Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050516542
Siggins, J.
Sharee Martell Hall appeals her jury convictions for attempted grand theft, embezzlement, and second degree burglary. She argues that certain CALCRIM jury instructions “likely caused the jury to misapprehend its role and the evidentiary burdens, thus lessening the prosecution’s burden of proof and depriving her of the right to a fair trial.” We disagree, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant claimed that she did not receive the automatic teller machine (ATM) debit cards that were issued on her recently opened bank account. Defendant told the bank she was not responsible for numerous transactions that appeared as ATM debits on her account statements, and she signed affidavits denying that she had incurred those charges. A photo taken at the bank’s ATM machine showed defendant making a withdrawal on September 9, 2004, that she denied making in a signed affidavit. Another transaction defendant denied in an affidavit was a charge for a rented car that was not returned at the end of the rental period. The manager of the car rental company identified a contract in defendant’s name, and denied that a document defendant claimed was an extension of the rental contact was genuine. The car was recovered from a parking stall at defendant’s residence.
Defendant was charged with attempted grand theft, embezzlement, and second degree commercial burglary. With the exception of a defense exhibit described as an “inspection sheet” for the rented car, defendant rested on the state of the evidence. The jury found defendant guilty as charged, and the trial court found true two of the alleged prior prison terms. Defendant was sentenced to four two-year midterm sentences. Two of them were stayed and the third was ordered to run concurrently with the term on the principal count. Defendant timely appealed.
Four prior prison terms were also alleged.
DISCUSSION
Defendant argues that CALCRIM Nos. 101, 103, and 220 caused the jury to misunderstand the prosecution’s burden of proof and ambiguously described the meaning of proof beyond a reasonable doubt. We disagree.
Defendant’s arguments are based on the following language taken from the specified jury instructions: “Some words or phrases that may be used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in the instructions. Please be sure to listen carefully and follow the definitions that I give you.” (CALCRIM No. 101.) “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.” (CALCRIM No. 103.) Virtually identical language regarding the prosecution’s burden of proof is included in CALCRIM No. 220. CALCRIM Nos. 103 and 220 were both requested by defendant in this case.
Defendant recognizes that wording identical to the language she challenges was in the predecessor to CALCRIM No. 220 and has been repeatedly upheld by the courts. But she contends those decisions did not address her argument that the jury was likely to be confused by the word “conviction” as it is used in the instruction that “[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” Defendant perceives a “redundancy . . . when one defines the nature of a criminal ‘conviction’ with the same term as applied to the mental state of each juror.” But the instruction defendant challenges makes no mention of a criminal “conviction.” (CALCRIM No. 220.) Nor has defendant shown that multiple dictionary meanings of the word “conviction” would have confused the jury as to the requisite standard of proof to be applied in this case. (See People v. Carey (2007) 41 Cal.4th 109, 130 [“ ‘ “[j]urors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case” ’ ”].) As defendant argues, the word “conviction” can mean many things. But here it is unreasonable to conclude the jury would have understood it to mean something other than a strong belief.
Defendant also argues that CALCRIM No. 220’s instruction to “compare” the evidence “received” at trial caused the jury to believe it must “compare” the evidence produced by the prosecution to that produced by the defense, and thereby “impermissibly imposes a burden on the defense to prove innocence.” Similar arguments have been considered and repeatedly rejected by the courts. (See People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; People v Hernández Ríos (2007) 151 Cal.App.4th 1154, 1156-1157; see also Victor v. Nebraska (1994) 511 U.S. 1, 16 [“the entire comparison and consideration of all the evidence . . . explicitly told the jurors that their conclusion had to be based on the evidence in the case”]; People v. Frye (1998) 18 Cal.4th 894, 974 [upholding language defining reasonable doubt based on a “ ‘comparison and consideration of all the evidence’ ”].) Moreover, the jury was clearly instructed that defendant was presumed to be innocent and could rely on the state of the evidence to argue the prosecution did not prove its case beyond a reasonable doubt. The jury was not instructed to comparatively weigh the evidence introduced by defendant against that introduced by the prosecution.
Defendant does not persuade us that the Flores, Westbrooks, and Rios cases were wrongly decided. Defendant has shown no reasonable likelihood that the jury misunderstood or misapplied the instructions. (See People v. Flores, supra, 153 Cal.App.4th at p. 1093; People v. Hernández Ríos, supra, 151 Cal.App.4th at p. 1157.)
As in Flores, the jury here was told defendant could choose to “rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.” (See People v. Flores, supra, 153 Cal.App.4th at p. 1093.) The court also instructed the jury: “Unless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty.”
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.