Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA293551, Lee Smalley Edmon, Judge.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
David Maxwell appeals from his conviction for one count of possession for sale of marijuana. On appeal he claims the court gave a legally inadequate jury instruction CALCRIM 220 concerning the reasonable doubt standard, which effectively precluded the jury from considering the lack of evidence connecting Maxwell to the crime. As we shall explain, his claim lacks merit. CALCRIM 220 adequately conveys the matters for the jury to assess when considering the reasonable doubt standard. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the fall of 2005, a United States postal inspector involved in examining in-coming and out-going mail from Los Angeles for evidence of narcotics transactions (i.e., parcels containing narcotics and narcotics proceeds) observed a suspicious incoming package he thought might contain a money order to pay for a drug order.
The suspicious package the inspector found was addressed to David Maxwell at 314 South Catalina Street #303 at Los Angeles, 90020. The return address was for Dane or Dave Clarke at 1600 Penn Avenue in Miami, Florida. The officers learned that 1600 Penn Avenue is a large apartment complex but there was no apartment listed. The lack of an apartment number and the spelling of the sender’s last name were factors that made the package suspicious.
According to the inspector Miami, Florida, is a destination for narcotics from Southern California and the last name Clarke, with an “e” on the end, is a common Jamaican spelling.
When the suspicious item is a parcel that appears to contain a money order, officers go to the address and attempt to get consent to open the parcel. Consequently, on the afternoon of November 17, 2005, the postal inspector accompanied by another postal inspector and a Los Angeles Police Department Detective went to 314 South Catalina, apartment #303. When the officers knocked, Maxwell answered the front door, stepped out of the apartment and closed the door behind him. The officers identified themselves and said that they were looking for David Maxwell and Maxwell identified himself, presenting his driver’s license.
When asked about the parcel, Maxwell said he was uncertain about knowing a Dane Clarke in Miami, Florida, but said he was expecting a package that might contain a CD. Maxwell gave the officers consent to open the parcel. The officers opened it and pulled out a DVD. A money order for $1,000 also fell out. Maxwell said it was “spending money.” During their conversation, another man, later identified as Robert Carter, came out of the apartment and walked out without saying anything and the officers did not detain him.
Maxwell denied there were any drugs in the apartment and consented to a search of the premises. During the search officers found a gym bag in the closet and noticed a very strong odor of marijuana coming from the bag. They also found packaging materials and other items that the officers knew to be commonly used by shippers of narcotics. A rental agreement was taped to a wall in the apartment, listing the names of Robert Carter and another person.
When asked, Maxwell told the officers there was marijuana in the kitchen and told them it was under the sink. Under the kitchen sink in a plastic bag officers found what appeared to be about four pounds of marijuana.
It was later determined the package seized from the apartment contained 1760.60 net grams, or 3.88 pounds, of marijuana.
Maxwell was arrested. When the officers searched him after his arrest, they found a key to the apartment and $527 in cash. Officers also found another postal service money order, dated November 16, 2005, also from Miami, Florida for $900.
Maxwell was charged with one count of possession for sale of marijuana in violation of Health and Safety Code section 11359. It was further alleged he had a prior conviction for a violation of Health and Safety Code section 11350. Appellant pleaded not guilty.
During the trial the postal inspector testified that based on his training and experience, the marijuana in the apartment was possessed for the purpose of trafficking. The police detective opined the marijuana found in the apartment was possessed for the purpose of sale. The detective further stated marijuana was commonly purchased on the west coast where it sells from $300 to $600 a pound and shipped to Florida where it would sells for a higher price. He also observed it is common for a rented apartment to be used as a location from which drugs are distributed and money is received and that the lease be held in another person’s name.
The jury found Maxwell guilty. The court granted Maxwell probation for a period of three years with the condition, among others, that he spend the first 90 days in county jail.
Maxwell appeals.
DISCUSSION
We review de novo the validity of the trial court’s jury instructions. (People v. Burch (2007) 148 Cal.App.4th 862, 870.) Maxwell argues that the trial court’s use of CALCRIM No. 220 violated his right to due process because the instruction precluded the jury from considering whether a lack of evidence raised a reasonable doubt. We disagree.
CALCRIM No. 220, as given by the trial court, provides in relevant part, “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, as given, provides in relevant part, “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, the exhibits admitted into evidence, and anything else I told you to consider as evidence.”
