Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF017046, H. Ronald Domnitz, Judge. Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.
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, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez, Deputy Attorney General, for Plaintiff and Respondent.
RICHLI Acting P.J.
On June 23, 2006, defendant Raven Medina was driving down Acacia Street in Hemet during the early evening hours. Kevin Lee and Paul Alexander were riding their bicycles in the middle of Acacia Street. As defendant tried to pass them, she and Lee exchanged words. Defendant stopped her car, and a physical altercation ensued between the occupants of defendant’s car and the bicyclists. Lee and Alexander got on their bicycles and rode off. Defendant followed after them and eventually swerved into oncoming traffic in order to hit Lee’s bicycle with her car. Lee flew through the air until he hit a telephone pole. Defendant drove one block but had to stop due to a flat tire. Alexander ran after her and began yelling at her. Defendant then reversed her car and tried to hit Alexander.
Defendant was convicted of the attempted murder and assault with a deadly weapon of Lee and assault with a deadly weapon against Alexander, along with great bodily injury and deadly weapon use enhancements. Defendant now contends:
1. The trial court erred by denying her mistrial motions brought on the basis that the prosecutor intentionally elicited inadmissible evidence.
2. She received ineffective assistance of counsel due to her counsel’s failure to object to inadmissible hearsay evidence presented to support the great bodily injury enhancement.
3. Judicial Council of California Criminal Jury Instructions (CALCRIM) Nos. 223, 226, and 302 were erroneous, or, in the alternative, ambiguous as applied here.
We find that no prejudicial error and affirm the judgment in its entirety.
I
PROCEDURAL BACKGROUND
Defendant was found guilty of the attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)) of Lee, with the special allegations that she caused great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly or dangerous weapon (§ 667 and 1192.7, subd. (c)(23)). The jury also found defendant guilty of assault with a deadly weapon (§ 245, subd. (a)(1)) against Alexander, with the special allegation that she personally used a deadly or dangerous weapon (§§ 667, 1192.7, subd. (c)(23)). Defendant was sentenced to nine years in state prison, consisting of five years on the attempted murder of Lee, plus four years for the enhancements on that charge; the three-year sentence imposed for the assault on Alexander and the enhancement to that charge were to run concurrently.
The jury rejected the allegation that the attempted murder was willful, premeditated, and deliberate.
All further statutory references are to the Penal Code unless otherwise indicated.
II
FACTUAL BACKGROUND
A. Prosecution
On June 23, 2006, Paul Alexander and Kevin Lee had been at Alexander’s house in Hemet barbecuing, drinking beer and hard alcohol, and smoking marijuana. They then decided to go to a nearby area to jump their bicycles. Lee was part of a sponsored bicycle racing and jumping team. As they were riding westbound on Acacia Street, a car driven by defendant pulled up. Kimberly Kincade and Charles Gordon were passengers in defendant’s car. They were on their way to defendant’s house. Lee and defendant exchanged words as defendant tried to get around him and Alexander. Lee admitted that he cut defendant off at a stop sign. Defendant “flip[ed] . . . off” Lee and yelled “‘F you’” at him.
Defendant stopped her car in front of Lee, blocking his way. Defendant got out of her car and was yelling, “What the fuck? What the fuck?” Defendant started swinging at Lee, and he pushed her back to protect himself. Gordon got out of the back seat and asked Lee what his problem was and also started swinging at him. Lee swung back at him. Lee got away and started to speed off on his bicycle.
Alexander claimed that there was no physical altercation between Lee and the occupants of the car. Alexander told Lee to keep riding, and they continued westbound on Acacia Street.
As Lee and Alexander were riding on Acacia Street, Alexander watched defendant speed past him and then cross the eastbound lane and hit Lee. Alexander yelled to Lee to watch out. He estimated that defendant was driving 50 miles per hour. Lee estimated that he was traveling between 15 to 25 miles per hour when defendant caught up to him and hit him. Lee was up on the street curb, so defendant had to drive up on the curb to hit Lee. Defendant did not hit the brakes. Lee hit the windshield of defendant’s car, flew through the air, and hit his head on a nearby telephone pole.
