Opinion
A098162.
7-9-2003
THE PEOPLE, Plaintiff and Respondent, v. ELI SAUL LEVINE, Defendant and Appellant.
I. INTRODUCTION
Appellant Eli Saul Levine was convicted, following a jury trial, of burglary (Pen. Code, § 459 ); robbery (§ 211); assault with a firearm (§ 245, subd. (a)(2)); discharge of a firearm with gross negligence (§ 246.3); terrorist threats (§ 422); assault with a firearm on a peace officer (& sect; 245, subd. (d)(1)); resisting a peace officer (§ 148, subd. (a)(1)); felon in possession of a firearm (§ 12021, subd. (a)(1)); and harassing a police dog, a misdemeanor (§ 600, subd. (b)). Several counts included weapons enhancements. The court sentenced appellant to 49 years in state prison.
All further unspecified statutory references are to the Penal Code.
On appeal, Levine contends (1) there is insufficient evidence that appellant intentionally discharged the firearm; (2) the trial court committed prejudicial error in excluding appellants prior consistent statement; (3) the trial court prejudicially abused its discretion in allowing the prosecutor to impeach appellant with two prior domestic violence convictions; (4) the prosecutor committed prejudicial misconduct during closing argument; and (5) the circumstantial evidence jury instructions and the prosecutors closing argument undermined the requirement that guilt be proven beyond a reasonable doubt. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 13, 2001, following a preliminary examination, the Contra Costa district attorney filed a ten-count information charging appellant with the following offenses: burglary (Pen. Code, §§ 459, 460, subd. (a), count 1) with enhancements for personal use of a firearm (§ 12022.5, subd. (a)(1)) and personal use of a deadly weapon (§ 12022, subd. (b)(1)); robbery ( § 211, counts 2, 3), with enhancements for intentional discharge of a firearm (§ 12022.53, subds. (b), (c)) and personal use of a deadly weapon (§ 12022, subd. (b)(1)) as to count 2, and personal use of a firearm (§ 12022.53, subd. (b)) as to count 3; assault with a firearm (§ 245, subd. (a)(2), count 4), with an enhancement for personal use of a firearm (§ 12022.5, subd. (a)(1)); discharge of a firearm with gross negligence (§ 246.3, count 5), with an enhancement for personal use of a firearm (§ 12022.5, subd. (a)(1)); terrorist threats (§ 422, count 6), with an enhancement for personal use of a firearm (§ 12022.5, subd. (a)(1)); assault with a firearm on a peace officer (§ 245, subd. (d)(1), count 7), with an enhancement for intentional discharge of a firearm (§ 12022.53, subds. (b), (c)); resisting an executive officer (§ 69, count 8), with an enhancement for personal use of a firearm (§ 12022.5, subd. (a)(1)); felon in possession of a firearm (§ 12021, subd. (a)(1), count 9); and harassing a police dog, a misdemeanor (§ 600, subd. (b), count 10). The information also alleged that appellant had a prior strike conviction (§ 667, subds. (b)-(i)), that he had served a prior prison term (§ 667.5, subd. (b)), and that he had a prior serious felony conviction (& sect; 667.5, subd. (a)).
On November 19, 2001, a jury trial commenced. Appellant stipulated to a prior conviction for purposes of count 9. On December 11, 2001, the trial court dismissed the firearm discharge enhancement to count 7. Appellants motion for a mistrial was denied on December 13, 2001.
On December 14, 2001, the jury found appellant guilty of all remaining counts and allegations except for count 8, for which it found appellant guilty of the lesser-included offense of resisting a peace officer (§ 148, subd. (a)(1)), and the enhancement for use of a deadly weapon on count 2, which the jury found not true.
On March 1, 2002, a separate court trial on the alleged priors was held. On March 8, 2002, the court found the prior conviction allegations to be true. The court denied appellants motion for a new trial on count 7. That same day, the court sentenced appellant to a total term of 49 years in state prison on counts 2, 3, 6, 7 and the prior serious felony allegation. The sentences on counts 1, 4, 5 and 9 were stayed pursuant to section 654. On counts 8 and 10, both misdemeanors, appellant was sentenced to time served. The court imposed a $ 200 restitution fine pursuant to section 1202.4, subdivision (b), and a $ 200 parole revocation fine pursuant to section 1202.45. The court ordered $ 4,358 in restitution and struck the section 667.5, subdivision (b), allegation of a prior prison term.
On March 12, 2002, appellant timely filed a notice of appeal.
A. Prosecution Case
James Leonard was weeding the garden in his backyard around 5:00 p.m. on May 8, 2000, when he heard a gunshot that sounded as if it came from the house next door. He heard a woman screaming and ran around the side of his house to the front yard. He saw the woman who lived next door running toward the next street. He ran and caught up with her. She was frantic, yelling for help, and flagged down a passing motorist who called 911. The motorist conveyed the message that there was a robbery in progress and that a gun was involved.
On May 8, 2000, Paul Schenck and Antoinette Tantarelli had been living at their new house on Larkspur Drive in Concord for about two weeks. Schenck returned home around 2:00 p.m. to meet a heater repairman. He noticed nothing unusual. At around 3:00 p.m., after the repairman left, Schenck left to pick up his fiancee in San Francisco. On the way home, they stopped to buy dinner at Kentucky Fried Chicken. They arrived home close to 5:00 p.m.
Schenck and Tantarelli had married by the time of the trial in this matter.
Schenck opened the garage door and pulled their car into the garage. He closed the garage door and followed Tantarelli into the house. She pointed to a napkin ring out of place on the floor. Just then, they heard rustling at the back of the house. A man, later identified as appellant, with a black jacket over his head came toward them from the back of the house. He was carrying Tantarellis .22 Beretta LR. He pointed the gun at Schenck and said, "Back the fuck up." Schenck started backing toward the garage, and told Tantarelli to run. The man said, "Dont run, bitch, or Ill shoot." Tantarelli ran into the garage, pushed the garage door opener, and crawled under the door as it was opening.
"LR" stands for "long rifle." The gun is a semi-automatic handgun that operates by means of a slide on the top of the gun. It was normally stored in the bedroom under a stuffed animal, along with a loaded extra clip of ammunition. It had been a gift to Tantarelli from her ex-husband.
