Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SCD160824 of San Diego County, John L. Davidson, Judge. Affirmed.
BENKE, Acting P. J.
Jose Alonzo Pina was convicted of second degree murder. It was found true he suffered a prior conviction within the meaning of Penal Code sections 667, subdivision (a)(1), and 667, subdivision (b) through (i), and served a term of imprisonment within the meaning of section 667.5, subdivision (b). Pina was sentenced to a prison term of 36 years to life. He appeals, arguing the evidence was insufficient to convict him of murder and the trial court erred in the manner it instructed concerning aiding and abetting, the evaluation of circumstantial evidence and reasonable doubt.
All further section references are to the Penal Code unless otherwise specified.
FACTS
In 2003 Jose Cardona, Sr., and his 17-year-old son Jose Cardona, Jr. (Jose), moved in with Cardona's girlfriend Guadalupe Diane Pina (Diane). Appellant lived with his mother Diane at her house in the Logan Heights section of San Diego with his two sisters and a brother. Diane's two older children, Alicia and Alfredo, lived elsewhere.
Cardona and Diane often had loud but not physically violent arguments about money. Eventually, Cardona and Jose moved into a trailer in Diane's backyard but continued to eat and shower in the house. Diane and Cardona continued to argue about money.
In the late morning of December 21, 2004, Jose left the trailer to go to the house. As he walked up the backstairs, he and appellant bumped shoulders. Jose apologized. Appellant asked Jose why he was being disrespectful. Appellant, looking angry, asked Jose what he wanted to do. Jose responded with the same threatening question.
Cardona came out of the house and asked why appellant was trying to fight Jose. Cardona asked appellant if he wanted to fight him. Appellant and Cardona argued. Appellant told Cardona to "pack his stuff." Cardona replied he would pack his stuff when he wanted to. As the two yelled at each other, appellant stated he was going to call his brother Alfredo.
Diane came out of the house and began yelling at Cardona, telling him he was not wanted there and for him to get his stuff and leave. After five or ten minutes, the yelling subsided. Diane and appellant, however, continued telling Cardona to get out. Cardona told Jose they would leave. At some point, Diane said: "Oh, you're gonna leave one way or another."
After a few minutes, a vehicle pulled up and Alfredo came out the back door of the house. He first talked with Diane and appellant. With Alfredo's arrival, the yelling started again. Alfredo told Cardona to get his stuff and get out. Cardona replied he would get his stuff when he wanted to. When it was clear Cardona was not leaving, Alfredo said: "All right, then. All right." Alfredo left the house, saying he would be back.
Cardona and Jose walked to the trailer. Cardona told Jose to go to a friend's house until things calmed down. As Jose was leaving, appellant told him not to be surprised if he saw his father on the 8 o'clock news. As Jose left the house through the back gate, he saw Alfredo get into a blue van he knew belonged to the mother of Alfredo's girlfriend. Alfredo drove away quickly.
After Jose left, Cardona went to the home of a next-door neighbor, Joseph Leakes. Leakes heard the yelling at Diane's house. Cardona told Leakes that one of Diane's sons was going to get his "buddies."
Cardona then went to the home of another neighbor, Annie Ridgell. Cardona arrived around noon. He told Ridgell he had an argument with Diane and her sons and that they were giving him a bad time.
At approximately 1:45 p.m., Alma Eleuterio, who lived across the alley from the rear of Diane's house, heard four gunshots. She then heard someone say, "You fucked me up," and then heard someone respond, "That is what you wanted."
Leakes also heard shots. When he went to the fence to investigate, he saw Cardona on the ground in the alley moaning. Leakes called the police and stayed with Cardona until help arrived. Through the gate to the Pinas' backyard Leakes could see Jose Palacios, a friend of appellant, sitting on Cardona's trailer.