Defendant then drove for about 50 feet and stopped, presumably because of a flat tire. Alexander ran to defendant’s car because he thought she was going to try to leave. As he ran to the car, defendant put the car in reverse. Another man by the car told Alexander to move. Defendant put the car in reverse and, according to Alexander, tried to hit him.
Alexander denied that he ever tried to hit defendant after she hit Lee.
Charles Jackson was driving northbound on Santa Fe Avenue toward the intersection of Acacia Street on that night when he saw defendant’s car in the middle of the street and several persons engaged in what appeared to him to be a verbal altercation. Jackson observed Lee and Alexander get back on their bicycles and continue westbound on Acacia Street, traveling in the eastbound lanes. Defendant and Gordon got in their car and drove westbound on Acacia Street.
Defendant then veered into the eastbound lane and “thumped” Lee’s bicycle. Lee traveled 10 feet in the air and was knocked into a nearby pole or sign. Another witness estimated defendant’s car was moving 30 to 35 miles per hour at the time she hit Lee, and that defendant did not hit the brakes before hitting Lee.
Defendant got back in the westbound lane and continued to drive, appearing to leave the scene. Johnson followed her. Defendant drove to the next intersection and stopped. Johnson positioned his car in front of her so she could not leave again.
Johnson approached defendant. She was very emotional. Johnson tried to settle her down. As Johnson waited with defendant, Alexander approached the car. Johnson observed Alexander enter defendant’s car and hit her several times. Defendant put the car in reverse and backed up. Alexander jumped out of the car and ended up in front of the car. Defendant then put the car in drive and hit the gas. Alexander jumped up on the curb against a fence. Defendant drove over the curb up toward Alexander but either did not quite hit him or just slightly hit him with her bumper. She then reversed the car, and Alexander ran away. She appeared as though she was going to leave the scene, but Johnson convinced her to stay until the police arrived.
Kincade, who was riding in the car with defendant, claimed that Lee and Alexander started hitting and kicking defendant’s car when they first came up on them. While defendant and Gordon got out of the car and fought Lee and Alexander, Kincade stayed in the car. Defendant and Gordon got back in the car. They drove in the same direction as the bicyclists, and then defendant just “hit him.” Defendant said nothing to Kincade before hitting Lee.
Defendant kept driving but came to a stop. Alexander approached defendant’s car. Kincade thought defendant was going to hit him with her car so she grabbed the wheel and turned it the other way so that defendant would not hit him.
Hemet Police Corporal Jeffrey Davis responded to the scene. He found Lee lying on the ground with a bicycle near his feet. Lee had blood on his head and face and scrapes on this legs and hands. Alexander appeared intoxicated and smelled of alcohol. Lee did not appear to be intoxicated and asked for Officer Davis to call his wife. Lee had to be taken from the scene by a helicopter.
Hemet Police Officer Robert Galletta interviewed defendant at the scene. He observed damage to defendant’s front windshield and her side view mirror. Her front tire was flat.
When Officer Galletta first encountered defendant, she was crying hysterically and was very emotional. Defendant told Officer Galletta she had been driving with Kincade and Gordon westbound on Acacia Street. As she was driving, she came upon three bicyclists who were riding in the middle of the road. When she tried to pass them, one of the bicyclists stopped in the middle of the road and said to her, “‘What? You got a problem?’” The three bicyclists started circling her car and began reaching into her open car windows, striking her and the passengers. Defendant claimed she was dragged out of her car and kicked in the face. She also claimed to have been struck in the back of the head. Defendant did not appear to have any physical injuries.
The three bicyclists eventually got on their bicycles and started to ride off. Defendant and her passengers got back in her car and continued driving westbound on Acacia Street. Defendant then passed some cars and struck one of the bicyclists. She told Officer Galletta she did not know what came over her and that she just hit him. Defendant admitted chasing and hitting the victim.
Lee testified at trial that as a result of being hit, he had road rash down his side, back, and arms; he had wounds to his head that caused memory loss; he had surgery on his right ankle, during which three screws and a rod were put in his ankle; and he was in the hospital for three to four days. Since the accident, he has walked with a limp, he missed two or three months of work, and he could no longer race bicycles professionally.
