Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF151143, Elizabeth A. Riggs, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Gary W. Brozio, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Codrington, J.
Defendant Mark Anthony Hunt, Jr., appeals from judgment entered following two jury convictions of robbery (Pen. Code, § 211 ), each involving different victims, on separate days. As to both crimes, the court found true allegations defendant suffered a prison prior (§ 667.5, subd. (b)) and two strike priors (§ 667, subds. (c), (e)(2)(A)). Defendant was sentenced to an aggregate term of 12 years in state prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the photographic lineups were unduly suggestive and the officer conducting the lineups committed outrageous police misconduct by pointing to defendant’s photo. Alternatively, if defendant forfeited these contentions because he did not raise them in the trial court, defendant asserts he was not provided effective assistance of counsel. Defendant also argues the trial court erred in granting the prosecution’s motion for consolidation of the two robbery cases, and his constitutional right to confrontation was violated by exclusion of evidence of witnesses’ misdemeanor convictions. Defendant further challenges the trial court’s use of jury instructions, CALCRIM No. 372 on flight and CALCRIM No. 220 on reasonable doubt. We reject defendant’s contentions and affirm the judgment.
I
FACTS
Robbery of Jason Johnson
Jason Johnson testified at trial that defendant robbed him on August 7, 2008. At the time, he was homeless. It was late at night and he had just panhandled $10. As he was walking across a parking lot, two men approached him and asked him whether he wanted to buy drugs. After Johnson told the men no, Johnson saw defendant pull out a gun and heard him cock the gun. Johnson gave defendant the $10. Defendant searched Johnson’s pockets and told him to leave.
When Johnson was half way across the parking lot, he turned and saw defendant and his companion running across the street. Johnson got a good look at defendant, but not defendant’s companion. Defendant was African-American and had tattoos from the top of his eye, down each side to the middle of his cheek. He also had long, braided hair.
After defendant and his companion ran away, Johnson called the police and reported the incident. The police were unable to locate defendant or his companion that evening.
During Johnson’s trial testimony, he acknowledged that, as a child, he suffered severe brain damage from a bicycle accident. His brain damage affected his memory. He was institutionalized for mental problems and had received treatment for his short-term memory problems. Johnson also was diagnosed with a mood disorder. He was not on his medication for his mood disorder at the time of the robbery, since he was living on the street. Johnson told defense investigator Frank Rodela he was homeless and using crack, although he had not used it on the day of the robbery.
Sheriff’s Deputy Carranza testified that, on August 20, 2008, he reviewed the police report of the incident and believed, based on Johnson’s description of the robber, that defendant was the perpetrator. Carranza knew defendant from a prior, unrelated investigation and numerous contacts with him. Carranza generated a photo six-pack lineup, which included defendant’s photo. Carranza attempted to include in the lineup photos of men who looked similar to defendant, but it was difficult. Defendant had a unique appearance and there were not many African-American males with tattoos on their faces in Perris, particularly with as many facial tattoos as defendant had. Defendant was the first person fitting that description Carranza had seen.
When Carranza showed Johnson the photographic lineup, Johnson selected defendant’s photograph. Johnson acknowledged that only two of the six photos in the photographic lineup showed men with facial tattoos, and only one photo, that of defendant, showed a person with braids and extensive facial tattoos. Johnson said he remembered defendant because he had a unique face. Johnson was certain he was the robber. Johnson also identified defendant in court.
Robbery of Joshua Townsend
Joshua Townsend testified defendant robbed him at 11:30 a.m. on May 26, 2009. As Townsend was riding his bicycle in Moreno Valley, he encountered defendant walking down the street. Townsend got off his bike, gave defendant a cigarette, and conversed with him. After seven or eight minutes, defendant suddenly asked Townsend, “What do you have on my 40?, ” which Townsend understood as meaning defendant was going to rob him. Two other men jumped Townsend and held him down while defendant searched Townsend’s pockets. Defendant took Townsend’s money and bike, and then fled. Townsend called the police. He described defendant as an African-American male, with tinted glasses, facial tattoos, and a long ponytail. The police were unable to locate defendant until about a month later.
