Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. BF112229A. Richard J. Oberholzer, Judge.
William A. Malloy, 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, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J. and Wiseman, J.
STATEMENT OF THE CASE
On November 15, 2005, the Kern County District Attorney filed an information in superior court charging appellant Fernandez Singleton Millsap as follows: count I—being an ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) with two prior strike convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and two prior prison terms (§ 667.5, subd. (b)); and count II—making criminal threats (§ 422) with two prior strike convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and two prior prison terms (§ 667.5, subd. (b)).
On November 18, 2005, appellant was arraigned, pleaded not guilty to the substantive counts, denied the special allegations, and requested a jury trial.
On December 29, 2005, the court suspended criminal proceedings and directed the Kern Regional Center for the Developmentally Disabled to examine appellant and determine his competency to stand trial (Pen. Code, § 1369).
On February 24, 2006, the court received the report of the Kern Regional Center and appointed a second physician to examine appellant on motion of the district attorney (Pen. Code, § 1368).
On March 17, 2006, the court received the report of the second physician and ruled appellant was not competent to stand trial or able to cooperate with counsel. The court appointed a third physician to determine whether appellant would benefit from the administration of antipsychotic medication (Pen. Code, §§ 1369, subd. (a), 1370, subd. (a)(2)(B)).
On April 4, 2006, the court received the report of the third physician, committed appellant to the Department of Mental Health at Patton State Hospital, and ordered the administration of antipsychotic medication as prescribed by a treating physician.
On May 31, 2006, the court received the report of the medical examiner, found appellant competent to stand trial, and reinstated criminal proceedings.
On August 21, 2006, the court dismissed count II (criminal threat) and bifurcated trial of the special allegations. Jury trial commenced the same day.
On August 22, 2006, the jury returned a verdict finding appellant guilty of count I (being an ex-felon in possession of a firearm). The court, sitting without a jury, conducted a bifurcated trial of the special allegations related to count I and found them to be true.
On October 11, 2006, appellant filed a request for the court to dismiss one of his prior strike convictions. On the same date, the court conducted a sentencing hearing, denied appellant probation, denied appellant’s request for dismissal of the strike prior, and sentenced him to a term of 27 years to life in state prison. The court imposed the term of 25 years to life on the substantive count and a one-year enhancement for each of the two prior prison terms. The court awarded 517 days of custody credits, ordered appellant to provide prints and bodily fluid samples (Pen. Code, § 296), imposed a $200 restitution fine (§ 1202.4, subd. (b)), and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45). The court also ordered confiscation and destruction of the subject weapon upon expiration of the appeal period.
On October 11, 2006, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
In the spring of 2005, Priscilla Monroy began dating appellant, an ex-felon. He initially stayed with Monroy in her apartment while fixing up an apartment of his own. On June 1, 2005, Monroy, her toddler son, and her infant daughter moved into appellant’s two-bedroom, second-floor apartment on Water Street. Monroy had seen appellant with a rifle when they first met. Appellant stored the rifle in a suitcase at that time. A month or two after moving into the apartment, Monroy saw appellant with the same rifle. On subsequent occasions, appellant wrapped the rifle in a towel and stored it variously under their mattress, under the kitchen sink, and to the side of the dishwasher. On one occasion, appellant became angry at Monroy, removed the towel, and pointed the rifle at her. Monroy did not own a gun, had no experience with firearms, and was afraid of owning a firearm because of her young children.
On October 19, 2005, appellant argued with Monroy and accused her of cheating on him. On October 22, 2005, appellant told Monroy he would hit her if she did not obey him. Monroy said they had had good times but the relationship became unhappy when he started abusing her. Monroy said “he was hurting me so much,” she was tired of appellant’s abuse and did not want her kids taken away. On the early afternoon of October 22, Monroy decided to end their relationship and move out of the Water Street apartment. When appellant left the apartment with Monroy’s son, Monroy changed, put clothes on her infant daughter, grabbed a diaper bag, went to a stranger’s house, and called the Kern County Sheriff’s Department (KCSD).
