Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Ct. No. BF116284A. Richard J. Oberholzer, Judge.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On December 1, 2006, the Kern County District Attorney filed an information in superior court charging appellant Christopher David Kaplan as follows:
Counts 1 and 2—assault with a deadly weapon, a serious felony (Pen. Code, §§ 245, subd. (a)(1), 1192.7, subd. (c)) with three prior prison terms (§ 667.5, subd. (b));
All further statutory references are to the Penal Code unless otherwise indicated.
Counts 3 and 4—grand theft (§ 487, subd. (a)) with four prior prison terms (§ 667.5, subd. (b));
Count 6—receiving a stolen vehicle (§ 496d) with three prior prison terms (§ 667.5, subd. (b)); and
Count 7—unlawful possession of ammunition by an ex-felon (§ 12316, subd. (b)(1)) with three prior prison terms (§ 667.5, subd. (b)).
Count 5 of the information pertained to appellant’s codefendant, Kip May, only. Kip May is not a party to this appeal.
On December 8, 2006, appellant declined a plea bargain entailing a prison term of six years four months.
On December 18, 2006, the court struck the second prior prison term allegation as to counts 1, 2, 3, 4, 6, and 7 and bifurcated trial of the special allegations. Jury trial commenced the same day.
On December 21, 2006, the jury returned verdicts finding appellant not guilty of counts 1, 2, 4, and 7, guilty of count 6 as charged, and guilty of attempted grand theft (§§ 487, subd. (a), 664) a lesser included offense of that charged in count 3. The court subsequently found the remaining prior prison term allegations related to counts 3 and 6 to be true.
On January 24, 2007, the court denied appellant probation and sentenced him to a total term of four years four months in state prison. The court imposed the middle term of two years on count 6 and two consecutive one-year terms for the prior prison term enhancements. The court imposed the term of four months (one-third of the middle term) on count 3. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and awarded 181 days of custody credits. The court also ordered appellant to pay a $20 court security fee as to each substantive count (§ 1465.8).
On the same date, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
On the evening of September 15, 2006, Ray Gribben and Edward Williford were working on a race car at the latter’s home. At some point, the two men went to Gribben’s automotive parts storage yard off of Rosedale Highway and Mohawk Street to pull some components for the race car. Gribben stored between 10 and 15 cars in the yard, which was secured by a chain-link fence. When they arrived, appellant and Kip May were inside the yard hitching a Willys Jeep to a red, extended-cab Toyota truck. The Jeep belonged to Gribben’s friend, J.C. Nichols, who had permission to store the vehicle in the yard. A white Toyota pickup truck was parked nearby and illuminated the yard. Gribben confronted appellant and May and questioned May’s claim of having permission to be in the fenced storage yard. As Gribben spoke with May, appellant unhitched the Willys Jeep from the red Toyota.
Gribben advised the two men he had called police and said they would sort out the issue of permission to be in the yard. Gribben instructed appellant and May to wait for the arrival of police. Appellant nevertheless got into the white Toyota pickup truck and quickly left the area. He nearly struck Gribben and Williford as he departed. May, in turn, got into the red pickup truck and drove away. Gribben and Williford pursued appellant. Appellant eventually turned off his headlamps as he drove down a dirt road. His truck became disabled when it struck a chain-link fence. Gribben and Williford approached appellant, engaged in a struggle with him, and tried to detain him. However, appellant was able to drive away when Gribben and Williford began to focus their attention on May.
Gribben and Williford pursued the red Toyota back to the home of its owner. The home was located in an Oildale trailer park. Once they located the home, Gribben contacted Kern County law enforcement officers. Deputy Sheriff Steven Williams contacted Gribben and Williford that evening about the attempted removal of the Willys Jeep. Williams went to the home where the red Toyota stopped but it was not present. Several hours later, Williams saw the red Toyota at a Johnny Quik gas station/mini-mart near Seventh Standard Road and Chester Avenue. Williams arrested the driver of the red truck and obtained information about appellant, the driver of the white Toyota.
