I dissent.
In my view, the court committed reversible error by commenting as it did on the evidence and defendant’s credibility.
I
Trial on the question of guilt or innocence was conducted in late 1982 in rural Shasta County. It was charged that, on April 21 or 22 of that year, defendant burglarized the residence of Bonita Bergh Stendal in the small mountain community of Burney and there proceeded to rape and murder the woman; it was alleged that he intentionally inflicted great bodily injury on Stendal in the course of the burglary and the rape, and that he murdered her under the special circumstances of felony-murder-burglary, felony-murder-rape, and torture murder.
Between December 8 and 14, the People presented evidence to establish defendant’s guilt. Included were three palm prints at Stendal’s residence: a bloody and visible print from defendant’s right hand, and two dry and latent prints, one from his right hand, the other from his left. Also offered were various extrajudicial statements he had made relating to his activities and whereabouts on April 21 and 22.
*560On December 14, defendant presented evidence. He took the stand to deny involvement in the crimes and to attempt to explain his palm prints and extrajudicial statements. He sought to exculpate himself and to inculpate his friend Robert Manley.
On December 15, the prosecutor and defense counsel delivered their summations. The prosecutor’s position was, of course, that defendant was guilty. He argued, in part, as follows: Stendal had been murdered; someone was obviously responsible; that someone was defendant; his palm prints placed him in the Stendal residence; true, he gave exculpatory testimony about his activities and whereabouts on April 21 and 22, within the house and without; his statements on the stand, however, did not explain the palm prints and were inconsistent with his statements out of court, which in turn were inconsistent with each other; as a result, his exculpatory testimony lacked credibility. Defense counsel’s position was to the contrary. His argument included an attempt to counter practically all the prosecutor’s points.
Also on December 15, the jury was instructed on the murder, rape, and burglary charges and the special circumstance and great-bodily-injury allegations. The panel then commenced its deliberations and spent less than an hour at the task. The court recessed the proceedings for the day.
On December 16, at morning’s opening, the court effectively instructed the jury to begin its deliberations anew after it substituted an alternate juror in place of one of the original members, whom, as it stated, it had discharged on stipulation because of a sudden illness. The panel deliberated about four and one-quarter hours. The foreman then reported to the court that the jurors were at an impasse and requested direction on how to proceed. The court asked whether the panel had voted on murder. The foreman said yes. The court asked for the numerical count without disclosure of the position as to guilt or innocence. The foreman said 11 to 1. The court asked whether the panel had voted on rape. The foreman said no. The court posed the same question about burglary. The foreman gave the same answer. The court then informed the jurors that they faced a situation that was not unusual, and might need more time to make their determinations. It recessed the proceedings for the day.
On December 17, the jury deliberated about two and one-half or three and one-half hours. At the foreman’s request, the court reread the instructions to the panel. The jury deliberated about one and one-half hours m'ore.
Late that afternoon, the foreman sent the court a note that Juror Mae Lois Turner—who was evidently the only Black person on the panel—“would like to disqualify self. Would like to be replaced by alternate.”
*561In open court, in the presence of the other members of the panel, Juror Turner confirmed the report. The court asked, “Why is it you wish to disqualify yourself?” She answered, “Because I’m the one,” “I’m the one who is—there is eleven to one. I’m the one.” The court stated, “That would not be—that’s not justification for disqualification. If you have some problem—” She interjected, “I don’t have any problem, Judge,” and explained, “I have my opinion and I don’t want to be—I don’t want to be pressured into doing something, and they have their opinion, and I have mine.” The court responded, “Well, that’s fine. There is no problem with that, so long as you’re discussing the evidence.” One of the jurors remarked, “Everybody is getting tired with one another.”
Addressing all the jurors, the court stated that the case was complicated and relatively little time had been spent in deliberations. It reread the instruction that both the People and defendant were entitled to the individual opinion of each juror. It also reminded the jurors that they were under a duty to proceed conscientiously, and expressed its belief that they were doing so. It then noted the lateness of the hour. It determined that the panel had not voted on any of the charges or allegations other than murder. It recessed the proceedings until December 20.
