Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC590035
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Defendant Raymond Lee Albert was convicted after jury trial of failing to inform the San Jose Police Department, the law enforcement agency with which he last registered as a sex offender, of his new address in writing within five working days (former Pen. Code, § 290, subd. (f)(1)). The jury also found true the allegations that defendant had a prior felony conviction (§§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term (§ 667.5, subd. (b)). The trial court denied probation and sentenced defendant to 44 months in prison. The court also ordered defendant to pay various fines and fees, including a criminal justice administration fee of $259.50 to the County of Santa Clara.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that his trial counsel rendered ineffective assistance by failing to make a motion to strike his prior strike. He also contends that his federal right to due process was violated when the trial court instructed the jury with CALCRIM No. 359 and the error is reversible per se.
For reasons that we will explain, we determine that defendant’s trial counsel did not render ineffective assistance and that defendant’s right to due process was not violated. Therefore, after correcting clerical errors, we will affirm the judgment as modified.
The trial court ordered defendant to pay a criminal justice administration fee of $259.50 to the County of Santa Clara. The abstract of judgment states, however, that defendant is required to pay “$259 to Sheriffs.” We will order the abstract amended to reflect the court’s oral pronouncement.
II. FACTUAL AND PROCEDURAL BACKGROUND
On February 22, 2008, defendant was charged by information with failing to inform the San Jose Police Department, the law enforcement agency with which he last registered as a sex offender, of his new address in writing within five working days (former § 290, subd. (f)(1)). The information alleged that this crime took place “[o]n or about March 10, 2005,” and that defendant was required to register based on a felony conviction for assault with intent to commit rape (former § 220). The information further alleged that defendant had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term (§ 667.5, subd. (b)).
The Trial
During defendant’s trial, various documents were admitted into evidence. The documents reflect that defendant was convicted in 1993 for assault with intent to commit rape; that imposition of sentence was suspended and defendant was placed on probation and ordered to serve 365 days in county jail, with credit for time served of 279 days; that upon violating probation defendant was ordered in November 2003 to serve two years in prison and was awarded custody credits of 492 days; and that defendant was paroled in May 2004.
Upon defendant’s release from prison in May 2004, his parole agent, Luis Christopher Arriaga, picked him up and drove him to a parole office in San Jose. Agent Arriaga advised defendant of the registration requirement under section 290, “letting him know that he only had five days to register and then five days before or after his birthday.” He also informed defendant about the conditions of parole, including that defendant had to let Agent Arriaga know about any address change. Further, defendant was required to report to Agent Arriaga’s office monthly, and Agent Arriaga made unannounced visits to defendant’s residence.
Sex offender notification and registration documents were admitted into evidence at trial and reflect that defendant had been notified of his duty to register as a sex offender as early as January 6, 2004, before his release from prison. In particular, defendant was notified that registering as a sex offender was a lifetime requirement and that upon changing his place of residence, he had to inform in writing within five working days the law enforcement agency with which he last registered. Defendant began registering as a sex offender with the San Jose Police Department in May 2004. Defendant last registered with San Jose police in November 2004 and provided a Curtner Avenue address. San Jose police did not receive any written notice of a change of address from defendant thereafter. Further, county and state databases reflected that defendant had not registered with any other law enforcement agency in California after November 2004.
Defendant had entered into a lease for an apartment on Curtner Avenue in San Jose in November 2004. Agent Arriaga last visited defendant at this apartment on January 25, 2005. On February 18, 2005, the manager at the apartment complex called Agent Arriaga to inform him that defendant had not been seen and “was late on his rent.” Defendant had not asked Agent Arriaga for permission to move. On February 22, 2005, Agent Arriaga visited defendant’s apartment and observed that all of defendant’s clothes were gone. He called defendant’s cell phone number but was unable to reach him. Agent Arriaga believed that defendant “was gone,” so he filed a “parolee-at-large” report.
On February 23, 2005, defendant, who was driving a Ford Ranger, was stopped in Oklahoma by officers from the Ardmore Police Department. Defendant indicated that he had moved from California and had been in Oklahoma about three weeks. He provided an Oklahoma address.
