Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF121538F. John R. Brownlee, Judge.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, for Plaintiff and Respondent.
OPINION
Franson, J.
A jury convicted appellant Jesus Garcia Chavez of kidnapping for ransom or extortion (Pen. Code, § 209, subd. (a)), conspiracy to commit kidnapping for ransom or extortion (§ 182, subd. (a)(1)), extortion (§ 518), and carjacking (§ 215, subd. (a)). The jury also found true special allegations in connection with three of the counts that a principal was armed with a handgun. (§ 12022, subd. (a)(1).) On appeal, appellant contests the trial court’s comments to potential jurors during the voir dire process, and raises an ineffective assistance of counsel claim, particularly as to counts 4 (extortion) and 5 (carjacking). For the reasons discussed below, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
In November 2007, Nancy Nunez and appellant were dating. Having fallen into troubled financial straits, appellant borrowed some money from Nunez. Appellant’s “compadre, ” one Juan Carlos Baez, upon finding this out, suggested they go about getting more money from Nunez by kidnapping her and demanding $60,000 from her family for her safe return. Appellant set up a routine rendezvous with Nunez and notified Baez she was at the agreed upon meeting place.
Baez and his associates arrived at Nunez’s location, put a gun to her head, put her in the back of her car, drove her car to an orchard, and forced her to call her family and demand the $60,000. Her family called the police after receiving Nunez’s call. The kidnappers released Nunez that night with instructions to get them the money the next day.
After Nunez returned to her family, Baez called Nunez’s family members on several occasions, demanding money. During this time, appellant was in contact with Nunez. Eventually, the amount was negotiated down to $20,000. With Kern County Sheriff’s Department involvement and oversight, the family dropped the money at an arranged location. Sheriff’s deputies caught Baez and his associates shortly after they picked up the money.
A few weeks later, at Senior Deputy Jose Perez’s suggestion, Nunez called appellant in an attempt to get him to admit his involvement with Baez and the kidnapping and extortion scheme. Appellant admitted to Nunez his involvement, and that he had given Baez information about Nunez, her family, and specifically about her niece.
After the jury found appellant guilty on all counts and found true the special gun allegations, the trial court sentenced him to a term of life with the possibility of parole on the kidnapping count, plus one year for the related gun allegation. The remaining sentences on the other counts were stayed pursuant to section 654.
Appellant now raises two distinct issues underlying his conviction.
DISCUSSION
I. THE TRIAL COURT’S VOIR DIRE COMMENTS ON REASONABLE DOUBT
Appellant asserts the trial court’s comments elaborating on the “beyond a reasonable doubt” standard lowered the burden of proof for the prosecution, in violation of appellant’s constitutional due process rights. We disagree.
A. Factual Background
It appears from the record that the entire jury pool of 79 persons was present in the room while the voir dire process was ongoing. The trial court initially seated 18 members of the jury pool for questioning in depth, but all 79 jury pool members appear to have been able to hear the trial court’s questions and explanations. As a result, the trial court explained its voir dire questions more fully at the outset, but thereafter for each new group of potential jurors he questioned, he limited his comments.
When initially explaining the reasonable doubt standard to the entire pool of prospective jurors, the trial court explained, “[t]he burden is beyond a reasonable doubt. A doubt that you have based on your life experiences, what you’ve done, seen in your life that is reasonable to you. Beyond a reasonable doubt, not a possible or an imaginary doubt.” (Italics added.)
After this initial explanation, the trial court reiterated the reasonable doubt standard several more times throughout the course of the voir dire process -- each time a new group of potential jurors was questioned. In all but one of those instances, the trial court asked if the potential jurors agreed to hold the prosecution to a burden of proof of, “beyond a reasonable doubt, not a possible or an imaginary doubt” without elaboration. In one other instance, the trial court asked, “Do you all agree to hold the People … to their burden of proof of beyond a reasonable doubt, not a possible or imaginary doubt, but a doubt that’s reasonable to you, beyond a reasonable doubt.”
In other contexts, such as evaluating the credibility of witnesses, the trial court noted the prosecution’s burden was to prove its case “beyond a reasonable doubt.” The court also explained the difference between civil and criminal cases: “in a criminal case it’s like somebody has broken the law and the D.A.’s office is bringing charges. In a civil case it’s generally somebody else suing somebody else for money. And the burden of proof is very different in a criminal case. It’s beyond a reasonable doubt. In a civil case it’s the preponderance of the evidence. In a criminal case all of you have to agree. In a civil case you don’t.” In asking each subset of potential jurors whether anyone had any religious beliefs that would prevent them from being an impartial juror, the trial court explained they would not be passing moral judgment, but rather were making a determination solely as to whether the prosecution had met its burden of proof beyond a reasonable doubt.
