Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA080319, Charles E. Horan, Judge.
Lenore De Vita, 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, Paul M. Roadarmel, Jr. and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Maurice Mitchell appeals from the judgment entered following a jury trial in which he was convicted of first degree burglary. (Pen. Code, § 459.) The jury also found that appellant had suffered a prior conviction of attempted burglary (Pen. Code, §§ 664/459), a serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), and a serious or violent felony within the meaning of Penal Code section 667, subdivision (a). The jury additionally found that at the time of the commission of the instant crime, appellant had been released on his own recognizance pending trial or sentencing within the meaning of Penal Code section 12022.1. Appellant was sentenced to prison for a total of 11 years, consisting of the lower term of two years, doubled to four years by reason of the Three Strikes law, plus five years for the prior serious or violent felony enhancement, and two years for the out on his own recognizance enhancement. He contends CALJIC No. 2.11 improperly conveyed to the jury that the defense may have an obligation to produce evidence, violating the principle that the prosecution bears the burden of proving defendant’s guilt beyond a reasonable doubt. For reasons stated in the opinion, we affirm the judgment.
Appellant was also known as Michael Maurice Stone and Maurice Boykins.
FACTUAL AND PROCEDURAL SUMMARY
On August 27, 2007, at approximately 2:30 p.m., Andrew Rivera was drinking beer with a coworker in the carport of the coworker’s apartment building at 537 Eremland in the City of Covina. Mr. Rivera saw appellant jump over a fence that bordered an alleyway and then enter a neighbor’s yard through a gate. Appellant had light colored socks on his hands and was wearing a green backpack. Appellant disappeared from Mr. Rivera’s view for approximately five minutes. When appellant reappeared, he was not wearing the backpack and was wearing just one sock on one hand. He took the sock off his hand, put the sock in his pocket, looked around, and walked out of the gate. Appellant walked into a carport and, after two to three minutes, casually walked away from the area. Mr. Rivera’s companion called the police. Mr. Rivera had met appellant approximately one week before.
On August 27, 2007, Katherine Yonashiro lived in an apartment at 537 Eremland with her mother and sister. When Ms. Yonashiro returned home from work at approximately 2:30 p.m., she walked toward her bedroom and noticed a broken window and glass on the bedroom floor. Outside of her apartment, she saw a green bag, broken glass on the ground near the base of the window, and the screen on the side of the window. The window was still locked, and nothing was taken from inside her apartment. Before she left her apartment that day, the window had not been broken and there was no damage to the screen. She had never seen appellant before, and he did not have permission to be in her yard.
Covina Police Officer Stacy Franco was dispatched to the apartment to assist another officer in investigating the burglary. In the yard of the apartment at 537 Eremland, Officer Franco recovered an empty green bag at the base of a window screen. Covina Police Officer Keith Sutherland was also present at the scene and gave Officer Franco a pair of white socks to book into evidence.
Officer Sutherland participated in the investigation of the burglary and saw appellant inside an apartment at 529 South Eremland. During a search of appellant, Officer Sutherland recovered two socks from appellant’s shorts pocket. Officer Sutherland was familiar with the apartment complex, and acknowledged it was possible that people would “hop fences to take a shortcut to go to the store.”
Covina Police Officer Denis Tintle responded to the call at 537 Eremland in Covina and met Ms. Yonashiro there. He observed the broken window and identified an indentation on the vertical part of the screen frame. The right side of the window screen frame was bent approximately one-eighth of an inch. He attempted to obtain fingerprints from the window, but was unable to. The yard of the subject apartment was enclosed by a fence or wall that was approximately six feet tall.
Appellant was taken into custody and, following advisement and waiver of his Miranda rights, stated he had decided to break into the apartment at 537 Eremland to steal some property. He planned to steal money and video equipment and to use the backpack to carry the property out of the apartment. He jumped over the wall to the back yard and put on a pair of socks to keep from leaving fingerprints at the scene. Appellant said he forced the window screen off the frame and broke the window with a rock. He planned to reach through, unlatch the window, and slide the window open but saw a male watching him, so he became scared and stopped. He left the location through a side gate, took the socks off his hands, put the socks into his pockets, and left the backpack at the scene. He said he went to the apartment at 529 Eremland, where he had been staying temporarily. That apartment is in the next apartment complex north of 537, approximately 100 feet away.
Miranda v. Arizona (1966) 384 U.S. 436.
At the bifurcated jury trial on the allegations relative to appellant’s prior felony conviction, the prosecution presented certified copies of court records reflecting appellant had previously been convicted by way of his guilty plea to first degree attempted burglary (Pen. Code, §§ 664/459) in San Bernardino Superior Court Case No. FWV700499. A fingerprint expert testified he had obtained the fingerprints of appellant and determined the right thumb print matched the right thumb print previously taken from appellant in case No. FWV700499. The records indicated that on May 7, 2007, appellant was released on his own recognizance pending sentencing.
DISCUSSION
Appellant contends CALJIC No. 2.11 improperly conveyed to the jury that the defense may have an obligation to produce evidence, violating his state and federal constitutional right to proof beyond a reasonable doubt. We disagree.
The jury was instructed pursuant to CALJIC No. 2.11: “Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events. Neither side is required to produce all objects or documents mentioned or suggested by the evidence.” Appellant argues that by instructing the jury that the defense need not produce “all” relevant evidence, the jury might be left with the belief that the defense is required to produce “some” evidence. Appellant claims this is particularly true in the instant case where the defense did not produce any evidence. Appellant acknowledges the issue raised has been addressed and rejected in People v. Simms (1970) 10 Cal.App.3d 299, 313, and he is raising the issue for subsequent review by the California Supreme Court and the federal courts.
In People v. Simms, appellant argued that the jury could have inferred that the burden of proof was to be shared equally by the People and defendant. In rejecting this argument, the court stated, “[The] contention is unsupported by any authority and we therefore are entitled to reject it on this ground. [Citations.] We observe, moreover, that the instruction is a correct statement of law and that it was proper to so instruct. [Citations.] With respect to the burden of proof, the jury was thoroughly instructed on this burden.... We are entitled to assume that the jurors followed the court’s instructions. [Citations.]” (People v. Simms, supra, 10 Cal.App.3d at p. 313.) People v. Ibarra (2007) 156 Cal.App.4th 1174, 1190, and People v. Anderson (2007) 152 Cal.App.4th 919, 937-938, approved CALCRIM No. 300, a similar instruction.
Judicial Council of California Criminal Jury Instructions (2006-2007).
Here the court instructed the jury pursuant to CALJIC No. 2.90 regarding the People’s burden of proving defendant guilty beyond a reasonable doubt, CALJIC No. 2.60, that a defendant has the right not to testify and that no inference must be drawn from that choice, and CALJIC No. 2.61, that a defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. There is no reasonable likelihood the jury misunderstood CALJIC No. 2.11. We are entitled to assume the jurors followed the court’s instructions and reject appellant’s argument. (See People v. Ibarra, supra, 156 Cal.App.4th at p. 1191.)
Moreover, as respondent observes, appellant did present evidence by way of cross-examination of the prosecution’s witnesses. The jury was instructed pursuant to CALJIC No. 2.00, that “[e]vidence consists of the testimony of witnesses, writings, material objects, or anything presented to the senses and offered to prove the existence or non-existence of a fact.”
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.