On December 20, without notice to the People or defendant and before deliberations resumed, the court made a comment to the jurors and alternate jurors concerning the evidence and defendant’s credibility. It opened with a statement that its words were intended to be “advisory only” and were “not binding.” It then proceeded: there was no question that the killing of Stendal was murder; rather, the basic question was whether defendant was the murderer; his palm prints placed him in the Stendal residence; true, he gave exculpatory testimony about his activities and whereabouts on April 21 and 22, within the house and without; his statements on the stand, however, did not explain the palm prints and were inconsistent with his statements out of court, which in turn were inconsistent with each other; as a result, his exculpatory testimony lacked credibility. It closed by repeating its statement that its words were intended to be “advisory only” and were “not binding.”1 The jury then deliberated about three and one-half or four and one-half hours. It returned guilty verdicts on each of the charges and true findings on each of the allegations.
*562II
Article VI, section 10 of the California Constitution (hereafter article VI, section 10) declares in relevant part that “The court may make such 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.”
*563The purpose of the provision is to allow the trial judge to use his “training in analyzing testimony” and “experience in determining the credibility of witnesses” “to assist the jurors in determining what evidence has a bearing on the disputed issues in the case and to aid them in weighing the evidence . . . (People v. Brock (1967) 66 Cal.2d 645, 650 [58 Cal.Rptr. 321, 426 P.2d 889], “overruled” on a point not implicated herein, People v. Cook (1983) 33 Cal.3d 400, 413, fn. 13 [189 Cal.Rptr. 159, 658 P.2d 86], overruled in turn on a point not implicated herein, People v. Rodriguez (1986) 42 Cal.3d 730, 770 [230 Cal.Rptr. 667, 726 P.2d 113].)
The provision, of course, is subject to the criminal defendant’s right to trial by jury under both the United States and California Constitutions. The Sixth Amendment to the federal charter, as made applicable to the states by the due process clause of the Fourteenth Amendment, declares that “In all criminal prosecutions, the accused shall enjoy the right to a. . . trial[] by an impartial jury . . . .” Article I, section 16 of the state charter provides that “Trial by jury is an inviolate right and shall be secured to all . . . .”
Under article VI, section 10, a court has broad power in delivering a comment. (E.g., People v. Rodriguez, supra, 42 Cal.3d at p. 766.) But that power is not unlimited. (E.g., People v. Brock, supra, 66 Cal.2d at p. 650.) As noted, the constitutional authority has been given to judges for the purpose of assisting jurors. A judge must, of course, cleave fast to the judicial role and not adopt that of an advocate. (See, e.g., People v. Friend (1958) 50 Cal.2d 570, 577 [327 P.2d 97] [construing former § 19 of art. VI of Cal. Const., which was the predecessor of present § 10 of art. VI of Cal. Const., and was virtually identical in relevant part thereto], “overruled” on a point not implicated herein, People v. Cook, supra, 33 Cal.3d at p. 413, fn. 13.) Also, any remarks he may make must further, and not frustrate, the defendant’s “right to independent jury determination of the facts bearing on his guilt or innocence.” (People v. Rodriguez, supra, at p. 766.) Accordingly, he may not state or suggest his own views on guilt or innocence. (People v. Cook, supra, at pp. 412-413; see People v. Rodriguez, supra, at p. 770.) To do so would “necessarily interfere[] with the jurors’ ability to freely perform their fact-finding responsibility.” (People v. Cook, supra, at p. 413.)
Not only is the court’s power to comment broad, it is also “most potent.” (People v. Robinson (1946) 73 Cal.App.2d 233, 237 [166 P.2d 17] [construing former § 19 of art. VI of Cal. Const.].) “ ‘The influence of the trial judge on the jury is necessarily and properly of great weight,’ [citation], and jurors are ever watchful of the words that fall from hi pi.” (Bollenbach v. United States (1946) 326 U.S. 607, 612 [90 L.Ed. 350, 354, 66 S.Ct. 402].) “The point need not be labored that the members of the jury are apt to give great *564weight to any hint from the judge as to his opinion on the weight of the evidence or the credibility of the witnesses . . . (People v. Robinson, supra, at p. 237.) Accordingly, the court must exercise its power “with great care” (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 886 [123 Cal.Rptr. 119, 538 P.2d 247, 92 A.L.R.3d 845]) and “with wisdom and restraint” (People v. Shannon (1968) 260 Cal.App.2d 320, 331 [67 Cal.Rptr. 207]), “lest [it invade] the province of the jury as trier of fact” (People v. Rincon-Pineda, supra, at p. 886) or indeed “control the verdicts” (People v. Brock, supra, 66 Cal.2d at p. 650).
