Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05NF1184, Richard F. Toohey, Judge.
David McNeil Morse, 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, Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
A jury convicted defendant Fernando Reyes Rodriguez of first degree residential burglary and found true the allegation a non-accomplice was in the residence during the burglary. Subsequently, the trial court found defendant had two prior strikes (Pen.Code, §§ 667, subds. (b)-(i)), 1170.12; all statutory references are to this code), two prior felony convictions (§ 667, subd. (a)), and three prior prison terms (§ 667.5, subd. (a)). Defendant received a sentence of 35 years to life in prison. He appeals, contending CALCRIM No. 220, defining reasonable doubt, deprived him of due process. We disagree and affirm.
DISCUSSION
We omit the facts underlying defendant’s conviction as they are not relevant to resolving the sole issue raised on appeal.
1. Waiver
As a preliminary matter, we address the contention defendant forfeited his claim of instructional error. Although the Attorney General is correct defendant did not object to CALCRIM No. 220 or request a clarifying instruction, that does not preclude our review because the asserted error affects defendant’s substantial rights. (§ 1259 [“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”]; People v. Guerra (2006) 37 Cal.4th 1067, 1138.)
2. CALCRIM No. 220
Defendant argues CALCRIM No. 220’s definition of “reasonable doubt” improperly conveys the standard as set forth in section 1096 and former CALJIC No. 290, which define reasonable as “that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” (§ 1096; former CALJIC No. 290.) But a comparison with the definition in CALCRIM No. 220 reveals no significant difference.
Under CALCRIM No. 220, “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.” The commentary to CALCRIM No. 220 states in pertinent part, “This instruction is based directly on Penal Code section 1096. The primary changes are a reordering of concepts and a definition of reasonable doubt stated in the affirmative rather than in the negative. . . . The instruction includes all the concepts contained in section 1096 and substantially tracks the statutory language.” (Com. to CALCRIM No. 220 (2007-2008) p. 44.) We agree with that evaluation.
Defendant maintains CALCRIM No. 220 “obfuscat[es] the scope properly given to the jurors’ individual subjectivity in the reasonable doubt standard” and “improperly convey[s] the impression that proof beyond a reasonable double is merely a very high degree of objective probability.” The contention lacks merit.
CALCRIM No. 220 directs jurors that “[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” That is a subjective standard. The instruction did not, for example, inform the jurors that proof beyond a reasonable doubt is proof that would leave a reasonable person with an abiding conviction that the charge is true. It told the jurors that “you” must have an abiding conviction that the charge is true. In doing so, the language plainly informs the jurors that each of them must individually conclude the evidence establishes guilt beyond a reasonable doubt before the defendant may be convicted.
Defendant appears to be contending the instruction is defective because it does not sufficiently emphasize a juror’s “feelings” about guilt, as opposed to a cold assessment of facts. According to him, the instruction needed to “induce in the individual jurors a feeling of confidence that he or she, in condemning the defendant, is taking an action, the consequences of which he or she understands and feels the import.”
On the contrary, although a juror’s “feelings” may have their place in other contexts, they are not indispensable to a definition of proof beyond a reasonable doubt. Proof beyond a reasonable doubt does not require a subjective certitude of the truth of the charge. The requirement is proof beyond a reasonable doubt. It is not proof beyond any doubt whatsoever. For that reason, the Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 5 [114 S.Ct. 1239, 127 L.Ed.2d 583] upheld an instruction expressly stating that reasonable doubt “is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt.” (Id. at p. 8.) Proof beyond a reasonable doubt does not require a subjective state of absolute certitude of the guilt of the accused. It requires “a subjective state of near certitude of the guilt of the accused.” (Jackson v. Virginia (1979) 443 U.S. 307, 315 [99 S.Ct. 2781, 61 L.Ed.2d 560]; Victor v. Nebraska, supra, 511 U.S. at p. 15.)
CALCRIM No. 220 has repeatedly withstood arguments claiming that it does not adequately convey to jurors the meaning of the phrase “beyond a reasonable doubt.” (People v. Garelick (2008) 161 Cal.App.4th 1107, 1119; People v. Stone (2008) 160 Cal.App.4th 323, 330-334; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Rios (2007) 151 Cal.App.4th 1154, 1156-1157; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510.) It withstands this challenge as well.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.