Over the course of the next two weeks, one of the officers who was present during the traffic stop, Brice Glenn Woolly, observed defendant’s vehicle at the Oklahoma address during the ordinary course of his patrol.
Ardmore police officers eventually arrested defendant after receiving information from California about a warrant for his arrest. On March 9, 2005, Officer Woolly made contact with defendant, who was in jail. After Officer Woolly read defendant “his Miranda rights,” defendant stated that he wanted to talk to an attorney. As Officer Woolly started to leave the room, defendant asked why he was in jail. Officer Woolly responded that “he had a probation violation out of California.” Defendant told Officer Woolly that “he didn’t understand why he had a warrant out of California when he lived in Oklahoma.” Defendant also indicated that he had been in jail in California for a rape charge and that “he was wrongly convicted or... he wasn’t guilty” of it.
Miranda v. Arizona (1966) 384 U.S. 436.
Before or after this contact at the jail, Officer Woolly attempted to determine whether defendant was living at the Oklahoma address that he had earlier given during the February 2005 traffic stop. To that end, Officer Woolly went to the Oklahoma address and observed clothes and “a lot of personal items” in the back of defendant’s truck. Officer Woolly believed that “someone was... in the process of moving or had moved.”
The Verdict and Sentencing
On October 2, 2008, the jury found defendant guilty of failing to inform the San Jose Police Department, the law enforcement agency with which he last registered as a sex offender, of his new address in writing within five working days (former § 290, subd. (f)(1)). The jury also found true the allegations that defendant had a prior felony conviction (§§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term (§ 667.5, subd. (b)). The trial court referred the matter to the probation department for preparation of a presentence report.
On November 24, 2008, the trial court denied probation and sentenced defendant to the mitigated term of 16 months, doubled, plus one year for the prison prior, for a total term of 44 months. Defendant was granted a total of 488 days of custody credits and ordered to pay various fines and fees, including a criminal justice administration fee of $259.50 to the County of Santa Clara.
Defendant filed a timely notice of appeal on December 1, 2008.
III. DISCUSSION
Trial Counsel’s Failure to Request that the Court Strike the Prior Strike
On appeal, defendant contends that his trial counsel rendered ineffective assistance by failing to make a motion to strike his prior strike, which deprived him “of the more favorable disposition of probation.” Defendant contends that the court “was obviously inclined to strike the priors in this case....” Defendant observes that at the sentencing hearing, the trial court stated three times that it might have or would have granted probation if defendant was eligible. He argues that the court “had already considered several of the Romero factors when it chose to impose a mitigated sentence.”
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Probation Report
The presentence report in this case reflects that when the probation officer contacted defendant for an interview, defendant complained about his trial counsel, suggested that he might appeal the verdict, and eventually declined to be interviewed, stating “ ‘I don’t want to injure myself anymore than I already have.’ ”
In the report, the probation officer stated that defendant had previously been convicted of two felonies in 1993 for assault to commit rape and “false imprisonment” of a female friend, and thus he was ineligible for probation pursuant to section 667, subdivision (c)(2), had a “limited ineligibility” for probation pursuant to section 1203, subdivision (e)(4), and had a “lifelong obligation to register as a sex offender pursuant to Section 290.” The probation officer reviewed the 1993 presentence report pertaining to these prior offenses and provided the following information from the 1993 report. Defendant had stated that “he was in the process of withdrawing his plea as his attorney had been less then forthright with him,” that “the victim... had filed a ‘false’ report and that the investigating police officer in the matter had further lied.” The 1993 report also “suggested” that defendant “is a Vietnam veteran, who was struggling with substance abuse issues.” Defendant was “[d]iagnosed with Post Traumatic Stress Disorder” and reported that “he had come to California from Oklahoma the year earlier in the hopes of entering the Veteran’s Administration Hospital for mental health and substance abuse treatment.” Defendant had reported usage of heroin, PCP, crack cocaine, marijuana, and alcohol.