On June 22, 2009, Townsend called the police and reported that he had just spotted defendant in the area where the robbery had occurred. Defendant had asked Townsend for a cigarette, apparently not recognizing Townsend. After declining to give defendant a cigarette, Townsend went home and called the police. Sheriff’s Deputy Frank Magana located defendant and arrested him on June 22, 2009.
Magana testified that on June 23, 2009, he showed Townsend a photographic lineup containing defendant’s photo. Townsend identified defendant. Magana denied showing Townsend any other photographic lineup.
Townsend, however, testified that Magana showed him two photographic lineups. The first one was on June 22, 2009, the same day Townsend saw defendant. The photo six-pack had an old photograph of defendant without facial tattoos. Magana told Townsend he had pointed to the wrong person and then pointed to defendant’s photograph. A day or two later Magana returned with a new photographic lineup, which had a more recent photograph of defendant with tattoos. Townsend identified defendant’s photograph and was certain he was the perpetrator.
II
UNDULY SUGGESTIVE PHOTOGRAPHIC LINEUPS
Defendant contends the photographic lineups used to identify defendant as the perpetrator of the two robberies, were unreliable and unduly suggestive, rendering the pretrial and in-court identifications violative of defendant’s due process rights. The People argue defendant forfeited this objection by not raising it in the trial court. We agree. (People v. Medina (1995) 11 Cal.4th 694, 753; People v. Cunningham (2001) 25 Cal.4th 926, 989.) But even assuming the issue was not forfeited, it lacks merit.
The standard of review of a claim of undue suggestiveness remains unsettled: “‘It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo. [Citations.]’ [Citation.]” (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) The California Supreme Court has declined to specify whether the standard of review is deferential or independent. (People v. Ochoa (1998) 19 Cal.4th 353, 413.) But even under independent review, defendant’s undue suggestiveness claim lacks merit.
To prevail on such a claim, defendant must show that the photographic lineup procedure was unduly suggestive and there was a substantial likelihood the photographic lineups and in-court identifications were unreliable under the totality of the circumstances. (People v. Ochoa, supra, 19 Cal.4th at p. 412.)
Defendant claims Johnson’s identification of defendant was unduly suggestive because (1) defendant was the only person in the photographic lineup with conspicuous facial tattoos, which were highly distinguishable and (2) defendant’s photograph stood out due to his hair’s fullness. Defendant’s tattoos extended down both sides of his face in two broad, vertical stripes. He also had tattooed lettering above one of his eyebrows and on his neck.
Defendant further argues Johnson’s identification of defendant was unreliable because Johnson suffered from brain damage causing short-term memory problems and had mood disorders and mental problems that had resulted in Johnson being institutionalized for treatment. In addition, at the time of the robbery, Johnson had been living on the street, not taking his medication, and smoking crack cocaine, although he denied smoking crack on the day of the robbery. Furthermore, Johnson could not remember if he told the police defendant had two braids and did not mention that defendant had facial hair. Johnson also erroneously described defendant as having a vertical tattoo strip over his right eye.
As to Townsend’s photographic lineup identification, defendant argues the identification was unduly suggestive because, when Townsend initially pointed to someone other than defendant, Magana pointed out defendant’s photograph as the suspect. In addition, during the second photographic lineup, defendant’s photograph was the only one with significant facial tattoos and long braids. Defendant also argues Townsend’s identification of defendant was unreliable because Townsend testified he did not stand face to face with defendant and defendant was wearing a hat and tinted glasses during the robbery.
