Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR182491
Lambden, J.
Defendant Christopher W. Wells seeks reversal of his conviction below on the ground that a jury instruction violated his state and federal constitutional rights. He also contends the trial court violated his federal constitutional rights in sentencing him to an upper term for one count. We affirm the court’s judgment.
BACKGROUND
An information filed in Solano County Superior Court charged defendant in count 1 with the sale of a controlled substance in violation of Health and Safety Code section 11379, which was amended at the commencement of trial to the transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a), and in count 2 with possession for sale of a controlled substance in violation of Health and Safety Code section 11378. It was also alleged that defendant previously had been convicted of felonies and served time in prison within the meaning of Penal Code section 667, subdivisions (b) through (i), Penal Code section 1170.12, subdivisions (a) through (d), and Penal Code section 667.5, subdivision (b). Defendant denied the allegations and pled not guilty.
A jury trial began in July 2006. Defendant summarizes the trial evidence as follows:
We have deleted defendant’s references to specific page numbers in the record.
“Shortly after midnight on February 2, 2006, Vallejo Police Officers George Marcus and Robert MacKay observed a burgundy colored Cadillac speeding and moving erratically down the street. Officer Marcus made a traffic stop by activating the overhead lights of his patrol vehicle.
“[Defendant] was behind the wheel of the Cadillac. He appeared nervous and his hands were shaking when the officer asked for his license and the vehicle’s registration. Marcus subsequently determined that the registration tabs on the rear license plate were false. He also learned the vehicle was registered to Ruby Sipert who resided in San Jose.
“Officer MacKay positioned himself next to the passenger side door moments after the stop. While there, he saw the passenger, Lakeeta Grant, reach under the seat with her right hand.
“The Cadillac was searched by both officers. Underneath [the] steering column, Officer Marcus discovered a clear plastic bag containing what . . . later was determined to be 13.90 grams of methamphetamine. He also found a ‘zebra colored’ bag at the same location. It held 4.14 grams of methamphetamine, a lighter, and a glass pipe commonly used to smoke the drug. Officer Mac[K]ay retrieved a small Q-Tip box under the passenger seat. In it was a small baggie containing .13 grams of methamphetamine. Testifying as an expert on the possession for sale of methamphetamine, Officer Mac[K]ay opined that the drugs found underneath the steering column were possessed for the purpose of sale.
“The officer discovered the contraband by laying down on the driver’s side floorboard and looking up under the steer column and dashboard. Officer Marcus testified that these hidden baggies would not have been visible to the driver.”
“Defendant was carrying a total of $110 dollars in cash at the time of his arrest.”
“According to Lakeeta Grant at trial, she [met defendant] about six months before the arrest. She was 18 years old at the time and he looked after her as would an older brother. She admitted that the drugs found in the Q-Tip box belonged to her and their discovery led to her subsequent [plea of] guilty to possession of methamphetamine. Grant also testified that she had seen [defendant] working on the Cadillac on a number of occasions, including earlier on the day of the arrest.
“She also admitted seeing a number of people work on the mechanically troubled vehicle.”
The jury found defendant guilty on both counts, and the court found the prior conviction allegations to be true. In January 2007, the court sentenced defendant to state prison for an upper term sentence of eight years for count 1, and stayed sentencing on count 2 and the enhancement allegations. Defendant subsequently moved for recall of his sentence and for resentencing in accordance with Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). The court granted the motion and imposed the same sentence. Defendant then filed a timely notice of appeal.
DISCUSSION
I. The CALCRIM No. 220 Jury Instruction
Defendant argues that the court’s instructing the jury with CALCRIM No. 220 violated his constitutional rights because of the unconstitutional nature of the phrases “you must impartially compare and consider all the evidence . . .” and “abiding conviction” when considered in the context of the instruction and defendant’s purportedly limited defense. This is incorrect.
Before addressing the merits of defendant’s arguments, we address the People’s argument that defendant has forfeited his claims of error on appeal by his failure to object below. As defendant points out, Penal Code section 1259 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.” Defendant raises issues about court instructions related to the prosecution’s burden of proof, which affected defendant’s substantial rights. (People v. Johnson (2004) 115 Cal.App.4th 1169 [reaching the issue of whether an instruction involving the prosecution’s burden of proof was proper because it affected defendant’s substantial rights].) The People’s forfeiture arguments are unpersuasive, as they rely on the People’s view that the instruction was obviously proper, which itself reaches the issue. Accordingly, we reach the merits.
