Opinion
E042942
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. JOE ANTHONY JORDAN, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
Defendant Jordan appeals from judgment entered following jury convictions for possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1) and street terrorism (Pen. Code, § 186.22, subd. (a); count 2). The jury also found true the allegation that count 1 was committed for the benefit of a gang. (§ 186.22, subd. (b)(1)(A).) The court further found defendant suffered a prior serious felony conviction and served a prior prison term. (§§ 1170.12, 667.5, subd. (b).) The trial court sentenced defendant to eight years in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends there was insufficient evidence to support the gang enhancement on count 1 and the prosecutor committed misconduct during closing argument by arguing gang evidence supported a conviction on count 1. In addition, defendant argues the trial court failed to give sua sponte a limiting instruction directing the jury not to consider the gang evidence in connection with count 1. Defendant also claims jury instruction, CALCRIM No. 220, is unconstitutional because it requires the jury to compare the Peoples evidence with defendants evidence. Defendant alternatively argues he received ineffective assistance of council. As to sentencing, the parties agree the clerks minutes incorrectly state defendant was sentenced to the upper term on count 1.
With the exception of the sentencing error, we reject defendants contentions and affirm the judgment.
1. Facts
While patrolling the Casa Del Sol Apartments during the evening of May 20, 2006, Sheriffs Deputies Ramirez and Catalano noticed defendant and his three companions, Yousef Pierce, Devon Hayes, and Norris Ragland, were all dressed in red clothing and walking between the apartment complex buildings. Ramirez and Catalano recognized Pierce and Hayes as members of a Bloods gang, 456 Piru Island Piru Bloods from Pomona (456 Piru).
Deputy Ramirez testified that he was patrolling the Casa Del Sol apartment complex when he first contacted defendant. Deputy Catalano testified he and Ramirez first contacted defendants at the Casa Bellas apartment complex. We refer to Casa Del Sol since both parties do so in their appellate briefs.
The deputies parked their unmarked vehicle in the apartment complex driveway and walked up to the four men. As the officers approached the men, they saw Pierce throw an object on the ground which later was identified as marijuana. Catalano handcuffed Pierce, sat him down on the curb, and cited him for marijuana possession.
Ramirez meanwhile spoke to the other three men. Defendant said he was a member of the 456 Piru. He also stated he was on parole and a condition of his parole was not to associate with other gang members. Ramirez handcuffed defendant, conducted a patdown search, and found $220 in cash in his pants pocket.
After inspecting the backseat of the patrol car to ensure there was no contraband left there, Ramirez placed defendant in the backseat of the car. Later, when defendant complained the handcuffs were too tight, Ramirez removed defendant from the patrol car and adjusted the handcuffs. Ramirez returned defendant to the patrol car after again checking the backseat for contraband.
Four deputies arrived to assist in taking defendant into custody for his parole violation. Ramirez removed defendant from the car, swapped the handcuffs on defendant with Deputy Jamess handcuffs, and turned over custody of defendant to James. Ramirez once again searched the backseat of his patrol car and this time found nine plastic baggies of methamphetamine where defendant had been sitting. When Ramirez said, "[W]hats this?," defendant, who was standing next to the car, said, "Hey man, dont stick me with another case. Give me a break."
At trial, Catalano provided expert testimony on criminal street gangs. He stated that the 456 Piru originated in Pomona, was a subset of another Bloods gang, and used red as its identification color, as did other Bloods gangs. Catalano believed defendant, Hayes and Pierce were all 456 Piru gang members. Ragland was a member of a Watts Bloods gang.
According to Catalano, the 456 Piru gang engaged in criminal activity, including murder, robbery, carjacking, and drug crimes. Four members of the gang, including Pierce, had committed drug crimes and other offenses in 2005 and 2006. Catalano concluded defendant committed the charged drug offense for the benefit of his gang.
2. Sufficiency of Evidence of Enhancement Allegation
Defendant contends there was insufficient evidence to support the gang enhancement imposed on count 1 (§ 186.22, subd. (b)(1)(A).)
