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People v. Jones

California Court of Appeals, Fourth District, Second Division
Apr 24, 2009
No. E045060 (Cal. Ct. App. Apr. 24, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIF137137, Mac R. Fisher, Judge.

Robert Jason Booher, 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, Gil Gonzalez and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

MILLER, J.

A jury convicted defendant Andre Deshon Jones of petty theft (count 1—Pen. Code, § 484) and second degree burglary (count 2—§ 459). On appeal, defendant contends the court erred in giving a modified unanimity instruction, which, he maintains, misled the jury into believing it could find defendant guilty of both offenses based solely on evidence that he committed the petty theft. Defendant further argues that the court erred in sustaining his objection to the prosecutor’s alleged mischaracterization of his burden of proof, thereby effectively reducing that burden. We disagree. The judgment is, therefore, affirmed in full.

All further statutory references will be to the Penal Code unless otherwise indicated.

FACTUAL AND PROCEDURAL HISTORY

In the late evening hours of January 18, 2007, two Hispanic men entered a convenience store. One held a gun and ordered the cashier to open the cash register and give him the money. The cashier replied that she could not open the cash register. The man with the gun came around the counter and began hitting the cash register and kicking the safe.

Thereafter, defendant entered the store, grabbed some cigarettes, and left. The cashier recognized defendant immediately. Defendant patronized the store on a daily basis, frequently loitered outside, and had just purchased a soda from her approximately 45 minutes earlier. Defendant did not speak with either of the Hispanic men. Defendant was in the store for less than a minute. The Hispanic men left thereafter.

At oral argument, defendant contended that the cashier retracted her testimony that defendant entered the store after the two Hispanic men approached the cash register. Defendant is correct. The cashier testified at one point that defendant “just came in and left. So I do not know if he came with the other two, or he came and he saw that the other ones were committing the robbery and he left.” However, as defendant also acknowledged, one of the responding officers who thrice viewed the surveillance tape recorded that evening testified that defendant entered the store three steps behind the second Hispanic man who had entered the store several steps behind the first Hispanic man.

A police officer watched a surveillance video of the robbery and recognized defendant as an individual he witnessed dancing a “street jig” adjacent to the store 20 to 25 minutes prior to the robbery.

Four days later defendant returned to the store to purchase something. The owner called the police, who apprehended defendant.

The People charged defendant by information with robbery (count 1—§ 211) and an attached enhancement alleging that he participated as a principal in the robbery while knowing that another principal was armed with a firearm (§ 12022, subd. (a)(1)). During trial, the court noted that the defense had requested the jury be instructed with CALCRIM No. 3500, the unanimity instruction. The court indicated its accession to the request. After the close of evidence, the court dismissed the count 1 charge and its enhancement pursuant to section 1118.1; however, it permitted, over defense objection, the amendment of the information to add a count 1 charge of petty theft and a count 2 charge of burglary.

Prior to closing arguments the court read the jury a modified version of CALCRIM No. 3500 as follows: “The defendant is charged with petty theft in Count 1 and burglary in Count 2. The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you agree that the People have proved that the defendant committed at least one of these acts, and you all agree on which act he committed.” The court later provided the jury with a written copy of the instruction.

In his closing argument, the prosecutor argued the following: “Your job is not to fulfill an agenda, ‘Well, I want to do this even though the facts are totally opposite.’ [¶] To consider facts not in evidence. No ‘what-ifs,’ no, ‘What if there wasn’t a gun?’ You haven’t heard evidence there was not a gun, therefore that doesn’t even go in your mind. There’s no evidence to the contrary, therefore that’s proven there was a gun.” Defendant objected on the basis that the prosecutor’s comment misstated the burden of proof. The court overruled the objection.