B. Defense
Defendant testified on her own behalf. She said was driving back to her house after picking up Gordon from work. As she was driving, she came upon Lee and Alexander driving in her lane. Kincade yelled at them, and defendant honked and moved around them. She then stopped at a stop sign. As she was stopped, either Lee or Alexander reached in the window and grabbed the steering wheel. She tried to push him away, but he pulled her out of her car and hit her. Gordon got out of the car and pulled either Lee or Alexander off of her. Defendant was able to get back in her car. As she was driving off, she heard one of the bicyclists say, “[T]his isn’t over bitch. We’re going to find you.”
Defendant then drove down Acacia Street. She recalled hitting the cyclist with her front bumper. She was thinking when she hit him that she wanted the police to come and find them so they would not come back and hurt her. She did not intend to kill him; she only wanted to stop him. Defendant admitted she was traveling about 30 to 35 miles per hour and that she veered into the opposite lane to hit him.
As she was stopped, one of the bicyclists came up to her window and started hitting her. She put the car in reverse. She was trying to get away, not trying to hit him. After the incident, defendant was crying, hysterical, and threw up on herself. Defendant did not render aid to the victim or give her information because she was afraid of them.
III
DENIAL OF MISTRIAL MOTION
Defendant contends her conviction for assault with a deadly weapon against Alexander must be reversed because the prosecutor intentionally elicited inadmissible evidence during his case-in-chief, and the trial court erroneously refused to grant her mistrial motions.
A. Additional Factual Background
Prior to trial, defendant moved to exclude any references by witnesses to the fact that they believed defendant was intending to strike or purposely hit Lee and Alexander. Defendant asked the trial court to order the prosecution to limit their witnesses to testimony about their observations and to be careful about implying anything about her mental state at the time. The trial court ruled: “There’s no question they can describe what they saw. They cannot say, I know that she was trying to hit them. So they can -- if someone saw her drive down the street, veer to the left, and proceed on to hit the bicyclist, they can testify to that. But they can’t say you know, I know that she was trying to hit them. They can say, I didn’t see her take any action to avoid them.” The prosecutor clarified that any statements that defendant was trying to kill Alexander and Lee would be excluded but that any personal observations would be admissible.
During Kincaide’s testimony the prosecutor asked her: “Now, when you talked about this with the police, do you recall saying that she was trying to hit the second guy?” Defendant objected on the ground that the issue had been previously covered in a “402.” The objection was overruled. Kincade was allowed to answer but first claimed she did not recall telling the police that defendant tried to hit the bicyclist. The prosecutor then reframed the question, asking: “Okay. All right. Do you recall telling the police she went over the curb, and then she was backing up and tried to hit him? Do you recall saying that?” Defendant’s objection under “402” was overruled. Kincade again claimed she did not recall. The prosecutor asked a third time: “Okay. And do you remember you saying, no, she backed up and tried to hit him?” Kincade then stated she recalled making the statement. The prosecutor then stated: “And that you had to grab the steering wheel so that she wouldn’t hit him. Is that true?” Kincade responded, “Yes,” and said that defendant tried to hit the second bicyclist only one time.
The trial court then admonished the jury immediately: “The only reason that we allow this testimony is to show her state of mind, not to show the state of mind of the defendant. And her state of mind is important because it explains why she grabbed the steering wheel. That’s the limited purpose for this testimony about what she thought the defendant was going to do. . . . [¶] . . . And that’s the only reason that you can consider that testimony is for that limited purpose. No other purpose.”
Later, the prosecutor asked Kincade: “The only time you grabbed the steering [wheel] was when she was trying to hit the second boy on the bicycle; is that correct?” Defendant’s objection was sustained. The trial court admonished the prosecutor to not go any further into that area.
At the end of Kincade’s testimony, defendant moved for a mistrial. Defendant argued that the prosecutor had violated the court’s order that he not question witnesses on their perception of what defendant was trying to do. She argued the curative instruction was insufficient. She made a motion for mistrial because her right to a fair trial had been infringed because the issue of intent had been “clouded by the district attorney.” She argued that the prosecutor had acted intentionally and had made a “desperate move” to get in evidence of intent.
