to premise a reversal on the possibility the jury might have acted irrationally.
The reasoning of Henderson is compelling. In deciding whether an error is reversible per se, a distinction can rationally be drawn between a court totally removing an element from jury consideration by directing a verdict and a judicial comment that affects the jury’s ability to independently determine that element.
The test defined in Rose v. Clark for determining whether constitutional error is reversible per se is, of course, applicable in California. (People v. Lee (1987) 43 Cal.3d 666 [238 Cal.Rptr. 406, 738 P.2d 752]; People v. Lopez (1986) 188 Cal.App.3d 592, 600-603 [233 Cal.Rptr. 207]; People v. Herbst (1986) 186 Cal.App.3d 793, 803, fn. 8 [233 Cal.Rptr. 123]; People v. Smith (1987) 188 Cal.App.3d 1495, 1512 [234 Cal.Rptr. 142].) Rose and Lee make clear that only the most fundamental of errors require per se reversal of a judgment. (People v. Lee, supra, 43 Cal.3d at pp. 673-676.) While a directed verdict is such an error, the court in Henderson points out that improper comment potentially affecting a jury’s consideration of an element is not a directed verdict and is not so fundamental an error that per se reversal is justified. Even though such an improper comment may seriously affect the jury’s independent evaluation of a case, and indeed if strong enough, will [1226]require reversal under Chapman, it does not totally remove the issue from the jury where the jury has been properly instructed on its role and on the law necessary to decide the issue in question.
This conclusion is not foreclosed or inconsistent with existing California authorities.
In People v. Figueroa, supra, 41 Cal.3d 714, the defendant was charged with the sale of unqualified securities. (Corp. Code, §§ 25110, 25540.) There, evidence was presented by the defense on the question of whether securities were involved and an instruction was proffered which purported to guide the jury in determining the question. The trial court refused the instruction and instead told the jury that the notes involved in the case were securities as defined in section 25019 of the Corporations Code. The Corporations Code section 25019 definition of securities was not read to the jury. The district attorney relied on the court instructions and told the jury that the issue of whether securities were involved had been taken from them. The Supreme Court described the issue before it as whether the giving of the challenged instruction was “tantamount” to a directed verdict on the “security” element of the offense.
The court in Figueroa drew no distinction between an actual partial directed verdict, i.e., one in which the element in question is totally removed from jury consideration and comments or instructions that are “tantamount” to a partial directed verdict but which do not totally remove that element from the jury. The court, of course, had no need to make such a distinction since it was operating under the assumption, later shown incorrect by Rose and Lee, that any error deemed “tantamount” to a directed verdict is per se reversible. (People v. Figueroa, supra, 41 Cal.3d at pp. 724-733, see also fn. 24.) In light of Rose and Lee, Figueroa is authority for the proposition trial court comments which are “tantamount” to partial directed verdicts are errors of federal constitutional dimension, however, it is not authority for the proposition that such comments always require per se reversal.
Neither is this analysis in conflict with that in People v. Lawson, supra, 189 Cal.App.3d at pages 746-754. In Lawson, the defendant was charged with crimes involving the sale of securities. During trial the parties submitted requests for jury instructions, including special instruction that raised the question of whether the court or the jury would decide if the purchase of accounts receivable in that case were “securities.” The defense indicated if the “securities” issue was not a jury question, jury trial would be waived and the case submitted to the court. The trial court ruled as a matter of law [1227]the accounts receivable were securities. Jury trial was waived and the defendant was found guilty. {Id. at pp. 744-746.)
Citing Figueroa, the court in Lawson concluded it was federal constitutional error for the trial court to relegate to itself the determination of an element of the charged offense. The court concluded that, unlike situations where erroneous instructions improperly shifted the burden of proof, the error in its case “totally” removed from the jury an element of the offense. The error was thus per se reversible. (189 Cal.App.3d at pp. 746-754.)
The circumstances of Lawson are distinquishable from those in Henderson and those in the present case. In Lawson, the court “totally” removed an element from the jury’s consideration. In the present case, as in Henderson, all elements of the offense were presented to the jury for its determination.4 The error was that the court by its comments affected the power of the jury to independently resolve all elements of the offense. Such error is not the type defined by Rose as requiring per se reversal.
The proposition that comment by the court, however strong, which does not totally remove an element from the factfinder, is not a directed verdict, finds support in a recent decision of the United States Supreme Court, Pope v. Illinois (1987) 481 U.S. 497 [95 L.Ed.2d 439, 107 S.Ct. 1918], In Pope, the defendant was prosecuted for the sale of allegedly obscene materials. The trial court there incorrectly instructed the jury that “community standards” apply in deciding whether a “work, taken as a whole,” lacks “serious literary, artistic, political, or scientific value.” (Id. at p. 500, fn. 3 [95 L.Ed.2d at p. 445, 1075 S.Ct. at p. 1921].) It failed to instruct on the proper “reasonable man standard.” Although concluding the trial court had erred in failing to instruct on the proper standard, the court, citing Rose v. Clark, held the error was not per se reversible because the issue of value had not been totally removed from the jury. By way of footnote, the court explained: “The problem with the instructions in both [this case and Rose v. Clark] is that the jury could have been impermissibly aided or constrained in finding the relevant element of the crime: in Rose, by the erroneous presumption; in this case, by possible reliance on unreasonable community views on the value question. By leaving open the possibility that petitioners’ conviction can be preserved despite the instructional error, we do no more than we did in Rose. To the extent that cases prior to Rose may indicate that a conviction can never stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof, see, e.g., Cabana v. Bullock, 474 U.S. 376, 384 [88 L.Ed.2d 704, 106 S.Ct. 689] [1228]after Rose, they are no longer good authority.” (Id. at pp. 503-504, fn. 7 [95 L.Ed.2d at p. 447, 107 S.Ct. at p. 1922].)