On the afternoon of December 21, 2004, Jose Martinez was working on his truck several houses down the alley from Diane's house. Martinez saw a blue van drive up the alley. Some time later he heard a loud popping sound. Four or five houses down the alley he saw a man standing near the blue van. The man was pointing a shotgun at another man. The van was parked immediately behind Diane's rear yard with its passenger side facing a gate leading from the yard to the alley. The man pumped the gun to reload it. Martinez looked away to tell his younger brother to get in the garage. As he did so, he heard a second shot. When he looked back, he saw a man on the ground. The shooter straddled him, pumped the gun again and fired a third shot at the man.
The shooter then went to the driver's side of the van. The man on the ground tried to get up and move to a gate to one of the houses. As he did so, a second assailant came from the passenger side of the van and punched and kicked Cardona in the face, head and upper body. The shooter called to the second assailant to get in the van. He did so and the van drove off.
Martinez was unable to positively identify the assailants but was able to describe the shooter as a Mexican man about five feet, eight inches to five feet, ten inches tall, 180 to 200 pounds in weight with a stocky build, bald or with very short hair, "rough shaven," and wearing black pants and a brown flannel shirt. The second assailant was also a Mexican man, again five feet, eight inches to five feet, ten inches tall but lighter in weight, 160 to 180 pounds, clean shaven, with short hair, wearing a white shirt and dark pants with lighter skin and hair a little longer than the shooter's.
When shown a picture of appellant taken at the time of his arrest in March 2005, Martinez stated appellant looked similar to the second assailant with regard to his facial characteristics, skin color, height and weight.
Cardona died at the scene from three shotgun wounds, one to the torso, one to the abdomen and one to the left leg. He also suffered two stab wounds to the back of the head. He had abrasions on his face, abdomen and leg consistent with being struck by a hard object or from falling to the ground.
About 9:30 p.m. on the evening of Cardona's death, officers went to Alfredo's apartment and found a van fitting the description of the one used in the crime. The van was owned by the mother of Alfredo's girlfriend and Alfredo occasionally used it.
The day after the murder, persons at Alfredo's workplace were interviewed. They stated that at around 12:45 p.m. the day of the crime Alfredo received a call at work. He told his supervisor he had to leave to take care of business but would return. Alfredo was gone about an hour, returning around 2:00 p.m.
Handwritten entries, however, on Alfredo's time card represented he was working from 12:59 p.m. to 1:45 p.m. and took a break from 1:30 p.m. to 1:45 p.m. Alfredo's supervisor, who was familiar with Alfredo's handwriting, testified the handwriting on the time card appeared to be Alfredo's. Generally, Alfredo punched in and out using a time clock.
DISCUSSION
A. Sufficiency of the Evidence
Appellant argues the evidence was insufficient to convict him of second degree murder. He notes the only eyewitness to the murder was unable to identify either appellant or his brother Alfredo as the men who attacked Cardona. He contends the circumstantial evidence offered to connect appellant to the crime, while raising a suspicion that appellant was involved, was insufficient to support a finding that he aided and abetted the shooter.
1. Standard of Review
In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.) This standard applies to cases involving both direct and circumstantial evidence. (People v. Kelly (2007) 42 Cal.4th 763, 787-788.)
2. Discussion
We begin by noting the evidence that appellant's brother Alfredo was the shooter is extremely strong. When the argument between Diane, appellant, Cardona and Jose became heated, appellant told Jose he was going to call Alfredo. At about that time Alfredo received a call at work. He immediately left, went to his mother's house and joined in the argument. When Cardona defied him by refusing to immediately gather his belongings and move from the trailer, Alfredo left, saying "All right, then. All right" and that he would return. The reasonable interpretation of these words and actions in this context is that Alfredo was going to get either a weapon or help or both. Later, Martinez saw a van come up the alley behind the Pina house. The evidence strongly supports the conclusion the van belonged to the mother of Alfredo's girlfriend and was used by Alfredo. Martinez witnessed the murder. While he was too far from the scene to positively identify the shooter, his description of the man reasonably fit Alfredo's appearance. On returning to work that day, the evidence suggests Alfredo falsified his time card to indicate he was absent for less time than he was actually was.