It follows that, even if it proceeds ever so cautiously, a court passes beyond the bounds of what is permitted under article VI, section 10 when its comment “hinders rather than helps the jury to perform its duty in properly considering the case.” (People v. Oliver (1975) 46 Cal.App.3d 747, 753 [120 Cal.Rptr. 368].) Such a situation is present, for example, where the remark “provides for the jury a means to avoid the preliminary determinations called for by the instructions on the law and instead to rely on the words of the judge in returning a conviction.” (People v. Brock, supra, 66 Cal.2d at p. 651.) A court also exceeds the permissible by making what is “tantamount to an argument to convict” (People v. Flores (1971) 17 Cal.App.3d 579, 588 [95 Cal.Rptr. 138]) and—a fortiori—by stating or suggesting its own views on guilt or innocence (People v. Cook, supra, 33 Cal.3d at pp. 412-413).
Ill
Applying the foregoing principles to the facts of record, I conclude that the court committed reversible error by commenting as it did on the evidence and defendant’s credibility.
Error is manifest.
To begin with, the court did not proceed “with great care” (People v. Rincon-Pineda, supra, 14 Cal.3d at p. 886) or “with wisdom and restraint” (People v. Shannon, supra, 260 Cal.App.2d at p. 331). Indeed, its intervention was altogether precipitous. Almost three full days had passed since the jury had last deliberated. Comment was premature before the jurors had returned to their task and expressed some difficulty. It was also imprudent without notice to the People and defendant.
More troubling, the court’s comment was “tantamount to an argument to convict” (People v. Flores, supra, 17 Cal.App.3d at p. 588) and indeed suggested that the court itself believed defendant was guilty, and could only have “hinder[ed] rather than help[ed] the jury to perform its duty in properly considering the case” (People v. Oliver, supra, 46 Cal.App.3d at p. 753).
*565Recall that part of the prosecutor’s summation and the substance of the court’s comment were to the same effect: Stendal had been murdered; defendant’s palm prints placed him in her residence; true, he gave exculpatory testimony about his activities and whereabouts on April 21 and 22, within the house and without; his statements on the stand, however, did not explain the palm prints and were inconsistent with his statements out of court, which in turn were inconsistent with each other; as a result, his exculpatory testimony lacked credibility.
It is plain that the jury would have heard the court’s comment as tantamount to an argument for conviction. How could it not? The substance of the comment was the same as part of the prosecutor’s summation: it added nothing and it subtracted nothing. The prosecutor’s summation was, literally, an argument for conviction. The court’s comment effectively approved and adopted what was urged therein. From all that appears on the face of record, the court did not deliver the words in the passionate manner evidently employed by the prosecutor. But it delivered them nonetheless.
It is also plain that the jury would have heard the court’s comment to suggest that the court itself believed defendant was guilty. Again, how could it not? Innocence depended on the credibility of defendant’s exculpatory testimony. The court expressed its own view on the question in no uncertain terms: “. . . I have difficulty in believing the testimony of the defendant.”
It follows that the court’s comment could only have hindered the jury in the proper consideration of the case. The remark allowed the panel “to rely on the words of the judge in returning a conviction” and so “avoid the preliminary determinations called for by the instructions on the law” (People v. Brock, supra, 66 Cal.2d at p. 651)—determinations it clearly found difficult.
To be sure, the court told the jurors that its comment was intended to be “advisory only” and was “not binding.” Such an incidental statement, however, is “insufficient to neutralize” the improper remark’s “potent effect.” (People v. Cook, supra, 33 Cal.3d at p. 410, fn. 9.)
The majority’s discussion is generally unobjectionable so far as it goes. But it simply does not go far enough. It fails to discern that the court’s comment was tantamount to an argument for conviction and, as such, could only have hindered the jury in the proper consideration of the case. That the trial judge’s words were not identical to those in other cases is obvious—and unimportant.