Schenck followed her into the garage and could see that she had gotten out. He then turned back toward the man, who no longer had the jacket over his head. Schenck continued to back away from appellant, out of the garage and onto the driveway. He then confronted appellant, trying to get him to move outside of the garage, saying "Come on, come on, come on, come on, get me. Come on, get me." When Schenck turned and saw Tantarelli running up the street, he heard the gun discharge in the garage. When he turned back, he could see appellant pointing the gun towards the ground or their car.
Appellant then went back into the house. Through a window in the garage, Schenck could see him leave the house and go into the back yard, pulling a small, rolling suitcase. Schenck followed him. Schenck told appellant he was a punk and needed to learn how to shoot. He was trying to stall to give the police time to arrive. Appellant said, "Youre just stalling . . . . Youre not gonna do anything." Appellant climbed over the fence that separated Schencks house from an apartment complex. Schenck followed appellant over the fence.
Schenck saw appellant stop by the door to one of the apartments. Appellant appeared to be talking to someone. After about a minute, appellant walked over to a chain-link fence. He tossed the suitcase over the fence and began to climb over after it. He said to Schenck, "I got your shit, bitch. I got your shit." Schenck told him he was a punk and needed to learn to shoot a gun. Appellant replied, "Youre just a skinny white bitch," and went over the fence, disappearing into the brush. Appellant then climbed back over the fence with a short bat or stick in his hand, which he raised in a threatening manner. Schenck pulled out his pocketknife. Appellant saw the knife, turned around, and started to climb back over the fence. Schenck rushed up to him and stabbed him in the back. Appellant got over the fence and disappeared again into the brush. Schenck then headed back home.
In the meantime, Tantarelli had run screaming down the street after getting out of the garage. She had looked back at one point and saw Schenck in the driveway. She then heard a gunshot somewhere behind her. She flagged down a passing motorist, a battalion chief with the Department of Forestry, who called 911. Tantarelli was "pretty hysterical," but was able to communicate with the dispatcher. The police arrived four to five minutes later. As the police were talking to Tantarelli, Schenck walked up. He told the police what had happened, that he had stabbed appellant, and gave them his knife.
Dyann Rosales lived in the apartment complex at 3750 Willow Pass Road with her husband and two children. Shortly after 5:00 p.m. on May 8, 2000, she was at home with one of her children. She let her child out to play at Danielle Riveras apartment in the same complex. She pushed the front door to close it and went into the kitchen. Realizing the door did not close all the way, she went back and pushed on it to close it, but felt resistance from the other side. She looked around the door and saw a strange man with a small suitcase. He was breathing hard and sweating profusely, and had foam around his mouth. He forced his way into the apartment, saying "Stephanie, help me." No one named Stephanie was there, and appellant seemed to realize that he had the wrong apartment. Frightened, Rosales yelled at him to leave. Appellant lifted his shirt to show her the gun in his waistband and told Rosales to help him or he would hurt her. He put his hand on the gun. Rosales yelled out for her husband, who was not at home, thinking appellant might leave if he thought her husband was there. When appellant looked toward the hallway, Rosales ran up to him and tackled him to the floor. They struggled, and appellant slapped and hit her in the head. Eventually she was able to get appellant and his suitcase out of the apartment, and she locked the door. She immediately telephoned Rivera, telling her to get the children inside. Still afraid, Rosales huddled under the kitchen table after speaking with Rivera.
Eugenia Palacio was visiting friends in apartment 204 on the afternoon of May 8, 2000. Early that afternoon, around 1:00 p.m., appellant had come to the door looking for Stephanie, who was staying there. Stephanie was not there at the time, and Palacio told appellant to go away or she would call the police. Around 5:00 p.m., appellant pounded on the door, wanting to be let in. When Palacio opened the door, appellant was out of breath, hunched over and bleeding. He had a small rolling suitcase with him. He said he wanted to come in and rest. When Palacio refused and said she would call the police, appellant called her a "fat bitch" and began pushing on the door. Palacio slammed and locked the door. She watched appellant go toward the laundry room. Minutes later, she saw the police chasing appellant from the laundry room. Appellant had a gun in his hand, and the officers were yelling for him to put the gun down. She later heard several gunshots.
Danielle Rivera saw appellant talking with some people before walking into the laundry room. She could see blood on his back. From her apartment, she could see appellant take off his shirt, grab clothes out of a dryer, and put on a flannel shirt. While she was watching, the police arrived.
A number of uniformed officers responded to the apartment complex at 3750 Willow Pass Road. Officer Finney carried a "flexible baton," a gun that fired beanbags to deliver a blunt force impact; Officer Dyer had a police dog. The officers yelled for residents to get inside their apartments. They took up positions in the courtyard around the laundry room. The officers shouted at appellant to come out with his hands up. Appellant stepped out of the laundry room, holding a gun in his right hand. He turned and looked at the officers, who ordered him to drop the gun. He had another object in his left hand. Appellant turned and ran toward the parking lot at the back of the complex.
The officers ran after him, yelling for him to stop, but he kept running. Officer Dyer released the police dog. As appellant continued to run, the dog locked onto his left shoulder. Appellant continued to advance, but while stumbling forward, and at a slower pace. Still bent down under the weight of the dog, appellant turned toward the officers, and Officers Finney and Dyer could see him working the slide action on the semi-automatic gun he carried. Officer Tribble could not see what appellant was doing, but thought the movements were consistent with working the slide action on a semi-automatic firearm. Appellant then started to stand up, turned towards Dyer and pointed the gun in the officers direction. Dyer fired a shot from his service pistol, but could not tell if he hit appellant. Dyer heard Tribble fire at appellant at about the same time.
Appellant continued to run, beating the dog in the head with a dark object that appeared to be a small club. The dog released its hold, but resumed pursuit to re-engage. Officer Tribble saw appellant toss a black object up and over a fence into the backyard of a nearby house. The dog bit appellant again, in the hip area. Appellant dragged the dog as he ran toward a busy street while beating the dog in the head. Appellant managed to get the dog to release its grip, and he ran to the back fence. As he attempted to get over the fence, the dog dragged him down, biting him in the groin area. Appellant turned toward the officers with an object in his right hand. When he raised the object, Officer Tribble fired at him. Other officers also fired.