The prosecutor argued that Kincade was an uncooperative witness, and he was having trouble getting her testimony. The trial court felt the testimony was properly admitted to show why Kincade grabbed the steering wheel. Otherwise her testimony would not have made any sense. The trial court denied the mistrial motion but agreed to give a limiting instruction to the jury at the end of the case.
Later, the parties discussed the limiting instruction. Defendant brought a second mistrial motion. Defendant also asked the court to consider giving an instruction that reflected the court’s ruling and the prosecution’s disregard of the order. Defendant disagreed that Kincade was an uncooperative witness and argued the prosecutor intended to disobey the court’s order no matter what, but the trial court disagreed.
Defendant drafted a limiting instruction, but the trial court rejected it as improper. The prosecutor prepared a limiting instruction and it was given to the jury as follows: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. Kimberly Kincade testified that she thought [defendant] was trying to hit a cyclist (Paul Alexander). This statement should not be used to find that [defendant] intended to hit that cyclist. This information was admitted to show why Ms. Kincade grabbed and turned the steering wheel in the incident involving Paul Alexander.”
B. Analysis
Although defendant refers to prosecutorial misconduct, we view her claim as an attack on the denial of her mistrial motions.
“A trial court should grant a motion for mistrial ‘only when “‘a party’s chances of receiving a fair trial have been irreparably damaged’”’ [citation], that is, if it is ‘apprised of prejudice that it judges incurable by admonition or instruction’ [citation]. ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.] Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of discretion. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 573.)
Here, defendant complains that the prosecutor intentionally elicited testimony, that had been excluded by the trial court prior to trial, by questioning Kincade as to defendant’s intent at the time she moved her car toward Alexander. We do not believe the record supports that the prosecutor intentionally elicited inadmissible evidence. The prosecutor explained that he was trying to get Kincade to testify regarding her descriptions of what had occurred, but she was uncooperative. Since it is impossible to determine on the record before us the demeanor or actions of Kincade, we must assume the prosecutor was attempting to follow the court’s order. The record does not support that the prosecutor was intentionally trying to disobey the court’s order.
Additionally, we believe, as did the trial court, that the testimony was properly admissible. Evidence Code section 800 allows a lay witness to testify to opinion that is “(a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of [her] testimony.” Kincade was merely testifying regarding her own actions based on what defendant was doing at the time. As found by the trial court, her testimony would not have made sense as to why she grabbed the steering wheel unless defendant was trying to hit Alexander.
Moreover, we disagree with defendant that the trial court’s immediate instruction to the jury limiting the evidence to this purpose was insufficient. We must assume the jury followed the court’s instruction unless the record shows otherwise. (People v. Burgener (2003) 29 Cal.4th 833, 874; People v. Pinholster (1992) 1 Cal.4th 865, 943.) Although defendant cites to several cases where the presumption was not enough to overcome the prejudice, she points to nothing in the record that would rebut the presumption. The jury was admonished immediately after the testimony and in the concluding instructions. Although defendant claims the jury would have given more weight to Kincade’s testimony because she was defendant’s friend, this is pure speculation and does not rebut the presumption that the jury, given the limiting instruction, did not use her testimony to prove defendant’s intent. We cannot say the trial court abused its discretion by denying defendant’s mistrial motions.
Defendant additionally appears to claim that reversal is required due to the prosecutor’s misconduct. Even if we were to conclude that the prosecutor’s actions constituted misconduct because he elicited improper testimony regarding defendant’s intent in violation of defendant’s federal constitutional rights, we would conclude it was harmless. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] [beyond a reasonable doubt standard is applicable where prosecutorial misconduct infringes upon a defendant’s constitutional rights]; see also People v. Hall (2000) 82 Cal.App.4th 813, 817.) Here, Johnson testified he was standing right next to defendant’s car when she drove up on the curb and tried to run her car into Alexander. Alexander himself testified that as he ran up to defendant’s car, she tried to hit him with the car. Accordingly, the jury reasonably could have inferred from this evidence alone that defendant intended to assault Alexander with her car. Regardless of whether Kincade testified regarding what she believed defendant was intending to do to Alexander, other evidence supported the jury’s verdict. Further, the limiting instruction specifically advised the jurors not to use Kincade’s testimony to prove defendant’s intent and we must presume they followed the instruction. (People v. Burgener, supra, 29 Cal.4th at p. 874.) We reject defendant’s contention that reversal is required because there was prejudicial prosecutorial misconduct.