We next note that whoever the man was who stabbed and kicked Cardona and left in the van after Cardona was shot, aided and abetted the murder. The question is whether the evidence was sufficient to prove appellant was that man. It was.
Appellant, Diane and Alfredo were very upset with Cardona. What specifically accounts for the intensity of this antagonism is not clear. Diane and Cardona had a personal relationship of long standing with a history of rancor. Whatever the exact basis of the Pinas' familial unhappiness with Cardona, it was very real, very intense and was shared by appellant, Diane and Alfredo. The argument that day was heated. The situation was serious enough that Alfredo was summoned from work to support his mother and brother. As we have indicated above, the evidence strongly supports the conclusion Alfredo was so angry with Cardona that when Cardona refused Alfredo's order to take his things and leave, Alfredo left, got a shotgun, returned and shot Cardona at close range three times.
Appellant was an active participant in the argument with Cardona. When Alfredo arrived at the house, he, appellant and Diane talked. While Jose could not remember at trial who made the statement, an officer testified that the day after the murder Jose told him that as Jose was leaving the yard after the argument, appellant stated not to be surprised if he saw his father on the 8 o'clock news. The obvious point was that something very bad was going to happen to Cardona. While alone this statement does not prove appellant's complicity in a plan to kill Cardona, it does suggest appellant expected something to happen to Cardona and that he approved.
Martinez testified that after Cardona was shot three times, a second man came from the passenger side of the van which was parked immediately behind Diane's house and kicked and punched Cardona. Martinez did not say that the second man got out of the van, he simply stated the man came from the passenger side of the vehicle. The van was parked with its passenger side next to the gate from Diane's house to the alley. Martinez could not identify the man as appellant. Nonetheless, shown a photograph of appellant at the time of his arrest, Martinez stated he looked similar to the second assailant.
After his argument with appellant, Diane and Alfredo, Cardona told neighbor Leakes that one of Diane's sons was going to get his buddies. This raises the possibility that the man who stabbed and kicked Cardona after Alfredo shot him three times and left him on the ground bleeding to death was not appellant but one of Alfredo's friends who returned with him in the van. The jury could reasonably conclude, however, that the cold-blooded, coup de grace nature of the stabbing and kicking was not the work of some disinterested "buddy" but rather was the anger driven reaction of someone caught up in the emotional context of the murder, i.e., appellant. The jury could conclude that if Alfredo left to get a friend to assist him, the friend would have been in the alley when Alfredo confronted and shot Cardona. Because the second assailant did not appear until after the shooting, the jury could conclude the second man was appellant who, hearing the shots in the alley, walked through the gate from his mother's backyard around the front of the van and assaulted Cardona.
The evidence was sufficient to convict appellant of second degree murder. It is possible appellant and Alfredo agreed to kill Cardona; the conclusion the evidence most reasonably supports is that appellant knew Alfredo was going for a weapon. When Alfredo returned and shot Cardona, appellant, motivated by the same anger, assisted his brother and did what he could to aid in the accomplishment of his brother's purpose.
B. Instructions on Aiding and Abetting
Appellant argues the trial court erred when, over a defense objection, it instructed the jury in the terms of Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 401 that to convict a defendant based on an aiding and abetting theory, it was unnecessary to find the defendant was present when the crime was committed as long as the elements of aiding abetting were proved. Appellant contends that in this case he could not be convicted of murder on an aiding abetting theory unless it was proved he was the second assailant. This, he argues, is the case because there was no other evidence any act by him assisted the commission of the murder. He argues given that fact it was error for the trial court to suggest appellant could be convicted as an aider and abettor even if not present at the crime.
1. Background
a. Instructions Conference
The prosecution offered evidence suggesting that after Alfredo shot Cardona, appellant kicked and stabbed him.
The prosecution's theory was that appellant was guilty of murder as an aider and abettor. At the instructions conference, defense counsel asked the trial court to modify CALCRIM No. 401, describing the concept of aiding and abetting, by deleting the portion of the instruction that states: "If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor."