Defendant has not met the burden of demonstrating the existence of unreliable, unduly suggestive identification procedures as to either Johnson or Townsend’s identification of defendant. (People v. Cunningham, supra, 25 Cal.4th at pp. 989-990.) Defendant argues that defendant’s distinctive characteristics in the photo six-pack made him stand out from the others in the lineups. However, it is well settled that “differences in background color and image size among the various photographs” do not render a lineup impermissibly suggestive. (People v. Johnson (1992) 3 Cal.4th 1183, 1217; accord, People v. Carpenter (1997) 15 Cal.4th 312, 367; see also People v. Brandon (1995) 32 Cal.App.4th 1033, 1035.) The question is not whether there were any physical differences between defendant and the other persons in the lineup. Rather, “[t]he question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him.” (Carpenter, at p. 367; see also People v. Slutts (1968) 259 Cal.App.2d 886, 891.)
The California Supreme Court held in People v. DeSantis, supra, 2 Cal.4th at page 1222, that a five-person photographic lineup was not unduly suggestive when only the defendant’s photograph had a dark background and only the defendant was wearing a red shirt (the same color clothing worn by the suspect). The instant case is similar, with defendant’s photograph displaying prominent tattoos, whereas the individuals in the other photographs either did not have tattoos or the tattoos were not as prominent. But this did not cause defendant to be “‘“singularly marked for identification.”’” (DeSantis, at p. 1222.)
Based on this court’s review of the photo six-packs in question, we conclude the photographs of defendant were not unduly suggestive. The photographic lineups included photographs of individuals who were reasonably similar to defendant. The individuals are of similar age, race, skin complexion, hair and eyes. Also, the photo six-pack presented to Johnson included several individuals with facial and neck tattoos, facial hair, long hair, and braids.
Although the photographs of defendant show highly prominent tattoos, this is what made Johnson’s and Townsend’s identification of defendant more reliable. Defendant’s distinctive, prominent tattoos were such that they were quite noticeable and memorable. Misidentification was far less likely, particularly since, as Deputy Carranza testified, there were few, if any, other African-American males with such extensive facial tattoos. This was why Carranza had difficulty finding similar photographs of individuals to use in the photo six-pack.
Other factors demonstrating reliability of Johnson’s and Townsend’s identifications of defendant included evidence that Johnson had ample opportunity to view defendant, and Johnson identified defendant in the photographic lineup within two weeks after the robbery. In addition, Johnson’s description of the robber to the police was consistent with defendant’s appearance. Furthermore, Johnson identified defendant both in the photographic lineup and at trial, stating he was certain defendant was the robber because of his unique face.
As to Townsend’s identification of defendant, there also was ample evidence demonstrating reliability. There was evidence Townsend had a significant amount of time to view defendant while he walked and talked with defendant for seven to eight minutes before defendant unexpectedly robbed Townsend. After the robbery, Townsend provided the police with a detailed description of the robber consistent with defendant’s appearance. Then a month later, Townsend reported to the police that he had just seen defendant in the area of the previous robbery, and the following day identified defendant in a photographic lineup. Townsend testified that he was certain defendant was the robber and identified him at trial. Even though Townsend testified that an officer pointed out defendant as the suspect after Townsend initially selected the wrong person, Magana denied this happened.
Under the totality of the circumstances, the photographic lineups were not unduly suggestive or highly unreliable. Evidence impugning the reliability of Johnson and Townsend’s identifications of defendant as the perpetrator goes to the weight, rather than the admissibility, of the identification evidence. It was for the jury to decide whether to rely on Johnson’s and Townsend’s identification of defendant as the robber.
We also reject defendant’s contention that his attorney’s failure to move to suppress the identification evidence constitutes ineffective assistance of counsel. Since defendant has not demonstrated that the photographic lineups were unduly suggestive or that there was a substantial likelihood of misidentification, defense counsel’s failure to move to suppress the photographic lineup evidence and in-court identifications of defendant did not constitute deficient performance falling below an objective standard of reasonableness under prevailing professional norms. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218; Strickland v. Washington (1984) 466 U.S. 668, 684-685.) It also is not likely that had defense counsel moved to suppress the identification evidence, the motion would have been granted.
