Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF158780 Patrick J. O'Hara, Judge.
S. Lynne Klein, 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, Janis Shank McLean and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Harris, J. and Levy, J.
Appellant’s attempt to rob a bank in Exeter resulted in an 11-hour standoff with police, during which appellant held hostages inside the bank. The standoff ended when a SWAT team rushed inside the bank and apprehended appellant. A jury found appellant guilty of five counts of second degree robbery (Pen. Code,§ 211; counts 1 through 5), five counts of false imprisonment of a hostage (§ 210.5; counts 6 through 10), two counts of false imprisonment (§ 236; counts 11 & 12), and one count of commercial burglary (§ 459; count 13).
All further references are to the Penal Code unless otherwise stated.
Allegations of five section 1170.12, subdivision (c)(2) prior felony convictions (commonly called “strikes”) and of five prior serious felony convictions (§ 667, subd. (a)(1)) were tried separately to the court after conclusion of the jury trial. The court found the prior conviction allegations to be true. All five of those prior felony convictions were for armed bank robbery (18 U.S.C. § 2113). The court sentenced appellant as follows: 25 years to life on the count 1 robbery conviction, enhanced by five consecutive 5-year section 667, subdivision (a) enhancements for each of appellant’s five prior felony convictions; concurrent terms of 25 years to life on all remaining counts except for the commercial burglary (counts 2 through 12), with five, 5-year section 667, subdivision (a) enhancements imposed and stayed on all of these counts; and 25 years to life on the commercial burglary (count 13), imposed and stayed pursuant to section 654, with five 5-year section 667, subdivision (a) enhancements also imposed and stayed pursuant to section 654. The total term imposed was 50 years to life.
APPELLANT’S CONTENTIONS
Appellant raises three contentions of error.
First, he contends that there is insufficient evidence to support the court’s finding that he suffered five prior serious felony convictions “on charges brought and tried separately.” (§ 667, subd. (a)(1).) He contends the evidence presented showed that only three of his five prior “serious felony” convictions (see §§ 667, subd. (a)(4) & 1192.7, subd. (c)) came “on charges brought and tried separately” (§ 667, subd. (a)(1)). Respondent concedes the error, and concedes that the judgment should be modified to reflect only three section 667, subdivision (a) prior serious felony convictions.
Second, he contends that the court erred in imposing all of the 5-year section 667, subdivision (a) enhancements imposed (and stayed) on counts six through 13 because the statute authorizes such an enhancement only on “any person convicted of a serious felony who previously has been convicted of a serious felony …” (§ 667, subd. (a)(1)), and none of the crimes of which appellant was convicted on these counts (false imprisonment of a hostage, § 210.5; false imprisonment, § 236; & commercial burglary, § 459) fall within the definition of “serious felony” (see § 667, subd. (a)(4) & 1192.7, subd. (c)). Respondent again concedes the error.
Third, he contends that the court’s use of the CALCRIM No. 220 reasonable doubt instruction violated his Fourteenth Amendment right to due process of law because it prevented appellant’s jury from considering “lack of evidence” in determining whether a reasonable doubt existed as to appellant’s guilt of any of the crimes charged. We considered and rejected this same argument in People v. Flores (2007) 153 Cal.App.4th 1088, where we stated: “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.) … The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt.” (People v. Flores, supra, 153 Cal.App.4th at p. 1093.) We reject it again here. The same argument has also been rejected by the Fourth District, Division One, in People v. Westbrooks (2007) 151 Cal.App.4th 1500, where the court stated “it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating that the jury was precluded from considering any perceived lack of evidence in determining Westbrooks guilt.” (Westbrooks, supra, at p. 1510, fn. omitted.) No court has concluded otherwise.
The court instructed appellant’s jury with CALCRIM No. 220 as follows:
DISPOSITION
The matter is remanded to the superior court, and we direct that court to modify the judgment by (1) striking all of the section 667, subdivision (a) enhancements imposed on counts 6 through 13, and (2) striking two of the five section 667, subdivision (a) enhancements imposed on each of counts 1 through 5 (leaving three unstated 5-year § 667, subd. (a) enhancements on count 1 and three stayed 5-year § 667, subd. (a) enhancements on counts 2 through 5). The court shall reenter judgment as so modified. In all other respects, the judgment is affirmed.
“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 that the charge is true. 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.”