Opinion
A149809
06-25-2018
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN E. CUTSHALL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR224967)
Jonathan E. Cutshall appeals from a judgment of conviction and sentence imposed after he was found guilty of multiple offenses. He contends (1) his due process rights were violated because the court did not read aloud part of the reasonable doubt instruction, even though the instruction was provided in its entirety to the jury in writing; and (2) reversal is required because of the prosecution's characterization of the reasonable doubt standard and other matters during closing arguments.
We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
Cutshall was charged with possessing ammunition (Pen. Code, § 30305, subd. (a)(1)), possessing a firearm after a felony conviction (§ 29800, subd. (a)(1)), and providing false information to a police officer (§ 148.9, subd. (a)).
All statutory references herein are to the Penal Code.
The matter proceeded to a jury trial. Before jury selection, Cutshall entered a no-contest plea to the charge of providing false information to a police officer and stipulated that he was previously convicted of a felony for purposes of the other counts. These other counts were tried to the jury.
A. Evidence at Trial
At approximately 8:00 p.m. on October 18, 2015, Officers Bretton Wagoner and Joseph Coelho of the Vallejo Police Department were on patrol in a marked police vehicle when they observed a gray Ford truck. When the officers' vehicle neared the truck, the truck made an abrupt left turn. Believing the driver was trying to evade them, the officers continued to follow. The truck made another quick left, nearly hitting a curb, and then slowed and pulled into the driveway of a house at 109 Larsen Circle; the door to the house was open and the lights were on inside. A check of the truck's license plate revealed that the truck was registered to an address on the other side of town.
Officer Coelho got out of the patrol car and looked toward the truck through the bushes and trees. Seeing the truck backing out of the driveway, he returned to the patrol vehicle, and the officers circled the block. When they arrived back at the scene, they saw that the truck had parked in the driveway of a different house at 105 Larsen Circle.
The officers approached the truck on foot and contacted its three occupants. Cutshall, who was sitting behind the driver, gave the officers a false name and claimed he had a friend who lived at the house at which they were parked. Cutshall seemed "super nervous," and his left hand was balled up in a fist. When Officer Wagoner asked Cutshall what was in his hand, Cutshall opened his hand and revealed seven 9-millimeter bullets.
Officer Wagoner detained Cutshall, and the officers searched the truck for a gun that might go with the bullets. They found purses and clothing, but no gun. According to Wagoner, "there may have been some . . . napkins" in the truck too.
The officers then searched the area around the truck, and Officer Wagoner located a 9-millimeter handgun next to some trash cans, approximately 20 feet from the truck. The gun was on dewy grass, but there was no dew on the gun. The gun was fully loaded and the serial number had been filed off, suggesting it could have been stolen. Next to the gun, Wagoner found a brown napkin with pink lipstick on it. The officer booked the gun, bullets and napkin into evidence. The bullets in the gun were the same type as the bullets Cutshall had been holding in his fist.
The court had granted the prosecutor's in limine motion to exclude references to the fact that no fingerprints were found on the gun and a DNA analysis was inconclusive, without limiting the defense's ability to argue about the absence of these test results. In closing argument, the prosecutor conceded to the jury that there was no fingerprint or DNA evidence connecting Cutshall to the gun.
In an interview at the Vallejo Police Department, Cutshall told Officer Wagoner that he instructed the driver of the truck to make two quick left turns because he saw they were being followed by a police car. Cutshall also stated that he told the driver to switch driveways because he saw that the front door of the first house was open. Although Cutshall had initially claimed to know someone who lived at the second house, he admitted to Wagoner that he did not know anyone there. He also admitted that he got out of the truck before the officers contacted him in the driveway, but he denied having any knowledge of the gun that was found 20 feet away from the truck (and which used ammunition of the type he was holding in his hand). Cutshall claimed he found the bullets in a cup holder of the truck.
The parties stipulated that Cutshall had been convicted of a felony.
B. Jury Verdict and Sentence
The jury found Cutshall guilty of both remaining counts - possession of ammunition and possession of a firearm following a felony conviction. The court sentenced Cutshall to state prison for a total of three years, eight months. This appeal followed.