Defendant only claims that her conviction of assault with a deadly weapon against Alexander must be reversed.
IV
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends the great bodily injury enhancement found true as to Lee must be reversed because she received ineffective assistance of counsel. Specifically, she contends that once the hospital records pertaining to Lee’s injuries were found inadmissible, any testimony by Lee and Alexander as to Lee’s injuries that were a result of statements made to them by doctors at the hospital constituted inadmissible hearsay and should have been objected to on these grounds by her counsel. Without such evidence, defendant claims the evidence is insufficient to support the verdict, and therefore, double jeopardy attaches, barring retrial.
A. Additional Factual Background
Prior to trial, defendant’s counsel objected to the admission of hospital records showing the extent of injuries to Lee on the ground the prosecution did not intend to have a doctor testify about the records. The prosecutor responded that he understood that these records were properly admitted without testimony. The trial court excluded the records unless a doctor testified.
Just prior to trial, the trial court indicated that the medical records could come in under Evidence Code sections 1271 and 1561. The trial court was inclined to admit the hospital records without testimony because the People complied with Evidence Code section 1561.
These sections allow for the admission of business records without testimony if an accompanying affidavit properly authenticates the records. (See Evid. Code, §§ 1271, 1561.)
Thereafter, Alexander testified he had visited Lee at the hospital and that he believed Lee had a broken ankle. Alexander also stated Lee had had three surgeries. After Alexander’s testimony, the prosecutor indicated he might need to have someone testify regarding the hospital records to show Lee’s injuries. The trial court noted that the testimony that Lee had a broken ankle was already admitted without any objection through Alexander’s testimony.
The following day, the trial court was informed by the prosecutor that the hospital records were not accompanied by the proper affidavit as required pursuant to Evidence Code section 1561. The trial court then noted that it would have to exclude the records, and the People would have to call the responding paramedics. The prosecutor stated he had no witnesses that they could call.
Defense counsel, recognizing the objection was untimely, requested that the trial court strike Alexander’s testimony because “[t]he witness wasn’t credible.” The trial court responded that credibility determinations were left for a jury. Defense counsel responded: “[W]ell, it was clearly ineffective of me not to object at the time. I don’t know what I was thinking. Perhaps I was thinking that there had to be some admissible evidence, and I didn’t object at the time because I didn’t want to appear argumentative to the jury.” The trial court reiterated that Alexander’s credibility was a jury question. The trial court stated it would have overruled the objection had it been timely made.
The prosecutor then stated that Lee was going to testify. The trial court stated that no medical records would be needed, as he could testify as to his injuries. There was no objection by defense counsel.
Lee testified in front of the jury that he had broken his ankle and had had surgery to repair the damage in which three screws and a rod were placed in his ankle.
B. Analysis
To establish an ineffective assistance claim on appeal, defendant has the burden first to show her counsel’s performance was deficient, that is, falling below an objective standard of reasonableness under prevailing professional norms. Secondly, defendant must show that her counsel’s deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052, 80 L.Ed.2d 674].) “To establish prejudice, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.)
Generally, “[w]hether to object to arguably inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference, failure to object seldom establishes counsel’s incompetence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 415-416.) In such cases, we will discern ineffective assistance only when “the record on appeal demonstrates counsel had no rational purpose for the failure to object . . . .” (People v. Lucas (1995) 12 Cal.4th 415, 445.)
Here, the objectionable testimony included Alexander claiming he had gone to the hospital and thought Lee had broken his ankle and had had three surgeries, and Lee’s testimony that he had three screws and a rod put in his right ankle during surgery. Defendant claims this was hearsay since it had to have come from doctors who did not testify and this evidence was introduced to support the great bodily injury allegation.
Evidence Code section 1200, subdivision (a) defines “hearsay evidence” as evidence of “a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Here, if in fact the only knowledge that Alexander and Lee had that Lee had broken his ankle and had to have rods and screws put in his leg during surgery was from doctor’s statements to them at the hospital, then the evidence would constitute hearsay.