On September 26, 2006, officers arrested appellant at his home on Lincoln Avenue. He directed the arresting officers to the white Toyota pickup truck. According to Deputy Williams, the truck was hidden under a tarp “next door, across the street, and then the alley behind that.” Eldon Jones testified he had been working on his white Toyota truck in front of his home in early June 2006. The truck had a “blown head” and Jones was fixing it in preparation for a smog test the following day. The next morning, Jones awakened and went outside to put the truck on a trailer; however, the truck was missing. All of the registration information was in the glove box of the truck. Jones and his wife nevertheless reported the vehicle as stolen. In September 2006, Jones went to the impound yard at the Sheriff’s Department and identified his pickup truck.
Defense
Appellant’s girlfriend, Janet Sparks, testified she and appellant purchased the white Toyota truck from an older man who was a resident in some apartments off of Union Avenue. Sparks said she saw the older man sign the pink slip for the truck. Sparks said they paid the seller $400 for the truck and it was in running condition. She also said appellant had been a welder’s helper for about seven years and he owned “a lot of tools. Probably every kind you can think of.”
DISCUSSION
I.
THE VALUE OF THE JEEP
Appellant contends the prosecution failed to present qualified, competent evidence of the value of the stolen property to establish attempted grand theft of the Willys Jeep.
He specifically argues:
“Two interlocking errors combined to deny appellant his right to due process. The prosecution did not submit any qualified competent evidence of the value of the Willys Jeep, one of the elements of the charged offense, thus resulting in insufficient evidence to support the jury verdict.
“The prosecution elected to charge appellant under the more general statu[t]e of Penal Code section 487, subdivision (a), rather than the specific statute of grand theft auto. (Pen. Code § 487, subd. (d).) The court also instructed the jury under the general statute. The general grand theft statute requires proof that the value of the property was over $400 and Evidence Code section 813 and case law provides that it be established by competent opinion evidence as to the fair market value. In this case, no competent evidence was introduced at trial showing the value of the Willys Jeep, nor was any evidence introduced that the Jeep was anything other than scrap metal or parts.”
The following exchange occurred during the direct examination of Ray Gribben in the People’s case-in-chief:
“Q. [by Deputy District Attorney Louie] Do you know how much that Willy’s Jeep that was on your lot that evening costs?
“A. [by Gribben] I’m going to say about $2,500.
“Q. What are you basing that estimate on?
“A. Just what I see them going for in the Camera Ads and the newspapers.”
The defense did not interpose any objection to this line of questioning. Nor did the defense raise the issue of the value of the Willys Jeep on cross-examination.
Evidence Code section 353 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
“(a) There appears of record any objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
“(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
“A judgment shall not be reversed for the erroneous admission of evidence unless the evidence was timely objected to in the trial court on the exact ground being raised on appeal.” (People v. Bury (1996) 41 Cal.App.4th 1194, 1201.) The timeliness requirement allows the court to remedy the situation before any prejudice accrues. The specificity requirement enables the court to make an informed ruling on the motion and to enable the party proffering the evidence to cure the defect in the evidence. (People v. Boyette (2002) 29 Cal.4th 381, 424.) If proffered evidence is relevant, courts will rarely, if ever, exclude it sua sponte merely because it may fall within some exclusionary rule. The task of raising evidentiary objections cannot be placed upon the trial court without imposing a “momentous new burden” on the judicial system as a whole. In California, it is a fact of judicial life that parties regularly fail to object to objectionable evidence. The job of a trial judge is not and cannot be to parse proffered evidence and decide on its own motion whether the evidence might fall within one of the many rules of exclusion. Our law places that burden squarely on counsel. (People v. Viray (2005) 134 Cal.App.4th 1186, 1208-1209.)