II. DISCUSSION
A. Reasonable Doubt Instruction
Cutshall contends he is entitled to a reversal because the court's instruction on reasonable doubt, as read orally to the jury, failed to convey that the jury would have to find every element of the charged offenses true beyond a reasonable doubt to convict him. We disagree.
1. Background
The prosecution has the burden of proving each element of a charged offense beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) However, the constitution "does not require that any particular form of words be used in advising the jury of the government's burden of proof." (Ibid.)
At the parties' request, the trial court agreed to instruct the jury with CALCRIM No. 220. CALCRIM No. 220, and its companion pretrial instruction in CALCRIM No. 103, state: "The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/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 People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People 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 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[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty." (Italics added.)
Although CALCRIM No. 220 does not explicitly state that the People must prove every element beyond a reasonable doubt, it has been held to adequately convey this tenet because the court informs the jurors, "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt." (People v. Ramos (2008) 163 Cal.App.4th 1082, fn. 2 (Ramos); People v. Wyatt (2008) 165 Cal.App.4th 1592, 1600-1602.)
In this case, the trial court instructed the jury pursuant to CALCRIM No. 103 at the beginning of the trial, and pursuant to CALCRIM No. 220 after the close of evidence. In reading the instructions, both times the court omitted the language italicized above - not only the bracketed language (which was not germane to the case) but also the sentence, "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt."
The packet of written instructions given to the jury, however, included both CALCRIM Nos. 103 and 220 in their entirety, including this sentence. The court gave the jury four copies of the jury instructions to take into the jury room and alerted the jury that the instructions would be there for use during deliberations. During closing arguments, the prosecution reminded the jury that it would have the packet of instructions in the jury room. And after closing arguments, the court again told the jury that it was being provided with "four copies of the jury instructions" and more copies would be provided if needed.
Cutshall nevertheless argues that, because the court omitted the language when it read the instruction, the jurors were "completely unaware" when instructed on the elements of the charged crimes that the People had to prove each element beyond a reasonable doubt. (See People v. Aranda (2012) 55 Cal.4th 342, 358 [if the court does not give the standard CALCRIM No. 220 instruction at all, the failure to otherwise cover the principle that each element must be proved beyond a reasonable doubt constitutes federal constitutional error] (Aranda).)
We review de novo and determine whether the instructions as a whole adequately conveyed the prosecution's burden. (Ramos, supra, 163 Cal.App.4th at p. 1088; Aranda, supra, 55 Cal.4th at p. 358.) Specifically, we review to determine if there is a reasonable likelihood that the jury applied the challenged instruction in a manner that violates the law. (People v. Castaneda (2011) 51 Cal.4th 1292, 1320.)
Cutshall contends that no objection at trial was necessary to preserve his claim of instructional error for appellate review, and respondent does not contend to the contrary. (See § 1259; Ramos, supra, 163 Cal.App.4th at p. 1087.)
2. Application
Viewing the instructions as a whole, there is no reasonable likelihood the jury believed the elements of the charges could be proven by anything less than beyond a reasonable doubt.
The set of written instructions that the jury was provided included the language the court had omitted in its oral instructions, so the jury was instructed with the entirety of CALCRIM No. 220. Moreover, when there is a discrepancy between the written and oral instructions, the written instructions control and on review we "give precedence to the written instructions." (People v. Mills (2010) 48 Cal.4th 158, 200-201 (Mills) ["The risk of a discrepancy between the orally delivered and the written instructions exists in every trial, and verdicts are not undermined by the mere fact the trial court misspoke."]; see People v. Crittenden (1994) 9 Cal.4th 83, 138; People v. Garceau (1993) 6 Cal.4th 140, 189-190; People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2 ["[we] presume that the jurors were guided by the written version" of the instructions].) The jury was therefore adequately informed of the burden of proof for each element of the charged offenses. (Ramos, supra, 163 Cal.App.4th at pp. 1087-1089.)