The Street Terrorism Enforcement and Prevention (STEP) Act (§ 186.20 et seq.) was enacted to impose increased punishment for gang-related felonies. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) Under the STEP Act, the court may impose an enhancement upon "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, . . ." (§ 186.22, subd. (b)(1).) The prosecution bears the burden of proving that the defendant committed the offense for the benefit of the criminal street gang and with the requisite intent. (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)
Defendant contends that, even assuming there was sufficient evidence he committed the offense of possession of methamphetamine for sale (count 1), there was insufficient evidence that he committed the offense with "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) Relying on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, defendant argues that cases, such as People v. Romero (2006) 140 Cal.App.4th 15 (Romero) and People v. Hill (2006) 142 Cal.App.4th 770 (Hill), were wrongly decided and factually distinguishable. Those cases hold that the gang enhancement under section 186.22, subdivision (b)(1) does not require a showing of intent to promote the gangs criminal activity beyond the charged crime. (Romero, supra, at p. 19; Hill, supra, at pp. 772, 774.) Defendant construes the gang enhancement statute as requiring a showing of specific intent to promote other criminal conduct, not just gang involvement in committing the charged offense.
Defendants reliance on Garcia v. Carey, supra, 395 F.3d 1099, for this proposition is misplaced. In Garcia the court affirmed the district courts granting of habeas relief as to the gang enhancement because the record did not support an inference that the defendant robbed the victim in order to facilitate other gang related criminal activity. (Id. at p. 1103.) We note, however, that "`federal decisional authority is neither binding nor controlling in matters involving state law" (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 55), particularly when state case law is in disagreement.
We conclude the California state court decisions, Romero, supra, 140 Cal.App.4th 15 and Hill, supra, 142 Cal.App.4th 770 correctly construe the gang enhancement as not requiring evidence of gang criminal activity beyond that of the charged crime. As stated in Hill, "There is no requirement in section 186.22, subdivision (b), that the defendants intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense defendant commits." (Hill, supra, at p. 774.) Although the facts in Romero and Hill differ from the facts in the instant case, the courts reasoning and interpretation of section 186.22, subdivision (b)(1) nevertheless applies here.
Even assuming evidence of gang involvement is required in only the charged offense, defendant argues there is insufficient evidence the charged crime, count 1, was committed for the benefit of the gang. Defendant does not dispute there was sufficient evidence he was a gang member, possessed drugs, and was with other gang members. Rather, defendant claims there was no evidence he committed count 1 with the intent to promote criminal gang activity. He claims there was no evidence he sold drugs in the presence of other gang members; that the other gang members knew he was carrying drugs in his pocket to sell; or that the gang members accompanying him possessed drugs for sale. Defendant also argues that he did not commit the offense in public so as to intimidate the public, and thus the crime was not intended to establish gang turf.
Our review of any claim of insufficiency of the evidence is limited. In determining the sufficiency of the evidence, we review the entire record to determine whether the evidence was reasonable, credible, and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) The trier of fact may reasonably rely on the testimony of a single witness, unless the testimony is physically impossible or patently false. (Evid. Code, § 411; People v. Cudjo (1993) 6 Cal.4th 585, 608.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless "`upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (Bolin, supra, at p. 331.)
Here there was ample evidence to support a reasonable finding that defendant possessed methamphetamine for sale in furtherance of his gangs purposes. Deputy Ramirez testified defendant told him he was a member of the 456 Piru. At the time of defendants arrest, defendant had $220 in cash in his pants pocket, and Ramirez found nine baggies of methamphetamine in the patrol car where plaintiff had been sitting. When defendant was arrested, he was in the presence of three others who were members of Bloods affiliated gangs. Defendants gang, the 456 Piru, was a subset of the Bloods, whose common color was red. Defendant and his three companions were all wearing red, the color commonly worn to designate membership in a Bloods gang.
Gang expert, Deputy Catalano, explained that gangs used drug sales proceeds to purchase weapons and more drugs to sell. This was how gangs built their street credibility and notoriety and, in turn, increased recruitment of new members. New recruits tended to be attracted to the gangs money, influence, and lifestyle.
According to Catalano, the primary purpose of the 456 Piru gang was to engage in criminal activity in order to further future criminal activity. Many of the gangs activities involved drug sales and other related crimes. Catalano testified that four 456 Piru members had convictions in 2005 and 2006 for drug crimes and other felonies.
In Catalanos opinion defendant was selling methamphetamine for the benefit of the 456 Piru gang. He based his opinion on the fact that defendant was a 456 Piru gang member, was unemployed yet possessed a large sum of cash and prepackaged drugs, and was in the company of two 456 Piru gang members who were known drug dealers. Catalano further stated that he believed defendants proceeds from drug sales were intended to be used to benefit his gang in committing future criminal endeavors through using the proceeds to purchase guns for protection and intimidation, vehicles to facilitate drug sales, and more drugs.