In the instant case, defense counsel declined to object to the valuation testimony of Ray Gribben and any evidentiary objection must be deemed waived. Appellant nonetheless offers a vigorous challenge to the sufficiency of the evidence underlying count 3. We do not reach that contention as it is predicated on the allegedly incompetent opinion evidence of Ray Gribben, testimony to which an evidentiary objection has been waived.
II.
CLAIMED INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant contends his trial counsel was ineffective by failing to object to the “erroneous admission of the unsubstantiated opinion of an unqualified witness.”
He specifically argues:
“In the instant matter, there can be no tactical reason for trial counsel’s failure to object to the improper and not legally supported opinion given by Gribben about the value of the Willys Jeep, given no other evidence was provided. Gribben did not qualify as the owner nor as an expert. He was thus unqualified to give an opinion about the value of the Willys Jeep. But in addition, he did not base his opinion on the ‘fair market value’ but only on what he had read in papers about ‘asking’ prices of other Willy Jeeps, which may not have even been similar in age and condition. Gribben’s unqualified, unsubstantiated opinion was improperly elicited in order to supply one of the missing elements of the prosecution’s case. The prejudice in this matter is clear. Appellant was convicted of a felony attempted grand theft, when he should only have been convicted of a misdemeanor attempted petty theft.”
To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Waidla (2000) 22 Cal.4th 690, 718.)
On direct appeal, a reviewing court will reverse a conviction for ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) We presume that counsel’s conduct falls within the wide range of reasonable professional assistance and we accord great deference to counsel’s tactical decisions. (People v. Bolin (1998) 18 Cal.4th 297, 333.)
A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) “If ‘counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. To engage in such speculations would involve the reviewing court ‘“in the perilous process of second-guessing.”’ [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.]” (People v. Diaz (1992) 3 Cal.4th 495, 557-558; People v. Lucero (2000) 23 Cal.4th 692, 728-729.)
If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) An attorney may choose not to object to proffered evidence for many reasons and the failure to object will rarely establish ineffective assistance of counsel. (People v. Avena (1996) 13 Cal.4th 394, 444-445.)
In addition to showing counsel’s performance was deficient, the defendant must also show prejudice flowing from counsel’s performance or lack thereof. (People v. Williams (1997) 16 Cal.4th 153, 215.) Prejudice is shown when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.; In re Neely (1993) 6 Cal.4th 901, 908-909; In re Jones (1996) 13 Cal.4th 552, 561.)
When an ineffective assistance claim can be resolved solely on lack of prejudice, a reviewing court need not determine whether counsel’s performance was objectively deficient. (Strickland, supra, 466 U.S. at pp. 697, 699-700; People v. Boyette, supra, 29 Cal.4th at pp. 430-431.) “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697; In re Cox (2003) 30 Cal.4th 974, 1019-1020.)
Here, the record on appeal sheds no light on why counsel failed to act in the manner challenged. Therefore, the claim of ineffective assistance must be rejected. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.) Appellant nevertheless submits there can be no tactical reason for trial counsel’s failure to object to Gribben’s opinion about the monetary worth of the Willys Jeep. Here, defense counsel could have independently investigated the vehicle in question, determined that its value exceeded the $400 statutory threshold for purposes of a theft prosecution, and concluded that an evidentiary challenge to Gribben’s testimony would have caused the prosecution to present additional witnesses, thereby bolstering all aspects of the case against his client. As respondent notes, defense counsel’s advocacy resulted in appellant’s acquittal of “many of the more serious charges against him.” In preparing his case, counsel could have reasonably determined that an evidentiary challenge to valuation evidence would have been counterproductive or futile under all of the circumstances. “Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387.)
Appellant’s claim of ineffective assistance of trial counsel must be rejected.
III.
INSTRUCTIONS ON THE ELEMENTS OF GRAND THEFT
Appellant contends the trial court properly instructed on the offense of grand theft of property of a value over $400 but incorrectly included an additional element, i.e., that it was the theft of a vehicle. He submits the additional element negated the element of value and requires reversal of the judgment of conviction.
