Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. 5907367-7. Gary D. Hoff, Judge.
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant Thomas Leo Cummings.
William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant Brian Eugene Jefferson.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Thomas Leo Cummings, Jr., and Brian Eugene Jefferson stand convicted, following a jury trial, of various offenses. Jefferson was convicted of attempted robbery (Pen. Code, §§ 211, 664; count 1), robbery (§ 211; count 2), misdemeanor carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1); count 3), and misdemeanor carrying a loaded firearm in a public place or on a public street (§ 12031, subd. (a)(1); count 4). As to counts 1 and 2, the jury further found that a principal was armed with a firearm during commission of the offense (§ 12022, subd. (a)(1)). Cummings was convicted of being an ex-felon in possession of a firearm (§ 12021, subd. (a)(1); count 5) and feloniously carrying a loaded firearm (§ 12031, subd. (a)(1); count 6). He admitted having suffered a prior “strike” conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)) and having served a prior prison term (§ 667.5, subd. (b)). Cummings was sentenced to a total of five years in prison, while Jefferson was sentenced to a four-year term. Both now appeal, with Cummings challenging the sufficiency of the evidence to support his conviction on count 6, and Jefferson claiming prejudicial instructional error occurred. For the reasons that follow, we will affirm.
All statutory references are to the Penal Code.
The verdict forms erroneously recited a finding that Jefferson personally used a firearm, but correctly referenced section 12022, subdivision (a)(1), and Jefferson was sentenced under that code section.
FACTS
I
PROSECUTION EVIDENCE
At approximately 9:25 p.m. on September 22, 2005, Jose Cruz was in the parking lot of his residence on Tulare, in Fresno, removing the license plate from his car so it would not be stolen as it had been in the past. Although there was not much lighting in the parking area, there was enough so that he could see what he was doing.
While Cruz was doing this, a truck entered the parking lot and turned around. The driver, whom Cruz had never seen before, exited the vehicle and approached Cruz. The passenger remained in the truck, but was aiming a gray or silver gun at Cruz. The gun was covered with a white piece of cloth. When the driver first approached, he was facing Cruz, who was able to see his face from approximately three feet away. He asked whether Cruz was stealing something. When Cruz responded that he was just taking off his license plate, the driver turned Cruz around, pushed him against the trunk of Cruz’s car, struck him in the back with his elbow, and searched him all over. He took Cruz’s wallet and checked it for money. When he saw it was empty, he gave it back to Cruz. While he was standing in the light, Cruz could see his face, although at some point, the driver told Cruz not to look at him. When Cruz turned to look at the man with the gun, the driver physically turned Cruz’s face away.
The driver then moved on to Cruz’s nephew, Joaquin R. He put Joaquin against the car. The passenger said, “you know, how the cops do it.” Joaquin looked over at the passenger and saw a gray gun in his hand. The gun had a cylinder. The driver demanded his watch, ring, and necklace, which Joaquin handed over. When he did so, he was able to see the driver, who then made him turn his face away. At some point, the passenger said not to try anything stupid.
The driver returned to the truck, which Cruz said was a red pickup. A gray box, like a toolbox, was in the back. The truck made a lot of noise as it drove off. Because the truck was small, Cruz believed it was a Toyota and so described it to an officer who came to his residence that evening. He also described the driver to the officer as a very dark-completed Black male, in his twenties, approximately five feet seven to five feet nine inches tall. Cruz did not recall mentioning the toolbox to the police because he was a little nervous when he spoke to them. He also did not mention that the robber had a slight mustache and beard because he was not asked about facial hair.
Joaquin spoke to the 911 dispatcher within minutes of the robbery. He recalled saying the robber was 18 to 20 years old and tall, with poufy hair, and that there were two perpetrators in a beat-up red Toyota. Joaquin could not recall whether he mentioned the toolbox to the dispatcher or to the responding officer. He did recall mentioning to the responding officer that the robber had a little bit of beard growing and a small mustache.
A tape recording of the 911 call was played for the jury. In it, Joaquin said the robber had fluffy hair. He said the other one in the truck had a gun, but he did not get to see him in the light. Both were African-American and looked to be 20-ish. Joaquin also said they were driving a red truck that was kind of old, but that there was nothing outstanding about it.
Fresno Police Sergeant Grove was first to arrive on the scene. As she had no Spanish-speaking translator available, she telephoned a bilingual friend and asked her to translate. After speaking to Cruz by cell phone, the friend informed Grove that Cruz said he had just been robbed at gunpoint by two Black males in a red, possibly Toyota pickup truck with a black toolbox.
At trial, Grove identified the friend as Leticia Contreras, a County of Fresno employee who worked with domestic violence victims and had spoken Spanish her whole life. Grove did not feel it was important to tell any of the other officers what Cruz had said, because Macias arrived and was given the same information. Grove conceded she made no notes about the translation, and also that it was not normal police practice to call a lay person to translate.
Officer Finley, whom Grove was supervising, responded to the robbery call and Officer Miller and Sergeant Macias also arrived on scene. The two victims were interviewed separately; Finley interviewed Cruz, who did not speak English, and Macias translated. According to Grove, Cruz said there were tools in the truck, then gestured with his hands three feet apart. When asked if he meant a toolbox, he shook his head yes. Grove heard Macias translate that a black toolbox was on the truck, which was described as a red Toyota, beat-up, work-type truck. Cruz also kept doing something with his hair. When asked if the robber’s hair was an Afro, he said yes, but no. He gave the same answer when asked if it was braided.
Finley’s report did not reflect that a toolbox was ever translated to him, although it mentioned tools and the vehicle looked like a work truck. According to Macias, Cruz specifically used the word “toolbox.” Finley admitted Macias could have used the word “toolbox” without Finley writing it in his report, although he testified at the preliminary hearing that, as far as he knew, the word “toolbox” was never translated to him, only “tools.”