About one hour after her call, KCSD Deputy Sheriffs McAdoo, Williams, and Moncur met Monroy about one block away from the apartment. Monroy told the deputies that appellant had a gun in the apartment. Deputies Williams and Moncur transported Monroy back to the apartment and McAdoo and his partner traveled in a separate vehicle to the apartment. Monroy, her friend, Loraine Tyler, and the deputies walked up a flight of stairs in the apartment complex. Monroy knocked on the door and she entered the apartment with Deputies Williams and Moncur. Appellant and Monroy’s son were watching television together in the apartment and appellant invited everyone inside. When Deputy McAdoo entered, appellant was seated on a couch against the west wall of the living room. Appellant was facing eastward on the couch.
Deputy McAdoo said he and Deputy Moncur stayed in the living room with appellant while Deputy Williams assisted Monroy with her belongings in the back of the apartment. When the rifle could not be located in the master bedroom, Monroy advised Deputy McAdoo to look underneath the north end of the kitchen sink. McAdoo opened the doors to the kitchen sink cabinet but could not see the location of the rifle. He did see a number of household cleaning products directly under the sink. McAdoo peaked his head under the cabinet and into a cutout section of fiberboard. The cleaning products were located on the right side of the fiberboard and the rifle was located on the left side of the fiberboard. McAdoo characterized the cutout fiberboard as “that little half wall.” The rifle was not locked or subject to any type of restraint. McAdoo seized the weapon, took it into the living room, and turned it over to Deputies Williams and Moncur.
The parties stipulated KCSD tested the rifle for latent fingerprints and no prints were located. The parties also stipulated that appellant had sustained a prior felony conviction.
DISCUSSION
On appeal appellant contends his conviction must be reversed because the trial court gave the jury an admonition that lessened the prosecution’s burden of proof. More specifically, appellant asserts the trial court erroneously admonished the jury that reasonable doubt must arise from the evidence.
On August 21, 2006, the court swore in the jury panel at 2:47 p.m. At 3:05 p.m., the clerk of court read the information and counsel made their respective opening statements. The parties presented their respective cases and counsel delivered their closing arguments before the 4:30 p.m. adjournment of the court. At 9:05 a.m. on August 22, the court instructed the jury and swore the bailiff to take charge of the jurors. The jury retired to deliberate at 9:23 a.m.
At 9:35 a.m., the jury requested photographic exhibits A through D. At 11:30 a.m. the jury sent the court a note, stating: “We have come to ends. We are very split.” At 1:51 p.m., the jury sent the court another note, stating: “We are hoplessly dead lock.” At 2:00 p.m., the jury returned to the courtroom and the court stated:
“… What I want you to do is go back there and work a little more.
“There might be a couple of things that I – first of all, you have to be reminded what you’re looking at is the evidence in this case. You have to look at the evidence in the case. That’s what it’s all about. The People have the burden to convince you beyond a reasonable doubt, and reasonable doubt, again, I remind you what it means. It means proof beyond a reasonable doubt. That proof leaves you with an abiding conviction of the truth of the charge. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“So what you have to do is you have to look at this evidence and determine from the evidence what’s reasonable, especially as to what happened. Figure out what happened, and then you look at it.
“Now, there are all kinds of possibilities you can come up with. The attorneys argued all possibilities, both sides. The People, both attorneys argued all possibilities in the case. You have to look at those and determine what’s reasonable, and if they are reasonable – if they are reasonable, you apply that to the evidence and you look to the evidence. If you think it’s reasonable, you look to the evidence. Is there evidence there to support that position? So you have to always look back to the evidence. Whenever you’re doing these things it’s important to look at the evidence, to not speculate as to things but to rather rely on the evidence.
“Remember, the People have the burden of proof, and, also, I want to remind you of one other thing that you’re not to be advocates back there. So sometimes it’s difficult when we get a note like this saying that, you know, ‘We have come to ends, we are very split.’ And that sounds like people taking hard positions, and that’s fine. But the problem is when you take a hard position you become advocates for one side. You start trying to support arguments by something other than the evidence. So you got to look to the evidence to ... reach a decision in the case.
“And, again, you are told to not be advocates for one side or the other. ... [A]s the instruction says, you should try to agree on a verdict, if you can. That’s the whole purpose. Each of you must decide the case for yourself only after you’ve discussed the evidence with the other jurors. Do not hesitate to change your mind if you become convinced you’re wrong. But don’t change your mind because other jurors disagree with you. So you don’t do it because somebody disagrees with you, but you’ve got to look back to the evidence and focus on the evidence.
“I think if you go back and review this evidence again with the focus on trying to figure out from the evidence what has occurred here, and then, as we said before you, you apply that to the law, understanding it’s the People who have the burden of proof, you may be able to reach a decision.
