Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County No. SCD213656, Roger W. Krauel, Judge.
O'ROURKE, J.
A jury convicted Milton David Carr and his codefendant, Toraneo Mack, of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and found true allegations that the sale involved cocaine base within the meaning of Penal Code section 1203.073, subdivision (b)(7). Mack was also convicted of possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 2). After both defendants admitted various prior conviction allegations, the trial court sentenced Carr to six years in prison (consisting of the three-year low term and one three-year enhancement) and sentenced Mack to a 10-year prison term (consisting of the four-year midterm and two three-year enhancements).
On appeal, Carr contends there is insufficient evidence that he aided and abetted the sale of cocaine because he was a mere purchaser, not a seller of the drugs. He further contends the trial court prejudicially erred by failing to reasonably respond to a juror's question about the law of aiding and abetting or poll the jury in the face of asserted evidence that it rushed its deliberations. Mack contends the trial court prejudicially erred by (1) failing to conduct an investigation into asserted juror misconduct pertaining to a juror's question about consequence of the jury not reaching a verdict by the end of the day; (2) answering the juror's notes without his attorney present or a waiver permitting co-defendant Carr's attorney to appear on his behalf; and (3) instructing the jury with CALCRIM No. 220 on reasonable doubt. Carr joins Mack's first and third appellate arguments. We affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2008, San Diego police officers conducted an undercover "buy-bust" narcotics operation in the East Village, an area known for drug activity. An officer dressed in plain clothes contacted Carr and, in street slang, asked to buy narcotics. He told her he did not have drugs, but knew where to get it and asked in exchange for his help if she would break off a piece for him. The officer agreed and Carr led her to a location under a bridge where he unsuccessfully tried to buy drugs from a man. The officer told Carr she would go somewhere else to buy the drugs but Carr persuaded her to wait, telling her he knew there was going to be someone else coming around the corner with some drugs.
About five minutes later, as Carr and the officer walked slowly along the street, the officer saw Mack and Michael Roots walking toward them. Carr told Mack the officer was looking for a "20" ($20 worth of narcotics) and when Mack asked who she was, the officer gave Mack a false identification, telling him she had just "gotten out." Mack asked the officer how much she wanted, she responded that she wanted "20," and Mack gave her.22 ounces of rock cocaine in exchange for her $20 bill. The officer signaled the completion of the buy and left with Carr, who was arrested. Officers located Mack and Roots about 10 to 15 minutes later, and arrested Mack after the undercover officer identified him. Roots was released. Police did not find the marked $20 bill used to make the purchase.
At trial, Mack sought to defend the charge by presenting misidentification and alibi evidence. Specifically, Roots testified he was with Mack the entire evening and he never spoke to any female before police detained them.
The trial proceeded without alternate jurors. At 1:47 p.m. on Friday, October 3, 2008, the jury was sent to deliberate. At 4:30 p.m. that day, the jury sent a note asking to hear the entire testimony of the undercover officer and asking for "further def[i]nition" on CALCRIM No. 401, the instruction entitled "Aiding and Abetting: Intended Crimes."
Pursuant to CALCRIM No. 401, the trial court instructed the jury as follows: "To prove that a defendant is guilty of the crime charged in Count 1, based on aiding and abetting that crime, the People must prove that, one, the perpetrator committed the crime; two, the defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and, four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the crime. [¶] If someone aids and abets a crime, he or she knows of the perpetrator's unlawful purpose, and he or she specifically intends to and does, in fact, aide [sic], facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether that defendant was an aider and abettor; however, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him an aider and abettor."
The following Monday, counsel stipulated outside the jury's presence that the court would respond to the question by stating: "In instruction 401, 'perpetrator' is Defendant Mack. [¶] The other words and phrases in part 2 of Instruction 401 are not specifically defined in the instructions. Therefore, those words and phrases are to be applied using their ordinary, everyday meanings."
