Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge, No. FVI701244
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
King, J.
I. INTRODUCTION
Defendant Denna Johnson received rent subsidies through a federally funded program administered by the Housing Authority of the County of San Bernardino (the Housing Authority). To receive the subsidies, she was required to periodically disclose certain information under penalty of perjury, including the identity of occupants living in the subsidized residence and whether any occupants had been convicted of violent criminal activity. Based upon the disclosures she made in 2005 and 2006, she was charged with four counts of committing perjury (counts 1, 2, 5, & 6; Pen. Code, § 118) and two counts of obtaining aid by misrepresentation (counts 3 & 4; Welf. & Inst. Code, § 10980, subd. (c)(2)).
A jury convicted defendant of two counts of obtaining aid by misrepresentation (counts 3 & 4) and one count of perjury (count 6). She was acquitted of one count of perjury (count 1). When the jury could not reach a verdict as to the remaining two perjury counts, a mistrial was declared; these counts were subsequently dismissed. She was placed on five years’ probation with a condition that she serve 365 days in local custody.
On appeal, defendant argues the court erred by: (1) permitting a prosecution witness to testify that she had been previously arrested for assault with a deadly weapon; and (2) allowing a prosecution witness to testify regarding certain out-of-court statements made by defendant. She further contends it was error to instruct the jury with Judicial Council of California Criminal Jury Instructions, CALCRIM Nos. 223, 226, and 302. Because we find no error, we affirm the convictions.
II. FACTUAL BACKGROUND
In 2003, defendant applied to the Housing Authority for aid under its Housing Choice Voucher program known as Section 8. Section 8 is a federally funded program that subsidizes rent payments for low income families. Applicants for the program must undergo a background check. They must also disclose the identity of each member of the applicant’s household and state whether any member of the household has been charged with a crime or is a registered sex offender. The amount of aid that a participant receives can increase as the number of household members increases. Participants in the program must request written approval from the Housing Authority prior to adding occupants to the household. If an adult is added to the household, a criminal background check is performed for that adult. Federal regulations prohibit the use of Section 8 housing subsidies if an applicant or household member is required to register as a sex offender.
In connection with her Section 8 application, defendant disclosed that she had been arrested in San Bernardino County. Her criminal rap sheet revealed that she had been convicted of inflicting corporal injury on a cohabitant or spouse, a felony. (Pen. Code, § 273.5, subd. (a).) The conviction was subsequently reduced to a misdemeanor and dismissed. This information did not prevent her from passing a criminal background check and being considered for aid by the Housing Authority. She filled out a form listing the names of members of her household, including herself, and certified that no member of her family had been convicted of drug-related or violent criminal activity. Defendant was accepted into the Section 8 program. She rented an apartment on Zenda Street in Victorville.
Participants in the Section 8 program must certify information about household members annually and report any changes to the composition of the household within 10 days of the change. Pursuant to the recertification requirement, defendant filled out forms in 2005 and 2006 listing the names of family members living with her and certifying that no member of her family had been convicted of drug-related or violent criminal activity. These forms were signed by defendant under penalty of perjury.
In April 2005, she listed herself, Melvin Johnson, and Arnold Terrell as members of the household. Melvin Johnson is listed as her son, with a birth date in 1988; Arnold Terrell is listed as her nephew. In June 2005, November 2005, and July 2006, defendant submitted forms that included another son, James Johnson, to the household. On the April 2005, November 2005, and July 2006 forms, in response to the question, has “any household member ever been convicted of drug-related or violent criminal activity,” defendant circled the word “no.” (On the June 2005 form, she did not circle either yes or no in response to the same question.)
Defendant never listed her former husband, Melvin Johnson, Sr. (born in 1954) on any of the forms she submitted to the Housing Authority. Melvin Johnson, Sr., had been convicted of assault with intent to commit rape and was required to register as a sex offender pursuant to Penal Code section 290. He had also been convicted of robbery, burglary, and drug possession. Pursuant to the registration requirement, he reported to the San Bernardino County Sheriff’s Department that his address was defendant’s Zenda Street address. His driver’s license also showed his address to be the Zenda Street residence. The Housing Authority did not authorize Melvin Johnson, Sr. to live in defendant’s residence.
