Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCE267802, Laura W. Halgren, Judge.
BENKE, Acting P. J.
A jury convicted Terrill D. Adkins of unlawfully taking or driving a vehicle. (Veh. Code, § 10851.) The court placed Adkins on three years' formal probation, subject to a condition requiring surrender of his driver's license. Adkins appeals, contending (1) the court erred by instructing the jury with CALCRIM No. 220 which undermined the presumption of innocence and lessened the prosecutor's burden of proof, and (2) the court abused its discretion by requiring him to surrender his driver's license without making a recommendation to the Department of Motor Vehicles (DMV) concerning a restricted license. We conclude the court correctly instructed the jury with CALCRIM No. 220. We further conclude Adkins forfeited his claim concerning his driver's license by failing to raise the issue in the trial court. Accordingly, we affirm the judgment.
FACTS
On January 7, 2007, after spending the night at John McIntyre's house, Johnta Colding took McIntyre's car without permission. McIntyre immediately reported the car stolen. Later that day, Colding drove the car to Adkins's house. Colding agreed to let Adkins borrow the car for the night.
Early the next morning, deputy sheriffs responded to a call concerning a suspicious occupied car. Arriving at the location, a deputy saw two men, later identified as Adkins and Rassan Clayton, sitting in a car matching the caller's description. The deputy ran the license number and learned it was the same car reported stolen by McIntyre. Seeing the deputy, both men got out of the car and walked away in a hurry. Adkins tossed the car keys in a bush. Shortly after, both men were contacted by a deputy called for backup.
Adkins initially said he was not inside the car and did not know who owned it. But after being asked whether he was missing a hat, Adkins admitted his hat was in the car and said he did not want to go to jail.
At sentencing for Adkins's vehicle theft conviction, defense counsel stated his belief that loss of a driver's license is a standard condition of the offense but asked whether the court could modify the order to allow Adkins to retain a restricted license to drive to and from work. The court responded that it had "no objection to a restricted license, but he is also going to have to go through the D.M.V. and see if they also will permit that. There are some violations for which that is possible and some where it's not and I'm not sure this is one of them." In granting probation, the court told Adkins: "[Y]ou are to surrender your license. That is mandatory for this violation. However, the minutes will reflect the court does not object to a restricted license, if the D.M.V. permits that, for purposes of driving to and from work." Defense counsel did not object to the court order requiring surrender of the driver's license nor did he object to the court's understanding of its discretion as related to the suspension or revocation of Adkins's license.
DISCUSSION
I
Appellant claims the court violated his right to a fair trial by instructing the jury with CALCRIM No. 220. He argues that the portion of CALCRIM No. 220 advising jurors to "impartially compare and consider all the evidence" undermined the presumption of innocence by reducing the prosecution's burden of proving guilt beyond a reasonable doubt to a mere civil standard of proof. We apply the independent or de novo standard of review in assessing whether instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
The court instructed the jury with CALCRIM No. 220 as follows: "The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
"The defendants in a criminal case are presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
"In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty."
During deliberations, the jury did not communicate any questions to the court concerning the presumption of innocence or the prosecution's burden of proving a crime beyond a reasonable doubt.
In order to protect a criminal defendant's presumption of innocence, the trial court must instruct the jury on all applicable, fundamental principles of law, including the presumption of innocence and the prosecution's burden of proof. (Coffin v. United States (1895) 156 U.S. 432, 453 [15 S.Ct. 394].) In determining whether a trial court has satisfied this mandate, we interpret the instructions in light of the charge as a whole and from the standpoint of how a jury, sitting as a body, would reasonably construe them. (Boyde v. California (1990) 494 U.S. 370, 379-380 [110 S.Ct. 1190].) The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Burgener (1986) 41 Cal.3d 505, 538-539.)
Here, the portion of CALCRIM No. 220 to which appellant objects is couched between an explicit admonition that "[t]he defendants in a criminal case are presumed to be innocent," and the instruction's forceful conclusion reminding jurors that "[u]nless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty." Taken as a whole, the instruction clearly and adequately conveys the presumption of innocence and the prosecution's burden of proving guilt beyond a reasonable doubt.
Two recent appellate court decisions support our conclusion. The court in People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157,specifically rejected an argument similar to appellant's. The court found "meritless" the contention that language instructing the jury to compare and consider all the evidence impermissibly shifted the burden of proof to the defendant. (Ibid.) In People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509, this court determined the same phrase challenged here (compare and consider all the evidence) merely clarifies that the People may not meet their burden of proof based on evidence other than that offered at trial.
The Supreme Court decisions cited by appellant do not alter our analysis. In both Coffin v. United States, supra, 156 U.S. 432,and Taylor v. Kennedy (1978) 436 U.S. 478 [98 S.Ct. 1930], the court held it was reversible error for the trial court to refuse to give requested instructions on the presumption of innocence. Here, however, the trial court did expressly instruct jurors: "[D]efendants in a criminal case are presumed to be innocent. This presumption requires that the People prove each element of the crime beyond a reasonable doubt." Appellant's contention that the portion of CALCRIM No. 220 telling jurors to "compare and consider all the evidence" undermined the presumption of innocence and lessened the prosecutor's burden of proof is without merit.
II
Appellant argues the court abused its discretion by ordering him to surrender his driver's license. He contends the court mistakenly believed that surrender was mandatory under Vehicle Code section 13357, and the court's failure to exercise its discretion concerning a recommendation to the DMV was error. Without reaching the question of whether immediate surrender of a driver's license to the sentencing judge is required under Vehicle Code section 13357, we hold the issue was forfeited by appellant's failure to raise it below.
A party may not raise on appeal a claim that the trial court failed to make or articulate a discretionary sentencing choice. (In re Sheena K. (2007) 40 Cal.4th 875, 881; People v. Gonzalez (2003) 31 Cal.4th 745, 751-752.) Appellant asserts the doctrine of forfeiture does not apply here because the court failed to exercise any discretion. However, the record shows the court did exercise its discretion. Although the court required appellant to surrender his license, the minute order and the reporter's transcript reflect the court's recommendation that appellant be granted a restricted license. Further, in People v. Scott (1994) 9 Cal.4th 331, 353,the California Supreme Court seized the opportunity to settle a split in the appellate courts, holding that the forfeiture doctrine applies to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Appellant's contention that the trial court failed to make a discretionary sentencing choice falls within the scope of issues deemed forfeited under Scott.
Even assuming appellant did not forfeit his claim by failing to object at sentencing, no prejudice resulted. When the error is one of state law, the judgment will be affirmed unless there is a reasonable probability that a result more favorable to the appellant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, appellant argues the court abused its discretion by ordering him to surrender his driver's license without making a recommendation for the DMV to consider. However, the record shows the court did in fact exercise its discretion in a way favorable to appellant. At sentencing, and in the minute order forwarded to the DMV, the court stated it did "not object to a restricted license, if the D.M.V. permits that, for purposes of driving to and from work." Appellant has made no showing on appeal that the court's recommendation harmed his chances of getting a restricted license. Because no recommendation or result more favorable to appellant could be achieved on remand, any error was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., AARON, J.