Catalanos expert testimony, along with the other evidence mentioned above, was sufficient to support a reasonable jury finding that defendant committed the drug offense for the purpose of benefitting his gang. There was thus ample evidence to support the gang enhancement.
3. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during closing argument by urging the jury to convict defendant of count 1 (drug possession for sale) based on his gang membership. Defendant alternatively asserts that his trial attorneys failure to object constituted ineffective assistance of counsel (IAC).
Specifically, defendant complains that the prosecutor told the jury it could rely on Catalanos testimony that 456 Piru was dealing drugs, and 10 days before defendants arrest, Pierce and Hayes, who were known drug dealers, had been arrested for dealing drugs. The prosecutor noted that when defendant was arrested, he was a gang member, he was with other gang members who were drug dealers, and he had drugs on him. Defendant further complains that during rebuttal the prosecutor argued: "Hes with gang members, and another thing supporting again the fact that he possessed those items is because that is what they do. [¶] Thats what Yousef Pierce did, Devon Hayes did. Thats the testimony of Deputy Catalano of how they were dressed, what they were doing that night. It all supports the evidence of possession with the intent to sell."
Defendant argues that this gang evidence was improper because the gang evidence was admissible solely for proving the gang enhancement and the count 2 element of active participation in a street gang. Defendant claimed the evidence constituted inadmissible character evidence under Evidence Code section 1101, subdivision (a) as to count 1.
A. Forfeiture
Generally, this court will not review a claim of prosecutorial misconduct if the defendant has failed to object at trial. "`To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citations.]" (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) Although defendant in this case has effectively forfeited this issue on appeal by failing to raise it at trial, we will address it in anticipation of defendants IAC claim.
B. Applicable Law
A prosecutor commits misconduct by using "deceptive or reprehensible methods to persuade either the court or the jury." (People v. Price (1991) 1 Cal.4th 324, 447.) Bad faith on the part of the prosecutor is not required, and the misconduct may be inadvertent rather than intentional. (People v. Hill (1998) 17 Cal.4th 800, 822-823.)
C. Analysis
Defendant argues that although the gang evidence was admissible to prove the street terrorism charge and gang enhancement, it could not be relied on to prove defendant possessed methamphetamine for sale. Therefore the prosecutor improperly argued the gang evidence supported a conviction for possession of methamphetamine for sale (count 1). We reject this contention because the gang evidence was relevant to count 1 to prove motive. (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) It showed that defendant was not merely possessing methamphetamine but also intended to sell it. This is what members of defendants gang commonly did to further the objectives of the gang.
The evidence was material to establishing motive and was not unduly prejudicial, particularly since it was already admissible as to count 2 (street terrorism) and the gang enhancement. The prosecutor thus did not commit misconduct by arguing the gang evidence also supported a finding that defendant committed possession of methamphetamine for sale. (Evid. Code, § 352; People v. Carter (2003) 30 Cal.4th 1166, 1194.)
Defendant argues that even if the gang evidence was relevant to show motive, the trial court failed to carefully scrutinize the evidence to determine whether it was more prejudicial than probative. (Evid. Code, § 352.) But defendant did not object to the evidence and it was clearly admissible as to count 2 (street terrorism) and the gang enhancement. Since the gang evidence was highly relevant and admissible as to count 2 and the gang enhancement, it is not likely that the trial court would have excluded it as more prejudicial than probative.
Defendant further argues the prosecutor did not argue the gang evidence was relevant to prove motive. Rather, the prosecutor argued that defendant was guilty of possessing drugs for sale based on evidence members of his gang sold drugs and defendants companions were drug dealers and gang members. Defendant complains the gang evidence was thus used to establish guilt by association.
Regardless of how defendant construes the prosecutions argument regarding gang evidence, we conclude the prosecutors reference to gang evidence regarding count 1 was not improper since the jury could have reasonably construed the prosecutors argument as inferring that the gang evidence showed that defendant had the motive to sell drugs on behalf of his gang. As our Supreme Court has stated, "`"`A prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]"" (People v. Hill, supra, 17 Cal.4th at p. 819, citing People v. Williams (1997) 16 Cal.4th 153, 221; People v. Dennis (1998) 17 Cal.4th 468, 522.)