Defendant knew that Melvin Johnson, Sr. was required to register as a sex offender, but claims she did not know that he had been charged with assault with intent to commit rape. She also testified that he did not permanently live with her.
James Johnson, one of defendant’s sons, was listed on defendant’s Section 8 disclosure forms in 2005 and 2006 as a member of defendant’s household. He was enrolled in a San Diego middle school in 2005 and a San Diego high school in 2006. The San Diego schools James attended were near the home of his brother, Gregory Taylor. Gregory Taylor told the prosecutor that James Johnson had been living with him since James attended middle school. However, at trial, James Johnson and Gregory Taylor testified that James lived with defendant at the Zenda Street residence and that defendant drove him to school in San Diego each day until approximately December 2006. Thereafter, they stated, he moved into Gregory Taylor’s home.
On May 25, 2006, deputies with the San Bernardino County Sheriff’s Department, in cooperation with federal authorities, conducted a sweep for suspected housing fraud in Victorville. A command post for the operation was established at the county fairgrounds in Victorville. As part of the sweep, and pursuant to a search warrant, sheriff’s deputies searched defendant’s Zenda Street residence. The warrant was based, in part, upon information that Melvin Johnson, Sr., a sex registrant, was living at the Zenda Street residence without authorization from the Housing Authority. At the time of the search, Melvin Johnson, Sr., Melvin Johnson, Jr., Markus Taylor, Tania Taylor, and Tania Taylor’s infant child were present; defendant was not present. During the search, sheriff’s deputies found letters from two financial institutions addressed to Melvin Johnson, Sr. at that address. They also found letters addressed to Tania Taylor at the Zenda Street address.
When defendant learned of the search, she went to the command post. She spoke with Detective John Wickum. Defendant told Detective Wickum that Melvin Johnson, Sr. was living at the Zenda Street residence and that she knew he was a Penal Code section 290 sex registrant. Detective Wickum then arrested defendant.
III. DISCUSSION
A. Prosecution Witness Statements Regarding Prior Arrest
Defendant contends the trial court abused its discretion when it allowed and refused to strike the testimony of a sheriff’s deputy that defendant had been previously arrested for assault with a deadly weapon. She further contends that the error deprived her of her due process right to a fair trial. We find no error.
1. Background
In the prosecution’s case-in-chief, San Bernardino County Sheriff’s Deputy Kevin Jaquez testified as to the search of defendant’s residence. On cross-examination, defense counsel elicited from Deputy Jaquez that members of the team that accompanied him on the search were SWAT team members and that they had their guns drawn when they entered the residence. On redirect, the prosecutor questioned Deputy Jaquez about the reasons for entering the residence with “guns drawn.” He asked Deputy Jaquez whether the criminal background of the occupants of a residence would make the service of a search warrant a high risk service. When it appeared that the prosecutor would be asking questions concerning the criminal background of defendant, defense counsel objected on relevance grounds. The court ruled that questions about defendant’s criminal background would be relevant only if Deputy Jaquez knew of the criminal record prior to the search and if such knowledge made a difference in how to conduct the search. If that foundation was established, the court would permit questions concerning defendant’s criminal record.
When the redirect examination of Deputy Jaquez continued, he testified that he looked at the rap sheets for defendant and Melvin Gene Johnson, Sr. prior to the service of the search warrant. He further testified that reviewing the rap sheets of occupants of the building to be searched is standard operating procedure and is done to determine whether the search is characterized as low risk or high risk. If the search is a high risk search, he explained, they enter with guns drawn. The prosecutor then asked Deputy Jaquez questions regarding the information in the rap sheets. Deputy Jaquez testified that Melvin Gene Johnson, Sr. had been convicted “of violence involving sex” and for robbery, and that these facts made the service of the warrant a high risk service. Regarding defendant’s rap sheet, the following colloquy occurred:
“[PROSECUTOR:] Turning your attention to Exhibit 9c [defendant’s rap sheet], does [defendant] have a criminal conviction as a felony involving violence?