Grove began driving around town, looking for the suspect vehicle. At approximately 12:40 a.m. on September 24, she saw an older, beat-up, red, work-type Toyota Tacoma pickup with a black toolbox in the back and two Black males in the cab at Kern and E Streets, about a mile from the location of the robbery. The driver’s hair was worn in a puffed-out, puffy-type braid.
Grove and the two officers with her conducted a stop of the vehicle, which was being driven by Jefferson. Cummings was the passenger. As Grove approached from the driver’s side, she saw a silver-colored revolver stuck in between the driver and passenger seats, partially concealed by some kind of garment. Officer Kazarian approached the truck from the passenger side. He saw Cummings immediately begin to reach down near the right side of the compact pickup. Kazarian ordered him to make his hands visible, and Cummings complied. By this time, Kazarian could see the revolver in the center portion of the vehicle. A shirt or sweater covered the handle, leaving the cylinder exposed.
The revolver, which was lawfully registered to Jefferson, was a Torres Tracker Model 357 that was capable of accepting .38-caliber and .357 magnum rounds. It was fully loaded with seven rounds of .38 Special cartridges. A speed loader that fit the revolver and contained seven rounds of .357 magnum ammunition was found in Jefferson’s right front pants pocket. An empty seven-round speed loader that also fit the revolver was found in Cummings’s right front pants pocket. A black replica Colt .45 was found underneath the passenger seat of the pickup. It was dusty and appeared to be old. The colored tip that is usually found on replica guns to show they are not real was missing.
At trial, Cruz identified Jefferson as the man who took his wallet. According to Cruz, Jefferson’s appearance was different at trial than it had been on the night of the robbery. In court, Jefferson was wearing glasses, which he was not wearing that night. Additionally, at the time of the robbery, his hair was tied up with a rubber band on each side. In court, Cruz identified Jefferson’s photograph in a photographic display containing six pictures. The facial hair in the photograph was the same as on the night of the robbery, although the hairstyle was somewhat different. Cruz was shown the photographs by a police officer on September 24, 2005, and identified the same photograph. He was sure, by the hair and the face, that it was the person who accosted him. If he learned Jefferson was taller than five feet eight inches, Cruz would still be sure he was the perpetrator. During prior court proceedings, Cruz saw Jefferson sitting with two other African-American men, one of whom, like Jefferson, was dressed in orange and the other of whom was in street clothes. Although Jefferson had not been identified to him by name as of that time, Cruz immediately recognized him.
Joaquin also identified Jefferson at trial as the robber. In court, Joaquin described the robber, whom he had never seen before, as wearing a white shirt, but no glasses. His hair was tied two in pigtails at the top of the sides of his head. They were in poufs, like an Afro as opposed to dreadlocks. He was a head taller than Cruz, thin, and dark-skinned. The truck was red, with a black, almost grayish-looking toolbox in the back. Joaquin believed it was a Toyota, and it was kind of old and looked like it had been lowered. It made a lot of noise. A short time after the robbery, Joaquin was shown a photographic lineup. He identified Jefferson’s photograph. The face looked familiar. Joaquin was almost sure it was the robber, then, when he came to court, he knew it was the person. On that prior occasion in court, Jefferson and another person were both wearing red. A third person with them – Cummings – was wearing a tie. Joaquin told his uncle it was the one in the middle, and Cruz agreed. This was before anyone mentioned Jefferson’s name.
Although also shown a photographic lineup containing Cummings’s picture, neither Cruz nor Joaquin was able to make a positive identification. In identifying Jefferson’s picture, Cruz and Joaquin each told detectives it was the robber, and that they recognized him by his face and hair.
II
DEFENSE EVIDENCE
Officer Miller interviewed Joaquin at the scene of the robbery. Joaquin described the person who got out of the truck as a dark-complected Black male, approximately five feet 10 inches tall and weighing 150 to 160 pounds, with two Afro puffs on his head. Although Joaquin related that the vehicle involved was a red pickup truck, he never said anything about the truck having a toolbox or the driver having facial hair. He answered negatively when asked if there was anything facially that stood out about the driver, or that stood out about the vehicle besides the color. When Miller interviewed Joaquin in the parking lot, there was enough light to see someone’s facial features.
Jefferson testified that he was 22 years old and approximately six feet to six feet one inch tall. He was employed by Papa Kyrillo’s Private Security. He usually worked nights and hauled junk and scrap metal during the day. Although he was not working on the night of September 22, 2005, and could not remember where he was, he denied being at the location of the robbery or robbing Cruz and Joaquin.
Employment records for Papa Kyrillo’s showed that Jefferson’s last shift began on September 3 and ended on September 4. On September 4 and 5, Jefferson failed to come to work and so was terminated.
Shortly after midnight on September 24, 2005, Jefferson and Cummings, whom Jefferson had picked up about an hour earlier, stopped by the Casablanca, a social hall in downtown Fresno. There was a concert there that evening that they had planned to attend, but Jefferson was not dressed appropriately, so instead they went to a Mexican restaurant – Chris’s Meat Market at Kern and E Streets – to get a meal. After they left the market, they were pulled over. Jefferson was driving his red truck, which had a toolbox in the back. As far as he knew, his gun was nowhere near the stick shift, but instead was on the driver’s side floorboard. Jefferson had eased it from under his seat when he first got into the vehicle to go pick up Cummings. Jefferson knew that Cummings was a convicted felon and that convicted felons were not allowed to be around firearms; he also knew that, even if a gun was registered to him, he was not allowed to have it loaded in his vehicle.