Defense counsel stated her understanding it was the prosecution's theory of the case that appellant was the second assailant and was, therefore, an aider and abettor to the murder. The portion of CALCRIM No. 401 dealing with a nonpresent aider and abettor, therefore, was inapplicable, potentially misleading and should have been excised from the instruction.
The prosecutor replied he would argue appellant did not have to be present at the commission of the crime to be guilty of murder as an aider and abettor.
The trial court denied the defense request and gave CALCRIM No. 401 as written, including the portion of the instruction stating it was not an element of aiding and abetting that the defendant be present at the commission of the crime. The trial court did not instruct concerning the concept an aider and abettor is guilty of any crime committed by the perpetrator that is a natural and probable consequence of the offense assisted or promoted.
b. Prosecution's Opening Argument
In opening argument, the prosecutor stated his theory was appellant aided and abetted the murder of Cardona. The prosecutor made clear he believed the evidence showed Alfredo was the shooter and appellant was the second assailant.
Early in his argument, the prosecutor discussed CALCRIM No. 373. The instruction explains that while the evidence might show other persons were involved in the charged crime, the jury was not to speculate on why they were not on trial. The prosecutor stated the evidence showed various persons were involved in the murder, the shooter, the stabber and other persons at the house. The prosecutor reminded the jurors they were not to speculate about those other persons and that the jury's duty was to decide whether appellant was guilty.
In his review of the law of aiding and abetting and its application to the case, the prosecutor noted the elements, including the requirement the defendant must intend to aide and abet the perpetrator and the defendant's words or conduct must have in fact aided and abetted the perpetrator. The prosecutor argued appellant knew what was happening before the shooting and instigated and promoted the crime. The prosecutor told the jury that both Alfredo and appellant aided and abetted each other. They each encouraged the other. The prosecutor reminded the jurors that if the elements of aiding and abetting were proved, it was unnecessary appellant be present at the commission of the crime in order to be guilty as an aider and abettor.
The prosecutor then gave an example of the ways in which a defendant could be guilty as an aider and abettor. The example involved four men agreeing to rob a bank. One man planned the crime and sent the other three to commit it but did not go to the bank himself. Each of the three remaining men had a different part in the commission of the crime. One of the three was the getaway driver who parked some distance from the bank, two men actually entered the bank and committed the crime. The prosecutor noted all four men are guilty of the crime. The two who did not enter the bank were guilty of the crime as aiders and abettors. The prosecutor argued there is a circle of liability that includes not only those who actually commit a crime but also those who instigate and promote the crime.
The prosecutor then argued that as to the murder in this case, appellant was within the circle of liability because he was present at the crime and encouraged it. In discussing the evidence, the prosecutor started by reviewing the confrontation between Cardona, Jose, Diane, Alfredo and appellant. The prosecutor told the jury the evidence concerning the confrontation, even without the evidence of eyewitness Martinez, was sufficient to convict appellant as an aider and abettor.
It is unclear in this portion of his remarks whether the prosecutor was arguing that even without the eyewitness there was sufficient evidence to prove appellant was the second assailant or that there was sufficient evidence to prove he was an aider and abettor even if he was not the second assailant.
c. Defense Closing Argument
Defense counsel argued the only question in the case was whether appellant was the second assailant. Counsel reviewed the instruction related to the concept of aiding and abetting and stated: "The only aider and abettor to the shooting is the stabber." Counsel argued it was not enough to merely say bad things or wish someone ill. In order to aid and abet, she argued it is necessary to intentionally do an act to help the perpetrator.
d. Prosecution Rebuttal Argument
The prosecutor again argued appellant was the second assailant. The prosecutor did not discuss defense counsel's characterization of the law of aiding and abetting and its application to the case.
e. Jury Questions
The jury asked to rehear the testimony of several witnesses, including that of Martinez concerning his description of the second attacker and the location of the van in the alley. The jury asked to rehear the entire testimony of Jose and the testimony of the detective who testified Jose told him it was appellant who made the 8:00 news comment.