“[DEPUTY JAQUEZ:] Yes
“[PROSECUTOR:] Does that make this
“[DEFENSE COUNSEL]: Objection. Calls for a legal conclusion, and frankly that’s a jury question.
“THE COURT: He hasn’t finished the question yet.
“[PROSECUTOR:] Does that make this a high risk service of a search warrant?
“[DEPUTY JAQUEZ:] Yes, it does.
“[PROSECUTOR:] In reviewing that criminal
“[DEFENSE COUNSEL]: My objection still stands. I object to the characterization of this deputy here saying that it’s a violent crime. We don’t know what he’s referring to. It calls for a legal conclusion.
“THE COURT: Do you want to tell us what you’re referring to?
“[PROSECUTOR:] Go ahead.
“[DEPUTY JAQUEZ:] It appears that she was arrested for assault with a deadly weapon.
“[DEFENSE COUNSEL]: Objection. Move to strike. That was not the question. The question was if she has any convictions. Now he’s going through what she was
“THE COURT: Oh, no. I asked him the question what’s he referring to based on your objection.
“[DEFENSE COUNSEL]: Okay. [¶]... [¶]
“[PROSECUTOR:] With the Court’s permission may he continue?
“THE COURT: Sure.
“[DEPUTY JAQUEZ:] Also convicted of inflicting corporal injury to a spouse or cohabitant.
“[PROSECUTOR:] And those are together; correct?
“[DEPUTY JAQUEZ:] Yes.
“[PROSECUTOR:] Arrested for one charge and convicted of another?
“[DEPUTY JAQUEZ:] Correct.”
2. Analysis
On appeal, defendant argues that Deputy Jaquez’s reference to the arrest for assault with a deadly weapon was prohibited by Evidence Code section 1101, subdivision (a). She further asserts that the testimony was so prejudicial that it violated her right to due process and a fair trial.
Initially, we note that defense counsel did not object to Deputy Jaquez’s statement under Evidence Code section 1101 or on the ground that it deprived defendant of any constitutional right. The only objection asserted below to the statement about the arrest for assault with a deadly weapon was that the statement was nonresponsive to the question posed: “Objection. Move to strike. That was not the question. The question was if she has any convictions.” Defendant does not contend on appeal that the objection asserted should have been sustained. “In the absence of a timely and specific objection on the ground sought to be urged on appeal, the trial court’s rulings on admissibility of evidence will not be reviewed.” (People v. Clark (1992) 3 Cal.4th 41, 125-126, italics added; see also People v. Catlin (2001) 26 Cal.4th 81, 122 [contention that admission of evidence violated constitutional right to fair trial is waived because it was not raised below].) Accordingly, the contentions made on appeal concerning the challenged statement have not been preserved for appeal. (See People v. Clark, supra, at p. 126; People v. Catlin, supra, at p. 122.)
The objection that Deputy Jaquez’s testimony was nonresponsive was properly overruled. Defense counsel previously objected to the deputy’s characterization of the service of the search warrant as a high risk service and, in support of the objection, told the court, “We don’t know what he’s referring to.” This suggests that defense counsel’s objection could be alleviated if Deputy Jaquez explained what he was referring to when he stated that the service was high risk. So the court asked the witness, “Do you want to tell us what you’re referring to?” The witness responded that defendant was apparently arrested for assault with a deadly weapon. That is, he was referring to the service as a high risk service based, at least in part, on his knowledge that defendant had been arrested for assault with a deadly weapon. When defense counsel objected to this response on the ground that the testimony was not responsive to the question about prior convictions, the court explained that Deputy Jaquez was not responding to a question about the prior conviction, but to the court’s question as to what he was referring to when he stated that the service was a high risk service. Deputy Jaquez’s statement was responsive to that question.