Jefferson was ordered out of the vehicle and searched. A speed loader containing ammunition was found in his pocket. It went with his .357 revolver, which he lawfully purchased for his safety, given his line of work, and habitually carried. Jefferson also had another speed loader in his vehicle. It was empty and, as far as he knew, was last in his glove box. He neither gave it to Cummings nor did Cummings ever ask to borrow it, and he did not see where it was found on the night of the arrest. He acknowledged, however, that the empty speed loader found on the night of the arrest belonged to him. Jefferson did not tell Cummings there was a gun in the vehicle or that the speed loader was in the glove compartment. Jefferson was in possession of the replica gun because he had found it on a hauling job in Madera. He had thought it would be an interesting toy for his little cousin, but retrieved it from the child when the youngster pointed it at him.
Jefferson conceded that he was not supposed to carry a weapon in his capacity as a security guard for Papa Kyrillo’s.
At the time of his arrest, Jefferson had had his hair in dreadlocks for several months. Before that, he had had his hair in cornrows. During the time in between, he had been going through the process of waiting for his hair to mat up. Jefferson conceded that, on the night of his arrest, his hair possibly could have been considered poufy by some people. He admitted occasionally putting his hair up in rubber bands on either side of his head like pigtails, but denied having it up on top of his head. A photograph taken of him the day after his arrest showed his hair up in two separate rubber bands in the back of his head.
Cummings, who admitted having been convicted of a felony in 2001, also testified. When he got into Jefferson’s car on the night of the arrest, it was “very junky” inside. He did not know there was a gun in the vehicle or that Jefferson had a speed loader on his person. Cummings denied having an empty speed loader on his person or knowing that there was a second speed loader in the vehicle. He also denied reaching with either hand when the vehicle was pulled over.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
As previously described, Cummings was convicted in count 6 of violating section 12031, subdivision (a)(1), an offense that was made a felony as a result of Cummings’s prior felony conviction (id., subd. (a)(2)(A)). In pertinent part, subdivision (a)(1) of the statute provides: “A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city .…” (Italics added.) Although implicitly conceding there was evidence he jointly possessed the gun found in Jefferson’s pickup, Cummings now contends the evidence was insufficient to support the conviction because there was no showing he carried the weapon.
We have been unable to find any case directly on point. The Attorney General cites People v. Arzate (2003) 114 Cal.App.4th 390 for the proposition that the offense of carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1)) “does not require any action on the defendant’s part beyond merely having the gun available for use .…” (Arzate, at p. 400.) The issue in that case, however, was whether the act of concealing a handgun was synonymous with its use so that enhancements for personal firearm use and personal infliction of great bodily injury could be appended to the charge. (Id. at p. 399.)
Cummings cites People v. Overturf (1976) 64 Cal.App.3d Supp. 1, which states, in discussing the various subdivisions of section 12031: “‘Carrying’ and ‘having’ are not synonymous. ‘Having’ relates to an ‘act or state or possessing,’ [citation], while ‘carrying’ refers to the ‘act or instance of carrying’ and the verb ‘carry’ in relevant definition connotes ‘to convey, or transport …;’ and ‘to transfer from one place … to another.’ [Citation.] [¶] There is a distinct difference in the two concepts. Speaking generally in the context of statutes concerned with firearms, ‘carry’ or ‘carrying’ has been said to be used in the sense of holding or bearing arms. [Citations.]” (Overturf, at p. Supp. 6, fn. omitted.) While we accept that there is a difference between possessing and carrying, this fact does not preclude joint conduct and, accordingly, joint liability with respect to either act.
Our own research has revealed three cases that at least touch on the subject. In People v. Taylor (1984) 151 Cal.App.3d 432, the defendant was convicted of violating subdivision (a) of section 12031. He was the driver of the car; the gun was thrown from the passenger side. The court rejected the notion there was insufficient evidence to support the conviction, finding adequate circumstantial evidence of constructive possession. (Taylor, at p. 436.) Since the defendant was the driver of the vehicle, however, the case is not dispositive with respect to Cummings’s situation as a passenger.
In People v. Hall (1998) 67 Cal.App.4th 128, a conviction for carrying a concealed firearm in a vehicle in violation of section 12025, subdivision (a)(1) was upheld where the defendant was a passenger in a vehicle in which a sawed-off shotgun was found, on the floorboard between the driver and passenger seating areas, after all of the vehicle’s occupants had fled. (Hall, at pp. 131-133.) Because the defendant did not challenge the definition of “carrying,” however, this case likewise is not dispositive.
In People v. Padilla (2002) 98 Cal.App.4th 127, the defendant was convicted of violating subdivision (a)(3) of section 12025, which provides that a person is guilty of carrying a concealed firearm when he or she causes to be carried concealed within any vehicle in which he or she is an occupant, any firearm capable of being concealed upon the person. The appellate court rejected the claim that violation of the statute requires proof the accused brought the gun into the car, noting that the subdivision was added so that passengers, as well as drivers, could be prosecuted for carrying a concealed firearm in a vehicle. (Padilla, at pp. 133-134.) Even though sections 12025 and 12031 are somewhat similar, however, this case does not constrain our interpretation of the latter provision. Prior to the addition of subdivision (a)(3) to section 12025, that statute provided, in pertinent part, that a person was guilty of carrying a concealed firearm when he or she “[c]arrie[d] concealed within any vehicle … under his or her control or direction” any firearm capable of being concealed upon the person. Thus, the express statutory language required that the vehicle be under the control or direction of the person carrying the weapon. In most instances, that language could refer only to the driver. Section 12031, by contrast, does not contain language directed at a vehicle’s passenger, such as that contained in section 12025, subdivision (a)(3), but neither does it limit the vehicle in which the gun is carried to one that is under the control or direction of the person carrying the firearm.