III
OUTRAGEOUS POLICE MISCONDUCT
Defendant contends his due process rights were violated by outrageous police misconduct committed when Magana showed Townsend two photographic lineups and coached Townsend into selecting defendant’s photo, after Townsend initially misidentified defendant during the first photographic lineup. When Townsend pointed to a photograph of someone other than defendant, Magana said, “nope, that’s the wrong guy.” Magana pointed to defendant’s photograph as the perpetrator, noting that the photograph showed defendant when he was 30 to 60 pounds heavier and did not have tattoos or long hair. During the second photographic lineup a day or two later, Townsend identified defendant.
A. Applicable Law Regarding Outrageous Police Misconduct Defense
The outrageous police misconduct defense originates from dicta in United States v. Russell (1973) 411 U.S. 423, 428-431 (Russell), suggesting that particularly egregious misconduct by the government may violate due process. (See also People v. McIntire (1979) 23 Cal.3d 742, 748, fn. 1 and United States v. McQuin (9th Cir. 1980) 612 F.2d 1193, 1196.) In Russell, the Supreme Court upheld drug manufacturing convictions where an undercover officer supplied a scarce manufacturing ingredient. The court rejected the defense claim that government conduct constituted either entrapment or a constitutional due process violation, noting: “While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, [citation], the instant case is distinctly not of that breed.” (Russell, at pp. 431-432.)
Also in dictum, our state Supreme Court stated in a footnote in People v. McIntire (1979) 23 Cal.3d 742, 748, fn. 1 (McIntire): “Sufficiently gross police misconduct could conceivably lead to a finding that conviction of the accused would violate his constitutional right to due process of the law.” (Ibid.) The court in People v. Holloway (1996) 47 Cal.App.4th 1757, 1765, however, noted that the United States Supreme Court has never reversed a conviction on such grounds.
What amounts to “outrageous” conduct sufficient to violate due process is unclear. The court in Russell suggested the police misconduct defense would only apply to conduct “violating that ‘fundamental fairness, shocking to the universal sense of justice, ’ mandated by the Due Process Clause of the Fifth Amendment.” (Russell, supra, 411 U.S. at p. 432; see also Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1263.) Regardless, it seems “the only standard with unanimous acceptance is that the defense should be successful only ‘in the rarest and most outrageous of circumstances.’” (The Case for Preserving the Outrageous Government Conduct Defense (1996) 91 Nw.U. L.Rev. 305, 321; note, United States v. Tucker: Can the Sixth Circuit Really Abolish the Outrageous Government Conduct Defense? (1996) 45 DePaul L.Rev. 943, 956.)
B. Discussion
The People argue defendant forfeited his claim of outrageous police misconduct by not raising it in the trial court. We agree, particularly since the defense turns on a factual determination as to whether the police conduct was so egregious that due process warrants dismissal of defendant’s charges. As Justice Werdegar noted in her concurring opinion in People v. Smith (2003) 31 Cal.4th 1207, 1228, “The due process ‘defense’ of outrageous law enforcement conduct is actually a bar to prosecution rather than a defense to the charge; as such, it is properly raised by motion and decided by the court. [Citations.]”
Although the alleged misconduct in the instant case constitutes serious misconduct, whether the conduct actually occurred is a factual issue, which should be decided by the trial court before this court considers the matter. Since the issue was not raised and decided below, defendant forfeited the police misconduct defense.
Even assuming the misconduct defense is generally a valid legal defense, which is unsettled, and it was not forfeited, defendant has not established the defense applies here. Townsend’s version of Magana’s conduct is disputed by Magana and does not qualify as one of the rarest and most outrageous examples of police conduct, “violating that ‘fundamental fairness, shocking to the universal sense of justice, ’ mandated by the Due Process Clause of the Fifth Amendment.” (Russell, supra, 411 U.S. at p. 432.) Even if Magana inappropriately pointed to defendant’s photograph after Townsend misidentified defendant during the first photographic lineup, according to Townsend, a day or two later Magana gave Townsend a new photographic lineup, during which Magana did not coach Townsend in any way and Townsend selected defendant’s photograph, stating he was certain defendant was the perpetrator.