Maxwell argues that CALCRIM No. 220 requires the jury in deciding whether the People have proved their case beyond a reasonable doubt, to impartially compare and consider all the evidence that was received throughout the entire trial. CALCRIM No. 222 limits “evidence” to “the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.” Taken together, Maxwell contends, these instructions permitted the jury to consider only whether the evidence received at trial gave rise to a reasonable doubt, not whether a lack of evidence gave rise to a reasonable doubt. Specifically he argues these CALCRIM instructions prevented the jury from considering his defense theory his counsel argued to the jury, namely, that there was lack of evidence to connect Maxwell to these crimes and the premises where the drug transactions allegedly occurred.
In People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093 the Fifth District, in People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510 the Fourth District, and in People v. Guerrero (Oct. 3, 2007, C052364) ___ Cal.App.4th ___ [07 D.A.R. 15362] the Third District rejected similar challenges to CALCRIM 220 and concluded that the instruction did not violate due process or lessen the burden to prove guilt beyond a reasonable doubt.
As we shall explain, CALCRIM 220 does not misstate the reasonable doubt standard nor did it deprive Maxwell of due process. The challenged instruction did not prevent the jury from considering whether the prosecution failed to present sufficient evidence to sustain its burden of proof. Rather, the jury was likely “to understand by this instruction the almost self-evident principle that the determination of defendant’s culpability beyond a reasonable doubt . . . must be based on a review of the evidence presented.” (People v. Hawkins (1995) 10 Cal.4th 920, 963, abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110.) The jury was instructed, “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. [¶] . . . [¶] Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” The jury was further instructed that the defendant “has an absolute constitutional right not to testify,” and “may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.” The trial court also instructed the jury, that the People must prove all of the elements of the crimes charged. Inherent in the trial court’s numerous instructions to the jury that the prosecution bore the burden to prove defendant’s guilt beyond a reasonable doubt is the notion that the prosecution’s failure to adduce evidence on an element of the charges—that is, a lack of evidence—compels acquittal.
Maxwell relies on People v. Simpson (1954) 43 Cal.2d 553 and People v. McCullough (1979) 100 Cal.App.3d 169. Neither case is determinative. In Simpson, the defendant argued that the trial court’s instruction on reasonable doubt had shifted the burden to the defendant to prove his innocence. In relevant part, the trial court had instructed the jury, “‘The term “reasonable doubt,” as used in these instructions, means a doubt which has some good reason for its existence arising out of the evidence in the case; such doubt as you are able to find a reason for in the evidence.’” (People v. Simpson, supra, 43 Cal.2d at p. 565.) The Supreme Court held this language was “not necessary” and “could have been confusing” because “reasonable doubt . . . may well grow out of the lack of evidence in the case as well as the evidence adduced.” (Id. at p. 566.) The Court nevertheless concluded that, “under the circumstances here prevailing,” it did not believe “the jury could have been confused, or the defendant prejudiced” by the instruction. (Ibid.)
In People v. McCullough, supra, 100 Cal.App.3d at pages 180-182, the trial court orally answered jurors’ questions regarding the definition of reasonable doubt. A juror asked, “So then the doubt must arise from evidence?” The trial court answered, “Well, I would answer that yes, . . . if your question is—what is reasonable doubt—reasonable doubt is that state of the case which, after a comparison and consideration of all the evidence—that is the evidence introduced in the trial . . . consideration of all of the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” (Id. at p. 181.) The court of appeal held that “the trial court misled the jury by telling it that the ‘doubt must arise from the evidence’” because reasonable doubt “‘may well grow out of the lack of evidence in the case as well as the evidence adduced.’” (Id. at p. 182.) The court concluded, however, that the error was harmless. (Id. at p. 183.)
Unlike both People v. Simpson, supra, 43 Cal.2d 553 and People v. McCullough, supra, 100 Cal.App.3d 169, the trial court in this case did not instruct the jury that reasonable doubt must arise from the evidence. Rather, the trial court instructed the jury that, in deciding whether the prosecution met its burden of proof, the jury must “compare and consider all the evidence.” Nothing in the trial court’s instructions communicated to the jury that it could not consider a lack of evidence in deciding whether the prosecution met its burden to prove defendant guilty beyond a reasonable doubt. There is no reasonable likelihood that the jury construed or applied the challenged instruction as Maxwell maintains or in a manner that denied him due process.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J. ZELON, J.