The jury asked if the concept of aiding and abetting applied to first and second degree murder and manslaughter. It asked if a defendant's knowledge of a perpetrator's intentions was the same as premeditation. It noted the element of aiding and abetting that the defendant must know the perpetrator was going to commit a crime and asked if it was necessary the defendant know he was going to commit the offense with which the defendant was now charged or was it enough that he knew the perpetrator was going to commit criminal conduct of some kind.
The jury asked when the crime of murder occurred. Was it at the time of the shooting or the time the victim died? The jury inquired if the defendant's knowledge the perpetrator began the commission of the crime constituted knowledge the defendant intended to commit the crime.
Finally, the jury noted that an element of aiding and abetting is the defendant's words or conduct in fact aided and abetted the perpetrator's commission of the crime and asked if appellant's participation in events related to the crime constituted "'aiding,' 'facilitate,' or 'promoting'" even if his words or conduct did not materially make it easier for the perpetrator to commit the crime, make it more likely the perpetrator would commit the crime or help him evade capture or aggravate the effects of the crime on the victim.
2. The Law of Aiding and Abetting
"[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 561.)
It is sufficient for a finding of aiding and abetting that the accused either instigated or advised the commission of the crime or was present during the commission of the crime for the purpose of assisting in its commission. Thus, mere words that instigate or advise the commission of a crime when uttered with sufficient knowledge and intent can amount to aiding and abetting and no physical assistance in the crime is required. (People v. Booth (1996) 48 Cal.App.4th 1247, 1254-1256; People v. Campbell (1994) 25 Cal.App.4th 402, 411-412.)
3. Discussion
Appellant contends the trial court erred in refusing to excise from CALCRIM No. 401 the portion of the instruction stating that to convict a defendant based on an aiding and abetting theory, it is unnecessary to find the defendant was present when the crime was committed as long as the elements of aiding and abetting are proved. Appellant argues that while this statement may be true in the abstract, it was prejudicially misleading here because it suggested appellant could be guilty of murder as an aider and abettor even if the evidence was insufficient to support the conclusion he was not the second assailant.
There is no doubt the prosecutor's primary theory was that appellant was the second assailant and, thus, aided and abetted the murder. However, whether intended or not−and his insistence CALCRIM No. 401 not be modified suggests it was intended−, the prosecutor's argument offered a second theory, i.e., that appellant's words and actions, even if he was not the second assailant, were enough to convict him as an aider and abettor.
The prosecutor reminded the jurors that pursuant to CALCRIM No. 373, while the evidence showed other persons at the house besides the shooter and stabber were involved in the murder, the jury was not to speculate about those other persons. Whatever the prosecutor's intent in so stating, the argument suggested the prosecutor's position that persons at appellant's house, whether present at the crime or not, were involved in the murder.
While making his case that appellant was the second assailant in discussing the concept of aiding and abetting, the prosecutor also emphasized it was unnecessary appellant be present at the commission of the crime in order to be found guilty as an aider and abettor. The prosecutor offered an example of a bank robbery in which two the four persons guilty of the crime were not present and in which one of the four took no physical part in the crime whatsoever.
The clear import of the prosecutor's argument was that while he believed the evidence established appellant was the second assailant, the evidence was sufficient to convict him as aider and abettor even if he was not. The prosecutor had a reason for taking this position given that the sole eyewitness was unable to identify appellant as the second assailant and because the victim, shortly before he was shot by Alfredo, told a neighbor that one of Diane's son was going to get his buddies.
We agree with appellant the evidence was insufficient to support conviction of appellant as an aider and abettor to murder if he was not the second assailant. There is simply insufficient evidence that if appellant was not the second assailant, he had knowledge Alfredo was going to murder Cardona or that he intended, promoted, advised, encouraged or instigated a murder. As we have noted, the trial court did not instruct concerning the natural and probable consequences doctrine.
