Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05HF2248, William R. Froeberg, Judge. Affirmed.
Susan S. Bauguess, 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, Assistant Attorney General, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Hedayet Khogyani appeals from a judgment after a jury convicted him of attempted murder and mayhem and found true he personally used a deadly weapon and caused his victim brain injury and paralysis. He argues insufficient evidence supports his attempted murder conviction, the trial court erroneously admitted expert testimony, and there were instructional errors. None of his contentions have merit, and we affirm the judgment.
FACTS
In late 2005, Usmani Hashemee lived in a two-bedroom condominium. Hashemee rented one of the bedrooms to Sadek Hassan, and when Hashemee began to travel frequently for work, he rented his bedroom to his brother-in-law, Khogyani. Hashemee was married to Khogyani’s sister, Nadja Khogyani-Hashemee (Nadja). Khogyani had another sister, Nadia Khogyani (Nadia).
In mid-December, Hashemee returned home from a business trip. A few days later, Hashemee went to his sister-in-law’s, Nadia Khogyani (Nadia), house for dinner with her, her husband, and Khogyani. Hashemee and Khogyani returned home about 10:00 p.m. Hassan returned home around the same time and went upstairs. Hashemee worked on the computer in the downstairs dining room, which he had converted into an office. Since he returned from his trip, Hashemee observed that Khogyani had been acting strange—he would not take a shower, and he would wear the same jacket every day.
Hashemee told Khogyani he needed to shower and shave, and Khogyani said he was going to the store to buy razor blades. When Khogyani returned from the store, Hashemee questioned him concerning his choice of blades, a short conversation ensued, Khogyani went upstairs, and Hashemee made some telephone calls. Hassan came downstairs and went to the patio to smoke a cigarette. Khogyani came downstairs, and he and Hashemee split a banana; Hassan heard “laughing.”
Hashemee was working in the office when his body started shaking, he felt weak, and he could not stand. He felt an electric shock passing through his body starting on the back of his neck. Khogyani stabbed him with a knife below his right ear, and Hashemee fell to the ground. As Hashemee lay on his back, Khogyani repeatedly stabbed him in the neck with the knife. Khogyani continually shook his head in an up and down motion and said, “‘Allah[.]’” Hashemee tried to defend himself by placing his hands around his neck, but he did not have the strength. He prayed aloud for himself and his son, and called for Hassan’s help.
Hassan tried to get inside, but Khogyani walked towards him with the knife and locked the sliding glass door. Khogyani returned to Hashemee and continued stabbing him in the neck. Hassan climbed through the kitchen window, and yelled at Khogyani to “‘stop[.]’” Hassan grabbed his hand, and Khogyani dropped the knife. Khogyani went upstairs, got his jacket and keys, and left. Hassan called 911.
Officer Alberto Lopez responded to the call. When he arrived, Hashemee was laying flat on his back and holding a white towel to his neck. There was a kitchen knife with a four-inch blade lying on his leg. Other officers arrived and they were given Khogyani’s name, description, and the type of car he was driving, a white Nissan Sentra.
After Hashemee was taken to a local medical center, Officer Dana Potts remained at the condominium and secured the crime scene. A few hours later, Potts stepped outside and saw a person driving a white Nissan Sentra. He put his hand out to signal the driver to stop, which he did. Potts asked the driver to get out of the car, and after he did, he had him put his hands behind his back, he placed handcuffs on him, and he verified his identity—it was Khogyani. Khogyani calmly asked Potts if his friend was home and was curious about what was happening. Khogyani was responsive to Potts’ questions then, and later during booking.
Officer Julian Trevino interviewed Hashemee at the medical center approximately two weeks after the incident. Hashemee told Trevino “he felt an electrical charge go through his body[]” before Khogyani stabbed him. Trevino asked medical staff to turn him over, and Trevino “saw two small almost circular . . . marks on . . . the back of his neck[,]” about one millimeter and three millimeters in size, and about one inch to one and one-half inches apart. Trevino described them as burn marks. Because of his injuries, the wounds could not be photographed.
A second amended information charged Khogyani with attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a))(count 1), and aggravated mayhem (§ 205) (count 2). As to both counts, the information alleged he personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)), and caused brain injury and paralysis (§ 12022.7, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
Hassan testified he did not have any problems with Khogyani, and he seemed “fine” the night of the incident. On cross-examination, Hassan stated he never saw Khogyani and Hashemee get into a fight.
Hashemee testified that at the time of trial he lived in Bangladesh, he was a house husband, and he could not walk and had bladder problems because of his injuries. Hashemee explained he was married to Khogyani’s sister, and at the time of the incident, had known him about seven years. He said that before the incident, he had a good relationship with Khogyani, and they had never argued or fought. He also said their conversations the night of the incident were normal.