Appellant fell to the ground, but continued to struggle. When the officers were able to handcuff him, Officer Dyer called the dog "off bite." The officers administered first aid and appellant was taken to the hospital by helicopter.
A handgun magazine loaded with .22 caliber rounds was found in a backyard near the area where the officers had chased appellant. A Beretta .22 caliber long rifle handgun with the hammer cocked and the slide pulled back and containing an empty magazine was found on the roof of a shed in the backyard of another nearby house. There was a .22 caliber cartridge casing in the area where appellant was arrested, as well as a miniature baseball bat that had evidence of blood at both ends. The Schencks address book was recovered from the same area. A screwdriver, a gardening glove and some womens knee-high nylon stockings were found in appellants pants pockets. A Nike sports watch was found in appellants shirt pocket. Elsewhere in the parking lot, another .22 caliber cartridge casing and an intact .22 caliber cartridge were found on the ground.
In the laundry room, there were three intact .22 caliber long rifle ammunition cartridges and a rolling black suitcase containing numerous items. There was blood on the workbench and the floor, and a bloody T-shirt covered in soap powder in a washing machine.
The next day, the police brought Schenck and Tantarelli back to their home after having them spend the night at a hotel. Schenck and Tantarelli identified the suitcase appellant had taken with him, and its contents. The suitcase contained a pair of Adidas pants, batting gloves, mortgage and credit card receipts, baseball cards, a night light, kitchen knives, CDs, empty CD cases, a CD player, a VCR remote control, an adaptor for a video game player, and various other items. The items had been in different areas of their home and had not previously been in the suitcase. A small baseball bat had also been taken from the house. They discovered that their bedroom had been ransacked. On the bed was a larger suitcase containing all of Tantarellis jewelry, a VCR, and other items. Tantarelli testified that the heels had been torn off of her shoes and that her stuffed animals and the mattress had been knifed. The back of her dresser had a big hole in it. Clothes were strewn all over the house. There was a bowl in the kitchen sink containing knives arranged with their blades pointing straight up. The other two bedrooms had been disturbed and items had been removed. The doors leading to the Schencks rear patio looked as though they had been pried or chiseled with a screwdriver or some kind of metal device. A flashlight and Tantarellis black jacket were in the backyard.
No bullet holes were found in the garage or in the car parked there. There was an expended .22 caliber cartridge casing on the floor in the garage between the car and the door leading into the house. There were no expended casings or evidence of blood inside the house.
Schenck has a prior conviction for driving a vehicle without the owners consent.
B. Defense Case
Appellant testified that on May 8, 2000, he went to the Schencks residence to pick up money or drugs for his friend, Ed, who was also his drug dealer. Appellant was to receive "at least an eight-ball of crank" as payment. Appellant did not know Schenck, but Ed had told him Schenck would be expecting him. Appellant was under the influence of drugs, and may have had a screwdriver with him.
When appellant knocked on the door, Schenck let him in and then left the room. Schencks girlfriend seemed nervous and was staring at a piece of luggage. Appellant became nervous and followed Schenck down the hallway to the door of the bedroom. The room looked "like a tornado hit it." Schenck turned toward appellant, with the .22 Beretta in his hand. Appellant backed away from him, through the house, into the living room. Pointing the gun at appellant, Schenck said, "Come here, punk." Schencks girlfriend was crying. As Schenck turned to tell her to "shut the fuck up," appellant rushed at Schenck and fought him for the gun. Schencks girlfriend ran past them, into the garage. Continuing to struggle, appellant and Schenck fell down the steps to the floor of the garage. When they landed, the gun, still in Schencks hand, discharged. Appellant punched Schenck, and he dropped the gun. Appellant grabbed the gun and ran back into the house. He grabbed a gun clip and the suitcase he had seen earlier. He thought it contained drugs. Appellant ran out through the glass doors into the backyard. He did not have a flashlight or a black jacket.
Appellant ran through the backyard and jumped over the fence. He continued to run and did not realize Schenck was following him. As he tried to climb over another fence, Schenck stabbed him in the back, saying "I got you, mother fucker." As appellant struggled to get over the fence, Schenck stabbed him again in the inner thigh area. Appellant managed to get over the fence and picked up the suitcase he had tossed over.
He realized he was in Stephanie Woods apartment complex. He vaguely recalled going to someones apartment and asking for help, only to have the door shut in his face. The person who answered the door said she was going to call 911, but he did not wait because he had a gun and a suitcase he thought contained drugs.
Appellant was alternating between lucidity and hallucinations from the pain. He went to the laundry room, intending to stash the drugs behind the washers. He opened the suitcase and saw that it did not contain drugs. He changed his shirt because he was bleeding, but did not recall where he found the other shirt. At some point, he realized the police were outside but his instinct was to run rather than give up. When he ran, the police dog attacked him. He never pointed the gun at the officers, but he could hear them shooting at him. When he realized they were shooting because he had a gun, he threw the gun as far as he could and kept running. He did not remember hitting the dog as he ran, but thought he probably did. Appellant was not thinking clearly and it did not occur to him that the police could help him. He remembered being shot, falling forward and hitting his face on the ground. He had no further memory until waking up in the hospital.
Appellants treating physician, Dr. Ronald Laporta, testified that appellant suffered serious injuries as a result of being stabbed and shot. It was Laportas opinion that the wound to appellants groin was caused by a knife. Appellant suffered two cardiac arrests on the way to the hospital. Laporta opined that under certain circumstances, one could probably run after being stabbed if one were being chased.
Paramedic John Riddle treated appellant at the scene. He testified that appellant became combative as a result of his breathing problems caused by the stab wound that punctured a lung.
Appellant had prior convictions for two theft-related felony offenses in 1992 and 1996, and two misdemeanors involving domestic violence in 1994. He denied threatening his girlfriend with a screwdriver earlier in the day on May 8, 2000.
C. Prosecution Rebuttal
Criminalist Jason Kwast examined the pants appellant was wearing and found no evidence of a knife wound on the pants. He saw two areas of damage to the pants he believed were possibly caused by gunshots. The pants had been cut off appellant with scissors by emergency personnel. Kwast found no other evidence that the pants had been cut by a sharp instrument, but conceded that he had no special training in determining whether a knife or other instrument has made a cut in fabric.