Even if an objection based upon Evidence Code section 1101 had been asserted below, it would have been meritless. Evidence Code section 1101, subdivision (a) provides that, generally: “[E]vidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivision (b) of that section provides that evidence of prior acts may be admissible to prove facts other than the defendant’s disposition to commit such an act. Here, Deputy Jaquez’s reference to defendant’s prior arrest was not offered as evidence of defendant’s character or to prove her conduct on another occasion, but to establish a foundation for Deputy Jaquez’s determination that the service of the search warrant was a high risk service and, consequently, that they needed to enter with guns drawn.
Deputy Jaquez’s testimony was relevant because defense counsel’s cross-examination concerning the use of SWAT team members and drawn guns suggested that the search was conducted with excessive force. The suggestion could evoke a bias among the jurors against the prosecution witness. Deputy Jaquez’s testimony on redirect was offered to justify the level of force used; part of that justification is evidence that defendant had been previously arrested for assault with a deadly weapon. For the same reason, the reference to the prior arrest was admissible under subdivision (b) of Evidence Code section 1101 because it was offered to prove a fact other than defendant’s disposition to commit such an act, namely, that Deputy Jaquez had a reason for characterizing the search as a high risk search and entering the residence with guns drawn. Finally, because the evidence was relevant and offered to rebut the suggestion of impropriety created by defense counsel’s cross-examination, the testimony did not deprive defendant of a fair trial. (See People v. Kraft (2000) 23 Cal.4th 978, 1035 [application of ordinary rules of evidence generally do not impermissibly infringe on a defendant’s constitutional rights].)
Defendant also argues that the court should have given a curative instruction. Because we find no error in allowing the evidence, no curative instruction was necessary. Moreover, even if a limiting or curative instruction would have been proper, defendant did not request such an instruction. A trial court has no sua sponte duty to give one. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.)
Finally, even if Deputy Jaquez’s reference to the arrest was inadmissible (and the argument had not been forfeited), it is not reasonably probable that defendant would have achieved a more favorable result if the testimony had been stricken. (See People v. Watson (1956) 46 Cal.2d 818, 836.) The challenged testimony consists of two lines in the reporter’s transcript and mentions the arrest for assault with a deadly weapon without any reference to the details of the conduct for which defendant was arrested. The prosecutor also made clear through Deputy Jaquez’s testimony that, although defendant was arrested for assault, she was convicted of a different crime—corporal injury to a spouse or cohabitant. (Defendant does not contend the evidence of the conviction was inadmissible.) Assault with a deadly weapon is not necessarily more inflammatory or prejudicial than the crime she was convicted of; both involve violence towards another person. Based on our review of the entire record, we conclude that if there was any error in allowing the challenged testimony, it was not so prejudicial that it requires reversal. (See ibid.; People v. Lindberg (2008) 45 Cal.4th 1, 26.)
B. Admission of Defendant’s Out-of-Court Statements
Prior to trial, the court appointed the San Bernardino County juvenile probation department as guardian ad litem for defendant’s son (James Johnson) and nephew (Arnold Terrell). The guardian ad litem was authorized to use all reasonable means necessary to ensure that the children were produced in court in accordance with subpoenas. Probation Officer Danielle Taylor was assigned to locate the minors and bring them to court. In connection with her efforts to locate the minors, Officer Taylor went to the Zenda Street residence and spoke with defendant. Defendant told Officer Taylor that Johnson did not live at the residence. Defendant repeatedly told Officer Taylor that information about James Johnson was “none of her business.” The prosecution sought to introduce these statements at trial. Over defendant’s objection and after argument by counsel, the court allowed the evidence under Evidence Code section 352 on the ground that its probative value outweighed any prejudice.
At trial, Officer Taylor testified that she went to the Zenda Street residence to locate James Johnson and Arnold Terrell. There, she spoke with defendant. When she asked defendant if defendant knew where James Johnson was, defendant responded, “‘None of your business.’” She also asked defendant where James Johnson lived and when was the last time defendant saw him. Defendant said James Johnson did not live there and that “any further information was none of [Officer Taylor’s] business.” Officer Taylor described defendant as “so uncooperative we could barely get a decent conversation going.”