After an Evidence Code section 402 hearing, the district attorney offered the testimony of Sergeant Mark Manley of the Costa Mesa Police Department. Manley testified as an expert witness. He was the chief use of force instructor and the “chief taser instructor” for his department. After detailing his training and experience with taser guns, he explained a taser delivers an electrical charge from the device to a person. He stated a taser gun works in two ways: the taser fires two probes that when they make contact, deliver a charge; or the taser can be pressed against a person delivering a direct charge. He described the feeling of a taser gun as being shocked and said the goal is to incapacitate a person. He stated officers are trained to deliver the electricity where there are large muscle groups and nerve bundles, such as the chest area, thighs, arms, and neck. He said a stun gun will leave red or burn marks on the skin that have a small round appearance.
The parties stipulated Hashemee suffered great bodily injury, significant and substantial physical injury, and permanent paralysis involving a major loss of motor function.
Khogyani offered the testimony of his maternal uncle, Sami Khogyani (Sami). Sami testified his sister, Zarena Khogyani (Zarena) and her family, including Khogyani, lived with him in 1987 when they emigrated from Afghanistan to the United States. He described his sister as “temperamental,” “controlling,” and “obsessive,” and said Khogyani was “very quiet” and “almost like a girl, very soft.” He explained that approximately 10 years later, after moving to Virginia and back to California to live with him, his sister was “possessive,” and thought people on the television were talking to and smiling at her.
Khogyani also offered the testimony of his sister and Hashemee’s wife, Nadja as to the mental health issues of the family. She explained that when she moved to Virginia, her mother’s behavior “got extremely worse[.]” Nadja said her mother took all the photographs down because she thought they were staring at her, she accused her father of having an affair with her sister, and she was found walking alone in the snow talking to herself. She said that when the family moved back to California, Khogyani also began to behave abnormally—he would take three to four hour showers and he would not socialize. Nadja said she never saw Hashemee and Khogyani argue or fight. She stated that in the months leading up to the incident when Khogyani lived with their other sister, Nadia, Khogyani told Nadja he would not leave the house, he heard voices, he would only drink coffee, and he would not eat anything but bananas because other food was bad for his system. She said he would not take showers or change his clothes.
Khogyani offered Nadia’s testimony as to his behavior. She testified that after Khogyani returned from Pakistan, he lived with her. She said that when he lived with her, he would not shave, and he would wear traditional “Punjab” clothing. She explained he would take long showers during the middle of the night, and he would pray for unusually long periods of time. She stated he drank coffee and ate apples or bananas. She never saw Khogyani and Hashemee argue or fight.
Finally, Khogyani offered the testimony of Dr. Kara Cross a clinical psychologist. Cross performed a clinical evaluation of Khogyani, which included two hours of document review and a one and one-half hour examination. Based on her review of his medical history and examination, she opined he has “schizophrenia spectrum disorder.” She opined schizophrenics can mask their symptoms from the public to avoid being labeled mentally ill, and they can be suicidal. He jumped from “topic to topic,” “talked about . . . hyper religious ideology,” heard “voices,” and “would stare off into space[.]” She reviewed a police report where Khogyani told an officer, “‘God speaks to him through the trees and God led him into [the] backyard.’” She stated schizophrenia “can be an inheritable illness.” On cross-examination, Cross admitted that generally schizophrenics are not violent and are capable of rational behavior. On redirect examination, Cross stated Khogyani had attempted suicide in 2005.
The jury convicted Khogyani of attempted murder, but found it was not willful, deliberate, and premeditated, and the lesser included offense of mayhem. The jury found true all the allegations.
The trial court sentenced Khogyani to the middle term of seven years on count 1, a consecutive one-year term on the personal use enhancement, and a consecutive five-year term on the great bodily injury enhancement for a total state prison term of 13 years. The court stayed sentencing on count 2 and the accompanying enhancements pursuant to section 654.
DISCUSSION
I. Sufficiency of the Evidence
Khogyani argues insufficient evidence supports his conviction for attempted murder because his “mental impairment precluded any ability to form the requisite specific intent to kill.” Specifically, he claims “[t]here was no evidence of any prior immediate threats by [him] to Hashemee which would infer an intent to kill, nor were his actions that evening consistent with a perceived intent to kill.” As we explain below, Khogyani’s intent to kill may be inferred from his acts and the circumstances of the crime.