Later that afternoon, at 2:00 p.m., the jury submitted a second note stating: "What happens if we don't come to a conclusion by 4 p.m. today and one of the jurors has to be on a flight tomorrow at 6 a.m. and there are no alternate jurors." In an unreported conference at which Mack's counsel was not present, the court stated it would prepare a response and Carr's counsel would inform Mack's attorney. The trial court responded to the question as follows: "In response to Jury Question #2, the jury is to continue deliberations in accordance with the instructions that you have already received." At 3:53 p.m., the deputy informed the court that the jury had reached its verdict.
DISCUSSION
I. Carr's Appeal
A. Sufficiency of Evidence of Aiding and Abetting
Carr contends there is insufficient evidence that he acted as a seller of drugs; that the evidence demonstrates the only reason he agreed to help the undercover officer was because she agreed to give him a piece so that he could use the drugs. He compares his and the officer's actions with those of the defendants in People v. Edwards (1985) 39 Cal.3d 107, in which the California Supreme Court held that co-purchasers of drugs were not guilty of furnishing or selling to one another. (Id. at p. 117.) Arguing that he only entered the deal with the intent to consume drugs, Carr seeks to distinguish his circumstances from People v. Cattaneo (1990) 217 Cal.App.3d 1577 (Cattaneo), in which the defendant was found to aid and abet a drug sale as a seller's agent by merely introducing the parties. He also seeks to distinguish other cases in which the defendant acted as the buyer's agent, arguing that in those cases, the defendants and sellers had preexisting relationships and predetermined plans, whereas he was merely a partner in the purchase because he never handled the drugs or the money and he made the same efforts as the officer. Carr maintains that the evidence here showed he was "unsure where to go, did not transfer the money from the undercover agent to the seller, and was asking various people for drugs, unsure of a specific source."
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Snow (2003) 30 Cal.4th 43, 66.) We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Stewart, at p. 790.)
"[A] person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) The McCoy court explained that when the charged crime and the intended crime are the same, an aider and abettor must know and share the intent of the direct perpetrator: "[O]utside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator. 'To prove that a defendant is an accomplice... the prosecution must show that the defendant acted "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." [Citation.] When the offense charged is a specific intent crime, the accomplice must "share the specific intent of the perpetrator"; this occurs when the accomplice "knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." ' " (Id. at pp. 1117-1118; see also People v. Prettyman (1996) 14 Cal.4th 248, 259 [aiding and abetting requires that a defendant act with knowledge of the perpetrator's criminal purpose and the intent to commit, facilitate, or encourage commission of the offense]; People v. Beeman (1984) 35 Cal.3d 547, 561; People v. Perez (2005) 35 Cal.4th 1219, 1226.)
The aider and abettor's presence at the scene of the crime, companionship with the principal, and conduct before and after the offense are among the factors that may be considered in determining whether the defendant had the requisite knowledge and intent. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
In People v. Edwards, supra, 39 Cal.3d 107, the California Supreme Court observed that "[t]he distinction drawn... between one who sells or furnishes heroin and one who simply participates in a group purchase seems to us a valid one, at least where the individuals involved are truly 'equal partners' in the purchase and the purchase is made strictly for each individual's personal use. Under such circumstances, it cannot reasonably be said that each individual has 'supplied' heroin to the others." (Id. at pp. 113-114, italics added, fn. omitted.) Edwards concluded that "mere copurchasers are not guilty of furnishing to one another.... " (Id. at p. 117, italics added.)
The Edwards court stated it expected to find only a few cases involving a co-purchase by truly equal partners, explaining: "Where one of the copurchasers takes a more active role in instigating, financing, arranging or carrying-out the drug transaction, the 'partnership' is not an equal one and the more active 'partner' may be guilty of furnishing to the less active one. Furthermore, one who acts as a go-between or agent of either the buyer or seller clearly may be found guilty of furnishing as an aider and abettor to the seller. [Citations.] However, because one who merely purchases drugs is not guilty of furnishing as an aider and abettor of the seller..., an equal partner in a copurchase cannot be found guilty of furnishing to his copurchaser on a theory that he aided and abetted the actual seller." (People v. Edwards, supra, 39 Cal.3d at p. 114, fn. 5; see also Cattaneo, supra, 217 Cal.App.3d at p. 1584.)