III. DISCUSSION
A. Substantial Evidence Supports the Jurys Finding that Appellant Intentionally
Discharged the Firearm
Appellant contends there is insufficient evidence to support the jurys finding that he intentionally discharged a firearm while at the Schencks residence. As a result, according to appellant, the verdict on count five, negligent discharge of a firearm, and the true finding on the enhancement to count two, personally discharging a firearm during the robbery of Paul Schenck, must be reversed.
Our review is for substantial evidence. "In reviewing the evidence on . . . appeal all conflicts must be resolved in favor of the [prevailing party], and all legitimate and reasonable inferences indulged in to uphold the [finding] if possible. It is an elementary, but often overlooked principle of law, that when a [finding] is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the [finding]. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. [Citation.]" (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571, 888 P.2d 1268, quoting Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183.) Our role is, therefore, limited to determining whether any reasonable trier of fact could have come to the challenged conclusion, based on substantial evidence in the entire record. (Rivard v. Board of Pension Commissioners (1985) 164 Cal. App. 3d 405, 414, 210 Cal. Rptr. 509.)
Section 246.3 prohibits the willful discharge of a firearm in a grossly negligent manner that could result in injury or death. The statute requires "proof that a defendant purposefully, willingly or intentionally fired the weapon, with the added requirement that the firing occurred in a grossly negligent manner which could result in injury or death." (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1439.) The prosecution argued that appellants shooting a gun through an open garage in a residential area at 5:00 p.m. was grossly negligent.
Section 12022.53, subdivision (c), provides for a consecutive 20-year term for any person who, during the commission of a serious felony, including robbery, personally and intentionally discharges a firearm. The prosecution argued that, although appellant need not have been pointing the gun at Schenck or at anyone else to violate the statute, the evidence showed that appellant did point the gun at Schenck and intentionally pulled the trigger to scare him, to give appellant time to escape. No bullet holes were found in the garage or in the car; therefore, appellant must have fired the gun through the open garage door in Schencks direction.
Appellant points out that no one testified that he or she had witnessed the discharge of the gun. Tantarelli was running down the street; Schenck had turned his head at that moment to be sure she had gotten away. Neither of them saw appellant discharge the gun, and no one saw what he did when the gun went off. No one saw where the gun was pointed. When Schenck turned back around, he saw appellant pointing the gun toward the ground or the car parked in the garage, which appellant argues is consistent with a startled reaction to an accidental discharge. Appellant also suggests that if the discharge had been intentional, one would expect additional shots to have followed. However, even inside the house when appellant told Tantarelli, "Dont run, bitch, or Ill shoot," he did not fire the gun when she ran.
Viewed in the light most favorable to the judgment, substantial evidence supports the jurys finding that the discharge was intentional. Inside the house, appellant told Tantarelli not to run or he would shoot. She ran and escaped through the rising garage door. Schenck kept backing away from appellant, out of the garage toward the street. When he turned to see Tantarelli running to safety, the gun appellant was holding discharged. An empty casing was found in the garage, but no bullet hole was found in the garage or the car. From these facts, the jury reasonably could infer that appellant was pointing the gun through the open garage door, in the direction of Schenck and the residential neighborhood, and intentionally fired the gun. That the evidence might also support the inference that the discharge was unintentional does not assist appellant under the applicable standard of review.
B. The Exclusion of Appellants Prior Consistent Statement was Harmless Error
Appellant contends that a prior consistent statement he made in the hospital to a social worker that he was the victim of a violent crime should have been admitted to buttress his testimony when the prosecutor charged that his trial testimony was fabricated after listening to all the prosecution witnesses. Under Evidence Code section 1236, evidence of a statement previously made by a witness, i.e., hearsay, is potentially admissible "if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791." Under Evidence Code section 791, subdivision (b), evidence of "a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: . . . [P] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
The evidence is marked as Courts Exhibit 3, a copy of a hand-written note, apparently by appellant, which states in its entirety, "Especially being a victim of a violent crime." The upper right-hand corner of the document contains notes in different handwriting: "Notes to social worker" "5-10-00 1445 hrs" "Dep. Creighton 6145G."
At trial, appellants counsel sought to call Deputy Creighton as a witness to testify to appellants statements made in the hospital while the deputy was guarding him. Counsel argued the statement by appellant that he was the victim of a violent crime was admissible to support his testimony that he had been attacked by Paul Schenck in response to the prosecutors cross-examination that plainly suggested that appellant had fabricated his trial testimony. The prosecutor argued that appellant already had a motive to fabricate while in the hospital because he was under police guard and already under arrest. The court reviewed the document and ruled it inadmissible.
Our Supreme Court has made clear that "a prior consistent statement is admissible as long as the statement is made before the existence of any one of the motives that the opposing party expressly or impliedly suggests may have influenced the witnesss testimony." (People v. Noguera (1992) 4 Cal.4th 599, 629, 842 P.2d 1160.) The Court recently confirmed in People v. Hillhouse (2002) 27 Cal.4th 469 that a witnesss prior consistent statements are admissible when made prior to the motive suggested during cross-examination: "Defendant argues that [the witness] had a motive to minimize his role in the crime even before he made the prior consistent statements. This is no doubt true, but defendant also implied at trial that the plea agreement provided an additional improper motive. A prior consistent statement logically bolsters a witnesss credibility whenever it predates any motive to lie, not just when it predates all possible motives." (Id . at pp. 491-492.)
Appellant may have had a motive to lie to the social worker in the hospital because, at a minimum, he could discern from the presence of police guards that he was in some kind of trouble, even if charges had not yet been filed. However, the prosecutors cross-examination at trial suggested appellant was motivated to lie after listening to other witnesses testify, i.e., after appellant made the statement in the hospital. Accordingly, the statement was admissible under Evidence Code section 791, subdivision (b), and the trial court abused its discretion in excluding it. (People v. Waidla (2000) 22 Cal.4th 690, 725, 996 P.2d 46 [appellate court reviews for abuse of discretion any ruling of trial court on the admissibility of evidence].)