Both immediately after voir dire and at the conclusion of the presentation of evidence at trial before closing arguments, the trial court read the jury instruction to the jury setting forth the reasonable doubt standard which states in pertinent part, “[p]roof 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.” (CALCRIM Nos. 103 and 220) Neither party discussed the reasonable doubt standard in their closing arguments and defense counsel made no objection to the reasonable doubt explanations during or after voir dire.
B. Analysis
In a criminal case, the due process clause of the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364 (Winship).) The beyond-a-reasonable-doubt requirement applies in state as well as federal proceedings. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278 (Sullivan).)
When a trial court instructs the jury with a misdescription of the burden of proof by, for example, suggesting a higher degree of doubt than is required for acquittal under the reasonable doubt standard, reversal is required. (Sullivan, supra, 508 U.S. at pp. 277, 281; see Cage v. Louisiana (1990) 498 U.S. 39, 40–41, disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) The same result occurs when the trial court’s instructions lower the prosecution’s burden of proof by equating reasonable doubt with the standard people use to make decisions in their everyday lives. (People v. Brannon (1873) 47 Cal. 96, 97; People v. Johnson (2004) 119 Cal.App.4th 976, 985–986 (Glen); People v. Johnson (2004) 115 Cal.App.4th 1169, 1171–1172 (Danny).) The constitutional question in such a case “is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” (Victor v. Nebraska (1994) 511 U.S. 1, 6; People v. Flores (2007) 153 Cal.App.4th 1088, 1093.)
The trial court here was conducting voir dire, and nothing in the record suggests its comments were intended to be, or were understood by prospective jurors to be, a substitute for formal instructions. (See People v. Avila (2009) 46 Cal.4th 680, 716.) Moreover, the court correctly and fully instructed the jury on the presumption of innocence and proof beyond a reasonable doubt immediately after the jury had been selected and again before closing arguments. The jury also had an actual copy of the printed version of the reasonable doubt instruction for its reference during jury deliberations.
This court has in the past found a trial court’s elaboration on the reasonable doubt standard during voir dire impermissibly lowered the burden of proof for the prosecution. In Glen, supra, 119 Cal.App.4th 976, this court found the trial court improperly “equate[d] proof beyond a reasonable doubt to everyday decisionmaking in a juror’s life, ” such as choosing a restaurant to go to or driving a car through a green light. (Id. at pp. 980-982.) After a number of lengthy dialogues with potential jurors about specific decisions they made in their lives, the trial court explained, “‘we have that power of reason, and with that we can make these decisions along the way. [¶] So that’s--that’s not a definition of reasonable doubt, but that’s what we want you to bring to court with you, the same thing you use every day in making your decision[s].…’” (Id. at p. 982.) The trial court later re-emphasized its prior erroneous point when it instructed jurors that finding a defendant guilty or not guilty involved the “same decisionmaking process they ‘use every day. When you get out of bed you make those same decisions.’” (Id. at p. 983.) This court concluded, “the court’s tinkering with the statutory definition of reasonable doubt, no matter how well intentioned, lowered the prosecution’s burden of proof below the due process requirement of proof beyond a reasonable doubt. [Citations.]” (Id. at p. 985.)
In contrast, here the trial court elaborated on the reasonable doubt standard using only a single general statement describing the subjective nature of the standard: “A doubt that you have based on your life experiences, what you’ve done, seen in your life that is reasonable to you.” He later, among many other repetitions of the “beyond a reasonable doubt” language, noted that reasonable doubt was “a doubt that’s reasonable to you.” The trial court used no specific analogy to any particular life experience, made no mention of any daily or routine decisionmaking examples, nor analogized the decisionmaking process to any other decisionmaking situation. The trial court repeatedly noted the prosecution’s burden of proof was that of “beyond a reasonable doubt” in various contexts, and implied it was a higher burden when it explained the difference between civil and criminal cases. The trial court’s minor elaboration on the subjective aspect of the reasonable doubt standard perhaps muddied the waters for the potential jurors by drawing attention away from the standard’s emphasis on evaluating the evidence. It is the evidence that must prove a defendant guilty beyond a reasonable doubt. The trial court could have clarified better that the jurors’ determination of reasonable doubt is performed only after “the entire comparison and consideration of all the evidence.” (§ 1096.) If after considering all the evidence, a juror holds a reasonable doubt, based on his or her life experiences, then the defendant cannot be found guilty of the charge. (Ibid.)