A. “Impartially Compare and Consider”
The court instructed the jury pursuant to CALCRIM No. 220. Defendant claims the instruction is constitutionally infirm because it told the jury that it was to “impartially compare and consider all the evidence,” which defendant contends “implies a weighing of two opposing sets of evidence.” Defendant argues that such an instruction “results in the lessening of the meaning of ‘beyond a reasonable doubt’ in a case such as [his] where a limited defense case is presented.” This is incorrect.
The court’s instruction was as follows:
A trial court is obligated to correctly instruct sua sponte on all applicable fundamental principles of law, including the presumption of innocence and the prosecution’s burden of proof. (People v. Elguera (1992) 8 Cal.App.4th 1214, 1219; see also Victor v. Nebraska (1994) 511 U.S. 1 (Victor) [finding language used in CALJIC 2.90 constitutional]; People v. Rundle (2008) 43 Cal.4th 76, 156 [noting that Victor found CALJIC No. 2.90 met due process requirements].) On review, the question is whether the court’s instructions “correctly conveyed the concept of reasonable doubt to the jury” (Victor, supra, 511. U.S. at p. 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.)
Defendant’s argument is very similar to those presented in two recent cases which found CALCRIM No. 220 to be constitutional. In People v. Hernandez Rios (2007) 151 Cal.App.4th 1154 (Rios), the defendant, who did not present a defense, argued that instruction of CALCRIM No. 220 “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, at p. 1156.) The Fifth Appellate District rejected this contention, explaining that CALJIC No. 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, at p. 1157.) The court found that, to the extent that 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 No. 220 did just that.” (Rios, at p. 1157.)
In People v. Westbrooks (2007) 151 Cal.App.4th 1500, the defendant, who had presented a defense which mentioned missing prosecution evidence (id. at pp. 1504, 1506), claimed that this phrase in CALCRIM No. 220 prohibited the jury from considering “the lack of physical evidence implicating him in the crime.” (People v. Westbrooks, at p. 1509.) The Fourth Appellate District 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 defendant’s guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving Westbrooks’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.” (People v. Westbrooks, supra, 151 Cal.App.4th at p. 1509.)
Defendant relies primarily on Coffin v. United States (1895) 156 U.S. 432, for his position, arguing the case’s requirement of language about the “presumption of innocence” in a jury instruction about reasonable doubt indicates the inadequacy of the CALCRIM No. 220 language. Defendant ignores, however, that the court below, pursuant to CALCRIM No. 220, also instructed the jury that “[a] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt.”
Defendant also discusses Taylor v. Kentucky (1978) 436 U.S. 478, which we have also reviewed and considered. Our holding herein adheres to its emphasis on the importance of the “presumption” or, as the Taylor court suggested it should be characterized, “assumption” of innocence. (Id. at pp. 483-484, fn. 12.)
Based on this authority and reasoning, it is clear that defendant’s argument regarding the “impartially compare and consider all the evidence” language in CALCRIM No. 220 is without merit.
B. “Abiding Conviction”
Defendant also argues that the defectiveness of the court’s CALCRIM No. 220 instruction “was amplified” by its definition of proof beyond a reasonable doubt as “proof that leaves you with an abiding conviction that the charge is true,” since it “departed from the formulation approved of in Coffin by omitting any reference to the gravity or weight of the proof required and, in conjunction with the ‘impartial comparison’ language, served only to perpetuate an erroneous preponderance of the evidence standard.” (Italics added.) This is incorrect.
As defendant acknowledges, CALJIC No. 2.90, in defining reasonable doubt, also refers to an “abiding conviction,” and this language has been upheld by numerous courts of appeal against challenges in several contexts. (See, e.g., People v. Aguilar (1997) 58 Cal.App.4th 1196; People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1078, overruled on another ground in People v. Mosby (2004) 33 Cal.4th 353, 365.) Indeed, the United States Supreme Court stated that “[a]n instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.” (Victor, supra, 511 U.S. at pp. 14-15.) Our own Supreme Court embraced this view when it recommended removal of phrases such as “to a moral certainty” from CALJIC No. 2.90. (People v. Freeman (1994) 8 Cal.4th 450, 504 & fn. 9 (Freeman).)