Count 3 of the amended information alleged:
“ON OR ABOUT SEPTEMBER 15, 2006, KIP ALLEN MAY, AND CHRISTOPHER DAVID KAPLAN, DID WILLFULLY AND UNLAWFULLY TAKE MONEY OR PERSONAL PROPERTY OF RAY GRIBBEN, GREEN WILLY’S JEEP OF A VALUE EXCEEDING FOUR HUNDRED DOLLARS ($400), IN VIOLATION OF PENAL CODE SECTION 487(A), A FELONY.”
The trial court instructed the jury in CALCRIM No. 1800 (theft by larceny) as follows:
“The defendant is charged in Counts 3 and 4 with grand theft by larceny.
“To prove the defendant is guilty of this crime, the People must prove that: One, the defendant took possession of property owned by someone else; two, the defendant took the property without the owner’s or the owner’s agent’s consent; three, when the defendant took the property, he intended to deprive the owner of it permanently or to remove it from the owner’s or the owner’s agent’s possession for an extended period of time that the owner would be deprived of the major portion of the value or enjoyment of the property; and, four, the defendant moved the property, even a small distance, and kept it for any period of time, however brief.
“An agent is someone to whom the owner has given complete or partial authority and control over the owner’s property.”
The trial court further instructed the jury in CALCRIM No. 1801 (theft: degrees) as follows:
“For petty theft, the property taken can be of any value.
“The charged crime – the charged crime is for grand theft, which is a different value. It’s a value of more than $400. And I’ll explain that to you now.
“If you conclude that the defendant committed a theft, you must decide whether the theft was grand theft or petty theft.
“The defendant committed a grand theft if he stole property or services worth more than $400.
“Theft of an automobile is grand theft.
“The value of the property is the fair-market value of the property.
“Fair-market value is the highest price the property would reasonably have been sold for in the open market at the time of and in the general location of the theft. Fair-market value is the price a reasonable buyer and seller would agree on if the buyer wanted to buy the property and the seller wanted to sell it, but neither was under any urgent need to buy or sell.
“All other theft is petty theft.
“The People have the burden of proving beyond a reasonable doubt the theft was grand theft rather than the lesser crime. If the People have not met this burden, you must find the defendant not guilty of grand theft.”
Appellant maintains the trial court erroneously instructed the jury in both grand theft and grand theft automobile:
“… While they both share the first four common elements of theft, as explained by the court in the first part of CALCRIM 1800, they diverge for the fifth element. Grand theft, grand theft person, grand theft automobile, are all different. The court erred in giving the instructions for both grand theft, with which appellant was charged, and for grand theft automobile, with which he was not, because the automobile element of grand theft auto, negates the value element of grand theft.
“Negating an element of an offense is akin to omitting it altogether, particularly in the instant matter, where for it to be grand theft, it must be EITHER of property over the value of $400, or, it must be of an automobile, it cannot be both, and that is what the court below erroneously instructed, effectively wiping out the value requirement altogether. That has the same effect as omitting the element.”
Section 487 states in relevant part:
“Grand theft is theft committed in any of the following cases:
“(a) When the ... personal property taken is of a value exceeding four hundred dollars ($400) .... [¶] ... [¶]
“(d) When the property taken is any of the following:
“(1) An automobile ....”
In view of the foregoing statutory language, it appears the court included language from section 487, subdivision (d)(1) in a jury instruction on a count charged solely under section 487, subdivision (a). Where an instruction is constitutionally erroneous, it is subject to review under Chapman v. California (1967) 386 U.S. 18 (Chapman). The Chapman test is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Id. at p. 24.) To say that an error did not contribute to the verdict is to find the error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. (Yates v. Evatt (1991) 500 U.S. 391, 402-403, disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)
Here, the respondent properly points out that evidence of the value of the Willys Jeep was uncontested and uncontradicted at trial. Ray Gribben testified that the value of the Jeep, based on his review of Camera Ads and newspaper advertisements, was approximately $2,500. The Yates court held an instructional error may be deemed unimportant when “the force of the evidence presumably considered by the jury in accordance with the instructions [independently of the erroneous matter] is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the [erroneous matter].” (Yates v. Evatt, supra, 500 U.S. at p. 405.) Nothing in the instant record negates or controverts Gribben’s testimony as to the value of the Willys Jeep. As respondent points out, the challenged instruction “did not reinforce a legally insufficient case because there was compelling competent evidence of the Jeep’s value.”