The record does not establish how Lee knew of his broken ankle or that he had rods and screws in his ankle. It is possible Lee had seen x-ray images of his ankle and seen the broken ankle, rods, and screws. Certainly, Lee could have experienced the feeling of the broken ankle. We cannot determine from the record that Lee’s own recitation of his injuries came strictly from doctors at the hospital. Defendant’s counsel may not have objected based on the fact that Lee could be expected to be personally aware of his injuries. It is also unclear how Alexander was aware of Lee’s broken ankle.
Certainly, if we were to conclude that the above testimony was inadmissible hearsay, it would be difficult to discern why defendant’s counsel would fail to object to the testimony. However, since we conclude, post, that any admission of this evidence was clearly not prejudicial, we need not determine whether it constituted hearsay or if counsel had a tactical reason for failing to object to the testimony, as we conclude there cannot be any possible prejudice.
As stated, ante, in order to show that a reversal of her conviction is warranted on the ground of ineffective assistance of counsel, defendant must show prejudice. (People v. Montoya, supra, 149 Cal.App.4th at p. 1147.)
Here, the prosecutor had to prove that Lee sustained great bodily injury. Section 12022.7, subdivision (f), expressly defines great bodily injury for purposes of the enhancement as “a significant or substantial physical injury.” It is not a trivial injury. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Section 12022.7 contains “no specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (People v. Escobar (1992) 3 Cal.4th 740, 750.) “Abrasions, lacerations, and bruising can constitute great bodily injury.” (People v. Jung (1999) 71 Cal.App.4th 1036, 1042; People v. Sanchez (1982) 131 Cal.App.3d 718, 732-733.)
Aside from the statements by Lee and Alexander that Lee broke his ankle and had to have screws and rods put in his leg, other undisputed evidence was presented to the jury that supported the great bodily injury enhancement. Lee flew 10 feet through the air and hit a telephone pole. He had road rash on his side and back and down his arms. He was bleeding profusely from his head and had had memory loss since the accident. According to Lee, he has walked with a limp since the accident, clearly showing that this was a permanent, serious injury. He had to remain in the hospital three to four days after the accident. Lee testified he missed three to four months of work and could no longer ride bicycles professionally. Had the testimony regarding the surgery been excluded, the result would be the same. As such, we cannot conclude that defendant’s counsel was ineffective for failing to object to the testimony as defendant cannot show prejudice.
As we have rejected that defendant received ineffective assistance of counsel that requires reversal of the great bodily injury enhancement, we need not address her additional argument that the principles of double jeopardy and collateral estoppel preclude a second trial on the enhancement.
V
CALCRIM NOS. 223, 226, AND 302
Defendant contends that CALCRIM Nos. 223 (direct and circumstantial evidence), 226 (credibility of witnesses), and 302 (evaluating conflicting evidence) are erroneous as they lessen the prosecution’s burden of establishing her guilt beyond a reasonable doubt. Defendant argues, in the alternative, that if we conclude the instructions are not erroneous, it is reasonably likely that the jury applied the instructions in the instant case in a way that violated the Constitution. Defendant’s arguments have been soundly rejected by our colleagues in both the Third and Fifth Districts in People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson) and People v. Ibarra (2007) 156 Cal.App.4th 1174 (Ibarra). We adopt the reasoning in those opinions and affirm.
A. CALCRIM No. 223
CALCRIM No. 223 defines direct and circumstantial evidence and explains the difference between the two. The portion of CALCRIM No. 223 that defendant challenges was given to the jury as follows: “Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.”
Defendant contends the instruction tells the jury that the defense has a duty to present evidence to disprove the charge. This argument ignores the language of CALCRIM No. 223, which neither refers to a defendant’s burden of proof nor states that a defendant must affirmatively disprove an element of the offense in order to obtain an acquittal. “Reasonably read, [CALCRIM No. 223] cautions only that neither direct nor circumstantial evidence should be accorded greater weight simply because it is direct or circumstantial evidence.” (Anderson, supra, 152 Cal.App.4th at p. 930.) There was no misstatement of law or error in the pattern instruction.
