Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo Super. Ct. No. SC062632
McGuiness, P.J.
Appellant Robert Lee Barber was convicted by a jury of commercial burglary (Pen. Code, § 460, subd. (b)) and petty theft with a prior term served for a theft-related offense (Pen. Code, § 666). On appeal, he contends the trial court’s use of CALCRIM No. 103 violated his constitutional rights because it precluded the jury from considering whether a lack of evidence raised a reasonable doubt as to his guilt. We affirm.
Factual and Procedural Background
In the evening of November 18, 2006, Burlingame police officers responded to a report of an activated burglar alarm at Vector Labs. As Officer Morgan Chappell pulled up to the Vector Labs building, he saw a man, later identified as appellant, step out from some bushes. The officers dispatched to the scene saw no one else in the area.
Chappell walked up to appellant and saw that he was sweating and shaking. When Chappell spoke to appellant, appellant’s voice was “quivering” in response. Appellant claimed he was going to a friend’s house, although upon further questioning he said he did not know the friend’s phone number and was not sure of his friend’s address. Appellant consented to a search of his backpack by Officer Keky Duren. Inside the backpack, along with food and personal items, the officer found two metal cash boxes, one of which was marked “petty cash.” Each of the boxes contained roughly $246. James Whitehead, a Vector Labs executive notified of the incident by the alarm company, arrived and identified the boxes as company property. The officers arrested appellant.
Whitehead told officer Duren where in the building the boxes were kept. Duren found a broken window near that part of the building. The broken window appeared to have been composed of safety glass. Duren leaned on the glass, bent her leg and put her foot up on the window ledge and confirmed that it was possible to enter the building through the broken window. None of the broken glass stuck to Duren’s clothing or shoes, even though she had stepped on the glass. A search of the building by an officer with a police dog uncovered no one inside the building.
A rock found inside the building apparently had been used to break the window. The cash boxes had been taken from a nearby desk, but no useable fingerprints were obtained from the desk or from a letter opener that had apparently been used to pry open the desk drawer.
When officer Duren returned to the police station, she examined appellant and found no glass on his clothing. She questioned appellant after he waived his rights, asking if he knew why he had been arrested. Appellant nodded toward the cash boxes and said, “those two boxes.”
A felony complaint charged appellant in count one with commercial burglary (Pen. Code, § 460, subd. (b)) and in count two with petty theft with a prior term served for a theft-related offense (Pen. Code, § 666). The complaint also contained allegations that appellant had been convicted of four prior theft offenses.
At trial, appellant waived his right to jury trial on the prior offenses allegations. The sole defense witness was forensic expert James Norris. Norris examined the shoes appellant had been wearing the night of the incident and opined, based on his experience, that if appellant had gone through the broken window his shoes would have contained traces of broken glass, which Norris testified were not present. Appellant’s defense to the commercial burglary charge was that the prosecutor had failed to prove appellant physically entered Vector Labs. During closing argument, appellant’s trial attorney suggested the evidence was consistent with appellant having found the two, abandoned cash boxes as he walked through the parking lot on the way to visit a friend.
The jury found appellant guilty as charged of commercial burglary and petty theft. Following the reading of the jury’s verdict, the court found true beyond a reasonable doubt the allegations that appellant had suffered four prior theft offenses.
The trial court sentenced appellant to a total of three years in state prison, composed of the upper term of three years for commercial burglary and the upper term of three years for petty theft with a prior term served for a theft-related offense, with the latter term stayed pursuant to Penal Code section 654. Appellant filed a timely notice of appeal.
Discussion
Appellant’s sole contention on appeal is that CALCRIM No. 103, which concerns the presumption of innocence and the burden of proof beyond a reasonable doubt, erroneously limited the jury’s determination of guilt to the admitted evidence, thereby precluding the jury from considering the absence of evidence as a basis for finding a reasonable doubt.
The trial court gave CALCRIM No. 103 at the beginning of the trial, as follows: “I’ll now explain the presumption of innocence and the People’s burden of proof. The defendant has pleaded not guilty to the charges. 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 a defendant just because he’s 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 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 entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he’s entitled to an acquittal and you must find him not guilty.” (Italics added.) The court gave the same instruction following the close of evidence.
Focusing on the italicized language, appellant contends the instruction limited the jury’s determination of reasonable doubt to the evidence received at trial. Appellant asserts this is so because the trial court immediately followed CALCRIM No. 103 with CALCRIM No. 222, which defines “evidence” as “the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.” CALCRIM No. 222 further states: “Nothing that the attorneys say is evidence. In their opening statements and closing argument, the attorneys discuss the case, but their remarks are not evidence.”
As appellant acknowledges, his contention has been consistently rejected by California Courts of Appeal that have considered identical language contained in CALCRIM No. 220. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1156-1157.) Appellant fails to offer a sufficient reason for us to depart from these precedents.
