Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F09689
HULL, J.A jury convicted defendant Richard Montiel, Jr., of recklessly possessing an explosive in a public place (Pen. Code, § 12303.2; undesignated section references that follow are to the Penal Code) and possession of an explosive (Health & Saf. Code, § 12305). The court sustained five prior strike allegations and sentenced defendant to 25 years to life in state prison.
On appeal, defendant contends there was instructional error regarding the burden of proof and he was entitled to additional presentence conduct credits. We affirm the judgment.
Facts and Proceedings
On October 10, 2007, Nora C., her daughter, and a friend were in line at a McDonald’s on Mack Road when they noticed a man in the line, Fernando Chavez, smelled of gasoline. From their seat in the restaurant, Nora C. and her daughter saw Chavez in the parking lot, kneeling next to an SUV and filling 40-ounce beer bottles with gasoline from a red-spouted container. Chavez handed the bottles to Fernando Nava in the SUV’s front passenger seat; a third man was in the driver’s seat. Chavez and Nava were ripping rags or towels and stuffing them into the gasoline-filled bottles. After seeing one of the men cover the SUV’s license plate with paper, Nora C. reported the situation to the McDonald’s manager, who called the police.
The SUV drove to the other side of the McDonald’s parking lot, where it parked near Dora B.’s car. Chavez’s girlfriend was in the front passenger seat of Dora B.’s car, while the brothers Damien and Adolpho Velasquez were in the backseat. An older man was seated across from Nava in the front passenger seat of the SUV. The Velasquez brothers got into the SUV. Dora B. could smell gasoline from the SUV.
Nora C. pointed out the SUV to police officers, who stopped it at the intersection of Mack Road and Franklin Boulevard. Nava was driving and defendant was in the front passenger seat; Chavez and the Velasquez brothers were in the backseat.
The SUV’s floorboard was saturated with gasoline. Three 40-ounce beer bottles filled with gasoline were found behind the driver’s seat. Two of the bottles had cloth shoved in them; the third had a cloth or wick protruding from its neck. Styrofoam, which increases the burn time of Molotov cocktails, was found in the SUV. A cigarette lighter and a gold cap from one of the beer bottles were found on the front passenger seat, and another bottle cap was found directly below the front passenger seat.
Defendant presented testimony that he was in the SUV because he needed a ride and his car was not working. The People presented a letter written by defendant while in jail awaiting trial. The letter, addressed to Chavez, indicated it was very important “that I was in the car only because I was getting a ride to my father-in-law’s house” and that defendant needed Chavez to back his story.
Discussion
I
The Court’s Comments on Reasonable Doubt
The trial court gave the jury the standard instruction on the presumption of innocence and reasonable doubt, CALCRIM No. 220. Defendant does not challenge this instruction. Rather, he contends it was tainted by comments made by the trial court during voir dire nine days before the court instructed the jury with CALCRIM No. 220. We disagree.
Jury voir dire started on July 27, 2009. Early in the process, the trial court commented on the elements of a crime and noted the prosecution’s burden of proof: “The defendants have entered not guilty pleas to those two counts and the gang allegation. By doing so that puts in issue each and every element of the case. [¶] Elements, if you will, are like building blocks. It’s like building a house. You have to have a foundation, walls, and a roof. If you don’t have a roof, you don’t have a house, under my example. If you don’t have a foundation, you don’t have a house. You have to have all of the elements in order to call it a house. [¶] If the front door is kicked open or a window is broken, it may be a house, a damaged house, but so long as it has, under my example, the foundation, walls, and a roof, it is still a house. [¶] The point being that the district attorney has to prove each of the elements, and we’ll give you those in the instructions, the elements of these particular charges, and the People have to prove them beyond a reasonable doubt.”
Toward the end of the morning session, the trial court commented on reasonable doubt and the People’s burden of proof. The court informed the panel that the People had the burden of proof throughout the entire case, it never shifted to the defendant, and placing it on the People “has a real practical effect.” Later, the panel was told the People must prove their case beyond a reasonable doubt, and “the defendants are always presumed to be innocent.”