Cutshall contends the presumption that jurors are guided by the written instructions is rebuttable and should not be indulged here. He argues that many of the cases in which this presumption has been applied were death penalty cases, which he says require "complicated" jury instructions the jury will more likely read, and in those cases the jury was instructed on the primacy of the written instructions and there was no issue regarding a failure to convey the prosecution's burden of proving each element beyond a reasonable doubt. (See, e.g., Mills, supra, 48 Cal.4th at pp. 200-201.) In addition, Cutshall argues, the jury in this case deliberated for only about four hours (suggesting to him that the jury did not read the instructions), and the only question from the jury during deliberations pertained to a read-back of the officers' testimony, as opposed to confusion over the discrepancy between the oral and written versions of the jury instructions.
Cutshall's argument is meritless. There is no indication in the record - or the cited precedents - that jurors are less likely to read a reasonable doubt instruction in a non-capital case, or that jurors who return a verdict in four hours have not read the instructions. Indeed, the fact that the jury in this case returned a verdict in four hours may well have been due to the substantial proof of Cutshall's guilt and the reality that only two offenses had been charged, only two witnesses were called, and the examinations took less than two hours in total. Although the jury expressed no confusion over the written reasonable doubt instruction, that does not mean they failed to read it. And while the jury was not formally instructed that any discrepancy between the oral and written versions should be resolved in favor of the written version, the availability and importance of the written instructions were emphasized by the court's repeated statements that the written instructions were being given to the jury for use during deliberations.
Furthermore, the court did advise prospective jurors during voir dire that the prosecutor would have to "prove" each element of the charged crimes, and that the prosecutor would have to "prove it" beyond a reasonable doubt: " . . . [S]o when I say they've got to prove it, you are going to say, 'Well, what do you mean by that?' So I am going to read you what proof beyond a reasonable doubt is because that's the burden of proof that the People have to meet in this case. . . . [¶] . . . [¶] . . . [¶] . . . [¶] . . . [The defendant] is presumed to be innocent, and the People have to prove him - he's innocent until they prove him guilty beyond a reasonable doubt. So I am going to read you: 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. [¶] So that's the standard right there. That's the definition of proof beyond a reasonable doubt. And, again, proof that leaves you with an abiding conviction that the charge is true. That's what the People - that's the level of proof the People need to meet." Before the jury's deliberations, the court instructed the jury on the elements of each offense that the "People must prove." The inescapable conclusion from the instructions, with or without the supplemental advisement expressed during voir dire, was that whatever the prosecution had to prove - including each element of the offenses - had to be proven beyond a reasonable doubt.
Finally, we note that the court instructed the jury pursuant to CALCRIM No. 224: "Now, before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt." (Italics added.) Thus, the jury knew that it could not rely on circumstantial evidence to find Cutshall guilty unless the only reasonable conclusion from the circumstantial evidence pointed to his guilt. (People v. Anderson (2007) 152 Cal.App.4th 919, 931.) We presume that the jury followed this instruction in this circumstantial evidence case, and that it found each essential fact necessary for relying on the circumstantial evidence beyond a reasonable doubt. Given that the jury found each of these essential facts beyond a reasonable doubt, and that the only reasonable conclusion from the circumstantial evidence pointed to Cutshall's guilt, it is difficult to see how the jury could not have found each element beyond a reasonable doubt. Cutshall does not persuade us otherwise.
There is no reasonable likelihood the jury believed the elements of the offenses could be proven by anything less than beyond a reasonable doubt.
B. Matters During Closing Argument
Cutshall contends that multiple errors occurred during closing arguments that compel reversal. We conclude that they do not, individually or collectively.
1. Prosecutor's Characterization of the Reasonable Doubt Standard
After the court's predeliberation instructions, the prosecutor discussed the burden of proof in her closing argument: "Now I want to go over my burden before I get into the facts and the law with you today. My burden, as you heard, is to prove this case beyond a reasonable doubt. And that's kind of legal language. And you're wondering, what does that mean? Well, the Judge read for you that beyond a reasonable doubt means it leaves you with an abiding conviction. [¶] Now, what does that mean? Abiding conviction just really means that after you leave and you make your decision and you think about this case, say tonight, you say, 'I made the right decision.' And then you think about it tomorrow, and you think about this case and your decision, and you say, 'I made the right decision.' A week later, a month later. It's that abiding conviction that what you have made -- the decision you made was right. That's all it means. [¶] Now, this may sound like a high burden. The defense is going to make it sound like a high burden. But this is the standard used across our country in every single courtroom, and people are convicted under it every single day. So it is not an insurmountable burden. You guys can do this today." (Italics added.)