Recently the First District, Division Four, in People v. Jarrell (1987) 196 Cal.App.3d 604 [242 Cal.Rptr. 219], dealt with the same type of situation we now have before us. There, the trial court instructed the jury that if it found the defendant guilty of the crime of burglary, it is burglary of first degree as a matter of law. The court in Jarrell concluded while it was error to so instruct, the error was harmless under Chapman. Although the trial court clearly removed the decision as to the degree of the offense from the jury, the court held per se reversal not appropriate since the issue removed affected only the degree and not the element of the underlying offenses.
While Jarrell greatly simplifies the problem confronting us, its analysis leads us into an unnecessary thicket.
In a series of cases, the United States Supreme Court has defined, albeit not always clearly, the factors to be proved by the state beyond a reasonable doubt and those factors which may be relegated to proof by the defense or which may be determined by using a standard less than that of beyond a reasonable doubt. (See McMillan v. Pennsylvania (1986) 477 U.S. 79 [91 L.Ed.2d 67, 106 S.Ct. 2411]; Mullaney v. Wilbur (1975) 421 U.S. 684, 696-701 [44 L.Ed.2d 508, 517-521, 95 S.Ct. 1881]; Patterson v. New York (1977) 432 U.S. 197, 201-216 [53 L.Ed.2d 281, 286-295, 97 S.Ct. 2319]; see also People v. Garcia (1984) 36 Cal.3d 539, 552-557 [205 Cal.Rptr. 265, 684 P.2d 826].) Viewed together, these cases support the proposition a state Legislature may in its wisdom determine by statute what it is a jury must decide beyond a reasonable doubt with respect to any given offense. However, where a finding required to be made by a jury serves to increase punishment, it is a violation of federal due process to totally remove that issue from the province of the jury. Such a violation is precisely the type of directed verdict condemned as per se reversible in Rose v. Clark.
Viewing these authorities within the context of the issue before us, we see that in California the factfinder must determine beyond a reasonable doubt whether the degree of the burglary was first or second. (Pen. Code, §§ 1097, ■1157.) A finding of first degree burglary significantly increases a defendant’s sentence. I do not believe, absent an express concession by a defendant, that a court may remove from the jury its legislatively created obligation to make a finding as to the degree of the offense.
Unlike the analysis offered by the court in Jerrell, I would focus the analysis of the issue not on whether the matter removed from the jury goes to a sentencing function but whether the instruction or statement made by [1229]the trial court has actually removed a legislatively required finding from the trial process. As indicated previously, here the issue of degree of the offense was not totally removed and thus there was no directed verdict in this case.
The question thus becomes whether the error was prejudicial. As is noted in the majority opinion, if there was any issue in this case which was not in dispute, it was whether the location of the burglary was an inhabited building.
On this basis I would affirm the judgment as to the burglary.
In Connecticut v. Johnson, supra, 460 U.S. 73, 78, 84-86 [74 L.Ed.2d 823, 828-829, 832-834], four justices of the United States Supreme Court expressed the view that the instruction “every person is conclusively presumed to intend the natural and necessary consequences of his act” was the “functional equivalent of a directed verdict” on the issue of intent and automatically requires reversal. Four dissenting justices expressed the view that automatic reversal was not required and the Chapman {Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]) standard of review should have been applied. (Connecticut v. Johnson, supra, at pp. 90-102 [74 L.Ed.2d at pp. 836-844].) The Chief Justice joined in the dissent but wrote a separate opinion to emphasize that the court was not adopting a rule requiring automatic reversal for such error. {Id. at p. 90 [74 L.Ed.2d at p. 836].)
In Sandstrom, the Supreme Court held that when intent is an element of a crime, to instruct that the law presumes a person intends the ordinary consequences of his voluntary acts violates the constitutional requirement that all elements of an offense be proved beyond a reasonable doubt. (Sandstrom v. Montana, supra, 442 U.S. 510, 512 [61 L.Ed.2d 39, 43].)
The court in Henderson noted that in two cases with similar factual situations, the reviewing courts had found only two legal possibilities in dealing with the problem. The first was that comments similar to those made in Henderson was a partially directed verdict and the second that the comments were not improper at all. (See State v. Theriault (1980) 182 Conn. 366 [438 A.2d 432, 437]; United States v. Natale (2d Cir. 1975) 526 F.2d 1160, 1167.) The court in Henderson believed a middle ground existed between these extremes where error had occurred but where the error might be harmless.
The jury was instructed that it was its exclusive duty to determine the facts based on the evidence. The jury was also instructed concerning the elements of all the offenses including the offense of first degree burglary.