On appeal, defendant argues the court erred in allowing Officer Taylor’s testimony of defendant’s statements. She contends that her statements to Officer Taylor did not implicate her in any of the crimes charged and made her “appear to be a nefarious person attempting to obstruct justice.” Any relevance, she argues, was “far outweighed by the evidence’s tendency to incite the jury to resolve the issue of guilt or innocence on [her] character rather than on proof of the essential elements of the crime.”
We review a trial court’s ruling under Evidence Code section 352 for an abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
Defendant’s statement to Officer Taylor that James Johnson did not live at the Zenda Street residence was directly relevant to the charged crimes. In her disclosure forms to the Housing Authority, defendant certified that James Johnson resided at the Zenda Street residence. Defendant’s statement to Officer Taylor that James Johnson did not live at that residence is evidence tending to prove that she falsified her disclosure statements stating otherwise. The evidence of defendant’s statements that information regarding James Johnson was none of Officer Taylor’s business indicates a refusal to cooperate with the guardian ad litem and a consciousness of guilt. (See People v. Perry (1969) 271 Cal.App.2d 84, 106-107 [refusal to cooperate may generally be used as conduct indicating consciousness of guilt].)
The evidence did present the possibility of prejudice for purposes of Evidence Code section 352. That is, it is possible the evidence would paint defendant as obstreperous and uncooperative, thereby evoking an emotional bias among the jurors against defendant. However, we cannot say the prejudicial effect of the evidence so clearly outweighed the probative value as to make its admission an abuse of discretion. (See People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315.) Accordingly, we reject defendant’s argument.
C. Jury Instructions
In instructing the jury, the court gave CALCRIM Nos. 223, 226, and 302. Defendant contends these instructions impermissibly lessened the prosecution’s burden of establishing guilt beyond a reasonable doubt. She further contends the instructions are ambiguous and it is reasonably likely the jury applied them in a way that violated the Constitution. We reject these arguments.
Defendant did not object to any of the three instructions she challenges on appeal. She has arguably forfeited any argument by failing to do so. Nevertheless, we will exercise our discretion to address the merits of the argument. (Pen. Code, §§ 1259, 1469; People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
We independently review the legal correctness of jury instructions. (People v. Griffin (2004) 33 Cal.4th 536, 593; People v. Posey (2004) 32 Cal.4th 193, 218.) We do not review instructions in artificial isolation, but view them in the context of the overall charge. (Middleton v. McNeil (2004) 541 U.S. 433, 437; People v. Castillo (1997) 16 Cal.4th 1009, 1016.) “‘Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]” (People v. Richardson (2008) 43 Cal.4th 959, 1028.) “If the charge as a whole is ambiguous, the question is whether there is a ‘“reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.]” (Middleton v. McNeil, supra, at p. 437.)
1. CALCRIM No. 302
Defendant focuses her argument on CALCRIM No. 302. This instruction, as given in this case, provides: “If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.”
Defendant finds numerous flaws with this instruction. First, she contends that the references to deciding what evidence “to believe” and to deciding whether evidence “convinces you” suggests to the jurors that they must believe defense evidence in order to acquit the defendant. She argues that this is contrary to the constitutional requirement that the People have the burden of proof to establish guilt beyond a reasonable doubt; the jury, she points out, is not required to believe any defense in order to be acquitted. Second, she contends that the instruction to not disregard the testimony of a witness “without a reason” creates a presumption that all witnesses are deemed to be truthful unless a jury has a reason to conclude otherwise. Third, she asserts that the instruction not to “favor one side over the other” conflicts with the constitutionally-mandated presumption of innocence, which requires the defense be favored unless the prosecution proves otherwise. Fourth, she claims that the instruction directs the jury to choose between the People’s witnesses and the defense witnesses when the jury is not required to make such a choice. Finally, the language, “‘[w]hat is important is whether the testimony or any other evidence convinces you[,] not just the number of witnesses who testify about a certain point,’” improperly indicates that the number of witnesses is one factor to consider in deciding which of two conflicting versions to accept.