“Try that one more time. Follow the bailiff back to the jury room.”
After the jurors departed the courtroom, the court suggested to counsel that the written instructions be sent to the jury for their deliberations. The prosecutor agreed with that suggestion and defense counsel stated, “I don’t care.” The court replied, “Why don’t we send them back to them and maybe they would see something in the instructions that may help them. Just tell them that we’re sending these instructions back for them to look at, if they would like to.”
The jury retired to deliberate further at 2:05 p.m. and returned with a verdict of guilty as to count I at 3:02 p.m. The court polled the jury and all of the jurors responded in the affirmative. On appeal, appellant contends the trial court’s 2:00 p.m. admonition misled the jury by telling the jurors that reasonable doubt must arise from the evidence, an approach rejected in People v. McCullough (1979) 100 Cal.App.3d 169 (McCullough). In McCullough, after the jury had been out some two and one-half to three hours, the jury asked a question of the court relating to one of the elements of the charged offense, being an ex-felon in possession of a weapon (Pen. Code, § 12021). Court was convened and other questions were invited. One juror asked for directions as to “‘what we are supposed to judge as evidence, what is supposed to be our duty, and what is a reasonable doubt?’” Other jurors expressed interest in hearing the definition of the burden of proof. The judge reread the definition as set forth in Penal Code section 1096. Another juror then asked, “‘Would that be interpreted, then, meaning that doubt should not be based on speculation?’” The court responded in the language of former CALJIC No. 22 (rev.): “‘The law does not require that degree of proof which, excluding all possibility of error, produces absolute certainty, for such a degree of proof is rarely possible. Moral certainty only is required, which is that degree of proof which produces conviction in the mind of an unprejudiced juror.’” (McCullough, supra, 100 Cal.App.3d at p. 180.)
The following colloquy ensued in McCullough:
“Does that answer your question?
“Juror ...: Probably as well as it can.
“The Court: You have to understand that you must decide the case on the basis of the evidence presented here in the courtroom, and not on the basis of any guesswork or speculation—but only on the evidence presented by either side here in the courtroom.
“Is that clear?
“Juror...: So then the doubt must arise from evidence?
“The Court: Well, I would answer that yes, if you are saying—if your question is—what is reasonable doubt—reasonable doubt is that state of the case which, after a comparison and consideration of all of the evidence—that is the evidence introduced in the trial—after a comparison and 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.
“Does that answer your question?
“Juror...: Yes.
“The Court: All right.” (McCullough, supra, 100 Cal.App.3d at p. 180.)
The McCullough jury returned to the jury room. The judge gave the attorneys an opportunity to object to the instructions he had given and offered to bring the jury back and correct any mistakes or oversights. The defendant’s attorney attempted but failed to articulate an objection to the court's response to the question about “speculation.” (People v. McCullough, supra, 100 Cal.App.3d at p. 181.)
Division Three of the Court of Appeal, First Appellate District, concluded the trial court made two errors in its amplification. First, the McCullough trial court erred in giving former CALJIC No. 22 (rev.), which was removed from CALJIC with the issuance of the third edition thereof in 1970. (McCullough, supra, at pp. 181-182.) In People v. Brigham (1979) 25 Cal.3d 283, 292, footnote 15, the Supreme Court ruled it was error to give this instruction and that its ruling in this regard “should be applied retroactively only to cases whose judgments have not become final as of the date on which this opinion becomes final.” Consequently, the holding in Brigham applied to the McCullough case.
Second, the McCullough trial court misled the jury by telling it that the “‘doubt must arise from the evidence’” because the “‘reasonable doubt prescribed by the statute may well grow out of the lack of evidence in the case as well as the evidence adduced.’ [Citations.]” (McCullough, supra, 100 Cal.App.3d at p. 182.)
The appellate court in McCullough concluded that error occurred in the trial court but the error was not reversible because the Supreme Court in Brigham held that error in giving CALJIC No. 22 (rev.) was to be measured by the standard of People v. Watson (1956) 46 Cal.2d 818, 836. The appellate court determined it was not reasonably probable a result more favorable to the appellant would have occurred absent the errors relating to the instruction on proof beyond a reasonable doubt. The court further noted the evidence against the appellant was simply too powerful to hold otherwise. (McCullough, supra, 100 Cal.App.3d at pp. 182-184.)