See generally Comment, The Case for Preserving the Outrageous Government Conduct Defense, supra, 91 Nw.U. L.Rev. 305; 1 Witkin & Epstein, Cal. Criminal Law(3d ed. 2000) Defenses, § 102, pp. 442-444 & Supp. at pp. 167-168; People v. Smith, supra, 31 Cal.4th at p. 1227.
We further conclude, based on the totality of the evidence, that if the alleged misconduct actually occurred, it was not prejudicial error since Townsend had ample opportunity to observe defendant and Townsend was absolutely certain, both during the second photographic lineup and at trial, that defendant was the person who had robbed him.
We also reject defendant’s alternative ineffective assistance of counsel challenge since we reject defendant’s outrageous police misconduct defense on the merits. Defendant’s attorney’s performance in not raising the defense was thus not deficient nor was defendant prejudiced by his attorney not asserting the defense in the trial court. (People v. Ledesma, supra, 43 Cal.3d at pp. 216-218; Strickland v. Washington, supra, 466 U.S. at pp. 684-685.)
IV
CONSOLIDATION OF ROBBERY CASES
Defendant contends the trial court abused its discretion in granting the prosecution’s motion to consolidate the two robbery cases against him. Defendant argues the two cases should not have been consolidated because one of the cases was more inflammatory than the other and the weaker case was bolstered by the stronger case. In addition, the evidence in the two cases was not cross-admissible under Evidence Code section 1101, subdivision (a). (People v. Albertson (1944) 23 Cal.2d 550, 576.)
Section 954, governing the joinder of counts in a single trial, provides that “if two or more accusatory pleadings are filed, ” charging “two or more different offenses of the same class of crimes or offenses, ” the trial court, in its discretion, may order the cases consolidated. (§ 954; see also People v. Soper (2009) 45 Cal.4th 759, 771.) Offenses “of the same class” are those offenses possessing common characteristics or attributes. (People v. Lucky (1988) 45 Cal.3d 259, 276.) We review the trial court’s ruling for abuse of discretion, but we must consider whether a gross unfairness occurred that denied the defendant a fair trial or due process. (People v. Smith (2007) 40 Cal.4th 483, 510.) A trial court’s ruling under section 954 is examined based on the evidence available to the court at the time. (See People v. Osband (1996) 13 Cal.4th 622, 667; People v. Maury (2003) 30 Cal.4th 342, 391.)
Where the statutory requirements for joinder are met, the defendant must make a clear showing of prejudice to demonstrate that the trial court abused its discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1128-1129.) Improper consolidation violates due process only if it results in a trial that is fundamentally unfair. (Park v. California (9th Cir. 2000) 202 F.3d 1146, 1149.) Error involving misjoinder affects substantial rights and requires reversal if it results in actual prejudice because it had substantial and injurious effect or influence in determining the jury’s verdict. (United States v. Lane (1986) 474 U.S. 438, 449.)
The burden is on the defendant to demonstrate a reasonable probability that the joinder affected the jury’s verdicts. (People v. Grant (2003) 113 Cal.App.4th 579, 588.) The factors to be considered include: (1) cross-admissibility of the evidence, (2) whether some charges are likely to inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case, and (4) whether one of the charges is a capital offense or the joinder of charges converts the matter into a capital case. (People v. Mendoza (2000) 24 Cal.4th 130, 161 (Mendoza).)
Here, the evidence of the robberies is not cross-admissible. Evidence of each robbery would have been excluded in the other trial as uncharged bad acts or character evidence under Evidence Code section 1101, subdivision (a). Generally, character or propensity evidence is inadmissible to show conduct in conformity with that character. (§ 1101, subd. (a).) Character evidence is, however, admissible to prove identity when there is a high degree of similarity between the uncharged act and the charged offense. (See § 1101, subd. (b); People v. Lewis (2001) 25 Cal.4th 610, 636.) “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)
In this case, the two robberies do not share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. The robberies were committed over nine months apart, against different victims, and in different locations. In addition, one robbery was committed at night and the other was committed during the day. Also, one was committed with a gun and the other was not.