I now turn from the fact of error to its consequences. “Particularly in a criminal trial,” such as this, “the judge’s last word is apt to be the decisive *566word.” (Bollenbach v. United States, supra, 326 U.S. at p. 612 [80 L.Ed. at p. 354].) The court’s erroneous comment was its final remark. Evidently, it was dispositive. About four hours thereafter, the jury returned guilty verdicts on all the charges and true findings on all the allegations—even though it had been unable to agree on any verdict or finding in the approximately nine hours that preceded. Accordingly, I am “of the opinion that the error . . . has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.)2
IV
In passing, I make the following observations.
First, contrary to the majority’s implication, I believe that a challenge, based on Stringer v. Black (1992) 503 U.S. _ [117 L.Ed.2d 367, 112 S.Ct. 1130] (Stringer), to the standard jury instruction on the determination of penalty would surely prove substantial.
In Stringer, the United States Supreme Court held that “if a State uses aggravating factors in deciding who shall be eligible for the death penalty or who shall receive the death penalty, it cannot use factors which as a practical matter fail to guide the sentencer’s discretion” in contravention of the Eighth Amendment. (503 U.S. at p.__[117 L.Ed.2d at pp. 381-382, 112 S.Ct. at p. 1139].) It explained: “Although our precedents do not require the use of aggravating factors, they have not permitted a State in which aggravating factors are decisive to use factors of vague or imprecise content. A vague aggravating factor employed for the purpose of determining whether a defendant is eligible for the death penalty fails to channel the sentencer’s discretion. A vague aggravating factor used in the weighing process is in a sense worse, for it creates the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying upon the existence of an illusory circumstance.” (Id. at p.__[117 L.Ed.2d at pp. 381-382, 112 S.Ct. at p. 1139].) Of course, California uses “aggravating factors”—labeled “special circumstances” (Pen. Code, § 190.2, subd. (a))—to determine death eligibility. It also uses “aggravating factors”— bearing that very label (id., § 190.3)—to decide between life and death.
A narrow Stringer challenge could specifically attack any one or more of the factors set out in the standard jury instruction on the determination of penalty as vague and, for that reason, likely to invite an arbitrary and *567capricious choice of punishment in violation of the Eighth Amendment Defendant raises such a claim against factor (a), which covers “[t]he circumstances of the crime.” The majority dismiss the point. I am dubious. That “[t]he United States Supreme Court itself has established that the circumstances surrounding a capital offense constitute one of the criteria upon which the jury should base its penalty determination” (maj. opn., ante, at p. 551, italics in original) is of no consequence. What is dispositive is not what jurists on appellate courts may announce, but what laypersons on juries may understand.
A broader Stringer challenge could generally attack the standard jury instruction on the determination of penalty as vague at its very core and, for that reason, highly likely to invite an arbitrary and capricious choice of punishment in violation of the Eighth Amendment. Certainly, the instruction raises more questions than it answers. For example, on what does the determination of penalty turn? What do the terms “aggravation” and “mitigation” mean? Which of the factors are potentially aggravating and/or mitigating? (See People v. Bacigalupo (1991) 1 Cal.4th 103, 152-154 [2 Cal.Rptr.2d 335, 820 P.2d 559] (conc. opn. of Mosk, J.), vacated and remanded sub nom. Bacigalupo v. California (1992) 506 U.S. _ [121 L.Ed.2d 5, 113 S.Ct. 32], for further consideration in light of Stringer v. Black, supra, 503 U.S. _ [117 L.Ed.2d 367, 112 S.Ct. 1130].)
Second, factor (j)—“[w]hether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor”—is potentially mitigating and not potentially aggravating. “ ‘[Aggravation’ means that which increases the defendant’s personal moral culpability above the level of blameworthiness that inheres in the capital offense. By contrast, ‘mitigation’ means that which reduces his culpability below that level.” (People v. Bacigalupo, supra, 1 Cal.4th at p. 153 (conc, opn. of Mosk, J.).) Numerous decisions of this court by many of its members establish the fact that factor (j) is potentially mitigating only. In her concurring and dissenting opinion herein, Justice Kennard proves the point beyond peradventure. Reason also establishes the fact. The question posed in factor (j) calls for one of two answers. A determination that the defendant was, in actuality, a minor accomplice may lead to the conclusion that his culpability was less than that generally reflected by commission of the offense. But a determination that he did not play such a role simply does not lead to the conclusion that his culpability was greater. Loose and uncertain dictum arguably to the contrary, which appears in a single opinion that does not cite any authority or present any analysis, should be disapproved forthwith. It should not be used, as by the majority, to “create” a “conflict” where none exists.
