Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA070439, James B. Pierce, Judge.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Eldred Benard Burge appeals the judgment entered following his conviction by jury of corporal injury to a cohabitant in which Burge personally inflicted great bodily injury under circumstances involving domestic violence, arson causing great bodily injury and battery on a cohabitant, a misdemeanor. (Pen. Code, §§ 273.5, subd. (a), 12022.7, subd. (e), 451, subd. (a), 243, subd. (e)(1).) The trial court found Burge had two prior convictions within the meaning of the Three Strikes law and section 667, subdivision (a)(1) and sentenced him to prison for a term of 36 years to life.
Subsequent unspecified statutory references are to the Penal Code.
We reject Burge’s claims of instructional error and affirm his conviction but order the abstract of judgment modified to reflect a stayed term for arson.
BACKGROUND
1. The prosecution’s evidence.
On June 4, 2006, Burge and Angela B. were living together in a motel. They had been in a romantic relationship, off and on, for several years and had resided in the motel for the last six months. At approximately 8:00 p.m., Burge came home intoxicated and accused Angela B. of entertaining men. Burge splashed rubbing alcohol on Angela B. while he argued with her, then lit a cigarette and threw burning matches at Angela B. but none hit her. After Burge emptied the bottle, Angela B. went to the bathroom and put water on herself. When she opened the bathroom door, Burge flicked a lighter. The front of Angela B.’s shirt and pants immediately burst into flames. Angela B. fell to the carpet and started rolling. The shirt came off but Angela B. could not remove her long baggy shorts. Burge grabbed the bottom of the shorts and pulled them off. Angela B. ran from the room wearing nothing. The owner of a liquor store poured water over her head. Angela B. was taken from the scene by ambulance and was hospitalized until October of 2006. She was unconsciousness for approximately three months and has scarring from her collar bones to her ankles, front and back. She has undergone numerous skin grafts and anticipates more. Burge also was injured in the incident and suffered burns to his hands.
2. Defense.
At the hospital, Burge’s blood alcohol content was 0.166 and a preliminary screen of his blood showed the presence of cocaine, opiates, PCP and marijuana. Angela B. had been prescribed two psychotropic medications for schizophrenia.
3. Argument, verdicts and sentencing.
The prosecutor asked the jury to convict Burge of attempted murder and arson. Defense counsel argued Burge was too intoxicated to realize Angela B. would catch fire and lacked the malice required for arson.
The jury found Burge not guilty of attempted murder but convicted him as indicated above.
On count three, corporal injury to a cohabitant, the trial court imposed a third strike term of 25 years to life. As to count four, arson, the trial court imposed a concurrent third strike term of 25 years to life and indicated the term on count four “merged” with the term imposed on count three “under [section] 654.” The trial court imposed a consecutive term of one year for the misdemeanor offense of corporal injury to a cohabitant alleged in count five. The trial court added a ten year enhancement under section 667, subdivision (a)(1), for a total unstayed term of 36 years to life in state prison.
CONTENTIONS
Burge contends the trial court committed instructional error by giving CALCRIM Nos. 223, 226 and 302, and the abstract of judgment must be modified to reflect a stayed term on count four.
DISCUSSION
1. Burge’s claims of instructional error lack merit.
Burge contends CALCRIM No. 302 misstates constitutional law.
CALCRIM No. 302 provides: “If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of a greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.”
Burge contends CALCRIM No. 302 tells the jury it must be convinced by evidence adduced at trial in order to decide the case and thereby insinuates the jury is required to believe defense evidence in order to aquit. However, the defense has no burden of proof. Burge notes similar language did not appear in the CALCRIM No. 302’s predecessor, CALJIC No. 2.22, which cautioned jurors not to disregard testimony from the greater number of witnesses based merely on caprice, whim or prejudice. CALJIC No. 2.22 did not require the jury to believe defense witnesses in order to acquit. CALJIC No. 2.22 instructed jurors that, in weighing conflicting testimony, the final test was not the number of witnesses testified but the “convincing force” of the evidence. CALCRIM 302 fails to include this guiding language.
CALJIC No. 2.22 provided: “You are not bound to decide an issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which appeals to your mind with more convincing force. You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides]. The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence.”