B. CALCRIM No. 226
CALCRIM No. 226 provides guidance for assessing witness credibility. As given by the trial court here, it read, in pertinent part: “You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s gender, race, religion, ethnicity, sexual orientation, gender identity, age, national origin, or socioeconomic status. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.” The court went on to list the factors the jury could consider in determining the credibility of the witnesses. Defendant contends the above instruction “insinuates” to the jury that she was required to disprove some element of the offense.
Again, we do not believe the jury would interpret the instruction as stated by defendant. The instruction merely advised the jurors how to assess witness credibility. In addition, as set forth, post, the jury was fully instructed on the burden of proof and that neither party must call all witnesses or produce all physical evidence. These instructions clearly advised the jury that they could not convict defendant unless the People proved her guilt beyond a reasonable doubt. There was no error in giving CALCRIM No. 226.
C. CALCRIM No. 302
CALCRIM No. 302 provides guidance regarding the evaluation of conflicting evidence. As given by the trial court here, CALCRIM No. 302 read: “If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.”
Defendant objects to most of the language in CALCRIM No. 302, essentially arguing that it lessened the burden of proof and required her to prove that she was not guilty. As defendant concedes, many of these precise challenges she raises to CALCRIM No. 302 have been rejected by various Courts of Appeal. The challenges were rejected in Anderson, supra, 152 Cal.App.4th at pages 938 through 940, and in Ibarra, supra, 156 Cal.App.4th at pages 1190 and 1191. We agree with the analysis of Anderson and Ibarra and hold that the instruction was not erroneous.
D. Ambigious as Applied in the Instant Case
In the alternative, defendant argues that, in the event this court finds the above challenged instructions valid, they must be found to be ambiguous in this case because there is a reasonable likelihood they were applied by the jury in this case in a way that violated the Constitution. We disagree.
“‘When reviewing [a federal constitutional claim concerning] a supposedly ambiguous [i.e., potentially misleading] jury instruction, “‘we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’”’ [Citation.]” (People v. Ayala (2000) 24 Cal.4th 243, 289.) “In determining the correctness of jury instructions, we consider the instructions as a whole.” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) An instruction can be found to be ambiguous or misleading only if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390.) We presume that jurors are intelligent and capable of understanding and correlating all jury instructions given. (People v. Kegler (1987) 197 Cal.App.3d 72, 80.)
There is no reasonable likelihood here that the jury applied the challenged instructions so as to violate defendant’s constitutional rights. CALCRIM No. 223 merely defined the two types of evidence a party could present at trial, i.e., direct and circumstantial, and explained the differences between the two. Additionally, the same paragraph containing the challenged language in CALCRIM No. 223 tells the jury to consider whether a fact has been proved “based on all the evidence.” CALCRIM No. 226 was neutral as explained above and informed the jury to consider whether or not other evidence proved or disproved a witness’s testimony. CALCRIM No. 302 plainly informed the jurors that they could believe all of the evidence, part of it, or none of it. We see no reasonable likelihood of the jury misunderstanding the challenged instructions in the manner defendant suggests. The trial court instructed the jury, in a straightforward and unambiguous manner, to evaluate the evidence and the witnesses and in no way insinuated that defendant had the burden to prove her innocence.
Moreover, the jury was instructed pursuant to CALCRIM No. 220, the instruction on reasonable doubt. This instruction conveyed to the jury that if the People presented no evidence, or insufficient evidence, then the People had not met its burden and defendant was entitled to an acquittal. The court also instructed the jury pursuant to CALCRIM No. 300, which stated that neither side was required to call all witnesses who might have information about the case nor to present all available evidence. The jury was also instructed pursuant to CALCRIM No. 103. That instruction told the jurors again that the People had the burden of proof and that they must prove every element of the offense beyond a reasonable doubt. The jury was also instructed pursuant to CALCRIM No. 224, which advised the jury that before they could rely on circumstantial evidence to conclude a fact necessary to find that defendant’s guilt had been proved, the People have the burden of proving each fact essential to that conclusion beyond a reasonable doubt. In reviewing the instructions as a whole, it was clear the jury was advised that the People had the burden of proving defendant’s guilt beyond a reasonable doubt.
Based on the foregoing, we reject defendant’s claims with regard to these instructions.
VI
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., KING J.