In addition, after the parties completed their briefing of this appeal (defendant choosing not to submit a reply brief), our colleagues in Division Three of this district rejected an argument about the “abiding conviction” language in CALCRIM No. 220 that is very similar to that posed by defendant here. In People v. Stone (2008) 160 Cal.App.4th 323, the defendant argued that the phrase “renders the burden of proof instruction constitutionally infirm because it conflates the separate concepts of duration and weight. As defendant states it: ‘The phrase “abiding conviction” conveys the idea of a determination that will last, but it cannot convey the idea of a conviction based [on] weighty evidence. The concept of proof beyond a reasonable doubt embodies the requirement of gravity of proof, not simply a decision that is lasting.’ ” (Id. at p. 332.) The court noted that the “abiding conviction” language had previously appeared in the predecessor to CALCRIM No. 220, CALJIC No. 2.90. It concluded upon reviewing the relevant discussion in Victor, supra, 511 U.S. 1, and Freeman, supra, 8 Cal.4th 450, that the “abiding conviction” language in CALCRIM No. 220 “can be traced directly to the instruction approved in Freeman, in which the Supreme Court explicitly sanctioned language defining reasonable doubt as ‘ “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.” ’ [Citations.].” (People v. Stone, at p. 334.) The court continued:
“Moreover, the concept of an ‘abiding conviction’ was also given a stamp of approval in Victor v. Nebraska where the high court stated: ‘Although in this respect moral certainty is ambiguous in the abstract, the rest of the instruction . . . lends content to the phrase. The jurors were told that they must have “an abiding conviction, to a moral certainty, of the truth of the charge.” . . . An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof. [Citations.]’ (Victor v. Nebraska, supra, 511 U.S. at pp. 14-15, italics added.) Furthermore, numerous California cases since Freeman have rejected due process challenges mounted against the criminal burden of proof instruction with its ‘abiding conviction’ language. [Citations.]” (People v. Stone, supra, 160 Cal.App.4th at p. 334.)
The court then noted that this division, in People v. Haynes (1998) 61 Cal.App.4th 1282, “rejected substantially the same due process argument made by defendant in this case—that the term ‘abiding conviction’ is ‘a standard for “duration” but not the “degree of certitude” jurors must have.’ (Id. at p. 1299.)” (People v. Stone, supra, 160 Cal.App.4th at p. 334.)
In short, a great weight of authority, and the reasoning contained in that authority, makes clear that defendant’s “abiding conviction” argument lacks merit.
II. Sentencing
Defendant argues that the trial court violated Cunningham. This is incorrect.
In January 2007, the United States Supreme Court issued Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856], in which it concluded that California’s determinate sentencing law (DSL) violated a defendant’s right to jury trial because “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, at pp. ___ [127 S.Ct. at pp. 863-864].) However, a trial court may determine the fact of a defendant’s prior conviction. (Id. at p. ___ [127 S.Ct. at p. 860].) In July 2007, the California Supreme Court issued People v. Black (2007) 41 Cal.4th 799 (Black), in which it determined a number of issues in light of Cunningham. It held that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, at p. 812.) The court also held that one such aggravating circumstance could be a trial court’s finding, by a preponderance of the evidence standard, that a defendant had numerous prior convictions. (Id. at pp. 819-820.)
Moreover, the California Supreme Court, in People v. Sandoval (2007) 41 Cal.4th 825, issued on the same day as Black, supra, 41 Cal.4th 799, determined that the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18. (Black, supra, at p. 838.)
Initially, the trial court sentenced defendant to prison for the upper term for his conviction of Health and Safety Code section 11379. After granting defendant’s motion to recall sentencing in order to resentence him in accordance with Cunningham, the court conducted a new sentencing hearing and imposed the same sentence. The trial court explained its imposition of the upper term was based on the following:
“That the defendant’s prior convictions as an adult are numerous, and review of the rap sheet, which is attached to the probation report which I can consider, is clear that under any definition the defendant is a career criminal. He’s got multiple felonies and misdemeanors. That’s 4.421(b)(2) California Rules of Court. [¶] Additional aggravating factor is 4.421(b)(3), the defendant has served a prior prison term. [¶] Those are the factors I’m considering. I don’t think there are any mitigating factors. So in my view, the aggravating factors outweigh the mitigating factors, and that’s how I come up with that.”
Clearly, the trial court, by its reference to defendant’s multiple prior convictions, found “a single aggravating circumstance that renders a defendant eligible for the upper term sentence . . . in accordance with the requirements of Apprendi and its progeny.” (Black, supra, 41 Cal.4th at p. 812.) Accordingly, the court’s sentencing was proper pursuant to Cunningham and Black. Defendant does not provide any argument or authority to the contrary.
In any event, even if we assume for the sake of argument that the trial court made an error, it was undoubtedly harmless under the Chapman standard articulated in People v. Sandoval, supra, 41 Cal.4th at page 838. At the sentencing hearing, the record before the trial court indicated defendant had numerous previous convictions, and defendant’s counsel made statements which conceded this issue. A jury unquestionably would have found true at least a single aggravating circumstance, given defendant’s numerous previous convictions.
DISPOSITION
The judgment is affirmed.
We concur: Haerle Acting P.J., Richman J.
“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 the People prove each element of a crime 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 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.”