In the instant case, appellant contends the trial court’s admonition—taken in its entirety—directed the jury to limit its basis for having reasonable doubt to the evidence presented at trial. Appellant submits the admonition wholly eliminated the jury having reasonable doubt based upon the lack of convincing evidence presented. The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged. (In re Winship (1970) 397 U.S. 358, 364.) Pursuant to the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, the prosecution bears the burden of proving all elements of the offense charged and must persuade the factfinder beyond a reasonable doubt of the facts necessary to establish each of those elements. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.) Reasonable doubt may arise from the evidence presented at trial or the lack of evidence. (People v. Simpson (1954) 43 Cal.2d 553, 566.)
The standard of proof beyond a reasonable doubt is a requirement of due process but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. Rather, taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury. (Victor v. Nebraska (1994) 511 U.S. 1, 5.)
In the instant case, the trial court did not specifically advise the jury that reasonable doubt must arise from the evidence presented at trial. The court initially instructed the jury in CALCRIM No. 220, as follows:
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of the crime beyond a reasonable doubt. Whenever I tell you the People must prove something, they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt 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.”
The court also instructed the jury that it must decide the facts based on the evidence presented at trial (CALCRIM No. 200), that evidence included the sworn testimony of witnesses and exhibits admitted into evidence (CALCRIM No. 222), and that facts could be proved by direct evidence, circumstantial evidence, or by a combination of both (CALCRIM No. 223).
The instant case is distinguishable from McCullough in that the trial court here did not tell the jurors that reasonable doubt must arise from the evidence presented at trial. Rather, the court advised the jurors to look at the evidence in the case, to remember that the People had the burden of proof beyond a reasonable doubt, that counsel argued “all possibilities, both sides,” and that it was important for jurors to “to look at the evidence, to not speculate as to things but to rather rely on the evidence.”
These remarks did not explicitly or implicitly preclude the jury from considering any perceived lack of evidence in determining appellant’s guilt or innocence. If anything, the court’s comments simply re-emphasized the contents of CALCRIM No. 200. As read to the jury before its deliberations, that instruction stated in relevant part: “You must decide what the facts are. It’s up to you to exclusively decide what happened based only on the evidence that’s presented now at this trial.” The trial court’s reiteration of the contents of CALCRIM No. 200 cannot be deemed error in light of all of the facts and circumstances of the instant case.
Appellant nevertheless contends the court’s admonition was erroneous because it was “similar to the erroneous amplified instruction on reasonable doubt given to the jury in People v. Garcia (1975) 54 Cal.App.3d 61.” In Garcia, a homicide prosecution,the trial court amplified the reasonable doubt instruction by stating: “‘In other words, reasonable doubt means just what the term implies, doubt based upon reason, doubt that presents itself in the minds of reasonable people who are weighing the evidence in the scales, one side against the other, in a logical manner in an effort to determine wherein lies the truth.’” (Garcia, supra, 54 Cal.App.3d at p. 68.) On review, Division One of the Court of Appeal, First Appellate District, deemed that statement prejudicial error because it essentially advised the jury to engage in the weighing process typically used in civil cases governed by the preponderance of evidence standard. The appellate court concluded the trial court’s statement had the effect of “‘watering down’” the reasonable doubt standard employed in criminal cases. (People v. Garcia, supra, 54 Cal.App.3d at pp. 68-69.)
In the instant case, the trial court did not advise the jury to weigh the evidence, balance the evidence, or compare the evidence presented by one side with the evidence presented by the other side. Rather, the court advised the jury to look at the evidence in the case and emphasized: “The People have the burden to convince you beyond a reasonable doubt, and reasonable doubt, again, I remind you what it means. It means proof beyond a reasonable doubt. That proof leaves you with an abiding conviction of the truth of the charge. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.” Thus, the trial court here did not dilute or water down the concept of reasonable doubt or the prosecution’s burden of proof.
Appellant lastly contends his trial counsel rendered ineffective assistance by failing to object to the trial court’s admonition, “an admonition which diluted the prosecution’s burden of proving its case beyond a reasonable doubt.” In view of our conclusion that the trial court did not err in admonishing the jury as it did, we conclude defense counsel was not ineffective by failing to object to the trial court’s statements. (People v. Slaughter (2002) 27 Cal.4th 1187, 1222.)
DISPOSITION
The judgment is affirmed.