Cutshall contends the italicized remarks were improper. He urges that by emphasizing the ease with which convictions are obtained in courtrooms across the United States and urging the jury it can "do this [i.e., convict Cutshall] today," the prosecutor implied that most doubt in criminal cases is unreasonable and, therefore, a guilty verdict should—and almost always does—follow.
Cutshall's contentions are unavailing. A prosecutor's conduct violates the federal Constitution only if it comprises " ' " 'a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v. Samayoa (1997) 15 Cal.4th 795, 841.) More specifically, while prosecutors are given wide latitude in discussing the legal and factual merits during closing argument, it is improper for the prosecutor to misstate the law, especially in an attempt to relieve the prosecution from its obligation to prove each element beyond a reasonable doubt. (People v. Marshall (1996) 13 Cal.4th 799, 831.) The question is whether there is a reasonable likelihood the jury construed or applied the prosecutor's remarks in an objectionable manner. (People v. Hill (1998) 17 Cal.4th 800, 829.)
To preserve a claim of prosecutorial error, a defendant generally must timely object and request that the jury be admonished to disregard the impropriety. (Samayoa, supra, 15 Cal.4th at p. 841.) Cutshall's trial attorney did not object during the prosecutor's closing argument regarding the reasonable doubt standard, but Cutshall argues that if forfeiture is found, his counsel was ineffective in failing to object. We will proceed to the merits, since the absence of prosecutorial misconduct precludes both a claim of error and a claim of ineffective assistance for failing to object. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 48 [counsel did not perform deficiently by not raising meritless objection].) --------
Here, there is no reasonable likelihood the jury would have interpreted the prosecutor's argument as an attempt to lessen the prosecution's burden of proof. The prosecutor's point was simply that the standard was not "insurmountable" - an obviously true statement - and one that is met frequently. The fact that the standard is frequently met does not mean it is less than beyond a reasonable doubt. Moreover, the court properly instructed the jury that proof beyond a reasonable doubt is "proof that leaves you with an abiding conviction that the charge is true," and that if an attorney's comments on the law conflict with the court's instructions, the jury must follow the court's instructions. (See CALCRIM No. 220, 200.) We presume that the jury followed the court's instructions and properly applied the correct burden of proof, and the record provides no indication to the contrary.
2. Prosecutor's Objection to Defense Counsel's Argument
Officer Wagoner testified during direct examination that Cutshall had admitted, during his interview at the police station, that he had gotten out of the vehicle before being contacted by the police but "denied any knowledge of a firearm."
Defense counsel argued in closing that the prosecution wanted the jury to credit some of Cutshall's statements (such as his admission that he had gotten out of the vehicle) but did not want the jury to believe other statements (such as his denial regarding the gun). Defense counsel asserted that Cutshall had, in fact, "denied any knowledge of this firearm, denied anything about the gun." The prosecutor objected to this statement as "[f]acts not in evidence," and the court sustained the objection.
Cutshall contends that defense counsel's argument was directly supported by Officer Wagoner's testimony, and the court erred in sustaining the objection. Respondent concedes that the court should not have sustained the objection, but contends any error was harmless.
We agree that any error in this regard was harmless. Although the court sustained the prosecutor's objection, the jury was not admonished to disregard defense counsel's assertion that Cutshall had denied knowing anything about a gun. After closing arguments, the court instructed the jury, "Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be." The court also instructed the jury that "[i]f there is a disagreement about the testimony at trial, you may ask the court reporter's record be read to you," it was "the record that must guide your deliberations," and the jury "must accept the court reporter's record as accurate." (See CALCRIM No. 202.) During its deliberations, the jury indeed requested and received a readback of the testimony of both police officers, and from this readback the jury could readily confirm that defense counsel was correct, and Officer Wagoner had testified that Cutshall denied any knowledge of a firearm.