Nevertheless, the two robberies could be tried together since other factors weighed in favor of consolidation and defendant “has failed to carry his burden of making the clear showing of prejudice required to establish that the trial court abused its discretion” in consolidating the two robbery charges. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1227; see also Price v. Superior Court (2001) 25 Cal.4th 1046, 1070.) Neither case was any more inflammatory or of greater strength than the other. As defendant notes in his appellant’s opening brief, both crimes are of the same type and neither was any more egregious or likely to arouse the passions of the jurors than the other case.
Defendant argues the Townsend robbery was a stronger case than the Johnson robbery because Johnson was not a credible witness given his brain damage, mental health issues, and short-term memory deficiency. On the other hand, defendant claims the Townsend robbery case was much stronger because Townsend encountered defendant twice and Townsend’s identification of defendant was corroborated by evidence that, during the first photographic lineup, the officer pointed out defendant’s photo as the perpetrator. But the jury could view the Townsend identification evidence as weak, tainted, and unreliable based on Townsend’s testimony indicating he was coached into selecting defendant’s photo.
Consolidating the two cases was not patently absurd or an abuse of discretion since the key issues in both cases were whether the victims correctly identified defendant during the photographic lineups and whether the photographic lineups were unduly suggestive and unreliable. Also, Deputy Carranza’s testimony regarding preparing the lineups and having difficulty finding photographs of African-American men with extensive facial tattoos was relevant to both cases. Consolidation was economical and was not prejudicial, particularly since there was strong evidence in both cases proving that defendant committed both robberies. We thus reject defendant’s contention that consolidation resulted in a denial of due process or an unfair trial. (See People v. Osband, supra, 13 Cal.4th at p. 668.)
V
EXCLUSION OF JOHNSON’S MISDEMEANORS
Defendant contends the trial court deprived him of his right to confrontation by precluding impeachment of Johnson through introducing evidence of Johnson’s four misdemeanors convictions. Johnson’s misdemeanors included two burglary convictions in 1997 and 2007; a petty theft conviction, with a prior, in 2006; and a grand theft conviction in 2006. Johnson was also convicted in 2007 of a felony burglary, evidence of which was introduced at trial for impeachment purposes.
“Although the right of confrontation includes the right to cross- examine adverse witnesses on matters reflecting on their credibility, ‘trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.’ [Citation.] In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted. [Citations.]” (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)
Under Evidence Code section 788, a witness can be impeached with evidence “that he has been convicted of a felony.” Since the enactment of Proposition 8 in 1982, a witness in a criminal trial can also be impeached with evidence of prior misdemeanor misconduct. (People v. Wheeler (1992) 4 Cal.4th 284, 290-295 (Wheeler).) However, the admissibility of any past misconduct is limited to matters involving moral turpitude or dishonesty. (Id. at p. 296.) “‘Moral turpitude’” has been generally defined as “a ‘readiness to do evil.’” (Id. at p. 289.) “Misconduct involving moral turpitude may suggest a willingness to lie.” (Id. at p. 295.) Admission of prior misdemeanor misconduct evidence is also subject to the trial court’s discretion under Evidence Code section 352. (Id. at p. 296.)
When a misdemeanor is offered for impeachment purposes, a trial court exercising discretion under Evidence Code section 352 should consider “those factors traditionally deemed pertinent in this area.” (Wheeler, supra, 4 Cal.4th at p. 296.) These include whether the misdemeanor is remote in time or whether it involves dishonesty. (Id. at p. 297.) Another important consideration is that a misdemeanor “is a less forceful indicator of immoral character or dishonesty than is a felony.” (Id. at p. 296.) “Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present.” (Ibid.) As a result, trial courts “should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297.) “We apply the deferential abuse of discretion standard when reviewing a trial court’s ruling under Evidence Code section 352.” (People v. Kipp (2001) 26 Cal.4th 1100.)