A document entitled “SANTA CLARA COUNTY ARREST AND DISPOSITION HISTORY,” which is attached to the probation report, indicates that defendant was convicted in 1993 of violating former section 220 and section 136.1, subdivision (c)(1), each of which is a violent and/or a serious felony. (§§ 667.5, subd. (c)(15), 1192.7, subd. (c)(10) & (37).)
The probation officer in the present case stated that “[w]ith respect to [defendant’s] adjustment while on Formal Probation for his Strike Prior offense, it is perhaps safe to say that the defendant’s progress was dismal. Probation was revoked and a Bench Warrant was issued within a year of the defendant’s placement on Formal Probation; a Bench Warrant which remained outstanding for approximately nine years.” Defendant ultimately served time in prison. He thereafter “suffered one violation of parole....” The probation officer learned from defendant’s assigned parole agent that “[t]he circumstances for the violation included the underlying offense, absconding, being outside of a 50 mile radius and failing to follow directions.” Defendant “was subsequently sentenced to a nine month ineligible sentence with a release date of January 3, 2008.” Regarding the instant offense, the probation officer characterized defendant as an “active participant in his failure to notify the San Jose Police Department of his relocation to Oklahoma in 2005....” In addition to the instant offense and the two prior felony convictions, defendant also had two misdemeanor convictions in Texas from 1974 for “Carrying a Prohibited Pistol” and “violation of a Controlled Substance Act.”
The probation officer further stated: “With respect to Romero/Williams issues, the underlying offense is neither a Violent nor Serious offense. The 58 year old defendant, who has reportedly been married and divorced once, has no known children. As the defendant failed to provide the undersigned with additional information, it is uncertain whether he was employed at the time of his incarceration for the instant matter. Having dropped out of high school in the 10th grade, the defendant reported he enlisted in the United States Army at the age of 17 and served two years in the Vietnam conflict. He noted he was Honorably Discharged and returned to the United States suffering from Post Traumatic Stress Disorder and addicted to heroin.
“This offense represents the defendant’s first known law violation since his 1993 Strike Prior conviction, although he suffered a violation of probation, which resulted in his prison incarceration and was then on active parole for the Strike Prior at the time of his arrest for the instant matter. It is fair to say however, that the defendant’s available criminal records would appear to be limited when one considers the defendant may have moved/resided in multiple states. [¶]... [¶]
“In view of the defendant’s lack of cooperation and concern that available information for review may be limited, it is difficult therefore to truly develop a clear sense of this defendant. While his earlier reported mental health and substance abuse issues are recognized, little is known however, as to whether they continue to be dominant factors. Having said this, what would seem to be clear is that this is an individual who is mobile, struggles with his ability and/or willingness to comply with the terms and conditions of probation and parole and is seemingly resistant to adhering to Court imposed registration requirements pursuant to Section 290 of the Penal Code with little regard for the consequences. This therefore raises the stakes and the criminal justice system’s ability to provide appropriate supervision, potentially compromising community safety.
“It is therefore with this in mind, while bearing in mind the defendant’s earlier reported mental health issues, the undersigned would respectfully recommend a mitigated prison term, to be followed with a period of Parole supervision. A mental health assessment while imprisoned is however, strongly urged. The undersigned would strongly object to the defendant’s placement on probation in the absence of the Strike Prior, but would recommend the striking of the additional punishment for the defendant’s Prison Prior pursuant to Section 1385 of the Penal Code in consideration of these same potential on-going mental health issues.” (Italics added.) The probation officer ultimately recommended the mitigated term of 16 months, doubled, with the prison prior stricken pursuant to section 1385, for a total term of 32 months.
Sentencing Hearing
At the sentencing hearing, the prosecutor expressed disagreement with the probation officer’s recommendation and argued that “defendant’s conduct in this case” did not “call for a mitigated punishment.” The prosecutor believed that defendant’s sentence “should be at least midterm,” that “the strike should not be stricken, ” and that the prison prior should be imposed. (Italics added.) The prosecutor thus argued for a sentence of five years, reflecting the midterm of two years, doubled, plus one year for the prison prior.