While the evidence showed appellant, his mother and Alfredo had a serious argument with Cardona shortly before the shooting and while it might be inferred appellant knew or guessed Alfredo was planning to take additional action against Cardona, it is mere speculation appellant advised, promoted, instigated or encouraged Cardona's murder.
Under the circumstances of this case, the trial court should have accepted appellant's request the portion of CALCRIM No. 401 stating presence is not required to establish a defendant as an aider and abettor be excised from the instruction. The error in failing to do so when combined with the prosecutor's argument allowed the presentation of a theory of culpability not sufficiently supported by the evidence.
The error, however, was harmless.
"Where the jury considers both a factually sufficient and a factually insufficient ground for conviction, and it cannot be determined on which ground the jury relied, we affirm the conviction unless there is an affirmative indication that the jury relied on the invalid ground." (People v. Marks (2003) 31 Cal.4th 197, 233; People v. Guiton (1993) 4 Cal.4th 1116, 1127-1128, 1130.) In reviewing for an affirmative indication the jury relied on the invalid ground, we examine the entire record including the facts, instructions, arguments of counsel and any communications from or to the jury during deliberations. (People v. Guiton, supra, 4 Cal.4th at p. 1130.)
. It was clear that based on his presentation of evidence and argument to the jury, the prosecutor's core contention was appellant was the second assailant and, thus, given the other evidence, an aider and abettor in Cardona's murder. This was the sole theory to which the defense responded. Nothing in the jury's questions indicates it was not focusing on the theory appellant was the second assailant or that they found he was not the person who stabbed Cardona. There is no affirmative indication the jury relied on the invalid factual theory offered by the instructions and the prosecutor's argument. Any error in the manner the jury was instructed on aiding and abetting, therefore, was harmless.
3. Instruction on Circumstantial Evidence
CALCRIM No. 224 explains the concepts that if circumstantial evidence reasonably supports conclusions of both guilt and innocence, the jury must accept the conclusion of innocence. Appellant notes the trial court did not give CALCRIM No. 224 but instead gave a modified version of CALCRIM No. 225. As written, CALCRIM No. 225 conveys the same concept as CALCRIM No. 224 but does so only with regard to mental elements. The trial court, with the help and approval of defense counsel, modified CALCRIM No. 225 in an attempt to make it applicable to the proof of both mental and nonmental elements.
"Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt."Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." (CALCRIM No. 224.)
"The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required. "A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence. "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt."Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." (CALCRIM No. 225.)
"The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent or mental state. The instructions for each crime explain conduct, the intent or mental state required."Conduct, intent or mental state may be proved by circumstantial evidence."Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to the conclusion beyond a reasonable doubt."Also before you rely on circumstantial evidence to conclude that the defendant had the required conduct, intent, or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required conduct, intent, or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did not have the required conduct, intent or mental state and another reasonable conclusion supports a finding that defendant did not, you must concluded that the required conduct, intent, or mental stated was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept the reasonable conclusions and reject any that are unreasonable."
Appellant now argues the modification was inadequate and as to the crucial issue of the identity of the second assailant, the jury was not instructed that if the circumstantial evidence supported a reasonable conclusion appellant was not the second assailant, the jury was required to acquit.
1. Background
a. Instructions Conference
It appears, based on the comments of defense counsel and the trial court, the trial court proposed to instruct the jury concerning circumstantial evidence with CALCRIM No. 223, defining direct and circumstantial evidence, and with a slightly modified version of CALCRIM No. 225, rewritten to make it apply not only to mental elements but also to any fact necessary to conviction. The record does not contain this modified instruction.
Defense counsel was concerned that if CALCRIM No. 225, even as slightly modified, was given, the jury might believe its restrictions on the use of circumstantial evidence applied only to mental elements and not issues like the identity of the second assailant. Counsel made several suggestions for further modifications to CALCRIM No. 225 to make it clear the instruction applied to all factual issues in the case not just issues of intent and mental state.