The trial court continued by explaining reasonable doubt to the prospective jurors, declaring the People’s burden is not impossible, as “everything we do relating to human affairs is open to some possible or imaginary doubt.” As an example, it noted doubts about the authenticity of the moon landing, that it “was all done with smoke and mirrors in Hollywood to trick us for some reason.” While such a doubt was “possible, ” the court told the prospective jurors it was not a reasonable doubt.
The trial court gave another example: “You or someone close to you is very ill, maybe needs surgery or needs some sort of medical procedure. You see one doctor. You may even get the opinion of another doctor. [¶] You have to make a decision whether to live with the illness, or the child or the young one has to live with the illness or take the risk of the medical procedure that the doctor, he or she, is prescribing. [¶] You can have some doubt, but you make those kinds of decisions in your personal lives, and that is a little bit like a criminal case. You can have some doubt and render a decision for the prosecution, but the question is is it a reasonable doubt.”
Continuing, the trial court stated: “The legal test is not any doubt that pops into your head. It has to be doubt that is based in reason. It has to be based on the evidence. It has to go to something that is important in the case, not something trivial. [¶] For example, if the case involved a car accident and one juror said the car was a light yellow or one witness said it was light yellow and one said it was light beige and somebody else said it was off-white, you know, the question is did the person run the stop sign. It doesn’t matter, in my example, what color the car was. So that’s the kind of thing that they are telling you to use your common sense in making those decisions.”
Finally, the trial court addressed the “flip side of the coin, ” what constituted proof beyond a reasonable doubt, “an abiding conviction of the truth of the charge, ” which means “a lasting conviction.” If a juror’s mind was “in an unsettled state” regarding guilt, if the juror was “teeter-tottering” over the issue, then “the law would tell you to vote to acquit.” The trial court distinguished the preponderance standard used in civil cases, declaring “if you think the defendant probably did it or could have done it or possibly did it, you should vote to acquit. That is insufficient in a criminal case.” Proof beyond a reasonable doubt was “an abiding conviction of the truth of the charge is what it’s talking about. It means today, next week, next month on the same evidence I would vote guilty every time. I would not change my mind. I am not teeter tottering, okay.” Defendant did not object or ask for clarifying instructions.
In his closing argument, the prosecutor stated, “I have a high burden of proof. The highest burden of proof of all types of cases. But I’m only required to prove what I’m required to prove. And the judge gave you the example of--of the elements and how they make a wall, a roof, and a door, that’s a house. Okay? Those are the only things I need to prove.”
Defendant asserts the trial court’s comments during voir dire lessened the People’s burden of proof in three ways. First, the trial court allegedly equated proof beyond a reasonable doubt with making a decision in one’s personal life such as deciding whether or not historical events occurred as reported, or in making medical decisions. Second, defendant claims the reference to elements of a crime as building blocks of a house was flawed by suggesting the house could stand even if it sustained substantial damage, so long as the elements of the crime were established. Finally, defendant claims the trial court lessened the burden of proof by comparing reasonable doubt to “the defendant probably did it or could have done it or possibly did it, ” and that reasonable doubt must be based on something “important” and not “trivial.”
The due process clause of the Fourteenth Amendment protects the accused against conviction except on proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375].) The United States Constitution does not require jury instructions to contain any specific language, but they must convey both that the accused is presumed innocent until proved guilty and that he may be convicted only upon a showing of proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5 [127 L.Ed.2d 583, 590] (Victor).) “‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ [Citation.]” (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) When a defendant contends that an instruction is ambiguous or potentially misleading, we must review the instructions as a whole and determine “whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.” (People v. Smithey (1999) 20 Cal.4th 936, 963.) “The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1202.)