From the record, it appears that appellant was under arrest at the time he apparently made the written statement, but that charges against him had not been filed.
Nevertheless, the error in excluding the statement was harmless because appellant cannot demonstrate that it is reasonably probable that he would have received a more favorable verdict had the evidence been admitted. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) The evidence consisted of a single statement, "Especially being the victim of a violent crime." Presumably appellant was referring to himself as the victim, but there is no indication of who appellant believed perpetrated the alleged crime. There also is no detail regarding the events that transpired. In her opening statement, appellants counsel described her clients version of the events that day, including that appellant had gone to Paul Schencks house to pick up either money or drugs, had been attacked by him, and that all subsequent events flowed from that attack. Thus, appellants theory that he was the victim of a violent crime was presented to the jury before any of the prosecution witnesses testified. The prosecution implied that appellant attempted to match the details of his testimony to the physical evidence described by witnesses who had already testified. Admitting appellants prior statement would do nothing to counter the suggestion that appellant had fabricated those details after listening to the prosecutions witnesses. Thus, it is not reasonably probable that appellant would have received a more favorable verdict had the statement been admitted, and the error does not merit reversal of the judgment.
C. Appellants Prior Domestic Violence Convictions were Properly Admitted for
Impeachment Purposes
Next, appellant contends the trial court abused its discretion in allowing the prosecutor to impeach his testimony with two misdemeanor domestic violence convictions without sanitizing them to avoid reference to the nature of the offenses. Appellant contends that identifying the misdemeanors to the jury as involving domestic violence was overly prejudicial because domestic violence is a "heinous and revolting offense," that "clouded, if not blinded, the jurys eyes to the theory of defense, i.e., that appellant was attacked by Paul Schenck and all his subsequent actions were the unintended result thereof."
Before testifying, appellant sought a ruling on the prior convictions the prosecutor would be permitted to use to impeach him. He had suffered felony convictions for grand larceny in 1992 and carjacking in 1996, in addition to the two misdemeanor convictions for domestic violence in 1994.
In response to defense counsels request that the convictions for carjacking and grand larceny be referred to only as felony convictions, the court observed that leaving open the nature of the crimes "allows the jury in their unfettered imagination to conclude anything that they deem." Defense counsel accepted the courts suggestion that the felonies be referred to as "theft-related offenses." Appellant raises no issues regarding his impeachment with the felony convictions.
Regarding the misdemeanors, defense counsel argued that the prosecution should be precluded from using them for impeachment or, if the court was inclined to admit them, that they be referred to only as unspecified misdemeanors.
After hearing argument, the court stated, "It—its obvious to me from looking at other matters here that Mr. Levine has had some other problems in the past. He was on— hes had prior criminal matters and been on probation and parole. Im going to indicate that under the appropriate standard, under Castro and its progeny here, that this is a case in which the facts would clearly warrant and allow the district attorney to ask impeachment questions, limited as I have so indicated . . . ." The court ruled that the prosecutor could ask appellant if he had two misdemeanor domestic violence convictions. If appellant admitted the convictions, the prosecutor would not be able to ask about the underlying conduct. The court concluded that it was "exercising a lot of discretion in favor of [appellant]" by sanitizing the felonies the theft-related offenses and precluding any reference to the facts that led to the misdemeanor convictions.
On cross-examination, the prosecutor asked appellant if he had been convicted of felony theft-related offenses in 1992 and 1996. To both questions, appellant replied, "Yes, sir." The prosecutor also asked, "And isnt it true in September of 94, you were convicted of two misdemeanor counts involving domestic violence?" Appellant again replied, "Yes, sir." No other reference to appellants prior convictions was made during his testimony.
Conduct underlying a misdemeanor conviction that involves moral turpitude is relevant to credibility and is admissible to impeach a testifying witness, subject to the trial courts exercise of discretion under Evidence Code section 352. (People v. Wheeler (1992) 4 Cal.4th 284, 292, 295, 841 P.2d 938.) Although evidence of a misdemeanor conviction is inadmissible over a hearsay objection, appellant made no objection here. (See id. at pp. 297-300.) We review the trial courts ruling for abuse of discretion. (People v. Green (1995) 34 Cal.App.4th 165, 182-183.) "A trial courts exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]" (Id. at pp. 182-183, quoting People v. Stewart (1985) 171 Cal. App. 3d 59, 65, 215 Cal. Rptr. 716.)
In considering whether to admit evidence of a prior conviction, the trial court must first determine whether the conviction demonstrates moral turpitude so as to reflect adversely on a defendants honesty or veracity. (People v. Beagle (1972) 6 Cal.3d 441, 453, 99 Cal. Rptr. 313, 492 P.2d 1; People v. Green, supra, 34 Cal.App.4th at p. 182.) If it does, the court should then weigh the probative value of the evidence against its prejudicial effect by considering: (1) the nearness or remoteness in time of the prior conviction; (2) whether the conviction is for the same or substantially similar conduct as the charged offense; and (3) what the effect would be if the defendant chooses not to testify to avoid impeachment with the conviction. (Ibid.)
Appellant concedes that his domestic violence convictions involved moral turpitude, but seems also to contend that they do not have any bearing on his honesty or veracity. However, to concede the first point is to concede the second. The Supreme Court has explained that moral turpitude manifests itself both through crimes that involve dishonesty as well as crimes that demonstrate a "general readiness to do evil," from which a readiness to lie can be inferred. (People v. Castro (1985) 38 Cal.3d 301, 314-315, 211 Cal. Rptr. 719, 696 P.2d 111.) Domestic violence is a crime of moral turpitude that falls within the latter category. (People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402.) Thus, the domestic violence convictions meet the threshold requirement that they are crimes of moral turpitude that reflect adversely on appellants honesty and veracity.
Appellant acknowledges that the remaining factors outlined in Beagle may arguably support admission of the domestic violence priors. The 1994 convictions were not remote, were not similar to the charged offenses, and appellant testified despite the courts ruling.
Nonetheless, appellant argues that "the great prejudice inherent in those two convictions mandated their exclusion . . . ." The two felony convictions provided all the impeachment material the prosecution needed and the use of the misdemeanors "was nothing more than overkill, designed to prejudice appellant . . . ."