Because the prosecutors argument concerning gang evidence was not improper, we reject defendants contention that he received IAC due to his trial attorneys failure to object to the prosecutors argument concerning gang evidence.
4. Limiting Instruction on Gang Evidence
Defendant contends the trial court had a duty to instruct sua sponte on the limited purpose for which the jurors could consider the gang evidence. Defendant requested CALCRIM No. 1403 (Limited Purpose of Evidence of Gang Activity) before trial. The court said it could not rule on the instruction at that time because the court had not yet gone over the instructions or seen the instruction. The court stated that defendant could renew his request for the instruction at the appropriate time when instructions were discussed. Defense counsel did not renew his request for a limiting instruction on gang evidence. Defendant argues the trial court erred in not sua sponte giving a limiting instruction directing the jury not to consider the gang evidence as to count 1.
As defendant acknowledges, gang evidence was admissible for the purpose of determining whether he committed count 2 (street terrorism) and the gang enhancement. "When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (Evid. Code, § 355.) The statute expressly requires a request for a limiting instruction. Therefore, a trial court "has no sua sponte duty to give one." (People v. Hernandez, supra, 33 Cal.4th at p. 1051; People v. Jennings (2000) 81 Cal.App.4th 1301, 1316.)
Defendant argues that this case is an exception to the general rule. As noted in Hernandez, in extraordinary cases, in which the evidence is "minimally relevant to any legitimate purpose," the trial court has a duty to give a limiting instruction even if not requested. (People v. Hernandez, supra, 33 Cal.4th at p. 1052.) But, as concluded in Hernandez, this is not such an extraordinary case: "This is no such extraordinary case. All of the gang evidence was relevant to the gang enhancement, which was a legitimate purpose for the jury to consider it. Accordingly, the trial court must give a limiting instruction on evidence admitted to support the gang enhancement only on request." (Hernandez, supra, 33 Cal.4th at p. 1052.) Here, there was no duty to give a limiting instruction sua sponte as to count 1 since the gang evidence was highly relevant as to count 2 and the gang enhancement.
Defendant alternatively argues that trial counsel was ineffective for failing to request a limiting instruction. We reject this contention as well since it is likely defense counsel did not renew his request for a limiting instruction for tactical reasons. In Hernandez, the court concluded there was no IAC because of the possibility there were tactical reasons for defense counsel not renewing his request for the instruction, such as defense counsel not wanting to emphasize the gang evidence. (People v. Hernandez, supra, 33 Cal.4th at p. 1053.)
Defendant bears the burden of proving IAC by showing his trial attorneys performance was deficient and that, "`absent counsels error, it is reasonably probable that the verdict would have been more favorable to him." [Citation.] `If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation. [Citation.] On this record, we cannot say that counsel were deficient for not requesting a limiting instruction. `A reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide. [Citations.]" (People v. Hernandez, supra, 33 Cal.4th at pp. 1052-1053.)
Here, the gang evidence was relevant and therefore admissible to prove defendants motive to possess methamphetamine for sale. It was therefore not likely the court would give a limiting instruction as to count 1. Furthermore, as in Hernandez, there was likely a tactical reason for defense counsel not requesting a limiting instruction, such as the risk that giving the instruction might outweigh the benefits. (People v. Hernandez, supra, 33 Cal.4th at p. 1053.)
5. CALCRIM No. 220
Defendant contends the reasonable doubt jury instruction, CALCRIM No. 220, is unconstitutional because it contains the phrase: "you must impartially compare and consider all the evidence that was received throughout the entire trial." Defendant argues that this phrase indicates the jury must compare defendants evidence with the prosecutions evidence and thus inappropriately places the burden on defendant to produce evidence and prove his innocence.
Citing People v. Stone (2008) 160 Cal.App.4th 323, 331, the People assert defendant forfeited this objection by not raising it in the trial court. The court in Stone concluded the defendants failure to raise the same objection to CALCRIM No. 220 raised in the instant case constituted "waiver" of the objection on appeal. (Stone, supra, at p. 331.) Penal Code section 1259, however, provides that "the appellate court may . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."
"Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a `waiver, the correct legal term for the loss of a right based on failure to timely assert it is `forfeiture, because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the `"intentional relinquishment or abandonment of a known right."" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
We will address the issue on the merits since defendants objection to CALCRIM No. 220 concerns the prosecutions burden of proof, which affects defendants substantial rights. (People v. Johnson (2004) 115 Cal.App.4th 1169.)