Although, here, it is undisputed Johnson’s misdemeanors are crimes of moral turpitude, there was no abuse of discretion in excluding the evidence. One of the misdemeanor burglaries was 12 years old and thus remote and, as to the other three misdemeanors, it is unclear specifically what conduct resulted in the convictions. During the prosecution’s motion in limine, the trial court summarily granted the prosecution’s request to exclude evidence of Johnson’s misdemeanor convictions. Furthermore, the trial court permitted evidence of Johnson’s felony burglary conviction, which impugned Johnson’s credibility as a witness. It is not reasonably likely the jury would have had a significantly different impression of Johnson’s credibility had the misdemeanor convictions been admitted as well.
The court could reasonably conclude the risk of undue prejudice and consumption of time substantially outweighed the low probative value of the evidence. There was no constitutional violation of defendant’s right to confrontation or abuse of discretion in excluding evidence of Johnson’s misdemeanor convictions.
VI
INSTRUCTION ON FLIGHT, CALCRIM No. 372
Defendant challenges the constitutionality of CALCRIM No. 372 on the grounds its language referring to awareness of guilt permits jurors improperly to infer guilt from flight. Defendant argues such inference is irrational, arbitrary, and in violation of due process, because flight from a crime scene does not necessarily reflect participation in a crime.
The version of CALCRIM No. 372 given to the jury stated: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.” (Italics added.)
The People argue defendant forfeited this objection by not raising it in the trial court. Regardless of whether the objection was forfeited, we reject defendant’s contention on the merits under Mendoza, supra, 24 Cal.4th at pages 179-181 and People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1159 (Rios).
The California Supreme Court in Mendoza, supra, 24 Cal.4th at pages 179-181, upheld the constitutionality of a similar instruction, CALJIC No 2.52, and rejected essentially the same argument defendant asserts here. The court in Mendoza stated that an instruction permitting “a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt” did not violate due process. (Mendoza, at p. 180, italics added; see also Rios, supra, 151 Cal.App.4that p. 1158.)
The version of CALJIC No. 2.52 (1979 rev.) at issue in Mendoza stated: “‘The flight of a person immediately after the commission of a crime, or after he is accused of the crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.’” (Mendoza, supra, 24 Cal.4that p. 179; italics added.)
Defendant argues CALJIC No. 2.52 and CALCRIM No. 372 are substantially different since CALCRIM No. 372 refers to the defendant’s awareness of his guilt, whereas CALJIC No. 2.52 refers to the defendant’s “consciousness of guilt.” Defendant acknowledges that the court in Rios, supra, 151 Cal.App.4th 1154, rejected this argument but urges this court to reject Rios and conclude the language in CALCRIM No. 372 goes beyond merely permitting an inference of consciousness of guilt. Rather, defendant argues, it allows for an actual inference of guilt itself, which violates due process.
We reject this proposition. Contrary to defendant’s urging, we adhere to the reasoning and outcome in Rios, upholding CALCRIM No. 372 as a constitutionally valid instruction on flight. As the Rios court explained: “Since the dictionary defines ‘consciousness’ as ‘[s]pecial awareness or sensitivity: class consciousness; race consciousness’ [citation], ipso facto the special awareness that Mendoza allows a jury to infer from a flight instruction is ‘guilt consciousness’ (in the syntax of the dictionary) or ‘consciousness of guilt’ (in the syntax of the California Supreme Court). [Citations.] As the inference in Mendoza passes constitutional muster, so does the inference here.” (Rios, supra, 151 Cal.App.4th at p. 1159.)
Likewise, consistent with Mendoza, supra, 24 Cal.4th at page 180 and Rios, supra, 151 Cal.App.4th at p. 1159, we reject defendant’s contention that CALCRIM No. 372 impermissibly presumes the existence of guilt from flight.
VII
INSTRUCTION ON REASONABLE DOUBT, CALCRIM No. 220
The trial court instructed the jury in accordance with CALCRIM No. 220 that the defendant is presumed innocent unless the People prove the crime beyond a reasonable doubt. The instruction defined “[p]roof beyond a reasonable doubt” as “proof that leaves you with an abiding conviction that the charge is true.” The jury was told that to decide whether the People had proved their case beyond a reasonable doubt it must “impartially compare and consider all the evidence that was received throughout the entire trial.” “Evidence” was defined in CALCRIM No. 222 as “the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else [the court] told [the jury] to consider as evidence.” (CALCRIM No. 222.)