The trial court did not abuse its discretion in permitting impeachment with the two misdemeanor convictions. They involved moral turpitude and thus were relevant to appellants credibility. Permitting impeachment with four, rather than two, prior convictions did not amount to "overkill." Indeed, a series of convictions may have more probative value than a single conviction. (People v. Dillingham (1986) 186 Cal. App. 3d 688, 695, 231 Cal. Rptr. 20.) Because the credibility of prosecution witnesses had been impeached with prior convictions, the trial court could properly conclude that admission of defendants prior domestic violence offenses was necessary to inform the jury fully as to defendants credibility. (People v. Johnson (1991) 233 Cal. App. 3d 425, 459, 284 Cal. Rptr. 579.)
Paul Schenck was impeached with his 1994 conviction for taking or driving a vehicle without the owners permission. Prosecution witness Fos Fiame admitted a prior conviction for DUI. He denied prior convictions for giving false information to the police and for battery with serious bodily injury.
As for appellants contention that the nature of the offenses was too inflammatory, appellant cites no authority for excluding the convictions on this ground. No rule dictates that certain prior convictions involving moral turpitude are per se inadmissible for impeachment; the matter is left to the sound discretion of the trial court. Despite the heightened prejudice, a defendant may even be impeached with prior convictions for crimes similar to or identical to the crime charged, including violent crimes. (See, e.g., People v. Green, supra, 34 Cal.App.4th at pp. 182-183 [affirming admission of evidence of six prior convictions, including four involving auto theft, in a case where the charged offense was auto theft]; People v. Johnson, supra, 233 Cal. App. 3d at p. 459 [affirming admission of defendants prior murder conviction for impeachment in a murder case]; People v. Muldrow (1988) 202 Cal. App. 3d 636, 646-647, 248 Cal. Rptr. 891 [three of six prior convictions were the same as the charged offense]; People v. Stewart (1985) 171 Cal. App. 3d 59, 65-66, 215 Cal. Rptr. 716 [three prior robbery convictions admissible to impeach robbery defendant].) In People v. Johnson, the trial court observed that in a murder case in which identity was not at issue, and in which several prosecution witnesses had been impeached with prior convictions while defendant sought "to portray himself as a victimized citizen with a very minor criminal record—a prior murder conviction is very probative of credibility." (People v. Johnson,supra, 233 Cal. App. 3d at p. 458.)
Moreover, the prejudicial impact of the prior convictions was minimized. First, the offenses were misdemeanors, not felonies, from which the jury likely inferred less serious conduct than had they been felonies. Second, the court precluded any reference to the facts underlying the convictions. Third, the convictions were elicited by the prosecutor with one question on cross— examination and were not thereafter referred to during appellants testimony. Finally, the court instructed the jury with CALJIC Nos. 2.33 and 2.23.1 to consider felony and misdemeanor convictions only for the purpose of determining the believability of the witness. (People v. Lepolo (1997) 55 Cal.App.4th 85, 91-92.) We presume the jury followed these instructions. (People v. Horton (1995) 11 Cal.4th 1068, 1121, 906 P.2d 478.) Appellant has failed to carry his burden of showing that the trial court acted unreasonably in admitting the evidence, and that this resulted in a manifest miscarriage of justice.
CALJIC No. 2.33 provides: "The fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of a conviction does not necessarily destroy or impair a witnesss believability. It is one of the circumstances that you may take into consideration in weighing the testimony of that witness." CALJIC No. 2.23.1 provides: "Evidence has been introduced for the purpose of showing that a witness engaged in past criminal conduct amounting to a misdemeanor. This evidence may be considered by you only for the purpose of determining the believability of that witness. The fact that a witness engaged in past criminal conduct amounting to a misdemeanor, if it is established, does not necessarily destroy or impair a witnesss believability. It is one of the circumstances that you may take into consideration in weighing the testimony of that witness."
Furthermore, even if the trial court erred in allowing the prosecutor to impeach appellant with his prior domestic violence convictions, the error was harmless. The judgment may be reversed only if it is reasonably probable that appellant would have received a more favorable verdict in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 836.) After having examined the entire record, we conclude there was strong evidence for the jury to convict appellant of the offenses charged. Notwithstanding the admission of his misdemeanor domestic violence priors, appellants credibility was dubious in light of his prior theft-related felony convictions and his motive to lie. Putting aside the testimony of Schenck and Tantarelli, whom appellant contended lied to cover Schencks criminal activity, and that of Eugenia Palacio, who admittedly did not like appellant, there is no suggestion in the record that any of the other witnesses had a motive to lie. Appellant offered no plausible explanation for much of what happened during the time in question, including why certain items belonging to the victims were found on his person or in the vicinity of where he was arrested.
D. There was No Prosecutorial Misconduct
Appellant contends the prosecutor committed prejudicial misconduct during closing argument with a number of improper or incorrect statements, to which appellant objected. Appellant argues that although at times the trial court sustained the objection and admonished the jury to disregard the statement, the admonishments did nothing to cure the prejudice because of the extent of the misconduct and the fact that it was directed at the reasonable doubt standard. Appellant moved for a mistrial based on repeated prosecutorial misconduct. The court denied the motion.
"Improper remarks by a prosecutor can "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." (Darden v. Wainwright (1986) 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642, 40 L. Ed. 2d 431, 94 S. Ct. 1868; cf. People v. Hill (1998) 17 Cal.4th 800, 819, 952 P.2d 673.) Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair. (People v. Hill , supra, 17 Cal.4th at p. 819; People v. Berryman (1993) 6 Cal.4th 1048, 1072, 864 P.2d 40 (Berryman); People v. Price (1991) 1 Cal.4th 324, 447, 821 P.2d 610 (Price).) [P] Nevertheless, as a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm. . . . (Berryman, supra, 6 Cal.4th at p. 1072 [rejecting defendants claim of prosecutorial misconduct both for failure to object or request admonition at trial and on the merits]; Price, supra, 1 Cal.4th at pp. 447, 460-462 [declining to address whether prosecutors committed misconduct because defense did not object at trial]; People v. Montiel (1993) 5 Cal.4th 877, 914, 855 P.2d 1277 [although trial counsel objected to prosecutors remarks at trial, the failure to request admonition failed to preserve claim of prosecutorial misconduct on appeal].)" (People v. Frye, supra, 18 Cal.4th at pp. 969-970.)
