Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. T. K. Herman, Judge. Super. Ct. No. BA 307964.
Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
A jury found Joe Rudy Encinas guilty on one count of vandalism (tagging) and found the crime was committed for the benefit of a criminal street gang.
Two deputy sheriffs saw Encinas in an alley “with a spray can in his hand and raised towards the wall as if spray painting.” Encinas fled when the deputies approached but was later apprehended. The deputies retrieved a can of orange spray paint on the ground near where they had first seen Encinas. The graffiti on the wall close by was the same color.
The trial court sentenced Encinas to the mid term of two years in prison.
Encinas’s only argument on appeal is that the trial court erred in not instructing the jury that the People had to prove each element of the crime of vandalism beyond a reasonable doubt. Instead, the court instructed the jury in the language of CALCRIM No. 220: “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.” The court further instructed the jury that “[t]o prove that the defendant is guilty of [vandalism], the People must prove that: [¶] 1. the defendant maliciously defaced with graffiti or with any other inscribing material or damaged or destroyed real property[] and [¶] 2. the defendant did not own the property[] and [¶] 3. the amount of damage caused by the vandalism was less than $400.”
Penal Code section 1096a states: “In charging a jury, the court may read to the jury Section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.” Penal Code section 1096 states in relevant part: “A defendant in a criminal case is presumed to be innocent until the contrary is proved . . . 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.” Thus, a defendant is not entitled to an instruction that the People must prove every element of the offense beyond a reasonable doubt. (People v. Reed (1952) 38 Cal.2d 423, 430; accord People v. Ochoa (2001) 26 Cal.4th 398, 444, fn. 13.)
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, Acting P. J., JACKSON, J.
Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.