In Cattaneo, the evidence showed the defendant took an undercover deputy to a table in a restaurant, introduced him to a man, Caiello, who the defendant knew wanted to buy cocaine, and walked away, telling them to " ' "go ahead and talk your business. I'll be around." ' " (Cattaneo, supra, 217 Cal.App.3d at p. 1582.) Caiello was arrested after he ended up selling the deputy large quantities of cocaine. (Ibid.) A deputy sheriff testified at trial about statements the defendant had made showing that before the sales, the defendant knew Caiello wanted to find someone to buy large scale narcotics and that the defendant told Caiello that he did not know anyone, but promised to contact Caiello if he became aware of someone in the market. (Ibid.)
Similar to Carr here, the defendant in Cattaneo contended there was insufficient evidence of his aiding and abetting the sales, arguing that the only evidence showed he made the introduction for the sole purpose of purchasing the cocaine; that he had no knowledge that Caiello was going to be the seller. (Cattaneo, supra, 217 Cal.App.3d at p. 1583.) The appellate court rejected the defendant's sufficiency of the evidence challenge, explaining that the evidence only needed to show an intent to bring about criminal conduct, not the specific intent of an element of the target offense. It found the defendant had the requisite intent in part by evidence of his knowledge that the undercover deputy wanted to purchase cocaine and his conduct in making the introduction to Caiello and stating the deputy was " ' "the man with the merchandise. The guy with the coke." ' " (Cattaneo, 217 Cal.App.3d at p. 1585.) The Cattaneo court found no evidence the defendant could be either a purchaser or an equal partner in a co-purchase. (Id. at p. 1586.)
The Cattaneo court explained: " '[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which... must be found by the jury.' " (Cattaneo, supra, 217 Cal.App.3d at p. 1584, quoting People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.) We question Cattaneo's continued validity in view of the California Supreme Court's statements about Croy's confusing use of the phrase "target offense." (People v. McCoy, supra, 25 Cal.4th at p. 1118, fn. 1.) McCoy explains that "[w]hen the charged crime and the intended crime are the same, i.e., when guilt is not predicated on the natural and probable consequences doctrine, the aider and abettor must, indeed, share the actual perpetrator's intent." (Ibid.) Here, however, we hold that standard was met by the evidence in this case.
Here, the jury could reasonably conclude from the evidence that Carr, knowing the undercover officer's desire to purchase drugs, took the lead and played a "more active role [than the officer]... in arranging... the drug transaction...." (People v. Edwards, supra, 39 Cal.3d at p. 114, fn. 5.) Carr took the steps to find the officer a seller, leading her to a location and even telling her after the first unsuccessful sale to wait because he knew someone with drugs would be coming. The fact Carr may have negotiated with the officer for a portion of the controlled substance in exchange for his efforts does not convince us he became an equal partner or co-purchaser within the narrow meaning expressed by the Edwards court. And, despite the limitations in Cattaneo's holding (see footnote 4 ante), as in Cattaneo, which has not been overruled,we find no deficiency in the evidence by virtue of the fact it suggests Carr may not have known specifically who he might find to sell the officer drugs. What is important is that the evidence shows Carr knew the officer wanted to purchase a controlled substance and assisted her in finding Mack to make the sale. That Carr told the officer to wait for an expected seller and then approached Mack, telling him in narcotics-related street slang that the officer was looking for a "20," demonstrates Carr's knowledge of Mack's unlawful purpose. Because the evidence is sufficient to establish Carr as a go-between and facilitator of Mack's unlawful sale as well as the requisite intent, it is sufficient to support his conviction for aiding and abetting.