Although prosecutors are held to an elevated standard of conduct because they represent the interests of the state, the scope of permissible prosecutorial argument is broad. (People v. Hill , supra, 17 Cal.4th at pp. 819-820.) "" The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature." [Citation.]" (Id . at p. 819.)
Even if misconduct is established, it is not necessarily reversible. In reviewing appellants claims that the prosecutors remarks to the jury constituted misconduct, we must determine whether appellant has shown a "reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. [Citation.]" (People v. Frye, supra, 18 Cal.4th at p. 970.) When evaluated under this standard, appellants claim has no merit.
1. Appellants right to be present in court
Appellant argues the prosecutor impugned his Sixth Amendment right to confront the witnesses against him. In arguing that appellant lied on the stand and tried to match his testimony to the evidence put on by the prosecution, the prosecutor stated, "You got to remember he has a little bit of an advantage here. None of the other witnesses get to see everybody else testify. They dont get to know what all the testimony is." Defense counsel objected. The court struck the comment, admonished the jury to disregard it, and explained that the defendant was required to be present during the course of the trial. The prosecutor then repeated his point, "The fact of the matter is the defendant gets to hear everybodys testimony," before continuing with his argument that appellants testimony was different from what was promised in the defense opening statement.
Appellant contends the jury likely took the prosecutors comments to heart and viewed appellants testimony with skepticism because the prosecutor told them appellant had an unfair advantage. We find the courts admonition and explanation to the jury ample to cure any suggestion that it was improper for appellant to testify after the prosecution had put on its case. (People. v. Pitts (1990) 223 Cal. App. 3d 606, 692, 696, 273 Cal. Rptr. 757 ["[a] jury will generally be presumed to have followed an admonition to disregard improper evidence or comments"].)
2. Reasonable doubt standard
Appellant contends several remarks by the prosecutor violated his due process right to proof beyond a reasonable doubt. In his opening argument, the prosecutor attempted to explain the reasonable doubt standard of proof: "If you look at all the evidence in this case and all the testimony and you say to yourself its reasonable the defendant committed all these crimes, and you find yourself in the next breath saying but, you know, its possible this happened, you must convict." The defense objected that the prosecutor had misstated the burden of proof. The court sustained the objection and instructed the prosecutor to rephrase. The prosecutor then told the jury, "If you have the only reasonable interpretation is hes guilty of the crime, and you say to yourself its possible this happened, the law says, reasonable doubt does not mean I have to prove my case beyond any possible or imaginary doubt. Of course, she [defense counsel] doesnt want me to tell you that." Defense counsel objected that the prosecutor was "disparaging my role after misstating the burden of proof." The court stated, "Thats improper. You should not refer to your opponent in that way, and the jury is admonished to disregard that remark by counsel." The prosecutor resumed his argument: "You can read the instruction yourself. Trust me, its there. It says I do not have to prove my case beyond any possible or imaginary doubt."
Appellants contention that, as a result of the prosecutors misrepresenting the reasonable doubt standard, it is reasonably likely that the jury found appellant guilty under something less than the constitutionally required standard is without merit. The trial court properly directed the prosecutor to rephrase his argument regarding the reasonable doubt standard. As rephrased, the prosecutors argument that "reasonable doubt does not mean I have to prove my case beyond any possible or imaginary doubt" is not an incorrect statement of the law. (See CALJIC No. 2.90.)
Appellant contends the prosecutor repeated and emphasized his erroneous interpretation of the standard of proof in his rebuttal argument when he stated: "You have to look at all the evidence as a whole, the whole set of circumstances, all the evidence and then ask yourself is there a reasonable interpretation pointing to guilt? If the answer is yes, and theres no reasonable interpretation pointing to innocence, you must find him guilty."
Defense counsel failed to object to this statement, and therefore the argument is waived. (People v. Williams (1997) 16 Cal.4th 153, 208-209, 940 P.2d 710.) Moreover, appellant has taken the challenged statement out of context in contending that the jury likely found appellant guilty under something less than the constitutionally required reasonable doubt standard. The prosecutor made the comments in the midst of a discussion of direct and circumstantial evidence in response to defense counsels argument regarding circumstantial evidence. The prosecutor referred to the jury instructions on direct and circumstantial evidence and urged the jury to read them. In addition, the court instructed the jury that the prosecution had the burden of proving appellants guilt beyond a reasonable doubt and that appellant had no burden to prove his innocence. The court also reminded the jury on at least two occasions, including just prior to this particular statement by the prosecutor, that it receives the law from the court and must disregard any misstatement of the instructions by the attorneys. Thus, even if the statement amounted to misconduct, defense counsel could reasonably disregard it. The statement could not have prejudiced appellant.
Appellant complains that the prosecutor also asked the jury to deviate from the correct standard of proof when he urged it to "tell that man no, we will not tolerate this in our community." Defense counsel objected that the comment was improper. The court struck the remark, observing "thats not the standard by which the jury functions. You are independent fact finders and not the conscience of the community." Appellant contends that, despite the admonition, the damage was done. Once again, we disagree. The admonition was sufficient to cure any impropriety. (See People v. Pitts, supra, 223 Cal. App. 3d at p. 692.)
3. Burden of proof
Appellant next contends the prosecutor also tried to shift the burden of proof by telling the jury to "Challenge her [defense counsel] to answer your questions, the whys you have about the defendants ridiculous story." Appellant complains that although the court told the jury to disregard the comment, it did not remind the jury that appellant had no burden of proof whatsoever and that the prosecution had the burden of proving appellants guilt.
No further admonishment was required, and defense counsel requested no such additional admonition. Moreover, "parties typically challenge the other side to explain to the jury questionable facts and inferences." (People v. Frye, supra, 18 Cal.4th at p. 973; United States v. Mares (9th Cir. 1991) 940 F.2d 455, 461.) The prosecutors remark was a comment on appellants case and did not suggest that appellant had the burden of proving his innocence. The prosecutor had already explained that he had the burden as to each element of every count. And, as we have previously indicated, the trial court instructed the jury that appellant was presumed innocent and that the prosecution had the burden of proving him guilty beyond a reasonable doubt.