Webster’s Third New International Dictionary (1986) page 343 defines “carry” as, inter alia, “1: to move while supporting (as in a vehicle or in one’s hands or arms) .…” The American Heritage Dictionary (2d college ed. 1982) page 243 includes the definition, “5. To hold or be capable of holding.” In Muscarello v. United States (1998) 524 U.S. 125, the United States Supreme Court addressed whether the phrase “carries a firearm,” as used in the federal statute mandating imposition of a prison term upon a person who used or carried a firearm during a drug trafficking crime, was limited to the carrying of firearms on the person. In holding that it also applied to a person who knowingly possessed and conveyed a firearm in a vehicle (id. at pp. 126-127), the high court drew a distinction between “carry” and “transport,” and reasoned that “‘[c]arry implies personal agency and some degree of possession .…” (Id. at p. 134.)
It is settled that two persons can jointly possess a firearm. (See, e.g., In re Jorge M. (2000) 23 Cal.4th 866, 888; cf. People v. Williams (1971) 5 Cal.3d 211, 215.) We see no reason why, according “carry” its common meaning, two persons should not also be able to jointly carry a gun, at least under the scenario that was found to exist in this case. When viewed in the light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v. Virginia (1979) 443 U.S. 307, 319), the evidence at trial showed that the vehicle and gun belonged to Jefferson, and he was driving. Significantly, however, the gun was between Jefferson and Cummings, equally and readily accessible to either or both of them. Additionally, each man had on his person a speed loader that belonged to that particular gun. This was not a situation in which, for example, the gun was in the driver’s pocket or between the driver’s feet, i.e., readily accessible only to that person, and where nothing linked the passenger to the weapon other than the fact he or she was an occupant of the vehicle and knew the gun was there. Instead, a rational juror could infer that, regardless of who owned the weapon, both men shared it and, accordingly, both carried it in the vehicle.
The jury implicitly rejected Jefferson’s testimony that the gun was on the driver’s side floorboard and the second speed loader was in the glove compartment, and both defendants’ claims Cummings was unaware of the items’ presence. We will not reweigh the evidence, reappraise witness credibility, or resolve factual conflicts (People v. Culver (1973) 10 Cal.3d 542, 548; In re Frederick G. (1979) 96 Cal.App.3d 353, 367); moreover, we must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.)
Section 12031 is part of The Dangerous Weapons Control Law (§ 12000 et seq.; see People v. Marroquin (1989) 210 Cal.App.3d 77, 80), the general purpose of which “is to control the threat to public safety in the indiscriminate possession and carrying about of concealed and loaded weapons.” (People v. Melton (1988) 206 Cal.App.3d 580, 589.) “Words of a statute must be given such interpretation as will promote rather than defeat the general purpose and policy of the law. [Citation.].” (Id. at pp. 591-592.) It would defeat the purpose of the law to interpret section 12031 in such a way that one who has joint possession of, and immediate access to, a weapon in a vehicle escapes liability through the fortuitous circumstance that he or she is a passenger and not the driver. (See Muscarello v. United States, supra, 524 U.S. at pp. 132-133 [questioning, from perspective of law’s purpose, what sense it would make for statute to penalize one who walks with gun in bag to site of drug sale, but to ignore similar individual who drives to site with gun in car].)
We need not decide whether joint liability for carrying a firearm can be found in every case involving joint possession. We simply hold that, on the facts of this case, Jefferson and Cummings reasonably could have been viewed as sharing the weapon and, hence, Cummings could be found to have “carried” it. Accordingly, Cummings was properly convicted of violating section 12031, subdivision (a)(1), as charged in count 6.
II
CALCRIM NO. 306
Jefferson claims the trial court inadequately instructed the jury concerning the prosecutor’s failure to disclose material evidence. We find no error.
A. Background
During presentation of the prosecution’s case-in-chief, it became apparent that there were disclosure problems with respect to portions of Sergeant Grove’s testimony, particularly concerning whether Cruz ever described the suspects’ truck as containing a toolbox. For instance, neither Officer Miller nor Officer Finley, each of whom wrote a report concerning the events of September 22 and the statements made by Cruz and Joaquin, noted in his report that Grove was present at the scene. In addition, there had been no report or other mention concerning Grove’s use of a friend to translate Cruz’s initial statement. Grove testified that she first advised the prosecutor about talking to her friend, Leticia Contreras, the day before in the court hallway, and the prosecutor had called defense counsel over to listen to what Grove was saying. According to Grove, counsel for Jefferson, Ms. Arellano, asked who the friend was, and Grove responded that she was a social worker for the county. Grove acknowledged that there had been a conversation in the hallway about no toolbox being mentioned, and Grove had spoken up and said that a toolbox had in fact been mentioned because she was there. Arellano had asked who Grove was; when Grove identified herself, Arellano had noted that Grove had only been mentioned in the report concerning the vehicle stop. In front of the jury, Arellano disputed whether Grove said anything to counsel about having someone translate by telephone, or whether she simply mentioned a social worker was involved.
Following a recess, Arellano moved for a mistrial based on nondisclosure of the new evidence presented during Grove’s testimony. Arellano argued that the prosecutor had a duty to investigate in order to know what her officers were going to say in advance, and that the defense was entitled to all statements of witnesses 30 days in advance of trial in order properly to investigate and prepare. Arellano argued that the toolbox, which the new information concerned, was one of the most material issues with respect to identification, and so the newly discovered information was highly prejudicial. Arellano accepted that the prosecutor did not know the information prior to the hallway conversation, but argued that she had a duty to know what law enforcement had and to disclose victim statements. Arellano represented that, had the information been disclosed, she could have interviewed Leticia Contreras and cross-examined Cruz, neither of which she did because she was learning the information in the middle of trial.