DISCUSSION

A. Unanimity Instruction

Defendant contends the court’s instruction to the jury with a modified version of CALCRIM No. 3500, the unanimity instruction, erroneously permitted it to find defendant guilty of both burglary and petty theft based only on evidence that he committed the petty theft. The People maintain that defendant forfeited the issue both by requesting the instruction himself and failing to object to the instruction in its modified form. We find that the issue has not been forfeited because defendant apparently requested only the unmodified form of CALCRIM No. 3500 and only became cognizant of the court’s modification of that instruction when the court read it to the jury. Thus, defendant had little or no opportunity to object to the instruction in its modified form. Nevertheless, we find that it was not reasonably likely that the jury misunderstood the instruction in the manner suggested by defendant; thus, the instruction, while objectionable, did not convey an erroneous meaning to the jury.

It is unclear why the instruction would have been requested since the evidence was not susceptible to the contention that more than one act provided the basis for either charged offense.

A jury instruction that is objectionable does not require reversal unless the meaning it conveyed to the jury is erroneous. (People v. Benson (1990) 52 Cal.3d 754, 801; see also People v. Kelly (1992) 1 Cal.4th 495, 526-527 (Kelly).) “If that meaning was not objectionable, the instructions cannot be deemed erroneous.” (Benson, at p. 801.) We determine whether the meaning conveyed was erroneous by evaluating whether there was a reasonable likelihood that the jury misunderstood the instruction in the manner asserted by defendant. (Ibid.; see also Kelly, at pp. 526-527.)

It is clear that the unanimity instruction given to the jury was incorrect. For ease of reference, we repeat the unanimity instruction challenged here: “The defendant is charged with petty theft in Count 1 and burglary in Count 2. The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you agree that the People have proved that the defendant committed at least one of these acts, and you all agree on which act he committed.” The court must give the unanimity instruction if the People adduce evidence of several acts to prove a single count. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) From a reading of the entire record, we discern no multiplicity of acts for which defendant could be held accountable for either of the charged offenses, i.e., the facts do not support a contention that defendant committed more than one act that could be construed as burglary or petty theft.

Nevertheless, there is no reasonable likelihood that the jury would have interpreted the instruction in a manner that would have permitted it to find defendant guilty of both offenses based solely on evidence that he committed one of the offenses. First, a reading of the third sentence, while certainly susceptible to defendant’s implication, more rationally would be interpreted to mean that the jury could not find defendant guilty of either of the offenses unless it agreed on the acts underlying the basis for each of those separate offenses, which is the precise purpose for giving a unanimity instruction. Second, the remaining instructions correctly informed the jury, both prior to and after trial, that the People bore the burden of proving beyond a reasonable doubt that defendant committed each element of each separate offense before the jury could find defendant guilty of those offenses. (Kelly, supra, 1 Cal.4th at p. 526; CALCRIM Nos. 103 & 220.) The court correctly instructed the jury on each of the elements it must find in order to convict defendant for each of the separate offenses. (Kelly, at p. 526; CALCRIM Nos. 1800 & 1700.) Finally, the arguments of counsel also correctly explained the relevant law. (Kelly, at p. 526.) Both the prosecutor and defense counsel went over the elements of each of the offenses for which defendant was charged and referenced the jury instructions. Thus, under the circumstances of this case, a reasonable jury would have understood that it was required to find defendant had committed each of the requisite elements for the respective offenses beyond a reasonable doubt prior to finding him guilty on both counts.

B. Reasonable Doubt

Defendant contends that the prosecutor engaged in misconduct by misstating its burden of proof in the following manner: “Now, what are you not supposed to do? Your job is not to fulfill an agenda, ‘Well, I want to do this even though the facts are totally opposite.’ [¶] To consider facts not in evidence. No ‘what-ifs,’ no, ‘What if there wasn’t a gun?’ You haven’t heard evidence there was not a gun, therefore that doesn’t even go in your mind. There’s no evidence to the contrary, therefore that’s proven there was a gun.” (Italics added.) Defendant seizes on the italicized language cited above for the proposition that the prosecutor’s statement informed the jury that it must consider any evidence adduced by the People as definitively proven unless defendant produces evidence to the contrary. Defendant further maintains that the court’s overruling of its objection to this statement acted as an endorsement of this view, effectively permitting the jury to find defendant guilty of the charged offenses by a lesser standard than constitutionally required.

“‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 829-830 (Hill).) We evaluate a prosecutor’s remarks in the context of the whole argument and the instructions to determine whether there was a reasonable likelihood that “the jury construed the prosecutor’s remarks as placing on defendant the burden of establishing a reasonable doubt as to his guilt.” (People v. Marshall (1996) 13 Cal.4th 799, 831.)

Here, we find no reasonable likelihood that the jury construed the prosecutor’s remark in such a manner as to believe that defendant bore any burden of proof. As noted by defendant, the statement itself was irrelevant to the issues ultimately decided by the jury because the robbery charge and attached enhancement had already been dismissed; thus, the People bore no burden to prove a gun had been used and defendant certainly bore no counter-burden to prove that a gun had, in fact, not been utilized.

Moreover, the court had already instructed the jury with the applicable burden of proof pertaining to the People, twice. It instructed the jury with CALCRIM No. 103 prior to trial and CALCRIM No. 220 after trial. Thus, the court’s instructions to the jury more than adequately conveyed that it was the People, not defendant, which bore the burden of proof.

Furthermore, the court also instructed the jury with CALCRIM No. 200: “If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” Thus, even if the jury interpreted the prosecutor’s remarks in the manner defendant contends, the judge’s instructions explicitly informed them to ignore those remarks and follow only the court’s directions. Likewise, later, in both their closing and final summation, the People stressed their burden of proving the case beyond a reasonable doubt. Finally, the defense’s closing argument repeatedly reminded the jurors that it was the People’s burden to prove the case beyond a reasonable doubt: “It’s important to keep in mind that [the prosecutor] exclusively has the burden of proof in the case. Unless you find that he has proven his case beyond a reasonable doubt, [then] you are obligated to return a verdict of not guilty.” Therefore, in the context of the entire record, there was no reasonable likelihood the jury would have construed the prosecutor’s remarks as placing any burden of proof on defendant.

Defendant relies on Hill, supra, 17 Cal.4th 800, for the proposition that the prosecutor’s statement here, combined with the court’s overruling of defendant’s objection to it, amounted to reversible error. We find Hill factually distinguishable from the instant case. There, the prosecutor’s remarks during closing commented directly on the burden of proof: “‘[I]t must be reasonable. It’s not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt.’” (Id. at p. 831.) Here, the complained of remarks did not directly implicate the burden of proof; no mention of the “beyond a reasonable doubt” standard was made in context with the prosecutor’s comments. Moreover, the trial court in Hill not only overruled the defendant’s objection, it commented on the objection: “‘No, that’s not. That’s your interpretation of it.’” (Ibid.) Thus, the court’s commentary was more likely to be viewed by the jury as an endorsement of the People’s statement of the law. Indeed, the appellate court noted that the trial court’s “chastis[ment]” of defense counsel “threatened to bias the jury.” (Id. at p. 831, fn. 3.) Furthermore, the court in Hill reversed based on cumulative error consisting, only in part, of the multiple acts of misconduct by the People, including multiple misstatements of the law in its closing. (Id. at pp. 830-848.) Indeed, the court noted that “[a]though we might conclude any single instance of misconduct was harmless standing alone, we cannot ignore the overall prejudice to defendant’s fair trial rights caused by [the prosecutor’s] pervasive campaign to mislead the jury on key legal points, as well as her unceasing denigration of defense counsel before the jury.” (Id. at p. 845.) Here, no other instances of misconduct are alleged. Thus, even if the prosecutor’s remark could be deemed misconduct, this single instance, standing alone, would amount to harmless error.

DISPOSITION

The judgment is affirmed.

We concur: HOLLENHORST, Acting P. J., McKINSTER, J.


Summaries of

People v. Jones

California Court of Appeals, Fourth District, Second Division
Apr 24, 2009
No. E045060 (Cal. Ct. App. Apr. 24, 2009)
Case details for

People v. Jones

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANDRE DESHON JONES, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 24, 2009

Citations

No. E045060 (Cal. Ct. App. Apr. 24, 2009)