4. Misstatements of the evidence
Appellants entire argument on this point is as follows: "Regarding his argument about defense witness Dr. Laportas testimony, the prosecutor conceded that he misstated the doctors testimony. Misstating testimony is improper. (Darden v. Wainwright, supra, 477 U.S. at [pp.] 181-182.)" Appellant is correct that, in one instance, the prosecutor offered to rephrase his point in response to defense counsels objection that he had misstated the testimony, although the court seemed inclined to overrule the objection. Defense counsel then objected that the prosecutors statement was not the doctors "exact testimony." The court overruled that objection, stating, "I dont know when youre going to have a trial-Ive been in this business for 40 years-where both lawyers agree to what the witnesses said so thats why we have jurors here." The court made clear that the lawyers do not create the evidence and that the jurors were to decide what the facts were from the evidence presented.
In response to a subsequent objection from defense counsel that the prosecutor was mischaracterizing the evidence, the court again reminded the jury that "the role of the lawyers is far different than the role of the jury in evaluating what the evidence is or what the law is." The prosecutors statements were fair comment on the evidence and did not impermissibly misstate the testimony.
E. The circumstantial evidence instructions did not undermine the standard of proof beyond a reasonable doubt
Finally, appellant contends the jury instructions on circumstantial evidence undermined the requirement that guilt be determined beyond a reasonable doubt. Appellant claims that, although the trial court instructed the jury pursuant to CALJIC No. 2.90 that appellant was presumed innocent until proven guilty and that the prosecution had the burden of proving appellants guilt beyond a reasonable doubt, the two instructions on circumstantial evidence "informed the jury, in essentially identical terms, that if one interpretation of the evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable." The prosecutor exacerbated the problem, according to appellant, by arguing that "if guilt were reasonable," the jury must convict. The instructions are unconstitutional, appellant contends, because they required the jury to (1) accept an interpretation of the evidence adverse to appellant so long as it appeared to be reasonable, in contravention of the reasonable doubt standard, and (2) draw an incriminatory inference when such an inference merely appeared to be reasonable.
The instructions at issue are CALJIC Nos. 2.01 and 2.02. As stated by the court to the jury, CALJIC No. 2.01 provides: "However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only: One, consistent with the theory that the defendant is guilty of the crime; but two, cannot be reconciled with any other rational conclusion. [P] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. [P] In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be [] proved beyond a reasonable doubt. [P] Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which points to the defendants guilt and the other to his innocence, you must adopt that interpretation that points to the defendants innocence, and reject that interpretation that points to his guilt. [P] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
The 1999 revision of CALJIC No. 2.02, as stated by the court to the jury, provides: "The specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crimes charged in Counts 1, 2, 3 and 6, or the crimes of theft or attempted criminal threats, which are lesser crimes, or find the allegations to be true unless the proved circumstances are not only: One, consistent with the theory that the defendant had the required specific intent or mental state; but two, cannot be reconciled with any other rational conclusion. [P] Also if the evidence as to any specific intent or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent or mental state and [the] other to its absence, you must adopt that interpretation which points to its absence. [P] If, on the other hand, one interpretation of the evidence as to the specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
Respondent correctly observes that our Supreme Court has already rejected the argument that the circumstantial evidence jury instructions undermine the reasonable doubt standard. (People v. Wilson (1992) 3 Cal.4th 926, 943, 838 P.2d 1212 (Wilson ).) Addressing the contention that the circumstantial evidence instructions, including CALJIC Nos. 2.01 and 2.02, negated the presumption of innocence and the standard of proof beyond a reasonable doubt, the Court stated: "We disagree. "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." [Citations.] Here, CALJIC No. 2.01 makes clear that circumstantial evidence is sufficient to prove guilt only if it cannot be reconciled with any other rational conclusion. The words rational and reasonable in the context of CALJIC No. 2.01 must be read in conjunction with the instruction on reasonable doubt (CALJIC No. 2.90.) [Citation.] That instruction informs the jurors that in the event they harbor a reasonable doubt concerning guilt, they are required to acquit. . . . [P] Therefore, a reasonable juror would understand that, taken in context, the relevant language of CALJIC No. 2.01 . . . must be considered in conjunction with the reasonable doubt standard. Thus, the jury properly can find the prosecutions theory as to the interpretation of the circumstantial evidence reasonable and alternate theories favorable to the defense unreasonable, within the meaning of these instructions, only if the jury is convinced beyond a reasonable doubt of the accuracy of the prosecutions theory. [Citation.] The paragraph criticized by defendant therefore does not tell the jury to reject interpretations of circumstantial evidence favorable to the defense simply because they are unusual or bizarre, [but] merely tells them to reject interpretations of circumstantial evidence that are so incredible or so devoid of logic that they can, beyond a reasonable doubt, be rejected. [Citation.] Accordingly, when the instructions are viewed as a whole, the disputed language does not undermine the instructions on the presumption of innocence and the standard of proof beyond a reasonable doubt, and does not impermissibly create a mandatory conclusive presumption of guilt." (Wilson, supra, 3 Cal.4th at p. 943.)
The Supreme Court recently reaffirmed its view that CALJIC No. 2.02 is entirely consistent with the standard of proof beyond a reasonable doubt. (People v. Reliford (2003) 29 Cal.4th 1007, 1016 (Reliford).) "The jury was told that circumstantial evidence could support a finding of guilt of the charged offenses only if the proved circumstances could not be reconciled with any other rational conclusion . . .—which is merely another way of restating the reasonable-doubt standard." (Id. at p. 1016; citing People v. Carpenter (1997) 15 Cal.4th 312, 383, 935 P.2d 708.)
We are, of course, bound by the holdings inWilson and Reliford. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.) In addition, for the reasons previously stated, we find no prejudicial error in the prosecutors closing argument regarding the burden of proof. (See section D.2., ante.) In light of the instructions as a whole, it was not reasonably likely that the jury convicted appellant upon a standard less than the constitutionally required proof beyond a reasonable doubt. (Wilson, supra, 3 Cal.4th at p. 943.)
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., and Ruvolo, J.