B. Response to Jury's Request to Clarify CALCRIM No. 401 as to Aiding and Abetting
Carr contends the trial court prejudicially erred when it refused to give a proper response to the jury's request for further definition of the aiding and abetting instruction. He maintains the court's answer — that the jury should give the words their plain meaning — ultimately left the interpretation of a "key issue" to a "confused jury" similar to the circumstances found to be error in People v. Thompkins (1987) 195 Cal.App.3d 244 and People v. Beardslee (1991) 53 Cal.3d 68. Carr argues we should apply the harmless beyond a reasonable doubt standard for constitutional error (Chapman v. California (1967) 386 U.S. 18), because the court deprived the jury of their understanding of the law pertinent to the resolution of the case.
We reject the contention both procedurally and on the merits. First, as the People point out, while the conference about the jury note went unreported, the minutes in the record state that Carr's counsel stipulated to the content of the trial court's response. We presume the court's minutes are correctly kept. (People v. Gaines (1877) 52 Cal. 479, 480.) There is no indication counsel objected or sought a mistrial based on the court's action. And when a trial court elects to respond to a jury's note (or declines to respond), counsel's acquiescence — even if a technical violation of Penal Code section 1138 — waives any objection. (People v. Roldan (2005) 35 Cal.4th 646, 729, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, and fn. 22; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192; People v. Ross (2007) 155 Cal.App.4th 1033, 1048.)
Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
Further, we cannot say the court erred. Its response was not like that in People v. Beardslee, supra, 53 Cal.3d 68, where the trial court "figuratively thr[ew] up its hands and [told] the jury it [could not] help." (Id. at p. 97.) We disagree with Carr that the court in Beardslee told the jury to apply plain meaning. The trial court in Beardslee responded: "Ladies and gentlemen, also in addition to your request concerning an instruction, there is and can be no explanation of the instructions. You have to just work with them as they are printed. [¶] This is one of the reasons we do not send, ordinarily, instructions into the jury room, because people start... picking them apart. [¶] You are going to have to consider the instructions as a whole as one of those instructions will... advise you, some of the instructions will apply, some of the instructions will not. [¶] All of those instructions have to be considered as a whole. Do the best you can with them." (Id. at pp. 96-97.)
Nor was the court's response like that in Thompkins, where the trial court answered the jury's queries with short, terse, inaccurate responses. (People v. Thompkins, supra,195 Cal.App.3d 244, 251.) There, the jury's questions and the judge's answers were as follows: " '[Jury:] [H]ow does premeditation and sudden heat of passion interrelate in this law, CALJIC 8.20[?] [Judge:] It doesn't. [¶] '[Jury:] Can sudden heat of passion nullify premeditation, also in this law [?] [Judge:] No. [¶] '[Judge:] So with that added information, please continue your deliberations.' " (People v. Thompkins, supra,195Cal.App.3d 244, 250.) The Court of Appeal in Thompkins held those instructions were not sufficient to answer the jury's questions and reversed the conviction in the face of equivocal evidence as well as the fact the jury was deadlocked prior to the judge's statement. (Id. at pp. 251-252.)
As the Beardslee court explained, when the original instructions are themselves full and complete, the court has discretion under Penal Code section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. (People v. Beardslee, supra, 53 Cal.3d at p. 97.) And because Carr has not asserted the original instructions were incomplete, an abuse of discretion standard applies. (Ibid.) Here, we conclude on the merits that the trial court did not abuse its discretion in its response. It did not entirely refuse to respond to the jury's vague request for a "further def[i]nition" of CALCRIM No. 401. The court clarified that the "perpetrator" referred to in the instruction was Carr's codefendant, Mack. It then advised the jury to apply the ordinary, everyday meaning to the remaining words of the instruction, which did not contain the sort of "arcane legal precepts" present in Thompkins, supra, 195 Cal.App.3d at page 250, involving the interrelationship between premeditation for purposes of first degree murder and the heat-of-passion doctrine. Under the circumstances, we cannot say the trial court's response was so unreasonable as to constitute an abuse of discretion.
