Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 194463
Sepulveda, J.
Defendant was convicted by jury trial of carjacking, false imprisonment, attempted dissuasion of a witness, two counts of assault with a deadly weapon, burglary, theft of a firearm, being a felon in possession of a firearm, robbery, and making terrorist threats; special allegations that he personally used a firearm were found true. He was sentenced to a total of 15 years, 8 months in state prison. On appeal he raises only one issue: whether CALCRIM No. 220 erroneously instructed the jury on the burden of proof and presumption of innocence. We reject defendant’s arguments that it does and affirm.
Background
Defendant was charged by amended information with carjacking (Pen. Code, § 215), false imprisonment (Pen. Code, § 236), attempted dissuasion of a witness (Pen. Code, § 136.1), two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (b)), burglary (Pen. Code, § 459), theft of a firearm (Pen. Code, § 487, subd. (d)(1)), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)), robbery (Pen. Code, § 212.5, subd. (c)), and making terrorist threats (Pen. Code, § 422). Enhancements for personal use of a firearm were also alleged, pursuant to Penal Code sections 12022.53, subdivision (b) and 12002.5, subdivision (a).
The charges arose from two separate incidents. In the first, defendant was seen in a suite of law offices on a Friday afternoon; the following Monday it was discovered that one of the offices had been burglarized. Among items taken was a handgun that was later retrieved at the time of defendant’s arrest. Defendant had signed in with building security Friday, sometime before 6 p.m., and left at about 7:50 p.m. A surveillance photo showed a man resembling defendant carrying something as he went downstairs. Defendant was a former client of the law firm. The second incident occurred three days later. Defendant rushed into an office near Pier 26 in San Francisco and robbed a victim at gunpoint. Defendant ordered the victim to take off his clothes and to get on the floor. He then tied up the victim and went through his pockets, taking approximately $600 in cash and the keys to the victim’s van. Defendant stole the victim’s van. As he left the office, defendant told the victim, “ ‘I got your license and I know where you live, mother fucker. So don’t tell anybody.’ ” Defendant was caught a short time later after leaving the victim’s van in front of a doughnut shop in downtown San Francisco; a gun was found in the van and $653 in cash was found on defendant’s person. The victim identified defendant as the individual who robbed him.
At trial, defendant presented evidence indicating that several checks were stolen from the law firm during the first incident and were passed in different locations after defendant’s arrest.
Defendant was convicted of all counts and each of the alleged enhancements was found true. Defendant was ultimately sentenced to a total of 15 years, 8 months in state prison.
The trial court originally sentenced defendant to a total of 23 years, 4 months in state prison, but the court resentenced defendant pursuant to Penal Code section 1170, subdivision (d). The final sentence consisted of the midterm of five years for carjacking, with a ten-year enhancement for use of a firearm, and a consecutive term of 8 months on the second degree burglary charge. All other counts received either stayed or concurrent sentences.
There are two different appellate docket numbers because the first appeal was filed before defendant was resentenced (A115961), and a second notice of appeal was filed after resentencing (A117606). The two appellate dockets were consolidated at defendant’s request.
Discussion
Defendant’s sole issue on appeal is whether CALCRIM No. 220, defining the burden of proof in a criminal case, improperly holds the prosecution to a lesser standard of proof than required under the Constitution. As the trial court instructed the jury in the present case, CALCRIM No. 220 provides: “Proof beyond a reasonable doubt is proof that 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 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.” Defendant complains of two aspects of this jury instruction. First, he argues that the language indicating that the jurors “must impartially compare and consider all the evidence that was received throughout the trial” imparted a meaning to the jurors requiring them to find in favor of the prosecution if defendant did not present any evidence, or if he presented limited evidence. To support this contention he relies primarily upon an 1895 Supreme Court case (Coffin v. United States (1895) 156 U.S. 432). Second, defendant contends that the “abiding conviction” language in CALCRIM No. 220, taken in conjunction with what he alleges was the improper charge that the jury compare the evidence presented throughout the trial, reduced the prosecution’s burden of proof to one “that is indistinguishable from what is required of any civil verdict. . . .” We reject both of these contentions.
Defendant’s first argument was soundly rejected in People v. Westbrooks (2007) 151 Cal.App.4th 1500, review denied September 12, 2007. As the court there stated, the “instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving [defendant’s] guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing his guilt.” (Id. at p. 1509.) Additionally, People v. Hernandez Ríos (2007) 151 Cal.App.4th 1154, 1157) specifically rejected a defendant’s argument that “language in CALCRIM No. 220 . . . requiring the jury ‘to compare and consider all the evidence’ impermissibly shifts the burden of proof to the defense by allowing the jury to hold against the defense the absence of defense evidence.” As Hernandez Ríos notes, the difference between the language of CALJIC No. 2.90 and CALCRIM No. 220 in this regard is that the CALJIC instruction used nouns to require “ ‘the entire comparison and consideration of all the evidence’ ” while CALCRIM No. 220 uses verbs to accomplish the same result. (Hernandez Ríos, supra, at p. 1157. The United States Supreme Court has rejected a similar challenge to CALJIC No. 2.90 in Victor v. Nebraska (1994) 511 U.S. 1, 16, and we agree with the Hernandez Ríos court that CALCRIM No. 220 also explicitly informed the jurors “ ‘that their conclusion had to be based on the evidence in the case’ ” and nothing more. (Hernandez Ríos, at p. 1157, quoting Victor, supra, at p. 16.) Defendant’s first contention is therefore without merit. (See also People v. Flores (2007) 153 Cal.App.4th 1088, 1093.)
We note that defendant has not discussed either of these opinions, much less attempted to distinguish them in any way. Indeed, although both cases are raised in respondent’s brief, defendant failed even to file a reply brief. We assume that defendant found the reasoning of these cases as persuasive as we do.
Defendant’s second contention is also flawed. As he notes, “the ‘abiding conviction’ language of CALJIC No. 2.90 has been upheld by the Courts of Appeal against challenges in several contexts.” He contends, however, that the similar abiding conviction language of CALCRIM No. 220, taken in “context and in conjunction with the impartiality language” (requiring impartial comparison of all evidence) referenced above, somehow lessens the prosecution’s burden of proof to that required in a civil case. Having found the impartiality language proper, we reject this contention as well.
Disposition
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.