Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F06897
NICHOLSON, Acting P.J.
A jury convicted defendant Carla Renee Hill of possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count one), possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a); count two), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count three), and giving a false name to a police officer, a misdemeanor (Pen. Code, § 148.9, subd. (a); count four). The jury also found that defendant committed counts two and three while on bail (Pen. Code, § 12022.1). In bifurcated proceedings, the court found that defendant had a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (a)).
Sentenced to state prison, defendant appeals, contending that the trial court erroneously gave the jury a flawed instruction on reasonable doubt. We disagree and will affirm the judgment.
FACTS
Beginning in June 2005, police officers conducted periodic surveillance of defendant’s apartment. On July 31, 2005, Sacramento Police Officer Kenneth Leonard saw several drug dealers and users, including Tricia Story, on or near defendant’s front porch. Defendant was seen engaged in some suspected drug transactions. When Story was arrested later in the area, she possessed five “rocks” of cocaine base.
About 10:00 p.m. on August 7, 2005, officers saw defendant engage in three suspected drug transactions. Officers went to defendant’s apartment and knocked on the door. Defendant answered. In defendant’s bikini top, officers saw a clear plastic baggie with individually wrapped rocks of cocaine base. Suspected cocaine residue in baggies was found in the couch on the porch. A total of 6.19 grams of cocaine base was seized.
On August 8, 2005, officers searched defendant’s apartment and found 10 one-inch square baggies, 30 Ziploc baggies, $136 in various denominations, a digital scale, a pay-owe sheet and two baggies containing a total of 41 tablets of vicodin. An officer opined that defendant possessed the cocaine base for sale.
In the late afternoon on December 9, 2005, defendant knocked on the window of a residence near her own. Officers were at the residence conducting an investigation. When asked for her name, defendant gave a false name. A search of her person revealed a baggie with .06 grams of methamphetamine, a useable amount, and 11 vicodin tablets. Pills containing hydrocodone bitartrate and acetaminophen are commonly known as vicodin.
DISCUSSION
I
Defendant’s sole contention on appeal challenges the new jury instruction defining reasonable doubt, Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 220. She argues CALCRIM No. 220’s language [“consider all the evidence that was received throughout the entire trial”] taken together with CALCRIM No. 222’s language [“evidence” as “the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence”] prevented the jury from considering the lack of evidence in determining guilt on the possession for sale offense, specifically defendant’s intent. She asserts CALCRIM No. 220’s definition of reasonable doubt violated her federal right to due process. We reject defendant’s contention.
The trial court instructed the jury in the language of CALCRIM No. 220 as follows:
In reviewing a challenge to the instructions given to the jury, we consider the entire charge, not parts of an instruction or a particular instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Defendant must show a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Cain (1995) 10 Cal.4th 1, 36-37; People v. Anderson (2007) 152 Cal.App.4th 919, 938.)
Defendant cites Johnson v. Louisiana (1972) 406 U.S. 356, 360 [32 L.Ed.2d 152, 158] for the following: “Numerous cases have defined a reasonable doubt as one ‘based on reason which arises from the evidence or lack of evidence.’ [Citations.]” As the Attorney General notes, at issue in Johnson was the need for unanimity, not the validity of the reasonable doubt instruction (id. at pp. 356-357); defendant’s quote from Johnson does not mean that the reasonable doubt instruction has to be so worded.
The instructions reasonably read show that the jury was fully and fairly instructed on the applicable law. Nowhere in the instructions was the jury told that it was precluded from considering the lack of evidence of defendant’s intent. Defendant relies upon People v. Simpson (1954) 43 Cal.2d 553 (Simpson) and People v. McCullough (1979) 100 Cal.App.3d 169 (McCullough) for the proposition that it was misleading to inform the jury that reasonable doubt must arise from the evidence adduced at trial. People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510 (Westbrooks) rejected a similar challenge to CALCRIM No. 220 and we reject it here.
Defendant misreads the instructions given. Unlike the instructions given in McCullough, supra, 100 Cal.App.3d at pages 180 to 182 and Simpson, supra, 43 Cal.2d at pages 564 to 566, the instructions here did not mislead the jury into believing it could not consider the lack of evidence in concluding that the prosecution had not proved its case beyond a reasonable doubt. Indeed, CALCRIM No. 220 specifically instructs the jury that defendant is not required to prove her lack of intent [“Unless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty”]. The jury was instructed in CALCRIM No. 220 that the prosecution was required to prove its case with the evidence presented at trial [“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”] and with CALCRIM No. 222 which defined “evidence” in language similar to that of Evidence Code section 140 [“‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact”]. Unlike the instructions in Simpson and McCullough, the court here did not instruct the jury that reasonable doubt must arise from the evidence but rather that the prosecution’s burden of proof must be met by the evidence presented at trial.