C. Jury Polling
Asserting the record contains "glaring evidence of a rushed verdict" to accommodate the travel plans of one juror, Carr contends the trial court prejudicially erred by failing to poll the jury to ask each juror if the verdict was theirs.
The facts underlying Carr's contention are simply not supported by the record, which shows the jurors were polled together and individually, confirming their verdicts were unanimous.
II. Mack's Appeal
A. Failure to Conduct an Investigation into Jury Question No. 2
Mack contends the trial court erred by declining to conduct an investigation after the jury sent its second note concerning the consequences of failing to reach a verdict by the end of the day without alternate jurors, indicating one of the jurors had to catch a plane the next morning. Mack characterizes the circumstances as indicative of misconduct on the part of the juror with the upcoming flight, calling into question that juror's ability to perform his or her duties. He argues the trial court's answer — that the jury should continue to deliberate — "was insufficient to examine and determine the concern of the jurors on what appeared to be at least one holdout for not guilty." Mack also contends the absence of Mack's attorney during consideration of the jury question deprived him of his Fourteenth and Sixth Amendment right to counsel during a critical stage of the proceedings. He argues the jury's "consideration of extrinsic evidence" creates a presumption of prejudice, which was left rebutted in the absence of any investigation into the jury misconduct.
Mack's contentions fail on their premise. The fact the jury at 2:00 p.m. asked the court about the possibility of not reaching a verdict by the close of the day (two hours later) does not permit an inference that any actual misconduct occurred, or that one or more jurors was unable to perform his or her duty to render an impartial and unbiased verdict. Indeed, the record shows that when polled, each juror stated that the verdict was theirs without any apparent hesitation. A juror's inability to perform as a juror must appear in the record as a demonstrable reality. (People v. Cleveland (2001) 25 Cal.4th 466, 474.) Nothing in this record calls into question any juror's competence or ability to perform his or her duties. Similarly, the fact one juror was scheduled to be on a flight the next day (assuming that to be the case) does not permit any inference that he or she — or any other juror — was a "holdout" juror. The jury's note does not state that the particular juror — or even the jury as a whole — was unable to reach a decision. And even if it had, the trial court was not necessarily required to conduct an investigation into the matter. (See People v. Johnson (1992) 3 Cal.4th 1183, 1255.)
In Johnson, the California Supreme Court found no abuse of discretion in the trial court's decision to forego inquiry into a jury note indicating one juror out of 11 had not reached a decision; it observed that "jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means. To probe as defendant suggests, in the absence of considerably more cogent evidence of coercion, would ' "deprive the jury room of its inherent quality of free expression." ' " (People v. Johnson, supra, 3 Cal.4th at p. 1255; see also People v. Cleveland, supra, 25 Cal.4th at p. 479.) The court emphasized that "not every incident involving a juror's conduct requires or warrants further investigation. 'The decision whether to investigate the possibility of juror bias, incompetence, or misconduct — like the ultimate decision to retain or discharge a juror — rests within the sound discretion of the trial court. [Citation.]... [¶]... [A] hearing is required only where the court possesses information which, if proven to be true, would constitute "good cause" to doubt a juror's ability to perform his duties and would justify his removal from the case.' " (People v. Cleveland, supra, 25 Cal.4th at p. 478.) Here, Mack has not shown the trial court was provided with information constituting such good cause. It did not abuse its discretion by simply instructing the jury to continue its deliberations.
As for Mack's claim he was denied his right to counsel at a critical stage of proceedings, we conclude he has not demonstrated either error or prejudice. Certainly, the Sixth Amendment to the United States Constitution guarantees criminal defendants the assistance of counsel at all critical stages of the proceedings. (People v. Doolin, supra, 45 Cal.4th at p. 453; United States v. Wade (1967) 388 U.S. 218, 224.) A critical stage includes the point at which the trial court instructs the jury on the law or the evidence. (See e.g., People v. Hawthorne (1992) 4 Cal.4th 43, 69-70, in part citing Pen. Code, § 1138; People v. Dagnino (1978) 80 Cal.App.3d 981, 988.) But the jury's question here was not one relating to the law or the evidence. Thus, the trial court did not err by acting in the absence of Mack's attorney. (People v. Avila (2006) 38 Cal.4th 491, 613 [no error when trial court responded to jury's note pertaining to an administrative issue, i.e., the time of adjournment].)