CALCRIM No. 103 is designated as a “pretrial” instruction while CALCRIM No. 220 is designated as a “postrial” instruction. CALCRIM No. 103 is identical to CALCRIM No. 220 except that the latter instruction omits the first two sentences of CALCRIM No. 103, which are not relevant to our analysis or to appellant’s contentions. Appellant’s attorney convinced the trial court to give CALCRIM No. 103 in lieu of CALCRIM No. 220 after the close of evidence, apparently believing there was a substantive difference between the two instructions. In fact, it appears that counsel was comparing an older version of CALCRIM No. 103 with a newer version of CALCRIM No. 220. (Compare CALCRIM Nos. 103 and 220 (ed. Jan. 2006) with CALCRIM Nos. 103 and 220 (ed. Fall 2007).) The contemporaneous versions of CALCRIM No. 103 and CALCRIM No. 220 are the same with the exception of the first two sentences of CALCRIM No. 103. For purposes of our analysis, CALCRIM No. 103 and CALCRIM No. 220 are interchangeable.
In People v. Westbrooks, supra, 151 Cal.App.4th 1500, Division One of the Fourth Appellate District rejected an argument identical to the one appellant makes with respect to CALCRIM No. 103. The court stated: “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.)
In People v. Flores, supra, 153 Cal.App.4th 1088, the Fifth Appellate District, too, concluded that CALCRIM No. 220 does not violate a defendant’s constitutional rights. The court reasoned: “[T]he plain language of the instruction given tells the jury that ‘[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.’ (CALCRIM No. 220.) Identical language was given in a similar instruction, CALCRIM No. 103, at the beginning of trial. The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. In addition, the trial court instructed the jury with CALCRIM No. 355, which specifically stated that a defendant ‘may rely on [the] state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.’ [¶] Nothing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial. Citation. ¶We see no violation of appellant’s federal constitutional rights in the language of CALCRIM No. 220.” (People v. Flores, supra, 153 Cal.App.4th at p. 1093.)
Like the trial court in People v. Flores, the trial court here gave CALCRIM No. 355.
Division Two of the Second Appellate District reached the same conclusion in People v. Campos, supra, 156 Cal.App.4th 1228, stating: “Reasonable doubt may arise from the lack of evidence at trial as well as from the evidence presented. [Citation.] The plain language of CALCRIM No. 220 does not instruct otherwise. The only reasonable understanding of the language, ‘[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty,’ is that a lack of evidence could lead to reasonable doubt. Contrary to defendants’ claim, CALCRIM No. 220 did not tell the jury that reasonable doubt must arise from the evidence. The jury was likely ‘to understand by this instruction the almost self-evident principle that the determination of defendant’s culpability beyond a reasonable doubt . . . must be based on a review of the evidence presented.’ [Citations.]” (People v. Campos, supra, 156 Cal.App.4th at p. 1238.)
The cases on which appellant relies—People v. Simpson (1954) 43 Cal.2d 553 and People v. McCullough (1979) 100 Cal.App.3d 169—do not assist him. “In [People v.] Simpson, the defendant argued that the trial court’s instruction on reasonable doubt had shifted the burden to him to prove his innocence. The trial court instructed, ‘ “The term ‘reasonable doubt,’ as used in these instructions, means a doubt which has some good reason for its existence arising out of evidence in the case; such doubt as you are able to find a reason for in the evidence.” ’ [Citation.] The Supreme Court held this language was ‘not necessary and ‘could have been confusing’ because ‘reasonable doubt . . . may well grow out of the lack of evidence in the case as well as the evidence adduced.” [Citation.] Similarly, in [People v.] McCullough, the Court of Appeal found a supplemental instruction which stated that the doubt must arise from the evidence to be erroneous. [Citation.] [¶] Here, unlike in [People v.] Simpson or [People v.] McCullough, the instruction did not tell the jury that the reasonable doubt had to arise out of the evidence in the case. It merely said that the jury was to consider all of the evidence presented.” (People v. Campos, supra, 156 Cal.App.4th at p. 1238.)
United States v. Poindexter (6th Cir. 1991) 942 F.2d 354, relied upon by appellant, is plainly distinguishable. There, the United States Court of Appeals for the Sixth Circuit reversed a conviction based on the trial court’s refusal to allow defense counsel in closing argument to comment on the lack of fingerprint evidence. (Id. at p. 360.) No such ruling limiting what could be said in closing argument is involved here.
California appellate courts have repeatedly rejected the contention appellant advances here. The trial court did not violate appellant’s constitutional rights by instructing the jury with CALCRIM No. 103.
Disposition
The judgment is affirmed.
We concur: Pollak, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.