Arellano also claimed Grove’s trial testimony was not accurate concerning what was said in the court hallway, thus placing Arellano and Ms. Junio, Cummings’s attorney, in the position of being witnesses. As an offer of proof, Arellano related that, as she was walking down the hallway to court, she had passed the prosecutor and several officers, including Sergeant Macias. As she passed, the prosecutor called her back and said there was something she should hear. Arellano and Junio, who had been with her, returned. Macias then stated that he had translated the toolbox, as Cruz had told him about it. When Arellano stated that it was not in any report, Grove said she was there and also heard the toolbox being translated. Surprised, Arellano asked who she was. When Grove identified herself, Arellano did not remember her being listed in any of the reports concerning the incident of September 22. When Arellano asked whether Grove had written any report, Grove responded that she was a sergeant and did not write reports, but remembered Macias translating the toolbox. Arellano commented that this was all new because it was not in any of the reports, whereupon Grove said that a social worker was also involved and if Arellano wanted, she could talk to the social worker because that person also knew there was a toolbox involved. Arellano declined, as she did not even know who the social worker was. Everyone then went into the courtroom and trial recommenced. Arellano represented that she was not told the social worker was on the phone or that there was any prior telephonic translation. She cross-examined Grove concerning the new information that Grove was present and a toolbox was mentioned, only to be further surprised by testimony about the telephone call and translation. Junio, who joined in the motion for a mistrial, confirmed Arellano’s account.
The prosecutor opposed the motion, arguing that discovery was ongoing and she had called defense counsel over as soon as she learned of the telephonic conversation. She represented that Arellano grew testy with Grove and started to walk away while Grove was talking to her, and that Grove actually took out her phone and asked if Arellano would like her to call her friend so that counsel could talk to her. Junio recalled Grove offering to call the person, but neither defense attorney had any idea what role the social worker had played, and everyone at that point was 15 minutes late for court.
The court denied the motion for mistrial. It found the information was new, but that, while there was late discovery, the prosecutor did not know of the information and disclosed it immediately to counsel, although the extent of what was disclosed was the subject of some controversy. The court found the information was relevant because it related to Grove’s credibility and to the descriptions and identifications of a suspect vehicle, which ultimately led to the stop of Jefferson and Cummings. The court noted, however, that no mention was made on direct examination concerning Grove’s contact with a social worker; when Grove testified on redirect examination that she telephoned a Spanish-speaking friend and asked that person to translate, the only defense objections were on grounds of foundation and hearsay and not lack of discovery. The court specifically noted that defense counsel still had the ability to investigate any information Leticia Contreras might have, to impeach Grove through continued cross-examination concerning what was disclosed and when, and to recall Cruz to clarify what, if any, statements he may have made. In light of the fact Grove’s credibility could be impeached without the testimony of either defense attorney and the existence of sanctions short of mistrial, the court ultimately found no prejudice to the defense. The court deferred a determination of what, if any, sanctions should be imposed for failure timely to produce evidence.
The jury was brought back into the courtroom with Grove still on the witness stand. All counsel stated that they had no further questions of her, and she was excused, subject to recall. Neither she nor Cruz was ever recalled.
Arellano subsequently requested that the court give Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 306 (Untimely Disclosure of Evidence). She proposed that the jury be instructed to the effect that an attorney for the People failed to disclose, within the legal time period, that Sergeant Grove was present during the interview of witness Cruz and that she telephoned her friend prior to any formal interview of Cruz. Arellano requested that either an appropriately tailored version of CALCRIM No. 306 be given, or the portion of Grove’s testimony concerning September 22, 2005, be stricken. When the trial court proposed telling the jury that the People disclosed the information to the defense as soon as it was known to the People, albeit not within the legal time period, Arellano objected. Although she conceded the prosecutor disclosed Grove was present when Cruz was interviewed by Finley, she did not concede that the telephonic interview involving a Spanish-speaking person was disclosed to her until it came out on the witness stand.
After the prosecutor expressed her “shock[]” that the court was considering giving the instruction because it gave an appearance of impropriety by the district attorney’s office when, in fact, defense counsel chose not to follow up on the information, the court replied that its concern was not placing fault on anyone, but that the information was not known to the defense prior to trial and may have had a bearing on the defense’s position with respect to challenging the vehicle stop. Accordingly, the court found the instruction appropriate. It then denied the request to strike the portion of Grove’s testimony.
Jurors subsequently were told:
“Both the People and the defense must disclose their evidence to the other side before trial within time limits set by the law. Failure to follow this rule may deny the other side to produce [sic] all relevant evidence to counter opposing evidence or to receive a fair trial. An attorney for the People failed to disclose that Sergeant Grove interviewed witness Mr. Jose Cruz with a telephonic assistance of a Spanish-speaking person and that Sergeant Grove was present when Mr. Cruz was subsequently interviewed by other law enforcement at the scene. Although the attorney for the People disclosed that evidence as soon as it was known by the attorney, it was not disclosed within the legal time period. In evaluating the weight and significance of that evidence you may consider the effect, if any, of the late disclosure.”
B. Analysis
Jefferson now contends that the modified version of CALCRIM No. 306 given to the jury was misleading and insufficient to address the discovery violation and its prejudicial impact on the defense. He says that, in addition to informing the jury that the prosecutor failed to disclose in a timely manner that Grove was present at the scene of the robbery when the victims were interviewed, the court should have instructed that the prosecutor never revealed to the defense that Grove had used her cell phone to contact a Spanish-speaking friend and had had the friend translate Cruz’s description of the suspect and the vehicle. Jefferson says the nondisclosure hobbled the defense and afforded the prosecution an unfair advantage, and the jury was not given the information needed to view the evidence in a fair light. He further says the error implicates his constitutional rights to due process and to defend effectively, and that it cannot be declared harmless beyond a reasonable doubt.
