Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County Ct. No. 06CF4037, Richard F. Toohey, Judge. Affirmed.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant Victor Hugo Herrera-Dominguez.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Ibarra Bueno.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellants Victor Hugo Herrera-Dominguez (Herrera) and Jesus Ibarra Bueno (Bueno) were convicted of carjacking and robbery. They contend: 1) There is insufficient evidence to support their convictions; 2) the court misinstructed the jury on the prosecution’s burden of proof; and 3) the prosecutor further distorted the burden of proof in his closing argument. We reject these contentions and affirm the judgment.
FACTS
Shortly after midnight, Blas Calleja was driving in Santa Ana when he saw a young woman waving to him on a street corner. Although Calleja did not know this woman, he pulled over and spoke with her. She asked for a ride to her cousin’s house, and Calleja not only obliged, he let her take the wheel, and she proceeded to drive Calleja to a nearby house. She then had Calleja wait in the car while she got out and spoke to two men who were in the area. After a few minutes, she and the men got inside Calleja’s car and told him to start driving.
Calleja complied, but after a short distance, the men had him stop the car. They then pulled him out of the vehicle and demanded his money. When Calleja replied he didn’t have any, they threatened to kill him if he so much as looked at them. Calleja then felt a knife on his neck and hands rummaging through his pockets. After that, the men got back into Calleja’s car and left with the woman.
Calleja checked his pockets, and upon discovering he was eight dollars poorer, he called the police. Later that morning at around nine o’clock he was taken to an area where appellants, Maribel Martinez and Jesus Meza were being detained. Calleja identified Martinez as the woman who drove his car, Bueno as the man with the knife, and Meza as the other assailant. He did not recognize Herrera, and at trial he was unable to recognize Herrera or Bueno. However, as it turned out, appellants both confessed to the police: Bueno admitted he pulled the knife on Calleja, and Herrera admitted taking his money.
Martinez, an admitted accomplice in the case, testified she lured Calleja to appellants’ location under the false pretense they were going to her cousin’s house. While Calleja was waiting in his car, she conversed with appellants, and Herrera said he wanted to “jack” Calleja’s vehicle. According to Martinez, Herrera was the one who took Calleja’s money, but appellants both searched his pockets for cash. After the crime, she and appellants drove around in Calleja’s car until morning. Then they went over to Meza’s house, where they were apprehended.
Although Martinez wasn’t sure who had the knife during the incident, Bueno had a knife in his possession at the time of his arrest. Martinez told police that after she brought Calleja to appellants’ location, she and appellants talked about pulling a knife on Calleja and taking his car and money. She made it clear all three of them were in on the plan.
Testifying on their own behalves, appellants denied any wrongdoing. They claimed they did not get into Calleja’s car until several hours after he was robbed and had nothing to do with the incident. Asked why they confessed, they said they were scared, and the police had promised to let them go if they said they were involved in the crimes.
The jury convicted appellants of robbery and carjacking and found Bueno personally used a deadly weapon during the crimes. Bueno was sentenced to seven years in prison, and Herrera received a three-year term.
I
Bueno contends there is insufficient evidence to support his conviction for robbery, and Herrera contends there is insufficient evidence to support his conviction for robbery or carjacking. We find ample evidence for all three.
“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)
While admitting he pulled a knife on Calleja and was involved in the carjacking, Bueno argues “there is no competent evidence to prove [he] knew Herrera took money from Calleja or that [he] even intended” for Herrera to do so. In so arguing, Bueno describes the robbery as a “spur-of-the-moment” event and contends “Herrera acted on his own in taking the money from [Calleja].”
However, according to Martinez, Bueno was involved in both the carjacking and the robbery. Indeed, she told police that it was Bueno’s idea to rob Calleja and that she, Herrera and Bueno planned the crimes together. She also testified that during the crimes, Bueno rummaged through Calleja’s pockets right along with Herrera, although Herrera ended up getting his money. Bueno concedes that, if true, Martinez’s testimony would be sufficient to tie him into the robbery and support his conviction for that offense. But, he asserts her testimony was not sufficiently corroborated to be worthy of belief. We disagree.
“A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” (Pen. Code, § 1111.) However, “the corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone,” and it “need not corroborate the accomplice as to every fact on which the accomplice testifies citation or establish every element of the charged offense citation.” (People v. Vu (2006) 143 Cal.App.4th 1009, 1022.) It is enough that the corroborating evidence “‘“‘tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’”’ Citations.” (People v. Rodriguez (2008) 168 Cal.App.4th 972, 989.)
The record shows Martinez’s testimony was corroborated generally by Calleja’s version of events. Consistent with Martinez’s testimony, he testified that she drove him to a house, where she met up with two other men. And then after the men entered his car, they robbed him at knifepoint and took his money.
Martinez’s testimony was also corroborated by appellants’ own statements. Bueno told the police he formulated a plan to take Calleja’s vehicle and that once inside the car, he held a knife up to Calleja’s face in order to scare him into surrendering his property. And for his part, Herrera admitted taking the money from Calleja.
In addition, there was testimony from the police which proved that appellants were in Calleja’s car shortly before they were apprehended and that Bueno had a knife on him at the time of his arrest. And, the officer who took Martinez’s statement confirmed her testimony that in speaking with the police, she implicated both appellants in the robbery.
Considering the record as a whole, there was sufficient evidence from which the jury could conclude that Martinez was telling the truth when she testified Bueno was in on the robbery. Therefore, we find there is sufficient evidence to support his conviction for that offense.
Herrera’s challenge to the sufficiency of the evidence focuses on the issue of identification. Because Calleja failed to identify him at the scene or at trial, he contends the trial court should have granted his motion for an acquittal at the end of the prosecution’s case-in-chief. (See Pen. Code, § 1118.1.) Once again, we disagree.
“‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.”’ [Citation.] . . . The question ‘is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.’ [Citation.] . . . The question is one of law, subject to independent review. [Citation.]” (People v. Stevens (2007) 41 Cal.4th 182, 200.)
Calleja may not have been able to identify Herrera, but the evidence in the prosecution’s case-in-chief established Herrera was in Calleja’s car with Bueno and Martinez several hours after the crimes occurred. In addition, Martinez testified and told the police how she and appellants planned and carried out the offenses. And upon arrest, Herrera admitted he was the one who rifled through Calleja’s pockets and took his money. Taken together, this evidence is sufficient to justify the trial court’s denial of Herrera’s motion for acquittal and to support his convictions on appeal.
II
Appellants also contend the trial court violated their due process rights by giving the standard instruction on reasonable doubt, CALCRIM No. 220. We find the instruction comports with the constitutional requirement of due process.
While the court was going over the jury instructions with counsel, Herrera’s attorney objected to CALCRIM No. 220 on the basis it did not adequately explain the prosecution’s burden of proof. Counsel did not elaborate on this claim, and although the court invited him to propose his own instruction on the burden of proof, he never did so. Therefore, the court went ahead and instructed the jury per CALCRIM No. 220. As given, the instruction read:
“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.
“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 defendants guilty beyond a reasonable doubt, they’re entitled to an acquittal and you must find them not guilty.” (Italics added.)
The court also instructed the jurors, “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. Evidence is the sworn testimony of witneses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.” (See CALCRIM No. 222.)
Appellants claim that by directing the jury’s attention to the evidence received at trial, CALCRIM No. 220 precluded the jury from considering the lack of evidence supporting the charges against them. The Attorney General argues appellants waived this claim by failing to raise it below, but even in the absence of an objection, we may properly review instructional claims that bear on a defendant’s substantial rights. (Pen. Code, § 1259; People v. Johnson (2004) 119 Cal.App.4th 976, 984 [defendant did not forfeit right to appellate review of reasonable doubt instruction by failing to object to the instruction in the trial court].) Nevertheless, we find appellants’ argument unavailing.
As part of CALCRIM No. 220, the jurors were told, “Unless the evidence proves the defendants guilty beyond a reasonable doubt, they’re entitled to an acquittal and you must find them not guilty.” This clearly conveyed the importance of the absence of evidence to the jury. Indeed, it commanded the jury to acquit appellants if it believed there was not enough evidence to prove their guilt beyond a reasonable doubt. Because the instruction as a whole reasonably informed the jury that the lack of evidence could lead to reasonable doubt, we find it comports with due process. (Accord People v. Ramos (2008) 163 Cal.App.4th 1082, 1088-1089; People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Campos (2007) 156 Cal.App.4th 1228, 1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.)
III
Anticipating this ruling, appellants insist a reversal is nonetheless required because in closing argument the prosecutor told the jurors the following: “You need to determine whether there’s a reasonable doubt based on evidence that you heard and exhibits and the witness testimony. [¶] And it’s based on the evidence that you heard in this case. . . . [¶] The doubt must be reasonable. You have to ask yourself, do you have reasonable doubt about what happened?” Appellants contend that, viewed in conjunction with CALCRIM No. 220, these comments implied reasonable doubt could not be based on an absence of proof in the prosecution’s case. They argue this implication not only lessened the prosecution’s burden of proof, but effectively required them to produce affirmative evidence of their innocence. We cannot agree.
We recognize appellants’ attorneys did not object to the prosecutor’s arguments in the trial court. However, because appellants suggest this failure constituted ineffective assistance of counsel — an issue that would have to be litigated in a separate habeas proceeding — we will forego application of the waiver rule for the sake of judicial economy and consider appellants’ arguments on their merits. (See People v. Marlow (2004) 34 Cal.4th 131, 150; People v. Butler (2003) 31 Cal.4th 1119, 1128.)
Appellants rely primarily on People v. Hill (1998) 17 Cal.4th 800, in which the prosecutor emphasized to the jury that in order to find reasonable doubt about the defendant’s guilt, there must be some evidence on which to base that doubt. (Id. at p. 831.) Describing the issue as “close,” the Supreme Court determined the remark was improper because it signaled to the jury that the defendant “had the burden of producing evidence to demonstrate reasonable doubt of his guilt.” (Id. at p. 832; see also People v. Simpson (1954) 43 Cal.2d 553, 565 [criticizing, but finding nonprejudicial, an instruction which defined reasonable doubt as a doubt arising out of evidence in the case].)
Viewed in context, we do not believe the prosecutor’s comments in this case, although similar to those in Hill, carried the same implication. In fact, we do not believe it’s close. In broaching the subject of reasonable doubt, the very first thing the prosecutor said to the jurors was, “I have to prove this case to you beyond a reasonable doubt.” Then, after imploring the jury to assess reasonable doubt based upon the evidence in the case, the prosecutor said reasonable doubt should not be based on speculation or conjecture. He also told the jurors that in pondering the issue of reasonable doubt, “you’re not to consider sympathy for the defendant[s], prejudice against them, penalty or punishment.”
These remarks indicate the prosecutor was simply imploring the jury to examine the evidence presented, and not other improper considerations, in deciding the question of appellants’ guilt or innocence. Of course, the trial court instructed the jurors on this point, too, and it also made clear through its various instructions that the burden of proof rested with the prosecution. Considering the record as a whole, it is not reasonably likely the jury construed the prosecutor’s argument to mean appellants had the burden of producing evidence to demonstrate a reasonable doubt of their guilt. Therefore, no misconduct has been shown.
The judgment against appellants is affirmed.
WE CONCUR: O’LEARY, J., MOORE, J.