The building blocks portion of the pretrial instructions did not misstate the prosecution’s burden of proof. The building blocks simile accurately reflected that the People must prove each element of the crime. The reference to other parts of the building which were not building blocks did not misstate the burden of proof, as the People’s burden of proof beyond a reasonable doubt applies only to the elements of the charged offense. (People v. Flood (1998) 18 Cal.4th 470, 481; 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 522, p. 744.)
The trial court’s instruction that the jury must acquit if it finds the defendant “probably did it or could have done it or possibly did it” must be examined in context. This passage followed the trial court’s discussion of the preponderance standard, and how it was inapplicable to this criminal case. Rather than setting the minimum standard for reasonable doubt, the passage quoted above reiterated that proof by a preponderance of evidence was insufficient to convict. Indeed, after this statement, the court correctly instructed the jury that “It’s proof beyond a reasonable doubt, an abiding conviction of the truth of the charge is what it’s talking about.” Taken in context, the “could have done it” language did not lessen the People’s burden.
Nor did the trial court mislead the potential jurors by stating that reasonable doubt must be something “important in the case, not something trivial.” In Victor, the Supreme Court upheld an instruction stating “‘A reasonable doubt is an actual and substantial doubt reasonably arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence on the part of the State, as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture, ’” finding any problems with the reference to “substantial doubt” were cured by the last sentence of the instruction, which distinguished reasonable doubt from “mere possibility, from bare imagination, or from fanciful conjecture.” (Victor, supra, 511 U.S. at p. 18; see also id. at pp. 19-21 [127 L.Ed.2d at pp. 598-599], italics omitted.) The trial court’s instruction is likewise valid when read in context. It preceded the challenged instruction with the sentence: “It has to be a doubt based in reason. It has to be based on the evidence.” As in the challenged instruction in Victor, the trial court’s instruction accurately distinguished reasonable doubt from trivial doubt or mere conjecture.
Turning to the reference to the moon landing the court was there attempting to give the jury an example of what might constitute an unreasonable doubt. This is risky business and the utility of such examples probably is outweighed by the possibility that such examples may serve to confuse and not clarify the definition of a reasonable doubt. Trial courts have been cautioned, time and again, about the risks of trying to explain the concept of proof beyond a reasonable doubt to the jury. The United States Supreme Court observed more than 100 years ago that “[a]ttempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.” (Miles v. United States (1881) 103 U.S. 304, 312 [26 L.Ed. 481, 484].) Such attempts do, however, run the risk of confusing the jury (People v. Simpson (1954) 43 Cal.2d 553, 566) and undermining its verdict (People v. Garcia (1975) 54 Cal.App.3d 61, 70-71).
Even so, the court properly instructed the jury as to the burden of proof using CALCRIM No. 220. We cannot see how the earlier reference to the 1969 moon landing lessened the prosecution’s burden of proof.
The trial court’s discussion of doubt as it related to medical decisions is problematic. “The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required.” (People v. Brannon (1873) 47 Cal. 96, 97; see also People v. Johnson (2004) 115 Cal.App.4th 1169, 1172; People v. Paulsell (1896) 115 Cal. 6, 12 [noting the already longstanding rule against drawing such a simile in this context].)
While a medical decision can be of the utmost importance, such decisions are necessarily made under the preponderance standard. If it is more likely than not that a medical procedure will be beneficial, then a rational person would undergo the procedure. The beyond a reasonable doubt standard differs, as it establishes a bias against a particular result, a guilty verdict. It was an error for the trial court to refer to medical decisions when defining reasonable doubt.
Although the trial court erred, we conclude it was not reasonably likely that the jury applied the wrong standard. Following the passage regarding medical decisions, the trial court stated: “You can have some doubt, but you make those kinds of decisions in your personal lives, and this is a little bit like a criminal case. You can have some doubt and render a decision for the prosecution, but the question is is it a reasonable doubt.” It then continued with the previously discussed reference to doubt that is not “trivial.”