The trial court responded that it was “a little disappointed in the probation report” because the probation officer recommended a mitigated term, “yet states that there are no mitigating factors in her Rule of Court analysis and points out aggravating factors as well.” The court subsequently conferred with counsel at an unreported bench conference.
Thereafter, the trial court heard argument from defense counsel. Counsel argued that a mitigated sentence was “appropriate.” Counsel contended that defendant had “minimal contact with law enforcement” since “the time of his original offense,” in that he had “misdemeanor violations in the state of Oklahoma, which is his home state, as opposed to in the state of California.” Although acknowledging the “serious nature of the original offense,” counsel pointed to “the lack of similar type of contacts with law enforcement and/or accusations that involve any kind of sexual[ly] inappropriate activities with anyone.” Counsel maintained that after defendant served a mitigated sentence, he could “start to adjust and reacclimate himself into the community and segue such that he can get the appropriate parole services so we can make sure he does not return for any reason or purpose to the correctional facility.”
After hearing from defense counsel, the trial court stated: “[i]t is the judgment and sentence of this Court that probation is denied.” The court explained: “The defendant is statutorily, as a two-striker, ineligible for probation. I might very well have granted him... probation if he were, but he is not.
“I find the following factors favorable affecting the possibility of probation: He was unarmed. There are no victims, per se, in this particular offense. He hasn’t inflicted any physical or emotional injury, and, of course, there’s no significant loss to any victims.
“The manner in which the crime was carried out is sort of the opposite of criminal sophistication. He didn’t take advantage of any position of trust.
“The other factors are either unfavorable or neutral. Were he eligible, I might have well granted probation in this case.
“On Count 1, I have examined the mitigating factors and the aggravating factors. I find the following factors in aggravation: He has previously engaged in violent conduct, which certainly was an indication of a danger to society.
“He has served a prior prison term, though I see that is the subject of an enhancement.
“He was... on parole when the crime was committed. He has not done particularly well on probation or parole in the past.
“I find the following factors in mitigation: One, the defendant is and was suffering from a mental condition or physical condition that significantly reduced his culpability for the crime, and he’s ineligible for probation. But for that, I would have granted him probation.
“Weighing and balancing the aggravators against the mitigators, I find the mitigating factors preponderate.” (Italics added.) The trial court then sentenced defendant to 44 months in prison, reflecting the mitigated term of 16 months, doubled, plus one year for the prison prior.
Legal Principles
As we have stated, defendant contends on appeal that his trial counsel rendered ineffective assistance by failing to make a motion to strike his prior strike.
“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746 (Ledesma).)
In determining whether a satisfactory explanation exists for, and whether prejudice resulted from, trial counsel’s failure to request that the court strike the prior strike, we are guided by the following principles concerning a court’s authority to strike a strike.
Section 1385, subdivision (a), provides that the trial court may, on its “own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” “ ‘In Romero, we [the California Supreme Court] held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony[]... “in furtherance of justice” pursuant to... section 1385(a).’ (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).)” (People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).)
“A defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under section 1385. But [a defendant] does have the right to ‘invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice.’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 375; People v. Lee (2008) 161 Cal.App.4th 124, 129 [“the trial court has no sua sponte duty to consider striking a prior conviction”].)
Regarding the legal principles and policies that should guide the trial court’s decision as to whether to strike a prior conviction allegation, the California Supreme Court has stated: “ ‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.] To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] than an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.” ’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.)
In order to determine whether an exception to the Three Strikes law should be made, “ ‘the court in question must consider whether, in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant’s] background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though [the defendant] had not previously been convicted of one or more serious and/or violent felonies.’ (Williams, supra, 17 Cal.4th at p. 161.)” (Carmony, supra, 33 Cal.4th at p. 377.)