Insofar as is pertinent here, a prosecutor has a statutory duty to disclose to the defense the names and addresses of persons he or she intends to call as witnesses at trial, written or recorded statements or reports of the statements of those witnesses, and any exculpatory evidence. (§ 1054.1, subds. (a), (e) & (f).) The disclosure must be made at least 30 days before trial, unless the information becomes known to the prosecutor within that 30 days; if so, he or she must make disclosure immediately. (§ 1054.7.) A prosecutor has a further duty, under the due process clause of the Fourteenth Amendment to the United States Constitution, to disclose evidence that is both favorable to the defendant and material on the issue of guilt or punishment. Evidence is favorable if it hurts the prosecution or helps the defense (such as when it is probative of a testifying witness’s credibility), and it is material if there is a reasonable probability that, had it been disclosed, the result would have been different. (People v. Morrison (2004) 34 Cal.4th 698, 714; see also Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady).) Additionally, a criminal defendant has a constitutional right to a meaningful opportunity to present a complete defense. (California v. Trombetta (1984) 467 U.S. 479, 485.)
Evidence that is presented at trial is not considered suppressed, for Brady purposes, regardless of whether it was previously disclosed during discovery. (People v. Morrison, supra, 34 Cal.4th at p. 715.)
It is important to keep in mind that the issue Jefferson raises concerns the wording of a jury instruction, and not whether a discovery violation occurred pursuant to Brady or section 1054 et seq. Since a trial court has wide discretion in determining whether to impose sanctions for a discovery violation and, if so, in what form (see § 1054.5, subd. (b); People v. Wimberly (1992) 5 Cal.App.4th 773, 793), it follows that the wording of a jury instruction given as a sanction also is reviewed for abuse of discretion. “[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72.)
We find no abuse of discretion here because the instruction, when considered in context and in light of all the relevant circumstances, did not mislead the jury to Jefferson’s detriment, prevent jurors from viewing the evidence in a fair light, or afford the prosecution an unfair advantage and prevent Jefferson from presenting a complete defense. Precisely what information was disclosed during the hallway conversation was in dispute, and Arellano never contended the prosecutor intentionally withheld information concerning Grove’s interview of Cruz, but only that she had a duty to investigate in order to know what the officers were going to say. Under the circumstances, the trial court did not err by declining to give an instruction that may have been erroneously interpreted by jurors as connoting an affirmative act on the part of the prosecutor to deprive the defense of information. (See People v. Gonzales (1989) 209 Cal.App.3d 1228, 1234.)
This is so even assuming Grove gave no indication, during the hallway conversation, of why or how a social worker was involved or what information that person may have been able to provide. Jefferson argues the defense had no opportunity to investigate the new information or adequately prepare for Grove’s testimony, yet the defense made no request for additional time to prepare or to interview a newly discovered witness (see People v. Walton (1996) 42 Cal.App.4th 1004, 1017, disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3), the record does not suggest any further investigation was undertaken despite the fact a weekend fell during the evidentiary portion of trial, and neither Grove nor Cruz was recalled for further questioning. A defendant cannot bypass the opportunity to obtain further information and then benefit, via the court’s instruction, from his or her own intentional ignorance.
Moreover, we fail to see how telling the jury the evidence was not disclosed on time, as opposed to that the evidence was not disclosed at all, could have changed how jurors viewed that evidence when they were instructed concerning why timely disclosure was important. If anything, the wording of the instruction inferentially placed the blame for the discovery violation on Sergeant Grove, and gave the defense added ammunition with which to attack her credibility. And attack her credibility Arellano most certainly did, at one point calling part of Grove’s testimony “just a plain lie.”
In light of all the circumstances, we conclude the trial court did not inadequately or improperly instruct the jury concerning the discovery violation.
III
CALCRIM NO. 220
Jefferson contends the definition of reasonable doubt contained in CALCRIM No. 220 violated his federal due process right to have his guilt determined beyond a reasonable doubt. We disagree.
A. Background
The prosecutor and Jefferson both requested that the court instruct the jury with CALCRIM Nos. 220 (Reasonable Doubt) and 222 (Evidence). Pursuant to CALCRIM No. 220, jurors were told:
“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 defendants just because they have 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 the 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. 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.” (Italics added.)
This was immediately followed by CALCRIM No. 222, to wit:
“You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom.
“Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence any anything else I told you to consider as evidence.
“Nothing the attorneys say is evidence. In their opening statements and closing arguments the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses’ answers are evidence. The attorneys’ questions are significant only if they helped you understand the witnesses’ answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true.
“During the trial the attorneys may have objected to questions or moved to strike answers given by the witnesses. I ruled on the objections according to the law. If I sustained an objection, you must ignore the answer. Strike that. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I ordered testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose. You must disregard anything you saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses.
“The court reporter has made a record of everything that was said during the trial. If you decide that it is necessary, you may ask the court reporter’s notes to be read to you. You must accept the court reporter’s notes as accurate.
“During the trial you were told that the People and the defense agreed or stipulated to certain facts. This means that they both accepted those facts. Because there is no dispute about those facts, you must accept them as true.” (Italics added.)
B. Analysis
Jefferson now contends that when read together, these instructions – and specifically the italicized portion of CALCRIM No. 220 – limited the jury’s determination of reasonable doubt to the evidence received at trial. Thus, the argument runs, jurors may have been misled into believing they were precluded from considering the absence of evidence connecting Jefferson to the crimes in determining whether reasonable doubt existed, resulting in a lessening of the prosecution’s burden of proof and impingement on Jefferson’s right to present a defense. Jefferson acknowledges his attorney argued the absence of evidence to the jury, but says CALCRIM No. 220 does not support the argument and jurors are presumed to follow instructions. Because the error is structural, Jefferson asserts, reversal is required. Applying an independent standard of review, which is appropriate for a claim of this kind (People v. Griffin (2004) 33 Cal.4th 536, 593; People v. Alvarez (1996) 14 Cal.4th 155, 217), we find no error.