Even assuming Mack was denied counsel at a critical stage of the proceedings, however, such a denial is not prejudicial as a matter of law. (People v. Horton (1995) 11 Cal.4th 1068, 1137.) " ' "[P]rejudice will be presumed if the denial may have affected the substantial rights of the accused. Only the most compelling showing to the contrary will overcome the presumption. The court must be able to declare a belief the denial of counsel was harmless beyond a reasonable doubt [citations]." ' " (Ibid.)
Mack has not shown his substantial rights were affected. The jury sent its note at 2:00 p.m. As stated, the note did not involve questions or law or evidence. The court instructed the jury to continue its deliberations in accordance with the instructions it had already received. The instruction was not coercive, it did not put any time pressure on the jury, and we cannot say it comes close to a so-called Allen-type instruction that could pressure the jury into reaching a verdict. (Cf. People v. Gainer (1977) 19 Cal.3d 835, 852 [disapproving instruction telling deadlocked jury that the case " 'must at some time be decided,' " or refer to the expense and inconvenience of retrial]; see also People v. Santiago (2009) 178 Cal.App.4th 1471 [discussing characteristics of coercive Allen-type instructions].) Further, the record shows Carr's counsel was to inform Mack's counsel about the court's response, and there is no evidence in the record that Mack's counsel brought up the issue to the court during the next two hours while the jury continued its deliberations, or after the jury reached its verdict. Mack has not stated what, if anything, his counsel would have done in the face of the jury's note and thus we have no basis on which we could conclude the outcome of his trial would have been different had his counsel been present. (E.g., People v. Avila, supra, 38 Cal.4th at p. 598 [rejecting defendant's claim of denial of assistance of counsel during critical stage where defendant and his counsel were absent during rereading of certain testimony].) Because Mack has not shown his substantial rights were affected by the absence of his counsel at that particular point in the proceedings, he has not demonstrated prejudice. (See also People v. Dennis (1998) 17 Cal.4th 468, 539-540 [no prejudice found where trial court inquired about jury's numerical division and asked if the jurors were willing to return the next day for further deliberations].)
B. Instruction with CALCRIM No. 220
Mack contends the trial court prejudicially erred by giving the August 2006 version of CALCRIM No. 220, which he asserts did not instruct the jury that the prosecution must prove every element of the offenses beyond a reasonable doubt in order to convict him of the charged offenses. Mack argues that under the instruction, the jury "could have applied a gestalt approach to the concept of reasonable doubt, and decided that because most elements had been proven beyond a reasonable doubt, and others by a lesser standard, the totality was proof beyond a reasonable doubt. The jury could therefore return a verdict of guilty without a finding of beyond a reasonable doubt as to every a [sic] material element."
CALCRIM No. 220 was read to the jury as follows: "The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have 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 prosecution prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the prosecution must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶] 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 prosecution has 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 a defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
Mack further argues the error was exacerbated by other instructions as to circumstantial evidence (CALCRIM No. 224) and eyewitness identification (CALCRIM No. 315) that, according to him, suggest proof beyond a reasonable doubt is not required for certain evidence or some essential facts. Mack maintains the cases upholding the giving of CALCRIM No. 220 either were instances where an additional instruction informed the jury that the People were obligated to prove each element beyond a reasonable doubt (People v. Wyatt (2008) 165 Cal.App.4th 1592 (Wyatt)) or the jury was not given other contrasting instructions that required some, but not all, facts be proven beyond a reasonable doubt (People v. Ramos (2008) 163 Cal.App.4th 1082 (Ramos)).