Defendant’s arguments are unpersuasive. First, CALCRIM No. 220, not CALCRIM No. 302, sets forth the People’s burden of proof. CALCRIM No. 220, as given in this case, informed the jury that “[a] defendant in a criminal case is presumed to be innocent” and that the People must “prove a defendant guilty beyond a reasonable doubt.” CALCRIM No. 302 does not suggest, explicitly or implicitly, that defendant has the burden of proof to show her innocence or to disprove the People’s evidence. It simply states the accurate and unobjectionable proposition that jurors must decide what evidence, “if any,” to believe. It does not require that the jury, as defendant claims, believe defense witnesses in order to acquit. Reading the instructions as a whole, including CALCRIM No. 220, no reasonable juror would have deduced from CALCRIM No. 302 that defendant had any burden of proof or that the proof beyond a reasonable doubt standard was “impermissibly lessened,” as defendant contends.
The argument that the instruction creates a presumption that all witnesses are deemed to be truthful unless a jury has a reason to conclude otherwise was rejected in People v. Anderson (2007) 152 Cal.App.4th 919, 939 (Anderson) and People v. Ibarra (2007) 156 Cal.App.4th 1174, 1191 (Ibarra). As the Anderson court stated: “This argument disregards CALCRIM No. 226, which was given by the court shortly before the court read CALCRIM No. 302.... CALCRIM No. 226 instructed the jurors they alone must determine the credibility or believability of the witnesses and set forth a number of factors the jurors may consider in making this determination. It is this instruction that informs the jurors’ assessment of whether there may be a reason to disregard a witness’s testimony or any part thereof. CALCRIM No. 302 does not create a presumption of credibility. It merely cautions the jurors not to disregard testimony on a whim. In this regard, CALCRIM No. 302 is no different from CALJIC No. 2.22, which cautions jurors not to disregard the testimony of the greater number of witnesses ‘merely from caprice, whim or prejudice.’ (CALJIC No. 2.22 (7th ed. 2003).) In People v. Rincon-Pineda (1975) 14 Cal.3d 864..., the state high court directed that CALJIC No. 2.22 ‘be given in every criminal case in which conflicting testimony has been presented.’ ([People v. Rincon-Pineda, supra, ] 14 Cal.3d at pp. 884-885.)” (Anderson, supra, at p. 939; see also Ibarra, supra, at p. 1190.) As in Anderson, CALCRIM No. 226 was given in this case shortly before the court read CALCRIM No. 302.
Defendant contends that CALCRIM No. 302 is substantively different from CALJIC No. 2.22, which provides: “You are not required to decide any issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which you find more convincing. You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides]. The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence.” Although the wording of the two instructions are not identical, we agree with Anderson that they are substantively “no different.” (Anderson, supra, 152 Cal.App.4th at p. 939.)
The instruction is based on CALCRIM No. 226 which provides, in pertinent part: “You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s disability, gender, race, religion, ethnicity, sexual orientation, gender identity, age, national origin, or socioeconomic status. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.”
We also reject the argument that CALCRIM No. 302 creates a conflict between the presumption of innocence and the admonition that the jury not favor one side or the other. As the Anderson court stated: “Defendant misreads the instruction. CALCRIM No. 302 cautions the jury not to disregard testimony ‘without a reason or because of prejudice or a desire to favor one side or the other.’ (Italics added.) The instruction does not tell the jury not to favor one side over the other; it cautions against disregarding testimony because of a desire to favor one side over the other.” (Anderson, supra, 152 Cal.App.4th at p. 939.) The Ibarra court also rejected the same argument, explaining that “the instruction is impartial” and “does not tell the jury to favor one side or the other.” (Ibarra, supra, 156 Cal.App.4th at p. 1191.)