Any instructional error was harmless under Chapman and appellant’s contention must be rejected.
IV.
THE LESSER-INCLUDED OFFENSE OF PETTY THEFT
Appellant contends the trial court committed reversible error by instructing on grand theft and petty theft of the Willys Jeep and then only giving the jury forms of verdict for grand theft and attempted grand theft as a lesser-included offense. He maintains the court should have provided the jury with forms of verdict for grand theft, petty theft, attempted grand theft, and attempted petty theft. In appellant’s view, all four offenses covered the full range of possible verdicts based upon the evidence presented in the case.
In California, it is settled in criminal cases, even in the absence of a request that the trial court must instruct on general principles of law relevant to issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court and which are necessary for the jury’s understanding of the case. That obligation includes giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly object to its being given. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) A trial court errs if it fails to instruct sua sponte on all theories of a lesser included offense that find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. (Id. at p. 162.)
In a noncapital case, error in failing to instruct sua sponte on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under People v. Watson (1956) 46 Cal.2d 818, 836. A conviction of the charged offense may be reversed in consequence of this form of error only if, after an examination of the entire cause, including the evidence, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (Breverman, supra, 19 Cal.4th at pp. 165, 178.)
Appellant contends:
“To instruct on all lesser included offenses, as the court did here, is meaningless unless the instructions are accompanied by jury verdict forms which allow the jury to consider the entire range of possible offenses, as is required. This is exacerbated, when all other lesser-included offenses verdict forms are given to the jury, except the petty theft and attempted petty theft forms on the grand theft of the Willys Jeep.
“To send into the jury deliberations only the guilty and not guilty forms for grand theft, and attempted grand theft, and not allowing them to deliberate on the lesser necessarily included offense of petty theft and attempted petty theft is error. On another charge of grand theft [count 4], the court gave the jury the verdict forms for both grand and petty theft, and the jury found appellant not guilty of both.
As to count 3 in the instant case, the trial court instructed the jury in CALCRIM No. 1800 (theft by larceny), CALCRIM No. 1801 (theft: degrees), CALJIC No. 17.10 (conviction of lesser included or lesser related offense—implied acquittal—first), and CALCRIM No. 460 (attempted grand theft as lesser crime to count 3). The court did not instruct the jury in petty theft or attempted petty theft as a lesser included offense of that charged in count 3. Moreover, the court did not provide the jury with forms of verdict for petty theft or attempted petty theft as a lesser included offense of that charged in count 3. California law required the trial court to only instruct on lesser included offenses when the evidence raised a question about whether all of the elements of the charged offense were present, but not where there was no evidence the offense was less than that charged. (Breverman, supra, 19 Cal.4th at p. 154.)
Grand theft is committed when the personal property taken is of a value exceeding $400. (§ 487, subd. (a).) Theft in other cases is petty theft. (§ 488.) Ray Gribben testified the Willys Jeep in his storage yard cost “about $2,500” based upon comparable vehicles listed in “Camera Ads and the newspapers.” Appellant has not cited and we have been unable to find anything in the record on appeal to suggest that the Willys Jeep had a value less than $400. As noted above, a trial court errs if it fails to instruct sua sponte on all theories of a lesser included offense that find substantial support in the evidence. (Breverman, supra, 19 Cal.4th at p. 165.) Here, there is no substantial support in the evidence for a theory of petty theft or attempted petty theft with respect to the Willys Jeep. The court was not required to give the petty theft or attempted petty theft instructions or forms of verdict with respect to count 3 and reversal is not required.
