Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Perry, Judge, Ct. Nos. BA166110, BA271408
Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Appellant Adrian R. Baltazar appeals from a judgment entered after a jury found him guilty of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count 1); evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a), count 2); possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1), count 3); carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1), count 4); kidnapping for carjacking (Pen. Code, § 209.5, subd. (a), count 5); and carjacking (Pen. Code, § 215, subd. (a), count 6). The jury found true the allegation that appellant personally used a firearm in the commission of counts 5 and 6 (§ 12022.53, subd. (b)). The trial court found that appellant had sustained a prior felony conviction within the meaning of the “Three Strikes” law.
Appellant filed a petition for writ of habeas corpus on April 2, 2007. We have filed a separate order in connection with the petition for writ of habeas corpus.
All further statutory references are to the Penal Code.
CONTENTIONS
Appellant contends that: (1) the definition of reasonable doubt in CALCRIM No. 220 violated his federal due process right to have his guilt determined beyond a reasonable doubt because it prevented the jury from considering lack of evidence as to any element in determining whether a reasonable doubt existed as to appellant’s guilt; and (2) imposition of the upper term violated his federal constitutional rights to proof beyond a reasonable doubt and a jury trial.
FACTS AND PROCEDURAL HISTORY
Carjacking and kidnapping of Luis De La Paz
On April 19, 2004, appellant and Marina Gomez, who were in a romantic relationship, planned to steal a car from, and then murder, Gomez’s former boyfriend, Luis De La Paz. Appellant and Gomez had previously committed robberies to support their crystal methamphetamine habit.
At 2:30 a.m. that morning, Gomez called De La Paz and asked him to bring a jack to help her with a flat tire. When he met her, she told him that her car was in another location. Eventually, she directed him to some apartment buildings, and had him pull up next to a female friend of appellant. The woman was pregnant with appellant’s child. Gomez exited the vehicle and appellant tapped on the driver’s side window with a gun, ordering De La Paz to exit the car, lift up his shirt, and lie down on the ground. De La Paz noticed that appellant was Hispanic and had a mustache, very large ears, and a prominent jaw. Appellant, Gomez, and De La Paz entered the car. Pointing the gun at De La Paz from the backseat, appellant made him drive to two gas stations and then to a dark secluded area off the freeway. Appellant ordered De La Paz to leave the car. De La Paz unlocked the driver’s door, kept the back door locked, got out of the car, and ran to seek aid. Appellant and Gomez shouted to De La Paz to come back to the car. When he did not obey them, Gomez slid over to the driver’s side and drove off. At first, De La Paz believed that Gomez was a kidnap victim as well, but later realized that she had set him up because she seemed very normal and calm, and talked back to appellant during the drive.
De La Paz reported the incident to the police. A few days later, De La Paz identified appellant from a photographic six-pack. Eventually, the police found the stripped car.
Robbery of Janice Cole
In March 2004, appellant took over a car wash business that serviced an office complex. On May 21, 2004, Janice Cole gave him the keys to her white Chevy Tahoe that she wanted washed. At 4:30 p.m., when she left the office, her vehicle was missing. Ms. Cole called the police and a tracking service, which immediately located the car.
Montebello Police Officer Ryan Nichols, responding to a report of a stolen car, saw appellant driving a white Chevy Tahoe with license plate numbers that matched Ms. Cole’s car. Appellant had two passengers in his car. When appellant drove through a stop sign, Officer Nichols attempted to pull him over. Appellant failed to stop. He drove through stop signs, on the opposite side of the street, sped, and failed to stop at red lights. Appellant drove back to his original location, and the passengers exited the car. Appellant continued driving, and a police helicopter followed him. Appellant exited the car, knocked on Serena Duran’s door and asked her to open it. Ms. Duran refused to open the door and noticed that appellant had a gun. Appellant then grabbed Maria Jorge, who struggled free and ran into her apartment. Ms. Jorge heard someone moving items inside her trash cans, which were outside her apartment. After the police apprehended appellant, they found a loaded nine-millimeter semiautomatic pistol and a nylon holster in Ms. Jorge’s trash can. Appellant had the stolen car’s keys, registration, and insurance card on his person.
When Ms. Cole recovered her car the following day, she discovered the driver’s seat was broken, and cash, gas credit cards, and other items were missing. After he was jailed, appellant faked chest pains, and attempted to escape by breaking the hospital bed rail to which he was handcuffed and running out the back door and jumping over a fence. Police found him hiding on a riverbed trail.
The trial court found two aggravating factors and sentenced appellant to the upper term on count 3 based on appellant’s prior convictions and his unsatisfactory performance on parole.
DISCUSSION
I. The definition of reasonable doubt in CALCRIM No. 220 did not violate appellant’s federal due process right to have his guilt determined beyond a reasonable doubt
Appellant contends that the trial court erred in refusing to accept his modifications to CALCRIM No. 220 because CALCRIM No. 220 requires reasonable doubt to be based on the evidence presented and specifically excludes argument as evidence, thereby imposing upon the defendant “an affirmative duty to present evidence of the lack of evidence.” He urges that CALCRIM No. 220 shifts the burden to the defendant to persuade the jury of the fact of his innocence by evidence presented at trial and eliminates the doctrine of reasonable doubt due to lack of evidence as to any element or fact necessary for conviction. We disagree with appellant’s argument.
We examine the instructions to determine whether the relevant law was correctly conveyed to the jury. (People v. Kelly (1992) 1 Cal.4th 495, 525.) In making this determination, we consider the specific language under challenge, the charge in its entirety, and whether the instruction, so understood, states the applicable law correctly. (Ibid.) “[S]o long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, [citation] the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” (Victor v. Nebraska (1994) 511 U.S. 1, 5.)
