Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62 055540
BUTZ, J.
A jury found defendant Mario Lamont Drayton guilty of three counts of second degree burglary (Pen. Code, § 459), three counts of conspiracy (§ 182, subd. (a)(1)), one count of possession of a forged instrument (§ 475, subd. (b)), and one count of resisting or obstructing a peace officer (§ 148, subd. (a)(1)). The trial court sentenced him to state prison for an aggregate term of nine years eight months.
Undesignated statutory references are to the Penal Code.
Defendant appeals, contending that Judicial Council of California Criminal Jury Instructions (2006-2007) (Aug. 2006 rev.) CALCRIM No. 220 defining “reasonable doubt” improperly conveyed that standard as set forth in section 1096, and therefore deprived him of his due process rights under the Fourteenth Amendment. We shall affirm the judgment.
FACTUAL BACKGROUND
The facts underlying defendant’s convictions are not relevant to resolving the issue raised on appeal.
Briefly, the crimes involved three separate incidents at Magnolia Audio Video, Wal-Mart, and Circuit City in Roseville on the same day, in which defendant and three others attempted to purchase merchandise with counterfeit checks or cash a counterfeit check. A sales clerk at Circuit City, the site of the third incident, called the police after the tendered check was declined. The police arrived and found defendant in his car in the parking lot. Defendant drove away after being ordered by the police to exit the car, and was pursued by the police for one-quarter of a mile before he stopped and was arrested.
DISCUSSION
I.
Defendant contends that CALCRIM No. 220 defining reasonable doubt, which the trial court gave to the jury, fails to satisfy due process because “it conveys to the jurors a definition of proof beyond a reasonable doubt that is diluted and [may violate] the strictures of [In re] Winship [(1970) 397 U.S. 358 [25 L.Ed.2d 368] [holding due process requires that government must prove beyond a reasonable doubt every element of a charged offense]].” Defendant argues that the instruction departs from section 1096’s instruction of reasonable doubt and “obscures the scope given to individual subjectivity . . ., increases intolerably the ambiguity in the phrase ‘abiding conviction,’ and overall fails to convey the necessary impression of subjective certitude the evidence must induce in the jurors to satisfy the due process requirement of proof beyond a reasonable doubt.”
Section 1096 provides, “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: ‘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.’”
As given to the jury, CALCRIM No. 220 stated: “The fact that a criminal charge or charges has [or have] been filed against the defendant is not evidence that the charge or charges is or are true. You must not be biased against the defendant just because he has 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 each element of the crime beyond a reasonable doubt. Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge or charges is or are 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 guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
A comparison of the two definitions yields no significant difference between them. The commentary to CALCRIM No. 220 states in pertinent part, “This instruction is based directly on Penal Code section 1096 . The primary changes are a reordering of concepts and a definition of reasonable doubt stated in the affirmative rather than in the negative. . . . The instruction includes all the concepts contained in section 1096 and substantially tracks the statutory language.” (Com. to CALCRIM No. 220, supra, p. 44, italics added.) We agree with that evaluation.
In People v. Guerrero (2007) 155 Cal.App.4th 1264, this court rejected the same argument defendant makes here, i.e., that CALCRIM No. 220 fails accurately to describe the reasonable doubt standard. We held that “CALCRIM No. 220 does not suggest an impermissible definition of reasonable doubt to the jury. . . . The instruction neither lowers the prosecution’s standard of proof nor raises the amount of doubt the jury must have in order to acquit a defendant.” (Id. at p. 1268.) Defendant presents no persuasive reason to depart from Guerrero.
Defendant seems to argue that the instruction is defective because it does not sufficiently emphasize a juror’s “feeling” about guilt, as opposed to a cold assessment of facts. While a juror’s “feelings” may have their place in other contexts, they are not indispensable to a definition of proof beyond a reasonable doubt. “‘The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. [Citation.] Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proven beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. [Citation.] Rather, “taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.”’” (People v. Light (1996) 44 Cal.App.4th 879, 886, quoting Victor v. Nebraska (1994) 511 U.S. 1, 5 [127 L.Ed.2d 583, 590].) The subject instruction met that standard.
II.
We note a clerical error in the abstract of judgment. Under item 1 of the attachment page, count seven incorrectly reflects “PC 457(b).” The correct section is 475, subdivision (b). We shall direct the trial court to make this correction.
DISPOSITION
The judgment is affirmed. However, the trial court is directed to prepare an amended abstract of judgment to correct item 1 of the attachment page to reflect that count seven is pursuant to section 475, subdivision (b) (possession of a forged instrument), rather than section “457(b),” and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
I concur: NICHOLSON, Acting P.J.
I concur but wish to add that defendant’s challenge to CALCRIM No. 220 is patently frivolous, particularly the incomprehensible argument about jurors’ “feeling.”
ROBIE, J.