A trial court must correctly instruct sua sponte on all applicable fundamental principles of law, including the presumption of innocence and the prosecutions burden of proof. (People v. Elguera (1992) 8 Cal.App.4th 1214, 1219.) On review, the question is whether the courts instructions "`correctly conveyed the concept of reasonable doubt to the jury" (Victor v. Nebraska (1994) 511 U.S. 1, 22) or, if not, whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violated the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72-73; People v. Raley (1992) 2 Cal.4th 870, 901.)
Defendants argument is very similar, if not identical, to the arguments presented in several cases, including People v. Rios (2007) 151 Cal.App.4th 1154 (Rios), People v. Westbrooks (2007) 151 Cal.App.4th 1500 and, most recently, People v. Stone, supra, 160 Cal.App.4th 323. In these cases, the court found CALCRIM No. 220 to be constitutional. In Rios, the defendant, who did not present a defense, argued that the CALCRIM No. 220 phrase, "to [impartially] compare and consider all of 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." (Rios, supra, at p. 1156.) The court in Rios rejected this contention, explaining that CALJIC 2.90 "imparts essentially the same mandate to the jury" in its instruction that reasonable doubt "`is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." (Rios, supra, at p. 1157.)
The Rios court concluded that, to the extent there are grammatical differences between CALCRIM No. 220 and CALJIC No. 2.90, the defendant "fails to persuade us that those grammatical differences are material. The United States Supreme Court rejected a constitutional challenge to CALJIC No. 2.90 in part on the rationale that `the entire comparison and consideration of all the evidence language `explicitly told the jurors that their conclusion had to be based on the evidence in the case. [Citation.] The language [the defendant] challenges in CALCRIM 220 did just that." (Rios, supra, 151 Cal.App.4th at p. 1157.)
In People v. Westbrooks, supra, 151 Cal.App.4th 1500, the defendant, who had presented a defense which mentioned missing prosecution evidence (id. at pp. 1504, 1506), claimed that the subject phrase in CALCRIM No. 220 prohibited the jury from considering "the lack of physical evidence implicating him in the crime." (Westbrooks, supra, at p. 1509.) The court in Westbrooks rejected this argument, explaining: "The sentence to which Westbrooks objects, like the remainder of CALCRIM No. 220, merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendants guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving Westbrookss guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing his guilt." (Westbrooks, supra, at p. 1509.)
In People v. Stone, supra, 160 Cal.App.4th 323, the defendant raised the same challenge to CALCRIM No. 220 raised in the instant case. And as in the instant case, the trial court gave the pretrial instruction on reasonable doubt, CALCRIM No. 103, as well as CALCRIM No. 220, which are essentially identical. (Stone, supra, at p. 331.) The court in Stone rejected the CALCRIM No. 220 objection, stating, "[W]e are not persuaded by defendants exercise in semantics. In the first place, a jury instruction cannot be judged on the basis of one or two phrases plucked out of context: Rather, `the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.]" (Stone, supra, at p. 331.)
The court in Stone further rejected the defendants challenge to CALCRIM No. 220, explaining: "Here, we cannot see how a jury would place enough significance on a single word—`compare—such that it would interpret the instruction as a whole to mean that the evidence must only preponderate in favor of the prosecution in order to warrant a guilty verdict. The instruction simply tells the jury to `compare and consider all the evidence that was received throughout the entire trial. It does not instruct the jury to engage in any balancing of the evidence in the sense of comparing the evidence presented by one side against the evidence presented by the other side. Indeed, such an interpretation is completely inconsistent with the instructions as a whole. . . . [¶] The idea that the jury would interpret `compare to mean that guilt is to be determined by a balancing-of-the scales approach which compares the evidence offered by two sides is further undercut by other instructions. . . . In sum, reading the instructions as a whole, together with the fact that nowhere in closing arguments do counsel so much as allude to a preponderance standard, we are convinced that there is no likelihood whatsoever that the jury could have interpreted the `compare and contrast language in the instruction in the manner suggested by defendant." (People v. Stone, supra, 160 Cal.App.4th at p. 332.)
Based on this reasoning, we reject defendants objection to CALCRIM No. 220.
6. Disposition
The judgment is affirmed. The trial court clerk is directed to correct the April 20, 2007, minute order to reflect that the trial court imposed on count 1 the mid-term, rather than an upper term sentence. The trial court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
We concur:
Ramirez, P. J.
Hollenhorst, J.