Opinion
B160661.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY BARNES, Defendant and Appellant.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Scott A. Taryle, Deputy Attorney General, for Plaintiff and Respondent.
Johnny Barnes was convicted of two counts of robbery, with personal knife use allegations and multiple prior conviction and strike allegations found true. He was sentenced to state prison for a term of 36 years to life. Barnes appeals, claiming prosecutorial misconduct, instructional error, and procedural error. We affirm.
FACTS
Barnes, wearing a stocking cap over his face, ran into a clothing store and jumped behind the counter, grabbed Sharon Chae (who was behind the counter with Sang Shin), displayed a knife, dragged Chae to the register, and ordered her to open it. She complied, and Barnes took the money and ran. There were several witnesses: Brianna Carter was standing at the door of a neighboring store and saw Barnes running away, pulling off his cap as he ran. Kyoung Shin was in back of the store and, minutes after the robbery, saw an African-American man in a blue compact drive toward him at a very high speed. Sergio Tabora saw Barnes run from the area of the stores, jump into a purple Hyundai, and drive off.
Ben Politano (who was in his car leaving the area) saw an African-American man run from an alley near the stores into an area of parked cars, then saw a purple Hyundai drive off at high speed and drive around the back of the stores. Moments later, the same purple Hyundai, with an African-American male driver, ran a red light in front of Politano, cutting him off. Politano followed and wrote down the license plate number, returned to the scene of the robbery, and gave the number to the police. Barnes was one of two registered owners of the Hyundai, which the police said was blue.
Barnes was charged with two counts of robbery, with allegations that he had personally used a knife, suffered numerous prior serious felony convictions and strikes, and served a prior prison term. At trial, the People presented evidence of the facts summarized above. In addition, Carter and Tabora both identified Barnes, and the jurors saw a video of the crimes taken by the stores security camera. The jury rejected Barness alibi defense, convicted him as charged, and the court found the prior allegations were true.
DISCUSSION
I.
Barnes claims there was prosecutorial misconduct during closing argument. We disagree.
A.
The prosecutor told the jurors that "Sergio Tabora in the parking lot saw the defendant run from the location, duck down beside a blue or purple compact car. I believe he said Kia or Hyundai. [P] We are talking about a small car, same type of small car that we know the defendant owns." A bit later, the prosecutor continued, "Now the question is do you believe it is reasonable doubt? [P] The instruction that the judge gave you if you have an abiding conviction, then you believe it beyond a reasonable doubt. Conviction means belief . . . abiding means last [sic]. If you go to jury trial and find the evidence and then you say no, he didnt. Then you dont have an abiding conviction. . . . If you . . . consider all the credible evidence, all the evidence puts the defendant at the scene in committing these crimes. [P] Whenever you recall those facts in your head and say yes, I know he did it, thats beyond a reasonable doubt."
The jurors were instructed according to CALJIC No. 2.90, that reasonable doubt "is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It 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."
Barnes contends the prosecutor "eviscerated the reasonable doubt standard and violated [Barness] due process rights" by incorrectly defining "abiding conviction," and that the prosecutor misstated the evidence when he described the car Tabora saw as "blue or purple" rather than purple.
B.
Leaving to one side the fact that the issue was waived by Barness failure to object at trial (People v. Millwee (1998) 18 Cal.4th 96, 149, 954 P.2d 990; People v. McDowell (1988) 46 Cal.3d 551, 572, 250 Cal. Rptr. 530, 758 P.2d 1060), there was no misconduct. The prosecutors "abiding conviction" discussion is consistent with the language approved by the United States Supreme Court (Victor v. Nebraska (1994) 511 U.S. 1, 14-15, 127 L. Ed. 2d 583, 114 S. Ct. 1239 [an instruction cast in terms of an abiding conviction as to guilt correctly states the governments burden of proof]) and the California Supreme Court (People v. Brigham (1979) 25 Cal.3d 283, 290, 157 Cal. Rptr. 905, 599 P.2d 100 ["abiding" is intended to convey both the "lasting, permanent nature" of the jurors conviction and the strength and depth to which it is felt]).
As for the comment about the color of the car, it did no more than recognize the discrepancy between the witnesses testimony (Tabora said it was purple, Shin and the officer that it was blue), and there is nothing in the prosecutors comments to suggest an attempt to mislead the jurors. There was no misconduct (People v. Strickland (1974) 11 Cal.3d 946, 955, 114 Cal. Rptr. 632, 523 P.2d 672), and there thus is no need to consider Barness alternative claim that trial counsels failure to object deprived Barnes of the effective assistance of counsel at trial.
II.
For the reasons stated in People v. Engelman (2002) 28 Cal.4th 436, we reject Barness challenge to CALJIC No. 17.41.1. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
III.
Barnes contends the one-year enhancement imposed for his use of a deadly weapon is invalid because the verdict form referred to a non-existent statute, Penal Code section 12022.22(b) instead of section 12022(b). Leaving to one side the fact that the issue was waived by Barness failure to object or to pursue corrective measures in the trial court (People v. Bolin (1998) 18 Cal.4th 297, 330, 956 P.2d 374), we disagree.
The allegations ancillary to each robbery count charged Barnes with personally using a knife within the meaning of section "12022(b)(1)," and the jurors were told (correctly) at the beginning of jury selection that there were allegations that Barnes had personally used a knife during the robberies. At the end of the trial, the jurors were instructed (correctly) according to CALJIC No. 17.16, which is the instruction used for section 12022, subdivisions (b)(1), (2), when there is an allegation that the defendant personally used a weapon. After the jurors retired to deliberate, the trial court invited counsel to "take a look at the verdict forms" to make sure they were "okay." No objections were raised, and the forms were given to the jurors. The verdict form stated that the jurors found "the allegation that in the commission of the above offense [Barnes] personally used a deadly or dangerous weapon, within the meaning of . . . section 12022.22(b)(1) to be true." (Emphasis added.)
The typographical error was plainly technical and harmless. The jury was properly instructed, and the language of the allegation on the verdict form was proper. We decline Barness invitation to elevate form over substance. (People v. Cory (1984) 157 Cal. App. 3d 1094, 1102, 204 Cal. Rptr. 117; People v. Bolin, supra, 18 Cal.4th at p. 331 [technical defects in a verdict may be disregarded when jurys intent to convict of specified offense is unmistakably clear and the defendants substantial rights have suffered no prejudice].)
DISPOSITION
The judgment is affirmed., J.
We concur: SPENCER, P.J., ORTEGA, J. --------------- Notes: All section references are to the Penal Code.