Nor does the instruction require the jurors to choose between the People’s witnesses and the defense witnesses. The Ibarra court rejected a similar argument in language applicable here: Defendant “misreads the instruction, which cautions the jury, ‘What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.’ [Citation.] ‘The instruction says nothing about choosing between prosecution and defense witnesses. It merely states the commonsense notion that the number of witnesses who have given testimony on a particular point is not the test for the truth of that point. It does no more. The jury remains free to choose the witness or witnesses it believes and what part of a witness’s testimony it finds believable.’ [Citation.]” (Ibarra, supra, 156 Cal.App.4th at p. 1191; see also Anderson, supra, 152 Cal.App.4th at p. 940.)
Finally, defendant argues that the language—“What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point”—instructs the jury to consider the number of witnesses who testify on a point as a factor to be weighed in evaluating conflicting testimony. The same argument was rejected in People v. Reyes (2007) 151 Cal.App.4th 1491. The Reyes court explained that CALCRIM No. 302, and its analog CALJIC No. 2.22, both “emphasize that it is the convincing force of testimony, not the number of witnesses that is of critical importance. Neither instruction, however, suggests that the number of witnesses cannot be taken into account. Rather, they both instruct that the number of witnesses, by itself, is not the determining factor.” (People v. Reyes, supra, at p. 1497.)
In sum, defendant’s arguments regarding CALCRIM No. 302 are based, in part, upon isolating words and phrases apart from the context of the instructions as a whole and upon interpretations of the language of the instruction that are strained and unreasonable. When given reasonable interpretations, in the light of the whole charge given to the jury, the instruction is neither erroneous nor reasonably likely to be applied by the jury in an unconstitutional way. (See Middleton v. McNeil, supra, 541 U.S. at p. 437.)
2. CALCRIM No. 223
The jury was instructed with CALCRIM No. 223 as follows: “Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.”
Defendant contends that by “stating that both direct and circumstantial evidence are acceptable types of evidence... ‘to prove or disprove the elements of a charge,’ this instruction, like CALCRIM [No.] 302, tells the jury that the defense has a duty to present evidence to disprove the charge.” We disagree. A defendant can (but is not required to) offer evidence to negate or “disprove” an element of a charge. This instruction merely provides that if a defendant does so, such evidence may be either direct or circumstantial, and that neither type of evidence is necessarily more reliable than the other. The instruction does not state or imply, as defendant contends, that a defendant has a burden to disprove a charge or is required to disprove anything. Moreover, without the word “disprove,” the instruction might arguably mislead a jury to believe that evidence can only be used to affirmatively prove facts. Instructing the jurors of the possibility that direct and circumstantial evidence can disprove elements of a charge actually aids defendant at trial.
CALCRIM No. 223 instructs the jury on the nature and use of direct and circumstantial evidence. It is neither erroneous nor ambiguous. Even if it is ambiguous, as defendant contends, reading the instructions as a whole, including CALCRIM No. 220 regarding the burden of proof, it is not reasonably likely that the jury in this case misapplied the instruction to require defendant to disprove an element of the charges against him. (See Middleton v. McNeil, supra, 541 U.S. at p. 437.)
3. CALCRIM No. 226
Defendant challenges the use of CALCRIM No. 226 on similar grounds. As given to the jury in this case, the instruction was: “You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s disability, gender, race, religion, ethnicity, sexual orientation, gender identity, age, national origin, or socioeconomic status. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.” The instruction then sets forth a nonexclusive list of factors for the jury to consider, such as the ability of the witness to perceive the things about which he testified, the ability of the witness to remember and describe what happened, the witness’s demeanor, behavior, responsiveness to questions, and bias.
Defendant contends that “like CALCRIM [No.] 223, CALCRIM [No.] 226 insinuates to the jury that [defendant] was required to disprove some element of the offense with which [s]he was charged.” The instruction does no such thing. The focus of CALCRIM No. 226 is to provide guidance to the jurors relative to assessing witness credibility. Although the instruction instructs the jurors that they “may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony,” this cannot reasonably be read to mean that defendant has a burden to disprove an element of the charge, especially in light of the burden of proof instruction given in CALCRIM No. 220. The instruction is neither erroneous nor ambiguous.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., Gaut, J.