The Attorney General claims Khogyani’s argument “borders” on the abolished defense of diminished capacity. We construe it as the defense of diminished actuality, which is a viable defense, and the one defense counsel argued at trial. (People v. Coddington (2000) 23 Cal.4th 529, 581-584, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”’ [Citations.]
“‘“Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” [Citation.]’ [Citation.]
“ . . . ‘The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citation.]’ [Citation.] In contrast, ‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.] Hence, in order for defendant to be convicted of the attempted murder . . ., the prosecution had to prove he acted with specific intent to kill [the] victim. [Citation.]
“Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’ [Citation.] To be guilty of attempted murder . . ., defendant had to harbor express malice toward [the] victim. [Citation.] Express malice requires a showing that the assailant ‘“‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]”’ [Citations.] [¶] . . . [¶]
“[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. Citation. . . . .’ Citation.
“An observation made by this court in People v. Arias (1996) 13 Cal.4th 92 . . ., also has particular relevance to the inquiry at hand. We explained in that case that ‘if the jury found defendant’s use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance.’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 738-742 (Smith).)
Here, Khogyani’s conduct and the circumstances of the crime provided the jury with sufficient evidence from which to conclude he intended to kill Hashemee. After Khogyani incapacitated Hashemee, he repeatedly stabbed him in the neck with a kitchen knife. Substantial evidence of the specific intent to kill can be inferred from the fact an assailant used a deadly weapon such as a knife and targeted a vital area of the person’s body. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1552.) When Hassan tried to enter the condominium, Khogyani got up, walked towards him with the knife, and locked the sliding glass door. Khogyani returned to Hashemee and continued stabbing him in the neck. From this evidence the jury could reasonably conclude Khogyani was completely aware of what he was doing and intended to kill Hashemee because he stopped attacking him to prevent Hassan from disrupting his attack. After Hassan finally managed to get inside and stop Khogyani, Khogyani went upstairs and got his jacket and car keys, and left. “[E]vidence of flight may establish consciousness of guilt[.]” (People v. Morgan (2007) 42 Cal.4th 593, 620-621.)
Finally, the district attorney did not offer medical testimony as to the severity of Hashemee’s injuries, but the parties did stipulate he suffered great bodily injury, significant and substantial physical injury, and permanent paralysis involving a major loss of motor function. At the time of trial, approximately 15 months after the incident, he could not walk unaided and he had bladder problems. (People v. Lashley (1991) 1 Cal.App.4th 938, 945 [seriousness of victim’s injuries factor constituting substantial evidence of intent to kill].) Based on Khogyani’s conduct, the circumstances of the crime, and Hashemee’s injuries, there was sufficient evidence for the jury to conclude Khogyani intended to kill Hashemee.
In People v. Bolden (2002) 29 Cal.4th 515, 560-561 (Bolden), the California Supreme Court addressed the issue of whether it was harmless error when the trial court failed to instruct the jury the felony-murder special circumstance included an intent to kill element. The court concluded the error was harmless because evidence of intent to kill was overwhelming and the jury could have had no reasonable doubt defendant had the intent to kill. The court explained the evidence demonstrated the unsuspecting and defenseless victim died from a five-inch long and five to six-inch deep single stab wound to the back. The court concluded defendant did not present any evidence the killing was other than intentional. (Id. at p. 561.)
Khogyani attempts to distinguish Bolden on the grounds Hashemee tried to defend himself, and he did offer evidence the attack was other than intentional. As to his first claim, whether the victim tried to defend himself is not relevant as to Khogyani’s intent. With respect to his second claim, Khogyani relies on the fact that because there were no previous problems between them, the attack must have been the result of his paranoid schizophrenia as supported by Cross’s testimony, his family’s prior observations of his strange behavior, and his prior psychological reports. Essentially, Khogyani asserts he offered evidence that established his mental illness prevented him from actually forming an intent to kill Hashemee. What he asks us to do is disregard the jury’s determination, reweigh the evidence, and substitute our evaluation of the evidence for the jury’s. That we cannot do. (Smith, supra, 37 Cal.4th at pp. 738-739.)
To support his claim there was insufficient evidence of an intent to kill, he also relies on the fact the jury convicted him of the lesser included offense of mayhem and, therefore, did not find he intentionally caused Hashemee permanent disability or disfigurement. The absence of such a finding is not inconsistent with a finding of an intent to kill. A person can intend to kill another without intending the victim be permanently disfigured or disabled. There was sufficient evidence to support Khogyani’s conviction for attempted murder.
II. Expert Testimony
Khogyani argues the trial court abused its discretion when it permitted Manley to testify as an expert witness concerning taser/stun guns because his testimony was irrelevant and it invaded the province of the jury by allowing it to speculate as to Hashemee’s feeling before falling. We disagree.