*568V
Because the court committed reversible error by commenting as it did on the evidence and defendant’s credibility, I would reverse the judgment.
Appellant’s petition for a rehearing was denied March 10,1993. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
“Ladies and gentlemen of the jury and the alternates, for the purpose of assisting you in deciding this case, I am permitted by the [Constitution of California to comment on the issues, the evidence and the testimony and credibility of any witness. And it occurred to me that before you retired to continue your deliberations this morning that some comment along those lines might be of some assistance to you.
“Now, you should keep in mind that my comments are intended to be advisory only, and are not binding on you, as you are the exclusive judges of the questions of fact submitted to you and of the credibility of the witnesses. You should disregard any or all of the comments, *562if you do not agree, if they do not agree with your views of the evidence and the credibility of the witnesses.
“Now, under California law, by definition, the word ‘homicide’ means the killing of one human being by another, either lawfully or unlawfully. Now, under the instructions that I’ve given you, the word homicide includes murder. And I’ve given you in that connection instructions on first degree murder as well as instructions on second degree murder. There is the word homicide, however, also means the lawful killing of another—of a person by another. And that’s in situations where the act occurs as a result of some excusable or justifiable—under the law—reason for killing. In this particular case, we do not have a justifiable or lawful killing of a human being by another. There shouldn’t be any doubt in anyone’s mind that the death, the killing of Bonita Bergh Stendal was an unlawful killing of her by another person. There is absolutely no evidence whatsoever that she was killed in self defense or any other type of reason or that she killed herself. There shouldn’t be any doubt in anyone’s mind on the facts that have been presented in this case, that we have an unlawful killing of Ms. Stendal by another person.
“Now, the real question in this case is whether the State, the district attorney, has proved beyond a reasonable doubt that the defendant is legally responsible for the killing. That’s basically the issue here, as well as if the State has proved beyond a reasonable doubt that the defendant is legally responsible for the killing, have they proved beyond a reasonable doubt that it’s murder in the first degree or murder in the second degree. And if they’ve proved beyond a reasonable doubt that it’s murder in the first degree, you go on to whether they proved beyond a reasonable doubt any one or more of the special circumstances that have been mentioned. And you are also called upon to determine as to whether they’ve proved beyond a reasonable doubt that the defendant committed the rape, whether they proved beyond a reasonable doubt the defendant committed a burglary.
“Now, in that connection, there have been several statements attributed to the defendant out of court concerning his whereabouts and activities on the night of April the 21st and the early morning hours of April the 22nd. These statements attributed to him are inconsistent with one another and are also inconsistent with his testimony here in court concerning his activities that evening and in the early morning hours of April the 22nd. “Now, the district attorney has placed him in the house of Bonita Bergh Stendal through three palm prints; one bloody right palm print. . . was created by blood being on the palm first and then transferred .... In addition to that, . . . there were two dry palm prints. By that, they were latent, there was a left palm print, which was latent.... And another dry palm print of the right palm. . . .
“Now, the defendant has testified and given you an explanation as to what he did in that house that morning which explains the presence of the bloody palm print, but does not explain the presence of the two dry or latent palm prints. Under those circumstances, I have difficulty in believing the testimony of the defendant. Now, again, my comments are intended to be advisory only and are not binding on you as you are the exclusive judges of the questions of fact submitted to you and of the credibility of the witnesses. You should disregard any or all of the comments that I’ve made if they do not agree with your views of the evidence and the credibility of the witnesses.”
Because of the result I reach, I need not and do not consider whether the court’s erroneous comment effectively denied defendant his right to trial by jury under either the Sixth Amendment to the United States Constitution or article I, section 16 of the California Constitution or both.