“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364.) Thus, “[t]he prosecution bears the burden of proving all elements of the offense charged … and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements [citations]. This beyond-a-reasonable-doubt requirement … applies in state as well as federal proceedings. [Citation.]” (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.) Although the beyond-a-reasonable-doubt standard is a requirement of due process, however, “the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. [Citation.] Indeed, so 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. [Citation.] Rather, ‘taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.’ [Citation.]” (Victor v. Nebraska (1994) 511 U.S. 1, 5.)
California has chosen to define reasonable doubt 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.’” (§ 1096.) When the jury is charged in this language, no further instruction defining reasonable doubt need be given. (§ 1096a.) The Commentary to CALCRIM No. 220 at page 44 states that the instruction “is based directly on” section 1096.
Reasonable doubt may arise from the evidence presented at trial or it may arise from a lack of evidence. (Johnson v. Louisiana (1972) 406 U.S. 356, 360; People v. Simpson (1954) 43 Cal.2d 553, 566; cf. People v. Hill (1998) 17 Cal.4th 800, 831-832; United States v. Poindexter (6th Cir. 1991) 942 F.2d 354, 360.) In assessing Jefferson’s claim that CALCRIM No. 220 may have misled jurors with respect to this principle, we view the challenged portion of the instruction not “‘in artificial isolation,’” but “in the context of the instructions as a whole and the trial record” and we “inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution. [Citation.]” (Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. omitted; People v. Jablonski (2006) 37 Cal.4th 774, 831; see Victor v. Nebraska, supra, 511 U.S. at pp. 22-23.) We must also consider the arguments of counsel in assessing the probable impact of the instruction on the jury (People v. Young (2005) 34 Cal.4th 1149, 1202), and we must keep in mind that “[j]urors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” (Boyde v. California (1990) 494 U.S. 370, 380-381 [addressing argument that instructions prevented consideration of certain mitigating evidence at penalty phase of trial].)
Applying the foregoing principles, we reject Jefferson’s challenge to the portion of CALCRIM No. 220 directing jurors to compare and consider all of the evidence received throughout the trial in deciding whether the People have proved their case beyond a reasonable doubt. The instruction, whether considered alone or in conjunction with CALCRIM No. 222’s explication of evidence, merely tells jurors that they can consider only the evidence presented at trial in finding the People’s case proven – in other words, that the People may not meet their burden of proof based on evidence other than that admitted at trial. The instruction does not tell jurors that they cannot consider the absence of evidence in finding the People’s case not proven – in other words, that they may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to the defendant’s guilt. (See Victor v. Nebraska, supra, 511 U.S. at p. 16 [approving reasonable doubt instruction that required jurors to base conclusion on evidence in case & noting that other instructions reinforced message, such as by telling jurors to determine facts of case from evidence received in trial & not from any other source].)
Under the circumstances, and in light of the argument of counsel to the jury concerning the purported absence of critical evidence and other instructions that emphasized the People’s burden of proof, we conclude it is not reasonably likely the jury applied the challenged instruction as Jefferson contends. Accordingly, in instructing the jury pursuant to CALCRIM No. 220, the trial court neither violated Jefferson’s due process right to have his guilt determined beyond a reasonable doubt nor impinged on his right to present a defense.
People v. McCullough (1979) 100 Cal.App.3d 169, on which Jefferson relies, does not assist him. In that case, the jury asked a question concerning the elements of the charged crime. When the court reconvened, other questions were invited. During a discussion between the court and jurors of the concept of reasonable doubt, a juror asked, “So then the doubt must arise from the evidence?” The trial court responded affirmatively, an answer the appellate court determined misled the jury, since reasonable doubt may grow out of a lack of evidence as well as the evidence adduced. (Id. at pp. 180-182.) Here, by contrast, the trial court did not tell the jury that reasonable doubt must arise from the evidence presented at trial and, given the court’s instructions as a whole, it is not reasonably likely jurors understood CALCRIM No. 220 to preclude their consideration of any lack of evidence in determining whether reasonable doubt existed. (See Victor v. Nebraska, supra, 511 U.S. at pp. 22-23; Estelle v. McGuire, supra, 502 U.S. at p. 72.)
Our conclusion in this regard is consistent with that reached in several recent cases. In People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093, petition for review pending, petition filed September 4, 2007, we rejected the identical argument made by Jefferson. In People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1505-1506, 1508-1510, review denied September 12, 2007, Division 1 of the Fourth District Court of Appeal did likewise. In People v. Rios (2007) 151 Cal.App.4th 1154, 1156-1157, review denied September 12, 2007, we rejected a claim that CALCRIM No. 220’s language requiring jurors to compare and consider all the evidence impermissibly shifts the burden of proof to the defense by allowing the jury to hold against the defense the absence of defense evidence.
IV
CALCRIM NO. 315
Last, Jefferson claims the trial court erred in failing to give a complete and accurate instruction on eyewitness identification, which supported the defense theory of the case. Specifically, he complains of the trial court’s failure to include the cross-racial identification factor in CALCRIM No. 315.
A. Background
The prosecutor moved, in limine, that the defense not be permitted to present testimony that cross-racial identification is less trustworthy or accurate than other types of identification, due to lack of foundation. Arellano responded that she had contacted an expert, but, after speaking with him, decided not to call him as a witness. She asserted, nevertheless, that the defense would not be precluded from testing the veracity of the witnesses regarding their identifications, and she noted that there was a jury instruction specifically regarding the issue of eyewitness identification that could be given even without having an expert testify. The court agreed that the instruction would be appropriate, and that, while some of the factors listed therein for consideration could only be based upon an appropriate foundation being made by an expert witness, others would be appropriate even without expert testimony. It granted the motion to exclude testimony that would require the opinion of an expert, absent appropriate foundation that the witness testifying qualified as an expert.
