Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P06CRF0482
HULL, J.A jury found defendant Scott Anthony McCain guilty of second degree commercial burglary (Pen. Code, § 459; further undesignated section references are to the Penal Code), receiving stolen property (§ 496), and possession of burglar’s tools, a misdemeanor (§ 466). The trial court sentenced defendant to an aggregate term of 16 months in state prison, consisting of the low term of 16 months for burglary, and the low term of 16 months for receiving stolen property, stayed pursuant to section 654. The court imposed “no time” for the misdemeanor.
Defendant appeals, contending (1) the trial court misstated the reasonable doubt standard by instructing the jury with CALCRIM No. 220, and (2) the prosecutor committed misconduct “by arguing in such a manner as to lessen his burden of proof and to shift that burden to [defendant].” We affirm the judgment.
FACTS AND PROCEEDINGS
At approximately 4:00 a.m. on September 10, 2006, two men broke into an Applebee’s restaurant in Cameron Park and stole the safe.
At approximately 9:00 a.m. that same day, deputies with the El Dorado County Sheriff’s Department found defendant and another man sitting in a car “out behind the Applebee’s.” The trunk lid was “all the way up,” and the missing safe, which was approximately four feet tall, was inside.
When asked to get out of the car, defendant looked at the other man in the car and said, “I knew we shouldn’t have come back for it.”
Inside the car, deputies found pliers, a hammer, pry tools, gloves, and several types of flashlights.
A drainage grade and a fence separate the Applebee’s parking lot from Highway 50. It appeared that “a heavy object had been slid down” the grade and “dragged back up into the back parking lot area.”
DISCUSSION
I
CALCRIM No. 220
The trial court instructed the jury on reasonable doubt pursuant to CALCRIM No. 220. This instruction concludes with the following paragraph: “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” (Italics added.)
Defendant contends that the italicized language “violates the Due Process Clause of the Fourteenth Amendment” because it “precludes jurors from considering whether a reasonable doubt exists based upon a lack of evidence.”
The identical contention was raised and rejected by this court in People v. Guerrero (2007) 155 Cal.App.4th 1264, 1266-1269. As we explained in that case: “Contrary to defendant’s suggestion, CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. . . . 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.” (Id. at pp. 1268-1269.)
We agree with Guerrero. There was no error.
II
Prosecutorial Misconduct
During his closing argument, the prosecutor stated: “The duty of the jury in this case is to decide what the facts are. It is up to you exclusively to decide what happened based only on the evidence that has been presented to you in this trial.” (Italics added.)
In his rebuttal argument, the prosecutor addressed the concept of reasonable doubt, stating: “Reasonable doubt or proof beyond a reasonable doubt is proof that essentially leaves you with an abiding conviction that the charge is true. [¶] . . . [¶] Now, in deciding whether or not I have proved my case, . . . you must impartially compare all the evidence, all the evidence that was received throughout the trial. [¶] And a reasonable doubt is one that’s based on fact and reason, essentially corroborating that doubt. [¶] What’s not reasonable doubt? Possible doubt. Like I said, everything is open to possible doubt, imaginary doubt, i.e., the spaceship coming down, that’s--we all think [that] is imaginary, I hope, and unreasonable doubt. No matter if it took every just possibility in the world to coincide at one point in time to make this point happen, I would say that’s an unreasonable doubt. [¶] And unanswered questions, I mean, I know there’s probably a lot in this case. You’d like to see more, Lord knows it would be an easy case if, as they walked into Applebee’s, the two burglars had to do a retinal scan or face scan. There’s a lot of unanswered things, a lot of better ways Applebee’s could do their security, maybe better ways, as [defense counsel] so strongly suggested, the police could have conduced their investigation. But unanswered questions don’t create a reasonable doubt, necessarily.” (Italics added.)
Defendant contends the prosecutor committed misconduct when he made the italicized statements because the statements could reasonably be interpreted as suggesting the prosecution did not have the burden of proving every element of the crimes charged beyond a reasonable doubt. The People contend defendant forfeited these claims of misconduct because he failed to object in the trial court. The People are correct.
“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’” (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) There are several exceptions to this general rule, however. “A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘“an admonition would not have cured the harm caused by the misconduct.”’ [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’” (Ibid.)
Defendant did not make a timely and specific assignment of misconduct in the trial court or request that the jury be admonished to disregard the impropriety. Further, defendant makes no attempt to bring himself within any of the exceptions to the forfeiture rule identified in Hill. Defendant’s suggestion that he need not timely object to errors that allegedly rise to the level of constitutional violations is not well taken. “‘“No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 590; see also People v. Frye (1998) 18 Cal.4th 894, 969 [requiring prompt and timely objection in connection with claim that prosecutor’s comments violated the defendant’s constitutional rights].) Defendant forfeited his claims of misconduct.
Even assuming defendant had preserved his prosecutorial misconduct claims, they lack merit. Defendant relies primarily on our Supreme Court’s decision in Hill to support his claims of prosecutorial misconduct. There, the prosecutor addressed the concept of reasonable doubt in her rebuttal argument, stating: “‘[I]t must be reasonable. It’s not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt.’ . . . ‘There must be some evidence from which there is a reason for a doubt. You can’t say, well, one of the attorneys said so.’” (Hill, supra, 17 Cal.4that p. 831.) The court concluded that “[a]lthough the question arguably is close, . . . it is reasonably likely [the prosecutor’s] comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt,” and thus, the prosecutor “committed misconduct by misstating the law.” (Id. at p. 832.)
That is not the case here.
The first statement challenged by defendant--“It is up to you exclusively to decide what happened based only on the evidence that has been presented to you in this trial”--tracks CALCRIM No. 200 and is a correct statement of the law. (§ 1127; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157.)
When considered in context, the second statement challenged by defendant--“a reasonable doubt is one that’s based on fact and reason” could not reasonably be understood to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt, but rather that reasonable doubt must be based on something more than possible or imaginary doubt. Accordingly, it does not constitute misconduct
The same can be said with respect to the third statement challenged by defendant--“unanswered questions don’t create a reasonable doubt, necessarily.” As the record makes plain, that statement was made in response to defense counsel’s suggestion during his closing argument that law enforcement failed to conduct an adequate investigation and instead relied on “garbage pictures from a garbage video printed on fuzzy resolution from a computer.” When considered in context, the prosecutor’s assertion that “unanswered questions” do not “necessarily” create reasonable doubt could not reasonably be understood to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., NICHOLSON, J.