V.
CALCRIM NO. 220 (REASONABLE DOUBT)
In a supplemental opening brief, appellant contends the trial court committed reversible error by giving CALCRIM No. 220 to the jury. He submits that instruction precludes jurors from considering whether a reasonable doubt exists based upon a lack of evidence.
CALCRIM No. 220 (reasonable doubt), as read to the jury, stated:
“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 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 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 in the truth of the charge.
“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 defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
CALCRIM No. 222 (evidence), as read to the jury, stated:
“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 witnesses, exhibits admitted into evidence, and anything else I told you to consider as evidence.
“Nothing that 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 attorneys’ 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 you 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 the witnesses. [¶]…[¶]
“The court reporter has made a record of everything that was said during the trial.
“If you decide that it’s necessary, you may ask 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 the People and the defense agreed or stipulated to certain facts. This means that they both accept those facts. Because there’s no dispute about those facts, you must accept them as true.”
Appellant contends:
“Here, CALCRIM No. 220 by using the language it does, improperly requires the defendant to persuade the trier of fact of his innocence by evidence presented at trial and eliminates the doctrine of reasonable doubt due to lack of evidence. CALCRIM No. 220’s exclusion of the concept that evidence that inarguably existed at the time of the offense, but was not received at trial led the jury to convict appellant ‘on a lesser showing than due process requires.’ (Victor v. Nebraska (1994) 511 US. 1, 22.) This resulted in structural error requiring reversal of appellant’s conviction. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 281-282 . . ..)”
In People v. Flores (2007) 153 Cal.App.4th 1088 (Flores), this court found no violation of the defendant’s federal constitutional rights in the language of CALCRIM Nos. 220 and 222. This court specifically addressed a contention that the instructions denied a defendant’s federal right to due process because it prevented the jury from considering the lack of evidence in determining whether a reasonable doubt existed as to defendant’s guilt. (Id. at pp. 1091-1092.) We held in pertinent part:
“The due process clause of the Fourteenth Amendment protects the accused against conviction except on proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 361-362, & cases cited therein.) The United States Constitution does not require jury instructions to contain any specific language, but they must convey both that the accused is presumed innocent until proved guilty and that the accused may be convicted only upon proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) When reviewing the correctness of reasonable doubt charges, the proper constitutional inquiry is ‘whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.’ (Id. at p. 6.) ‘“The essential connection to a ‘beyond a reasonable doubt’ factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings.” [Citation.] Where such an error exists, it is considered structural and thus is not subject to harmless error review. [Citation.] However, if a jury instruction is deemed “ambiguous,” it will violate due process only when a reasonable likelihood exists that the jury has applied the challenged instruction in a manner that violates the Constitution. [Citation.] Any challenged instruction must be considered in light of the full set of jury instructions and the trial record as a whole. [Citation.]’ (Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812, 820-821; see also People v. Smithey (1999) 20 Cal.4th 936, 963.)
“Here, the plain language of the instruction given tells the jury that ‘[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.’ (CALCRIM No. 220.) Identical language was given in a similar instruction, CALCRIM No. 103, at the beginning of trial. The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. In addition, the trial court instructed the jury with CALCRIM No. 355, which specifically stated that a defendant ‘may rely on [the] state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.’” (Flores, supra, 153 Cal.App.4th at pp. 1092-1093.)
In the instant case, as in Flores, the trial court instructed the jury in CALCRIM Nos. 220 (reasonable doubt) and 222 (evidence). Appellant has not addressed the application of Flores to the facts of the instant case. Nevertheless, we respect stare decisis, which serves the important goals of stability in the law and predictability of decision. (Fire Ins. Exchange v. Abbott (1988) 204 Cal.App.3d 1012, 1023.) In view of our holding in Flores, we reject appellant’s challenge to CALCRIM No. 220.
DISPOSITION
The judgment is affirmed.
WE CONCUR: DAWSON, J., HILL, J.