Relevant evidence is “evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Although “‘there is no universal test of relevancy, the general rule in criminal cases [is] whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution[.]’” (People v. Freeman (1994) 8 Cal.4th 450, 491.) To be relevant and admissible, an expert’s testimony must be related to a subject sufficiently beyond common experience that the expert’s opinion would assist the trier of fact. (Evid. Code, § 801, subd. (a).)
Here, Manley’s expert opinion concerning taser/stun guns was relevant to the issue of whether the attempted murder was premeditated, and as we explain above, whether Khogyani intended to kill Hashemee. Hashemee testified he was standing in his office when his body started shaking and his legs felt weak. Hashemee said he felt an electric shock passing through his body starting on the back of his neck. After explaining how taser/stun guns work, Manley described the feeling of a taser gun as being shocked and the goal is to incapacitate a person. Manley’s expert opinion was relevant to explain to the jury the effects a taser/stun gun has on a person because such effects are beyond the common experience of average jurors. (People v. Racy (2007) 148 Cal.App.4th 1327, 1332-1334 [expert testimony necessary because effects of stun gun, unlike effects of more typically used weapons, are matters beyond experience of average jurors].) Manley’s expert testimony did not allow the jury to speculate, but instead provided a sound evidentiary basis for deciding whether a taser/stun gun caused the feeling he described before Khogyani repeatedly stabbed him in the neck.
Khogyani asserts there was no foundation for Manley’s testimony because no medical professional testified regarding the nature of the marks on Hashemee’s neck and Manley never saw the marks to determine whether they were consistent with the use of a taser/stun gun. Khogyani cites to no place in the record, and we found none, where Manley opined a taser/stun gun caused the marks on the back of Hashemee’s neck. Trevino described the marks he saw on the back of Hashemee’s neck, and Manley opined on the type of marks a taser/stun gun usually leaves based on his training and experience. It was for the jury to decide whether they matched, and if the jury concluded they did not, it could reject Manley’s expert opinion. (Jud. Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 332, “Expert Witness Testimony [not required to accept Manley’s opinions as true; could disregard any opinion it found unbelievable, unreasonable, or unsupported by evidence].)
Khogyani makes three claims which we will address together. He contends: (1) Manley testified the taser/stun gun makes a “clacking” noise, but neither Hashemee nor Hassan ever testified they heard such a noise; (2) Manley’s and Khogyani’s testimony conflicted concerning the taser/stun gun’s affects on the body; and (3) when Trevino saw the marks on Khogyani in the hospital, they were 16 days old and Manley did not testify the marks would last that long. These claims go to the weight, not the admissibility of the evidence. (People v. Prince (2007) 40 Cal.4th 1179, 1229 [defendant’s job to expose weaknesses in expert’s opinion on cross-examination].)
III. CALCRIM No. 3428
Khogyani claims the trial court erroneously omitted a portion of
CALCRIM No. 3428, “Mental Impairment: Defense to Specific Intent or Mental State.” Specifically, Khogyani contends that by failing to include the last sentence of CALCRIM No. 3428, the trial court never instructed the jury what to do if it found his mental impairment affected his ability to form the specific intent to commit attempted murder, and no other instruction provided the proper guidance. Not so.
The trial court instructed the jury with CALCRIM No. 3428, which stated: “You have heard evidence that the defendant may have suffered from a mental disease, defect[,] or disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state. [¶] For the crime of [a]ttempted [m]urder, the specific intent and mental state required is the specific intent to kill unlawfully a human being. [¶] For the finding that the attempted murder was willful, deliberate[,] and premeditated, the required mental state is premeditation and deliberation. [¶] For the crime of [a]ggravated [m]ayhem[,] the specific intent required is the intent to permanently disable or disfigure another person.” The trial court did not include the portion of CALCRIM No. 3428, which provides, “If the People have not met this burden, you must find the defendant not guilty of [attempted murder].”
“‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ [Citation.] ‘“The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.”’ [Citation.]” (People v. Castillo (1997) 16 Cal.4th 1009, 1016.)
Pursuant to CALCRIM No. 3428, the trial court instructed the jury it could consider the evidence Khogyani had a mental illness to determine whether he possessed the specific intent to commit attempted murder. The court also instructed the jury the prosecutor had the burden of proving beyond a reasonable doubt that Khogyani acted with the required specific intent. But the court deleted the portion of the instruction that stated if the prosecutor did not satisfy its burden of proving beyond a reasonable doubt that Khogyani acted with the required specific intent, the jury had to find him not guilty. After reviewing all the instructions, we conclude the court properly instructed the jury.
