Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County No. 08CM0270, Peter M. Schultz, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Wiseman, J., and Kane, J.
Defendant Traci Ann Kokko appeals her conviction of felony grand theft. She claims the motive instruction given, Judicial Council of California Criminal Jury Instructions (2008) (CALCRIM) No. 370, misled the jury into believing motive alone could establish guilt, thereby reducing the prosecution’s burden of proof and depriving her of substantive rights. We will affirm.
FACTUAL AND PROCEDURAL HISTORIES
After a jury trial, Kokko was found guilty of felony grand theft of personal property. (Pen. Code, § 487, subd. (a).) She was sentenced to five years’ felony probation and 180 days in jail.
All subsequent statutory references are to the Penal Code.
The charges arose when officers discovered stolen farm equipment at a residence, along with items indicating the equipment would be sold for scrap metal. Tire track marks consistent with Kokko’s vehicle and shoe patterns similar to Kokko’s shoes tied her to the theft.
In defense, Kokko denied any involvement in the theft but claimed she had loaned her vehicle to a man who wanted to use it to pick up scrap metal. According to Kokko, the man was to pay her $50 to use the vehicle for this purpose. Kokko testified that the man returned hours later with the equipment and not the scrap metal.
On direct examination, Kokko testified about her financial status. On cross-examination, Kokko stated she was “pretty broke” due to her lack of employment. She admitted she was looking for ways to make money.
DISCUSSION
Kokko’s sole argument on appeal concerns the court’s motive instruction. She argues that the “instruction erroneously misled the jury by suggesting that motive alone could establish guilt, thereby reducing the prosecution’s burden of proof and violating appellant’s fundamental rights.” Her contention lacks merit.
The court gave CALCRIM No. 370 as follows:
“The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict, you may[,] however, consider whether a defendant had a motive. [¶] Having a motive may be a factor tending to show that a defendant is guilty. Not having a motive may be a factor tending to show a defendant is not guilty.”
Kokko concedes that her attorney did not object to CALCRIM No. 370. Ordinarily, failure to object to instructions forfeits the issue on appeal unless the error affects substantive rights. (§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192-1193.) In an effort to revive her claim, Kokko alleges a violation of her substantive rights and argues that trial counsel’s “negligent or mistaken failure to object” does not therefore lead to a forfeiture of appellate review. Although we disagree that substantive rights were affected, in order to forestall a claim of ineffective assistance of counsel, we will address the merits of the issue. (People v. Williams (1998) 61 Cal.App.4th 649, 657.)
“It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753-754.) Courts “‘must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’” (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Kokko argues that CALCRIM No. 370, as read, erroneously lowered the prosecution’s burden of proof. Though Kokko never addresses the issue squarely, we assume her argument rests on the last sentence of the instruction: “Not having a motive may be a factor tending to show the defendant is not guilty.” (CALCRIM No. 370.) Kokko urges that the burden of proof is lowered or at least shifted because the language of the instruction given implies a defense obligation to prove innocence. Yet this part of the instruction addresses relevancy, not burden of proof. That is, if there is relevant evidence concerning motive, the jury is instructed how to use such evidence legitimately. Our duty is to look at the instructions as a whole, not an isolated part. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) The jury was provided with other instructions on the presumption of innocence and the prosecutor’s burden of proof and was expressly told that Kokko had no obligation to prove her innocence. When the instructions are considered in their entirety, CALCRIM No. 370 does not minimize or shift the prosecution’s burden of proof. (See People v. Anderson (2007) 152 Cal.App.4th 919, 942; People v. Prieto (2003) 30 Cal.4th 226 [no reasonable juror would misconstrue CALJIC No. 2.51 as standard-of-proof instruction apart from reasonable-doubt standard].)
CALJIC No. 2.51, as predecessor to CALCRIM No. 370, read as follows: “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.”
Kokko also argues that CALCRIM No. 370 impliedly misinformed the jury that motive alone could establish guilt. This argument is belied by the express language of the instruction, especially the third sentence: “Having a motive may be a factor tending to show that the defendant is guilty.” (CALCRIM No. 370, italics added.) The California Supreme Court has expressly rejected this contention. (See People v. Wilson (2008) 43 Cal.4th 1 [instruction survives state and federal constitutional requirements]; People v. Snow (2003) 30 Cal.4th 43 [CALJIC No. 2.51 does not suggest proof of motive alone can establish guilt].)
Ante, footnote 2.
The court’s instruction did not suggest any of the evidence presented tended to prove guilt or motive. Rather, it suggested that evidence of motive may or may not be considered by the jury on the issue of guilt. (People v. Anderson, supra, 152 Cal.App.4th at p. 943 [saying motive is factor that may tend to prove guilt is far cry from saying it is factor that alone may prove guilt].) As mentioned, we “‘must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’” (People v. Richardson, supra, 43 Cal.4th at p. 1028.) With this standard in mind, and considering the instructions as a whole, the jury here could not reasonably have understood the instruction in the manner Kokko’s argument suggests.
Kokko also urges that the instruction, coupled with the evidence of her poverty elicited at trial, amounted to undue prejudice warranting reversal. However, because we find the instruction valid on its face, we need not address whether it prejudiced Kokko at trial. Kokko also contends that she was harmed by the prosecutor’s closing argument. In closing argument, the prosecutor misstated Kokko’s testimony and implied that, because Kokko was unemployed, she and her codefendant had a motive to commit the theft. We note that the court immediately sustained an objection to the argument and without delay admonished the jury that they “may not infer that just because someone is unemployed he or she is a thief.” Kokko does not raise a prosecutorial-misconduct contention directly, and if she had, we would find no prejudice given the court’s admonition. We presume the jury followed the court’s admonition. (People v. Panah (2005) 35 Cal.4th 395, 453.)
DISPOSITION
The judgment is affirmed.