Mack's point of error with regard to the omission of the "each element" language has been rejected by both Wyatt, supra, 165 Cal.App.4th 1592 and Ramos, supra, 163 Cal.App.4th 1082. More recently, the Wyatt court, the Third District Court of Appeal, held that a defendant's instructional challenge to CALCRIM No. 220 was frivolous where the defendant failed to analyze Wyatt or articulate any grounds to reconsider its holding. (People v. Henning (2009) 178 Cal.App.4th 388, 406.) Presumably, Mack believes he has done more than the defendant in Henning by attempting to distinguish Wyatt and Ramos as involving other curing instructions or not involving other assertedly "exacerbating" instructions. But he has not convinced us that the circumstances here are sufficiently distinguishable for us to reject the reasoning of the Wyatt and Ramos courts.
As the Ramos court points out, the second line of the second paragraph of CALCRIM No. 220 formerly stated: "This presumption requires that the People prove each element of a crime [and special allegation] beyond a reasonable doubt." (Ramos, supra, 163 Cal.App.4th at p. 1088, fn. 3, citing Judicial Council of Cal.Crim. Jury Instructions (2006), CALCRIM No. 220, prior to Aug. 2006 revision.)
First, like the appellate court in Wyatt and Henning, we find it important the jury was instructed, via CALCRIM No. 220, that "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt." (Henning, supra, 178 Cal.App.4th at p. 406; Wyatt, supra, 165 Cal.App.4th at p. 1601.) And, as in those cases, in this case the jury was given an instruction on each charged offense stating, "To prove that a defendant is guilty of this crime, the People must prove that:," with the instruction then enumerating each element of the offense. In our view, assessing the instructions as a whole as we must (Henning, at p. 406), they correctly inform the jury that the prosecutor was obliged to prove each element of the crimes beyond a reasonable doubt. (Accord, Ramos, supra, 163 Cal.App.4th at pp. 1088-1089.)
Given this conclusion, on our de novo review (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Franco (2009) 180 Cal.App.4th 713, 720), we reject Mack's assertion of error as well as his claim that any such error was "exacerbated" by other instructions. Mack points to the fact the jury was given CALCRIM No. 224, instructing in part that before the jury could rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, it must be convinced the prosecution has proved each fact essential to that conclusion beyond a reasonable doubt. He argues the instruction was erroneously limited to circumstantial evidence, allowing the jury to rely on direct testimony without finding facts based on such testimony proved beyond a reasonable doubt. But the combination of CALCRIM No. 220 and the substantive offense instructions that we have pointed out above do not permit the jury to draw such conclusions. We conclude it is not reasonably likely that the jury construed CALCRIM No. 220 (in combination with the other substantive offense instructions) and CALCRIM No. 224 in a manner that violated Mack's rights. (People v. Rogers (2006) 39 Cal.4th 826, 873 [applying standard to review claim of assertedly conflicting instructions]; People v. Franco, supra, 180 Cal.App.4th 713, 720.) Further, the jury was instructed via CALCRIM No. 223 about the nature and distinction between direct and circumstantial evidence, and thus they are presumed to understand the purpose of CALCRIM No. 224, namely, to assure the indirect facts tending to prove a fact necessary to establish guilt are themselves proven. (Ramos, supra, 163 Cal.App.4th at p. 1089 [court assumes jurors are " ' " intelligent persons and capable of understanding and correlating all jury instructions... given" ' "].)
Nor do we agree that the giving of CALCRIM No. 315 conflicted with or created any error in the giving of CALCRIM No. 220. CALCRIM No. 315 did not tell the jury the People had to prove only the element of identification beyond a reasonable doubt. After telling the jury what to ask itself when evaluating identification testimony, it concluded: "The prosecution has the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the prosecution has not met this burden, you must find the defendant not guilty." Again, in view of the instructions as a whole, we disagree that a jury would likely read this instruction and conclude that no other facts need be proven beyond a reasonable doubt. (People v. Rogers, supra, 39 Cal.4th at p. 873.)
DISPOSITION
The judgments are affirmed.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.