Appellant asserts the trial court’s repetition that finding guilt beyond a reasonable doubt did not require elimination of all “possible doubt” served to effectively lower the prosecution’s burden of proof. Section 1096a, however, permits jury instruction on the reasonable doubt standard by mere recitation of section 1096. Section 1096 defines reasonable doubt with similar language to the trial court’s “possible doubt” explanation: “‘It 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 jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’”
Appellant misinterprets the trial court’s comments, characterizing them as implying the standard “required no more than a subjectively reasonable decision based on jurors’ life experiences.” Appellant neglects, however, to acknowledge the full context of the trial court’s comments. “Proof beyond a reasonable doubt requires ‘a subjective state of near certitude of the guilt of the accused.’ (Jackson v. Virginia (1979) 443 U.S. 307, 315.)” (People v. Zepeda (2008) 167 Cal.App.4th 25, 28-29.) In Zepeda, the defendant contended CALCRIM No. 220 failed to convey the subjective element of conviction beyond a reasonable doubt embodied in section 1096 -- that one’s “abiding conviction” must be “felt.” The appellate court concluded, “CALCRIM No. 220’s phrase, ‘proof that leaves you with an abiding conviction that the charge is true, ’ unmistakably conveys the conviction’s subjective nature and the very high level of certainty required.” (Id. at p. 31.)
The trial court’s brief and passing comments here brought to the potential jurors’ attention the subjective nature of the reasonable doubt standard, but did not lower the prosecution’s burden of proof. Moreover, were we to find some ambiguity or contradiction between the trial court’s comments during voir dire and its formal instructions, in light of all the circumstances there would simply be no reasonable likelihood jurors applied the court’s remarks in an unconstitutional manner. Accordingly, there was no violation of due process and, hence, no cause for reversal. (See Victor v. Nebraska, supra, 511 U.S. at p. 6; Estelle v. McGuire, supra, 502 U.S. at p. 72 & fn. 4.)
II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Appellant asserts trial counsel failed to provide effective assistance, in essence, cumulatively over the course of the trial from voir dire to closing in various capacities. Most glaringly, appellant asserts trial counsel presented an ineffective and perfunctory closing argument that omitted viable defenses particularly with respect to counts 4 (extortion) and 5 (carjacking).
Defense counsel’s closing argument was brief, comprising just over one page in the reporter’s transcript of the trial proceedings, and addressed no specific evidence. Appellant, acknowledging that brevity alone is insufficient to uphold an ineffective assistance claim, contends more substantively that trial counsel failed to present defenses to counts 4 and 5 to the jury in his brief closing argument, and as to count 5, trial counsel failed to remind the jurors of relevant evidence when the jury asked a question during deliberations about the carjacking offense. Appellant asserts the jury would have found appellant not guilty as to counts 4 and a 5 had trial counsel raised these points in his closing argument.
Defense counsel’s closing argument in its entirety:
“We apply settled standards: ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]’ [Citation.] These standards apply with particular force at closing argument because, as we have recognized, ‘[t]he decision of how to argue to the jury after the presentation of evidence is inherently tactical....’ [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 391 (Gamache).)
“In measuring counsel’s performance, the United States Supreme Court has cautioned that judicial scrutiny ‘must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] …’ [Citation.]” (In re Andrews (2002) 28 Cal.4th 1234, 1253.) “‘[I]n considering claims of ineffective assistance of counsel, “[w]e address not what is prudent or appropriate, but only what is constitutionally compelled.” [Citation.]’ [Citation.] ‘The purpose [of the effective assistance guarantee of the Sixth Amendment] is simply to ensure that criminal defendants receive a fair trial.’ [Citation.]” (Id. at p. 1255.)
While defense counsel’s performance is not immune from criticism, based on the record before us, it falls within the “‘wide range of reasonable professional assistance’” that is “constitutionally tolerable” within the four corners of the appeal. (See Gamache, supra, 48 Cal.4th at p. 394.) As our Supreme Court has aptly stated in the past, “the appellate record sheds no light on why trial counsel acted as he did; he was not asked to explain his performance; although we may doubt that a satisfactory explanation could be provided, we are unable to conclude that it could not. Thus, we must reject defendant’s point.” (People v. Bell (1989) 49 Cal.3d 502, 546.) The claim is more appropriately raised in a petition for writ of habeas corpus: “‘We recommended in [People v.] Pope [(1979) 23 Cal.3d 412, 426-427] that, “[t]o promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for writ of habeas corpus.”’ [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Detjen, J.
“I would assert to you that there is -- they’ve got nothing whatsoever that proves that at any time Mr. Jose {sic} Garcia Chavez intended that Nancy Nunez -- specifically intended that she be kidnapped. [¶] Now, I’ve been sitting here and thinking about this, and I’ve been looking and I see 15 intelligent adults, and I see 15 people who have been paying very close attention to every point I’ve made during the course of this trial. [¶] So I’m not going to waste your time by going over those points again. [¶] And I see 15 people who have listened to the Judge’s instructions, His Honor’s instructions, and who will have - 12 of you will have them in the jury room, so I won’t go over them again. [¶] And I’m not going to insult anybody by telling you what to think about all of that. [¶] What I am going to do is suggest to you that you all took an oath, and I’d ask you to go back and just give my client a fair hearing. Just sit there and go over the evidence carefully. Go over the law carefully. Look at him and give him a fair hearing because this is a serious, serious matter. [¶] … [¶] Now, I’m going to sit down now, and I thank you all for your attention during this trial.”