These passages diminished the effect of the reference to medical decisions by noting that they were only a “little bit like a criminal case” and that reasonable doubt must be based in reason. The instructions must also be considered in the context of the entire case. The voir dire instructions on the beyond a reasonable doubt standard contained numerous correct references to language from section 1096’s definition of reasonable doubt. More importantly, the voir dire instructions took place nine days before the parties submitted their cases and the trial court gave the jury the standard instructions on reasonable doubt and the People’s burden of proof.
In People v. Elguera (1992) 8 Cal.App.4th 1214 (Elguera), prospective jurors were instructed on reasonable doubt and questioned on voir dire about the standard. (Id. at pp. 1217-1218.) However, after the jury was selected and sworn, the court never instructed the jurors on reasonable doubt, nor did it provide them with written instructions on the standard of proof, although it did instruct them on circumstantial evidence, which made references to reasonable doubt and described the instructions as “‘the law that applies to this case.’” (Id. at p. 1218.) Counsel made references to reasonable doubt in closing argument. (Id. at pp. 1218-1219.) The trial lasted one day. (Id. at p. 1217.) Elguera held the omission of reasonable doubt instructions was reversible error because the “jurors were unlikely to remember the exact definition [of reasonable doubt] read to them five and one-half hours earlier” during voir dire while they were prospective jurors. (Id. at p. 1223.)
During voir dire in People v. Flores (2007) 147 Cal.App.4th 199 (Flores), the trial court instructed prospective jurors with the reasonable doubt instruction. (Id. at p. 212.) After the jury was empanelled, the court never again gave the reasonable doubt instruction, although it did give other instructions which made references to reasonable doubt (id. at pp. 212-213) and, in his closing argument, the prosecutor discussed reasonable doubt (id. at pp. 213-214).
Finding the situation similar to that in Elguera, the Court of Appeal held the failure to instruct on reasonable doubt constituted reversible error. (Flores, supra, 147 Cal.App.4th at pp. 214-215.) The instruction during jury selection was insufficient to meet constitutional requirements, and it was “unreasonable to expect prospective jurors, who have yet to be empanelled and sworn as actual jurors in the trial, to give the necessary attention and weight to instructions given by a trial court during jury selection as the federal constitution requires.” (Id. at p. 215.)
In People v. Claxton (1982) 129 Cal.App.3d 638 (Claxton), the trial court, at the beginning of voir dire, gave the standard jury instruction on the beyond the reasonable doubt standard, CALJIC No. 2.90, as well as its own instructions regarding the standard (id. at p. 668 & fn. 5.) Nine days later, at the conclusion of the evidence, the trial court again instructed the jury with CALCRIM No. 2.90. (Id. at p. 668.) On appeal, the defendant challenged the trial court’s attempts to explain the beyond a reasonable doubt standard. (Ibid.) The Court of Appeal concluded that since the allegedly improper instruction was not “‘the last definitive instruction on the subject, ’” any possible taint from the trial court’s own instruction was dissipated. (Id. at p. 669.)
Applying Elguera, Flores, and Claxon, we conclude it was not reasonably likely that the comments on the concept of a reasonable doubt during voir dire led the jury to apply an incorrect standard of proof. The passage of time, the fact that the instructions took place during voir dire, and the fact that the correct instruction on the burden of proof at the conclusion of the evidence diluted the effect of the trial court’s reference to everyday medical decisions to the point where, considering the instructions as a whole, it is not reasonably likely that the jury applied the wrong standard of proof in reaching its verdicts.
II
Conduct Credits
The trial court awarded 1, 106 days’ presentence credit, consisting of 738 days’ custody credit and 368 days’ conduct credit. Defendant contends he is entitled to additional credit because of the recent amendments to section 4019, operative January 25, 2010. He is mistaken.
The recent amendments to section 4019 do not operate to modify defendant’s entitlement to additional presentence custody credit as the jury sustained five prior strike allegations. (§§ 1192.7, subd. (c)(1), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
Disposition
The judgment is affirmed.
We concur: RAYE, P. J. NICHOLSON, J.