I concur in the affirmance of the convictions of all three defendants and specifically with the following parts of the Discussion in the unpublished portion of the majority opinion: Sorrels’s Appeal—parts I., II., HI., and IV.; Jenkins’s Appeal—parts 1, Ü.B., III., IV, V, VI. only; and Garrett’s Appeal—parts I., II. and III. I write separately to express my view that the trial court overstepped its bounds in detailing the prosecution’s case to the panel of prospective jurors. For that reason, I do not agree with the majority’s analysis in part n.A. of Jenkins’s appeal. However, I acknowledge that the error was harmless.
“Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials.” (People v. Sturm (2006) 37 Cal.4th 1218, 1233 [39 Cal.Rptr.3d 799, 129 P.3d 10] (Sturm).) As Justice Stanley Mosk wrote in his dissent in People v. Proctor (1992) 4 Cal.4th 499 [15 Cal.Rptr.2d 340, 842 P.2d 1100] (Proctor): “A judge must, of course, cleave fast to the judicial role and not adopt that of an advocate. ...[!]... ‘ “The influence of the trial judge on the jury is necessarily and properly of great weight,” . . . and jurors are ever watchful of the words that fall from him.’ (Bollenbach v. United States (1946) 326 U.S. 607, 612 [90 L.Ed. 350, 66 S.Ct. 402].)” (Proctor, supra, at p. 563, citations omitted (dis. opn. of Mosk, J.).) Comments from the court should be made “with great care” (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 886 [123 Cal.Rptr. 119, 538 P.2d 247] [com. on evidence]), and “with wisdom and restraint” (People v. Shannon (1968) 260 Cal.App.2d 320, 331 [67 Cal.Rptr. 207] [com. on evidence]). “ ‘The propriety and prejudicial effect of a particular comment are judged both by its content and by the circumstances in which it was made.’ [Citation.]” (People v. Linwood (2003) 105 Cal.App.4th 59, 73 [129 Cal.Rptr.2d 73] [com. to clarify which acts referred to which counts].)
Notwithstanding these words of caution, I recognize that article VI, section 10 of the California Constitution authorizes the court to “comment on the evidence and the testimony and credibility of any witness” to assist the jury in reaching a just verdict. (See Pen. Code, §§ 1093, subd. (f), 1127; Sturm, supra, 37 Cal.4th at p. 1232; People v. Rodriguez (1986) 42 Cal.3d 730, 766 [230 Cal.Rptr. 667, 726 P.2d 113].) The rule applies equally to judicial comments made during jury selection. (Sturm, supra, at p. 1232.) But the trial court’s power to comment on the evidence has strict limitations. Its comments “ ‘must be accurate, temperate, nonargumentative, and scrupulously *1168fair.’ [Citation.]” (Ibid.) “ ‘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.]’ [Citations.]” (Proctor, supra, 4 Cal.4th at p. 542 (maj. opn.).)
Sturm, supra, 37 Cal.4th 1218, is instructive. In that case, the defendant was convicted of first degree felony murder with special circumstances; the jury made no finding as to deliberate and premeditated first degree murder. After the jury could not reach a penalty verdict, a mistrial was declared. (Id. at p. 1222.) Although the first jury did not find the murders premeditated, the trial court told a prospective panel of jurors for the second penalty trial that premeditation was a “gimme” and that the issue of premeditation was “ ‘all over and done with.’ ” (Id. at p. 1231, italics omitted.) Our Supreme Court reversed the death sentence. It reasoned that, not only were the comments factually incorrect, they bolstered the prosecution’s case and undercut the defendant’s argument that lack of premeditation was a factor in mitigation. (Id. at p. 1232.)
I do not mean to suggest that the comments the trial court made here are anywhere near as egregious as what happened in Sturm. I have no doubt the trial court believed that he was assisting the jury in understanding the facts that likely would be adduced at trial. I certainly agree that the court’s recitation in the voir dire process of the key events of a criminal prosecution may provide context for the questions put to the jury and may ferret out any information that a juror may have about a case or a juror’s bias. I note the efforts the trial court made to state that what it was about to describe was only the prosecution’s theory of the case, and that the defense disputed the prosecution’s contentions.
Nevertheless, I see serious problems with the court’s remarks and they are at least twofold:
1. Only the prosecution’s facts are set out. This is not particularly surprising and reflects a reality of criminal procedure. The defense does not have the burden of proof, counsel may not put on a defense, counsel may not decide whether to make an opening statement until much after voir dire has been completed. Thus, statements such as the one made by the trial court will almost always be from solely from the prosecution’s perspective.
2. The individual factual statements are not immediately preceded by a warning that they are only the prosecution’s contentions. Seven paragraphs appear on their face to be facts, all supporting the prosecution’s case. For example, the sixth paragraph on page 1163 of the majority opinion states, *1169in part: “ ‘The Escalade then drove forward. The Chevy Trailblazer pulled up next to the Astrovan, and the front passenger fired a small caliber handgun into the Astrovan.’ ”
Much earlier, the court advised the jury that what he was about to say were only contentions, but whether the jury took this statement (or others) as true—forgetting or not understanding “contentions”—cannot be ascertained with any degree of certainty.
I agree there is room for the trial court to advise a jury in a neutral way what the case is about: the charges, where key events took place, some rudimentary identifying information about the people involved. In the present case, in my view, the court went too far. The repetition of what was in effect the prosecution’s opening statement by the trial court raises the considerable concern that by the time the jurors had heard the evidence, they were so inured to the prosecution’s theory that their ability to assess the evidence objectively may have been impaired.
The error notwithstanding, the evidence supporting conviction was overwhelming, so there was no reasonable probability that the trial court’s challenged comments affected the verdict. (People v. Melton (1988) 44 Cal.3d 713, 736 [244 Cal.Rptr. 867, 750 P.2d 741].)
Petitions for a rehearing were denied September 18, 2012, and the opinion was modified to read as printed above. Appellants’ petitions for review by the Supreme Court were denied November 28, 2012, S205601.