As is apparent from the statement of facts, ante, Jefferson’s guilt of robbery and attempted robbery depended solely on the eyewitness identifications, by victims Cruz and Joaquin, of him and, to a lesser extent, his truck. Accordingly, Arellano requested that the court instruct with CALCRIM No. 315 (Eyewitness Identification). During the instructional conference, the trial court stated it would give the instruction, but would delete inapplicable factors, including “[t]he bullet point about are the witnesses and defendant of different races. While that is true, there’s been no expert testimony concerning the significance of that .…” Although the victims were Hispanic and Jefferson (and the robber) African-American, there was no objection to this proposed modification.
The trial court subsequently instructed the jury with the modified version of CALCRIM No. 315, to wit:
“You have heard eye witness testimony identify the guest [sic]. As with any other witness you must decide whether an eye witness gave truthful or accurate testimony.
“In evaluating identification testimony decide all the following questions: Did the witness know or have contact with the defendant before the event; how well could the witness see the perpetrator; what were the circumstances affecting the witness’s ability to observe such as lighting, weather conditions, obstruction, distance and duration of observation; how closely was the witness paying attention; was the witness under stress when he or she made the observation; did the witness give a description and how does that description compare to the defendant; how much time passed between the event and the time when the witness identified the defendant; did the witness ever fail to identify the defendant; did the witness ever change his or her mind about the identification; how certain was the witness when he or she made an identification; were there any other circumstances affecting the witness’s ability to make an accurate identification; was the witness able to identify the defendant in a photographic lineup.
“The People have the burden of proof beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden you must find that the defendant is not guilty.”
The court omitted the portion of the standard instruction that would have told jurors also to consider whether the witness and the defendant were of different races.
B. Analysis
Jefferson contends the trial court erred by omitting the cross-racial identification factor, which he says is a correct statement of the law and does not require expert testimony in order to be considered by the jury. Because identification was the sole issue with respect to counts 1 and 2, he claims, deleting the factor impinged on his right to a meaningful opportunity to present a complete defense and cannot be held harmless beyond a reasonable doubt, but, in any event, was also prejudicial under the less stringent test for state law error. We conclude the trial court should have included the cross-racial identification factor, but that the error was harmless.
A trial court has no sua sponte duty to instruct on eyewitness identification testimony. (People v. Cook (2006) 39 Cal.4th 566, 599; People v. Alcala (1992) 4 Cal.4th 742, 802-803.) Upon request, however, “[a] criminal defendant ‘is entitled to an instruction that focuses the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence.’ [Citations.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1110; People v. Wright (1988) 45 Cal.3d 1126, 1138-1144 (Wright).) One of these factors, which, as Jefferson notes, was supported by the evidence here, is the cross-racial nature of the identification. (People v. Palmer (1984) 154 Cal.App.3d 79, 85-86 & fn. 7; see Wright, supra, at p. 1148, fn. 21.) Accordingly, the trial court erred by deleting that factor from CALCRIM No. 315.
It appears the court may have misunderstood the relationship of expert testimony to the factors to be considered by the jury in evaluating identification testimony. The listing of questions in CALCRIM No. 315 simply brings to the jury’s attention the appropriate factors to be considered. (See Wright, supra, 45 Cal.3d at p. 1143.) The listing is done in a neutral manner; a number of the factors could cut both ways, benefiting a defendant in a particular case, while enhancing the prosecution’s argument in another. (See People v. Sanchez (1990) 221 Cal.App.3d 74, 77.) While the jury is instructed to consider the factors, however, “an explanation of the effects of those factors is … left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate.” (Wright, supra, at p. 1143, fn. omitted; accord, People v. Fudge, supra, 7 Cal.4th at p. 1110.) “If the defendant wishes to present to the jury information on the unreliability of eyewitness identifications under a particular set of circumstances, he must use means other than a jury instruction, such as expert testimony. [Citation.]” (Wright, supra, at pp. 1153-1154.) Expert testimony is not necessary, however, if the defendant simply wants to have the jury consider a factor in evaluating the identification testimony, and then wishes to argue the effect of the factor based on the evidence adduced at trial and common sense. The difference, while subtle, is important: “[T]he eyewitness ‘factors’ instruction provides the jury with sufficient means to evaluate eyewitness identification testimony and alerts jurors to the factors that may affect eyewitness identifications.… [E]xpert testimony may be used when appropriate to further elucidate the effect of the factors listed.” (Id. at p. 1154, italics added.)
Nevertheless, the error was harmless. Such an error “requires reversal only if ‘the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.’ [Citation.]” (Wright, supra, 45 Cal.3d at p. 1144, quoting People v. Watson (1956) 46 Cal.2d 818, 836.) There is no such reasonable probability here. The issue of the reliability of the eyewitness identifications was squarely before the jury. CALCRIM No. 315, as given, told jurors to take into account whether there were any other circumstances affecting the witnesses’ ability to make an accurate identification, and it did not prevent jurors from considering the fact (which would have been obvious to them) that the victims and Jefferson were of different races. (See People v. Felix (1993) 14 Cal.App.4th 997, 1009.) There were ample reasons beyond the racial dissimilarity to question Cruz’s and Joaquin’s identifications of Jefferson, including that the two resided in the same household and had talked to each other about what happened, neither victim had seen the perpetrator before, their estimates of the perpetrator’s height ran several inches shorter than Jefferson’s height, and Joaquin’s estimate of the perpetrator’s age was off by several years. In addition, substantial questions were raised concerning the descriptions of the truck involved, and Arellano vigorously attacked the reliability of the identifications.
We reject Jefferson’s suggestion that, because the error impinged on his rights under the federal Constitution, its effect should be judged under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. Jefferson was not precluded from fully presenting his defense of misidentification; moreover, CALCRIM No. 315 told jurors that the prosecution had the burden of proving beyond a reasonable doubt that it was Jefferson who committed the crimes.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, J., Dawson, J.