Under these circumstances, there is no reasonable probability that the jury was misled into thinking Cutshall had not denied knowledge of the gun, or that Cutshall would have obtained a more favorable result if the prosecutor had not objected or the trial court had not sustained the objection. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Harris (2013) 57 Cal.4th 804, 853 [applying Watson standard of harmless error to claim that the trial court erred in sustaining objection to defense counsel's argument].)
3. The Napkin and Lipstick Comment
During cross-examination by defense counsel, Officer Wagoner testified that he had found a napkin with the gun and booked it into evidence. Defense counsel asked Wagoner if the napkin had been brought to the court, and the officer stated it had not. On redirect examination, the prosecution asked Wagoner whether the defense could have subpoenaed the evidence to be brought to court. Wagoner testified that he believed it could have been subpoenaed, but the defense had not done so.
During closing argument, defense counsel argued that Officer Wagoner had initially testified that nothing was found near the gun, but on cross-examination had admitted that there had been a napkin there and that he had booked the napkin into evidence. Defense counsel further argued: "So it was apparently relevant at the time enough to where they booked that napkin; they booked the firearm. They connected somehow the two together. They booked both of them. But we didn't see the napkin. We didn't see anything in court. Now, you heard the district attorney say, 'Oh, the defense can subpoena or ask the officer - that the defense can subpoena evidence.' [¶] Sure. We can subpoena it. It's not my burden, though. The defense does not have that burden of proof. And you heard testimony that it was there. It was relevant. It had this pink lipstick on it. It was near the gun. But it's not here. So it sounds like at this point the district attorney is picking and choosing their evidence and what helps their case." (Italics added.)
In her rebuttal argument, the prosecutor discussed the napkin, and the following exchange occurred: "[PROSECUTOR]: So the napkin. Again, the defense [counsel] could have subpoenaed the officer. They could have had the officer bring it in, show you the napkin with the pink lipstick. He testified to it. He was honest about it. He forgot he had it in the report. And right next to the gun. But he brought it out in cross-examination. Not a big deal. Could have been brought in by the defense. [¶] [DEFENSE COUNSEL]: Objection. Burden shifting. [¶] THE COURT: Overruled."
Cutshall contends the prosecutor's remarks suggested to the jury that he had a duty or burden to produce the napkin as evidence, while suggesting that the defense's failure to produce the napkin strengthened the prosecution's case. Not so.
In closing argument, a prosecutor may comment on the state of the evidence or on the defense's failure to introduce material evidence or call logical witnesses. (People v. Gonzales (2012) 54 Cal.4th 1234, 1275; Castaneda, supra, 51 Cal.4th at p. 1333.) It is improper, however, for a prosecutor to state that a defendant has "a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (People v. Young (2005) 34 Cal.4th 1149, 1196 (italics added); People v. Bradford (1997) 15 Cal.4th 1229, 1340.) The prosecution cannot suggest that "deficiencies in the defense case can make up for shortcomings in its own." (People v. Centeno (2014) 60 Cal.4th 659, 673.)
In context, it is not reasonably likely the jury understood the prosecutor's remark as an assertion that Cutshall had the burden to present evidence or prove his innocence. Once defense counsel suggested that the napkin was relevant because it was found near the gun and challenged the prosecution for not introducing the napkin into evidence, it was reasonable for the prosecutor to respond that the napkin was insignificant and defense counsel could have brought in the napkin if counsel really believed it was important (not that the defense had any burden to do so). The prosecutor's point was merely that the defense's attack on the prosecution (or Officer Wagoner) for failing to bring the napkin to trial rang hollow and the napkin had no significance even to the defense. Furthermore, the court had instructed the jury pursuant to CALCRIM No. 300 that neither side was required to "produce all physical evidence that might be relevant," and it was made crystal clear throughout the court's instructions and the arguments of counsel that the burden of proof was exclusively on the prosecutor.
Cutshall fails to demonstrate reversible error.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.