Here, the trial court instructed the jury with respect to the People’s burden of proof with CALCRIM No. 220 as follows: “The fact that a criminal charge has been filed against the defendant 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. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation 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 defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” (Italics added.)
Although appellant’s counsel initially agreed to the standard instructions, he then proposed modifications including the addition of the following phrases: that the fact appellant was arrested and brought to trial is not evidence that the charge was true; and, that if a juror had any reasonable doubt that the defendant committed the offense charged, or any reasonable doubt upon any single fact or element necessary to constitute the offense charged as defined by the court, the juror must give the defendant the benefit of the doubt and vote not guilty. The trial court denied the addition of those phrases as argumentative. The trial court also determined that the following phrase was confusing: that reasonable doubt need not be collective doubt. Moreover, the trial court held that the following phrase was repetitive and argumentative: each jury must have his or her own vote.
Pointing to the italicized portion of CALCRIM No. 220, appellant urges the phrase, “. . . the evidence that was received throughout the entire trial,” in addition to the instruction excluding argument as evidence, prevented the jury from relying on the lack of evidence argued by defense counsel. But, CALCRIM No. 220 accurately informs the jury that the People have the burden of proving the defendant committed the crime beyond a reasonable doubt based on the evidence presented at trial. The instruction does not impose an express or implied burden on the defense to prove or disprove any element of the crime, or to show reasonable doubt or lack of evidence. Nor is the jury instructed that it may not consider the lack of pertinent evidence. Rather, it is implied that the jury may consider the lack of evidence if the People fail to present evidence regarding the element of a crime. CALCRIM No. 220 succeeds CALJIC No. 2.90, which has been upheld as constitutional as phrased. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1068.) Indeed, CALCRIM No. 220 parallels its predecessor CALJIC No. 2.90 in that it does not explicitly discuss the concept of lack of evidence. Further, the requirement that the jury “impartially compare and consider all the evidence that was received throughout the entire trial” pursuant to section 1096 and CALJIC No. 2.90 has been consistently upheld as constitutional. (See People v. Frye (1998) 18 Cal.4th 894, 974 [CALJIC No. 2.90 instruction that the jury must conduct a “‘comparison and consideration of all the evidence’” does not impose a burden on the defendant to present evidence].) And, considering the instruction in context of the other instructions given at trial, the jury was not misled as to the People’s burden regarding reasonable doubt. For example, CALCRIM No. 355 instructs that the defendant “may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.”
CALJIC No. 2.90 states: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”
Section 1096 provides: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: ‘It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’”
We agree with the trial court’s findings that appellant’s requested modifications were partly cumulative as well as argumentative. Also, the requested instruction regarding “collective doubt,” might have confused the jury about its duty to discuss the evidence with the other jurors before deciding the case. We are not persuaded that the trial court erred in refusing to modify CALCRIM No. 355 by appellant’s citation to People v. Garcia (1975) 54 Cal.App.3d 61, 68. There, the appellate court determined that the trial court’s added language requiring the jury to weigh the evidence “‘in the scales, one side against the other, in a logical manner in an effort to determine wherein lies the truth,’” was improper because such language reflects the civil case rule of preponderance of evidence, rather than the criminal case concept of reasonable doubt. The civil case rule of preponderance of evidence is not implicated here.
Appellant’s citation to People v. Simpson (1954) 43 Cal.2d 553 is similarly unpersuasive. In that case, the trial court instructed that “‘The term “reasonable doubt,” as used in these instructions, means a doubt which has some good reason for its existence arising out of evidence in the case; such doubt as you are able to find a reason for in the evidence. As applied to the evidence in criminal cases, it means an actual and substantial doubt growing out of the unsatisfactory nature of the evidence in the case. It does not mean a doubt which arises from some mere whim or vagary or from any groundless surmise, suspicion or guess.’” (Id. at p. 565.) Unlike the instruction as given pursuant to CALCRIM No. 220, the additional language in that case, denoted by italics, was found to be unnecessary and potentially confusing to the jury. (People v. Simpson, supra, at p. 565.)
We conclude that the definition of reasonable doubt in CALCRIM No. 220 did not violate appellant’s due process right to have his guilt determined beyond a reasonable doubt by preventing the jury from considering lack of evidence as to any element of the crimes for which appellant was charged. Accordingly, we need not consider appellant’s further argument that the erroneous instruction was not harmless because there was no instruction directing the jury on how to evaluate the lack of evidence that appellant committed the offense. In connection with that argument, he complains there was a lack of evidence because there was “no corroborative evidence from any person other than [Gomez] that appellant was definitely the one involved in the crime” and that De La Paz could not identify appellant in court.
II. Appellant’s Sixth and Fourteenth Amendment Rights were not violated
Appellant contends that the trial court usurped the jury’s fact finding function when it imposed the upper term of three years based on appellant’s prior convictions and his unsatisfactory performance on parole. Appellant’s contention has no merit.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The Supreme Court subsequently held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely).) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868].) The court therefore concluded that the California determinate sentencing law was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p. ___ [127 S.Ct. at p. 871].)
With respect to the issue before us, our Supreme Court has held that the right to a jury trial does not apply to the fact of a prior conviction. (People v. Black (2007) 41 Cal.4th 799, 818; People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) Moreover, the “‘prior conviction’ exception” must not be read too narrowly; it includes “not only the fact that a prior conviction occurred, but also other related issues that may be established by examining the records of the prior convictions.” (People v. Black, supra, at p. 819.) We are bound by the doctrine of stare decisis to follow our Supreme Court’s decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore conclude that appellant’s constitutional rights were not violated when the trial court imposed the upper term based on the fact of his prior convictions and his unsatisfactory performance on parole.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.