Analysis
We conclude that there could be a “ ‘satisfactory explanation’ ” for trial counsel’s failure to request that the court strike defendant’s prior strike. (Ledesma, supra, 39 Cal.4th at p. 746.) The probation officer discussed some “Romero/Williams issues” in the presentence report but ultimately recommended striking only the prison prior pursuant to section 1385. Based on the analysis reflected in the probation report, trial counsel may well have concluded that asking the court to strike the prior strike would have been futile. “A defense counsel is not required to make futile motions or to indulge in idle acts to appear competent. [Citations.]” (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091-1092.)
We also observe that at the sentencing hearing, the prosecutor argued for a midterm sentence, that the strike not be stricken, and that the prison prior be imposed. The court expressed “disappoint[ment]” in the probation report because the probation officer recommended a mitigated term but the analysis in the report did not seem to support that recommendation. An unreported bench conference then took place. Thereafter, defense counsel argued that a mitigated sentence was “appropriate” but did not specifically address the issue of whether the strike should be stricken or whether the prison prior should be imposed, although both issues had been raised in the probation officer’s report and by the prosecutor at the sentencing hearing. We shall presume, based on the unreported bench conference, that “ ‘as a matter of sound trial strategy,’ ” defense counsel argued many factors in support of the mitigated term, because defense counsel believed, based on comments the court made during the unreported conference, that it was unlikely the strike or prison prior would be stricken and that counsel should focus his argument solely on the issue of a mitigated term. (Ledesma, supra, 39 Cal.4th at p. 746.)
Lastly, we observe that the trial court stated that it was denying probation before it made its comments concerning the possibility of granting probation in the absence of the prior strike. Thus, prior to the court announcing its decision to deny probation, counsel had no reason to believe that the court was “inclined” to strike the strike, as defendant now contends on appeal.
Even assuming defendant’s trial counsel should have made a request to strike the strike either before or after the court announced its decision to deny probation, defendant fails to establish a reasonable probability that the trial court would have thereafter struck the strike. (Ledesma, supra, 39 Cal.4th at p. 746.) As we stated, the court has the authority to “ ‘strike or vacate an allegation or finding under the Three Strikes law... on its own motion, “in furtherance of justice” pursuant to … section 1385(a).’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 373.) We presume the experienced trial judge in this case was well aware of that authority. Moreover, the record reflects that the issue of whether defendant’s strike should be stricken was raised by the probation officer in the presentence report, which referred to “Romero/Williams issues” and section 1385. The probation officer recommended that defendant’s prison prior be stricken pursuant to section 1385, but did not make a similar recommendation with respect to defendant’s prior strike. At the sentencing hearing, the prosecutor also urged the court not to strike the prior strike and further argued that the prison prior should be imposed. Ultimately, the court struck neither the prior strike nor the prison prior, although the probation officer had recommended striking the latter. In explaining its decision to sentence defendant to the mitigated term, the court identified the factors in mitigation, although the probation report apparently did not identify any such factors. Thus, to the extent the trial court disagreed with the probation officer’s recommendation or analysis on the issues raised in the probation report, it ruled accordingly.
Further, although the probation officer indicated that the strike should not be stricken and the prosecutor specifically argued that the strike should not be stricken, defense counsel, after an unreported bench conference, argued for a mitigated sentence. The court thereafter denied probation and observed that defendant had two potential strikes. There is nothing in the record to suggest that if defense counsel had requested the prior strike be stricken, the court would have then done so.
Based on this record, and in light of the court’s review of the “ ‘the nature and circumstances of [defendant’s] present felon[y] and prior serious and/or violent felony convictions, and the particulars of [defendant’s] background, character, and prospects’ ” (Carmony, supra, 33 Cal.4th at p. 377), and the court’s repeated statements that it “might” have or “would” have granted probation if defendant had been eligible, we believe that, although the court had no obligation to make a ruling under section 1385 (Carmony, supra, 33 Cal.4th at p. 375), if it was inclined to strike the strike based on the record presented, it would have done so on its own motion and without the necessity of a request by defendant’s trial counsel. We therefore conclude that the failure of defense counsel to make the request did not result in prejudice to defendant. (Ledesma, supra, 39 Cal.4th at p. 746.)