In her reply brief, defendant concedes that the trial court did not instruct that reasonable doubt must arise from the evidence but argues the instruction was flawed by not telling the jury that the lack of evidence could provide reasonable doubt. Defendant argues that CALCRIM No. 220 on its face violates due process in that it rephrased Penal Code section 1096 to impose an affirmative duty on defendant to present evidence that there was a lack of evidence to convict which is impossible and it excluded argument as evidence that there was a lack of evidence.
Penal Code 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.’”
We disagree. There is no reasonable likelihood that the jury understood the instruction in the manner defendant argues. Further, defense counsel argued to the jury that there was a lack of evidence of defendant’s intent to sell, attacking Officer Leonard’s testimony based on his inability to see what was exchanged during the suspected hand-to-hand drug transactions. Defense counsel also attacked the expert witness’s opinion testimony that defendant possessed the cocaine base for sale, suggesting that defendant possessed the drugs for her personal use, bought drugs in bulk to save money, smoked cigarettes laced with the drugs, and that the pay-owe sheet was just a piece of paper with names and numbers.
We find no error. The instruction given on reasonable doubt (CALCRIM No. 220) did not violate defendant’s due process right. (Westbrooks, supra, 151 Cal.App.4th at p. 1510.)
II
The jury found an on-bail enhancement to be true in connection with both counts two and three, not count one as reflected in the abstract of judgment. The trial court imposed one on-bail enhancement without specifying which count. Only one on-bail enhancement applies pursuant to case law since the facts adduced at trial reflect that defendant committed both secondary offenses (counts two and three) while released for one primary offense (count one). “Enhancements which describe the nature of the offender such as those pursuant to [Penal Code] section 12022.1 are imposed only once in a particular case. [Citations.]” (People v. Augborne (2002) 104 Cal.App.4th 362, 377; see also People v. McNeely (1994) 28 Cal.App.4th 739, 743; People v. Mackabee (1989) 214 Cal.App.3d 1250, 1261-1262; People v. Nguyen (1988) 204 Cal.App.3d 181, 195-196.) In accordance with case law, the trial court properly imposed only one on-bail enhancement. However, the court should not have ignored the other on-bail finding by the jury. California Rules of Court, rule 4.447 provides: “No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant’s service of the portion of the sentence not stayed.” In accordance with the jury’s finding that defendant violated Penal Code section 12022.1 twice, the court should have imposed but then stayed execution of the other two-year enhancement until defendant’s service of her sentence on count two and the two-year on-bail enhancement. Rather than remand the matter, we will modify the judgment accordingly. (Pen. Code, § 1260.) We will also order the abstract corrected.
DISPOSITION
The judgment is modified to provide that the second on-bail enhancement was imposed but stayed. The trial court is directed to prepare a corrected abstract of judgment to reflect a two-year on-bail enhancement in connection with count two and a stayed on-bail enhancement in connection with count three and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: HULL, J., CANTIL-SAKAUYE, J.
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been -- she 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 a crime and special allegation 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 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[. U]nless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty.”
Thereafter, the trial court instructed the jury in the language of CALCRIM No. 222 as follows:
“You must decide what the facts are in this case. You must use only evidence that was presented in the courtroom. Evidence is the sworn testimony of the witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence. [¶] Nothing the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discussed the case but their remarks are not evidence. Their questions are not evidence. Only the witness’ answers are evidence. The attorney’s questions are significant only if they help you understand the witnesses’ answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true. [¶] During the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses. I ruled on the objections according to the law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose. [¶] You must disregard anything you saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses. [¶] The court reporter has made a record of everything that was said during the trial. If you decide that it is necessary, you may ask that the court reporter’s notes be read to you. You must accept the court reporter’s notes as accurate. [¶] During the trial, you were told that the People and the defense agreed, or stipulated, to certain facts. This means that they both accepted those facts. Because there is no dispute about those facts, you must accept them as true.”