Defendant argues the CALCRIM No. 220 definition of reasonable doubt violates due process by limiting reasonable doubt to the evidence presented at trial. The instruction thus improperly precludes the jury from considering the lack of evidence in determining reasonable doubt. Defendant also argues CALCRIM No. 220 negates the presumption of innocence and reduces the prosecution’s burden of proof by, in effect, advising the jury to weigh the evidence in a manner suggestive of the lesser preponderance of the evidence standard. Defendant, however, acknowledges the courts have almost uniformly rejected these arguments, but asserts them to preserve the issues for possible review by the California Supreme Court and federal courts.
Consistent with other case law holding CALCRIM No. 220 constitutional, we reject defendant’s challenge to CALCRIM No. 220. As the court noted in Campos, the California Supreme Court and the Courts of Appeal in every appellate district have rejected similar challenges to CALCRIM No. 220. (People v. Campos (2007) 156 Cal.App.4th 1228, 1239 (Campos).) These cases concluded that the contents of the reasonable doubt instruction did not violate due process or lessen the burden of proof below that of finding guilt beyond a reasonable doubt. (See, e.g., People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; Rios, supra, 151 Cal.App.4th 1154; People v. Westbrooks (2007) 151 Cal.App.4th 1500.)
CALCRIM No. 220 does not tell the jury reasonable doubt must arise solely from the evidence presented. (Campos, supra, 156 Cal.App.4th at p. 1238.) Rather, the instruction simply says that the jury must consider all of the evidence presented and, if the evidence does not prove the defendant guilty beyond a reasonable doubt, the jury must find the defendant not guilty. Because the prosecution is required to prove every element of the crime, the jury presumably understands a lack of evidence could lead to reasonable doubt.
In rejecting the same arguments raised in this case, the court in Guererro stated: “Contrary to defendant’s suggestion, CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. In addressing defendant’s claim, we consider whether a ‘reasonable juror would apply the instruction in the manner suggested by defendant.’ [Citation.] The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendant’s guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant.” (People v. Guerrero, supra, 155 Cal.App.4th at pp. 1268-1269.)
There is no reasonable likelihood that the jury understood CALCRIM No. 220 in the manner suggested by defendant. As the court in Campos noted, “In light of this impressive and controlling array of legal authority, we find no compelling reason to revisit this issue.” (Campos, supra, 156 Cal.App.4th at p. 1239.)
Defendant argues CALCRIM No. 220 deprives defendant of his due process right by failing to advise the jury that the prosecution has the burden of proving each element beyond a reasonable doubt. In People v. Henning (2009) 178 Cal.App.4th 388, 405-406, the court rejected this argument as well, holding that CALCRIM No. 220, in conjunction with other instructions on the separate elements of the charged offenses, adequately informed the jury that the prosecution was required to prove each element beyond a reasonable doubt. (Henning, at p. 406.)
Here, the trial court instructed the jury on the elements of each crime and that the prosecution must prove each crime beyond a reasonable doubt. In addition, the key issue was the identity of the perpetrator, and the trial court instructed the jury that the prosecution had the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. (CALCRIM No. 315.)
As explained in People v. Henning, supra, 178 Cal.App.4th at page 406, “‘Under the United States Constitution and California law, the government must prove each element of a charged offense beyond a reasonable doubt. [Citations.] Whether an instruction correctly conveys this standard must be determined by examining the instruction in the context of all the instructions, given the jury. [Citations.]’” Taking into consideration the jury instructions as a whole, we conclude there was no instructional error or violation of defendant’s due process rights. CALCRIM No. 220, in conjunction with the other instructions, adequately instructed the jury on the prosecution’s burden of proving each element of the charged crimes beyond a reasonable doubt.
VIII
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., King J.