CALCRIM No. 359
On appeal, defendant states that he “made several pre-trial statements, one of which could be construed as a confession or admission of having moved out of state.” He contends that his federal right to due process was violated when the trial court instructed the jury with CALCRIM No. 359 regarding the out-of-court statements.
The court instructed the jury pursuant to CALCRIM No. 359 as follows: “The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant’s out-of-court statements to convict him if you conclude that other evidence shows that the charged crime was committed.
“That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.
“The identity of the person who committed the crime may be proved by the defendant’s statements alone. You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.” (Italics added.)
On appeal, defendant argues that “[p]ermitting ‘slight’ additional evidence to convict him impermissibly lessened the prosecutor’s burden of proof and renders the instruction unconstitutional.” He further argues that the error is reversible per se.
The Attorney General contends that defendant “waived” the claim because he “did not object to the trial court’s decision to read CALCRIM No. 359 at the hearing on the instructions or when the court gave it to the jury,” and he did not ask the court to clarify the term “slight.” As for the substance of defendant’s claim, the Attorney General argues it is “meritless.”
Defendant replies that his claim has not been waived or forfeited. He relies on section 1259, which provides that “[t]he appellate court may... review any instruction given[]... even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”
Assuming defendant’s claim has not been forfeited, we find unpersuasive his argument that the instruction lessened the prosecutor’s burden of proof.
“In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) “ ‘ “[T]he 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.” ’ [Citations.] ” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 (Musselwhite); People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061 (Carrasco) [appellate court must consider the jury instructions as a whole in determining their correctness].)
CALCRIM No. 359 explains the corpus delicti rule. Under this rule, “every conviction must be supported by some proof of the corpus delicti aside from or in addition to [defendant’s extrajudicial] statements, and... the jury must be so instructed.” People v. Alvarez (2002) 27 Cal.4th 1161, 1165 (Alvarez).) “This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]” (Id. at p. 1169.)
“The independent proof [of the corpus delicti] may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]” (Alvarez, supra, 27 Cal.4th at p. 1171.) “The independent evidence may be circumstantial, and need only be ‘a slight or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statements may be considered to strengthen the case on all issues.” (Id. at p. 1181.)
Thus, as CALCRIM No. 359 states, and as the jury in this case was instructed, the jury was required to take a preliminary, cautionary step before considering whether the prosecution had proven guilt beyond a reasonable doubt. Specifically, before relying on defendant’s out-of-court statements, the jury was required to first determine whether there was “other evidence” showing that the charged crime was committed, where that “other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.” (CALCRIM No. 359; see Alvarez, supra, 27 Cal.4th at pp. 1171, 1181.) If the necessary quantum of independent evidence was presented, defendant’s extrajudicial statements could then be considered “for their full value to strengthen the case on all issues.” (Alvarez, supra, 27 Cal.4th at p. 1171.) And, in this regard, the jury was cautioned pursuant to CALCRIM No. 359 that it “may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.” Additionally, the court instructed the jury with CALCRIM No. 220, which defines reasonable doubt, informs the jury that “[i]n deciding whether the People have proved their case beyond a reasonable doubt” the jury “must impartially compare and consider all the evidence that was received throughout the entire trial,” and instructs the jury that “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and [the jury] must find him not guilty.”
We thus conclude that CALCRIM No. 359 correctly states that the “other evidence” showing that the charged crime was committed may be “slight.” (See Alvarez, supra, 27 Cal.4th at pp. 1171, 1181.) Further, in considering the instructions as a whole that were given to the jury (Musselwhite, supra, 17 Cal.4th at p. 1248; Carrasco, supra, 137 Cal.App.4th at p. 1061), we do not believe it was likely that the jury understood the instruction in a manner that violated defendant’s right to due process.
IV. DISPOSITION
The abstract of judgment is ordered amended to state that defendant is required to pay a criminal justice administration fee of $259.50 to the County of Santa Clara, rather than “$259 to Sheriffs.” As so modified, the judgment is affirmed. The clerk of the superior court shall modify the abstract of judgment as ordered herein and forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: MCADAMS, J., DUFFY, J.