Further, CALCRIM No. 302 creates a presumption that all witnesses are deemed to be truthful by instructing the jury not to disregard the testimony of a witness “without a reason.” This gives testimony an improper presumption of correctness and undermines the presumption of innocence. (In re Winship (1970) 397 U.S. 358, 363.)
The instruction also tells the jury not to favor one side over the other. Burge argues this portion of the instruction conflicts with the presumption of innocence which requires the jury to favor the defense unless the prosecution proves otherwise.
The instruction also improperly focuses on the evidence actually presented. In so doing, it asks the jury to determine which side presented the more compelling evidence. However, reasonable doubt may arise from a conflict in the evidence, lack of evidence or a combination of the two. According to Burge, the instruction implies that disbelief of defense witnesses means prosecution witnesses are believable. However, “disbelief of a witness does not establish that the contrary is true, only that the witness is not credible.” (People v. Woodberry (1970) 10 Cal.App.3d 695, 704.)
The instruction also directs the jury to choose between the Government’s witnesses and the defense witnesses. However, the jury is not required to make such a choice. The jury may accept some portions of the evidence produced and reject others. (People v. Geiger (1984) 35 Cal.3d 510, 531, overruled on another point in People v. Birks (1998)19 Cal.4th 108, 136.) Further, the number of witnesses is a factor, among several others, that a jury may consider in determining the convincing force of the evidence. The instruction indicates the number of witnesses is not important.
Burge asserts CALCRIM Nos. 223 and 226 suffer similar infirmities. Burge contends CALCRIM No. 223, like CALCRIM No. 302, tells the jury the defense has a duty to present evidence to disprove the charge. Also, CALCRIM No. 226 insinuates Burge was required to disprove an element of the charged offense.
CALCRIM 223 provides, as relevant here: “Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself.... Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question.... [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of the charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.”
Burge asserts the defects in the instructions might have caused the jury to convict him because he failed to disprove the People’s case. Alternatively, Burge argues the instructions are ambiguous and it is reasonably likely the jury applied the instructions in a way that violated the federal constitution.
In reviewing claims of instructional error, we look to whether the defendant has shown a reasonable likelihood the jury, considering the instruction complained of in the context of the instructions as a whole and not in isolation, understood the instruction in a manner that violated his constitutional rights. (People v. Smithey (1999) 20 Cal.4th 936, 963; People v. Andrade (2000) 85 Cal.App.4th 579, 585.) We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given. (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149; People v. Martin (2000) 78 Cal.App.4th 1107, 1112.)
Variations of the arguments raised by Burge were rejected in People v. Ibarra (2007) 156 Cal.App.4th 1174, 1190-1191, People v. Anderson (2007) 152 Cal.App.4th 919, 939-940, and People v. Reyes (2007) 151 Cal.App.4th 1491, 1497. We see no need to depart from the result reached in those cases or engage in a detailed analysis of Burge’s contentions. However, it bears noting that Burge’s arguments fail to take into account the instructions on the burden of proof and the need to agree unanimously and beyond a reasonable doubt on the guilt of the accused. In sum, we find no instructional error.
2. The abstract of judgment must be corrected.
On count three, corporal injury to a cohabitant, the trial court sentenced Burge to a term of 25 years to life. As to count four, arson, the trial court imposed a similar concurrent term but indicated that term “merged” under section 654 with the term imposed on count 3. However, the abstract of judgment reflects a consecutive term on count four.
Burge submits the term imposed for arson must be stayed, rather than imposed concurrently. The People concede the point and it appears their concession is well taken. (See People v. Deloza (1998) 18 Cal.4th 585, 591-592.) We shall therefore order the abstract of judgment modified to reflect a stayed term on count four.
DISPOSITION
The judgment is ordered modified to reflect a stayed term on count four. As so modified, the judgment is affirmed. The trial court shall prepare and forward to the Department of Corrections and Rehabilitation a certified copy of the amended abstract of judgment.
We concur: KITCHING, J., ALDRICH, J.
CALCRIM 226 provides, in pertinent part: “You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witnesses’s disability, gender, race, religion, ethnicity, sexual orientation, gender identity, age, national origin, or socioeconomic status.... [¶] In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.”