The trial court instructed the jury with the proper elements of attempted murder, including the specific intent element. More importantly, the court instructed the jury with the following: CALCRIM No. 220, “Reasonable Doubt”; and ALCRIM No. 225, “Circumstantial Evidence: Intent or Mental State.”
CALCRIM No. 220 stated the prosecutor had to prove Khogyani was guilty beyond a reasonable doubt, and unless the evidence proved Khogyani was guilty beyond a reasonable doubt, Khogyani was entitled to an acquittal and the jury had to find him not guilty. CALCRIM No. 225 explained the jury could rely on circumstantial evidence to find Khogyani had the required intent, but before it relied on circumstantial evidence, the jury must be convinced the prosecutor has proved each fact beyond a reasonable doubt. Based on the entire charge, we are confident the instructions properly explained the jury could consider Khogyani’s mental illness when deciding the issue of his specific intent to commit attempted murder, and if the jury found he did not have the specific intent to commit murder, it must acquit him of attempted murder.
IV. CALCRIM No. 220
Acknowledging this claim has been rejected by other California Courts of Appeal, Khogyani contends CALCRIM No. 220, “Reasonable Doubt,” violated his federal constitutional right to due process “because it prevented the jury from considering whether a lack of evidence gave rise to a reasonable doubt[.]” Again, we disagree.
The trial court instructed the jury with CALCRIM No. 220, which stated: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty 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 defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
During closing argument, the district attorney argued: “What is the evidence in this case? What is the evidence before you? Not some of the things you would have liked to have heard, or we wished we heard a little more of this or that. You have to make your decisions based on the facts before you, judge the facts, follow the law, your good common sense.”
Relying on CALCRIM No. 220 and the district attorney’s closing argument, Khogyani argues, “[t]here was never any mention that the jury could consider whether a ‘lack of evidence’ would give rise to a reasonable doubt.” He complains that “[i]n cases where evidence is lacking on a given point, jurors may be misled by the faulty instruction into believing they are prohibited from considering the absence of evidence as raising a reasonable doubt.” At least three appellate courts have rejected this same argument.
In People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509 (Westbrooks), the Court of Appeal, Fourth District, Division One, stated: “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 defendant’s guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving [defendant’s] 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.” (Italics added.) The Westbrooks court rejected the argument, also raised by defendant here, that People v. McCullough (1979) 100 Cal.App.3d 169 (McCullough), supports the defendant’s claim. (Westbrooks, supra, 151 Cal.App.4th at p. 1509.) In McCullough, supra, 100 Cal.App.3d at page 182, the court concluded the trial court misled the jury by telling it reasonable doubt must arise from the evidence, because reasonable doubt may arise from the lack of evidence. The Westbrooks court distinguished McCullough: “Unlike in McCullough, the trial court in this case did not tell the jury that reasonable doubt must arise from the evidence presented at trial, and, given the court’s other instructions, it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating that the jury was precluded from considering any perceived lack of evidence in determining [defendant’s] guilt. [Citation.]” (Westbrooks, supra, 151 Cal.App.4th at p. 1510, fn. omitted.)
In Westbrooks, the trial court instructed the jury with the following instructions: CALCRIM No. 222, “Evidence,” CALCRIM No. 223, “Direct and Circumstantial Evidence: Defined,” and CALCRIM No. 355, “Defendant’s Right Not To Testify.” Here, the trial court instructed the jury with the same instructions. As we explain above more fully, the court also instructed the jury with CALCRIM No. 225, “Circumstantial Evidence: Intent or Mental State.”
In People v. Flores (2007) 153 Cal.App.4th 1088, 1093 (Flores), the Court of Appeal, Fifth District, stated:“Here, the plain language of CALCRIM No. 220 tells the jury that ‘unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.’ Citation. . . . The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt.”
Finally, in People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269 (Guerrero), the Court of Appeal, Third District, stated: “CALCRIM No. 220 does not suggest an impermissible definition of reasonable doubt to the jury. The instruction defines reasonable doubt as the absence of an abiding conviction in the truth of the charges. . . . [Citation.] The instruction neither lowers the prosecution’s standard of proof nor raises the amount of doubt the jury must have in order to acquit a defendant. [¶] . . . CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. . . . [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.”
Other than his disagreement with Westbrooks’ interpretation of CALCRIM No. 220 because “it contradicts the plain language of the instruction[,]” Khogyani offers no compelling justification for concluding CALCRIM No. 220 is unconstitutional. We find the reasoning in Westbrooks, Flores, and Guerrero sound and conclude CALCRIM No. 220 properly defines reasonable doubt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.