Counsel suggested CALCRIM No. 225 be modified to insert the word "conduct" and a comma prior to "intent or mental state may be proved by circumstantial evidence" and that every mention in the instruction of intent or mental state be preceded by the word "conduct" followed by a comma. Counsel believed this would make clear CALCRIM No. 225 applied not just to mental issues but also to all factual issues in the case.
Defense counsel stated that as so modified CALCRIM No. 225 was acceptable.
b. Arguments to the Jury
In his argument, the prosecutor reviewed the concepts of direct and circumstantial evidence and related them to the case. He noted at least twice that if circumstantial evidence allowed for two reasonable conclusions, the jury was to give the defense the benefit of the doubt and accept the conclusion favorable to the defendant. He stated, however, this rule applied only to reasonable conclusion and told the jury the only reasonable conclusion was appellant "was there" to help commit the crime.
In her argument, defense counsel, not unexpectedly, also discussed at length the concept of circumstantial evidence. She told the jury that if any reasonable conclusion based on the circumstantial evidence was consistent with a verdict of not guilty, the jury was required to find appellant not guilty. Her argument then attempted to show such an interpretation. Counsel summed up by asking: "[I]s there a reasonable interpretation of this circumstantial evidence that says [appellant] was not the stabber?" Counsel argued there was such a reasonable interpretation and asked the jury to return a verdict of not guilty.
2. Discussion
We are at a loss to understand how this problem arose. In all essential aspects, the prosecution's case was based on circumstantial evidence. CALCRIM No. 224 states the concept that if the circumstantial evidence reasonably supported a conclusion favorable to the defense, it must be accepted. CALCRIM No. 224 is inclusive and clearly applies to all factual issues in a case. The Bench Note to CALCRIM No. 224 states the instruction must be given sua sponte "if the prosecution relies on circumstantial evidence to establish any element of the case." (Italics added.) The note adds that if intent is the only element proved by circumstantial evidence, then the court is not to give CALCRIM No. 224 but instead give CALCRIM No. 225.
CALCRIM No. 225 instructs concerning the same concept as CALCRIM No. 224 but confines it to the elements of intent and mental state. The Bench Note could not be more clear. It states in part: "Give this instruction when the defendant's intent or mental state is the only element of the offense that rest substantially or entirely on circumstantial evidence. If other elements of the offense also rest substantially or entirely on circumstantial evidence, do not give this instruction. Give CALCRIM NO. No. 224." (Italics added.)
The proper instruction on circumstantial evidence in this case was CALCRIM No. 224. The trial court, however, eschewed that instruction and instead rewrote the less inclusive CALCRIM No. 225 to make it more inclusive. While this process was unnecessary, the instruction crafted by defense counsel and the trial court sufficiently, if ungrammatically, instructed that as to any fact if the circumstantial evidence allowed a reasonable conclusion favorable to the defense, it was to be accepted by the jury. This concept was repeated during both parties' arguments and formed the argumentative context in which the case was to be decided.
In an instructional sense, the trial judge decided to walk down stairs on his hands. He reached the bottom but could have arrived there easier, safer and quicker by making the trip on his feet.
4. Instructions on Reasonable Doubt and Use of Evidence
Appellant argues the trial court's use of CALCRIM No. No. 220, defining reasonable doubt and the presumption of innocence, denied him due process because it somehow prevented the jury from considering a lack of evidence in determining whether a reasonable doubt concerning guilt existed.
The contention has been repeatedly made and repeatedly rejected. In People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093, the court stated: "Appellant contends that instruction in the language of CALCRIM No. 220 violated his federal right to due process because it prevented the jury from considering the lack of evidence in determining whether a reasonable doubt existed as to his guilt. We disagree.
"CALCRIM No. 220, as given, provided: 'The fact that a criminal charge has been filed against [appellant] is not evidence that the charge is true. You must not be biased against [appellant] just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt.[¶] . . . [¶] Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leads [sic] you with an abiding conviction that the charge is true. The evidence need not element [sic] 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 [appellant] guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.' (Italics added.) The trial court then gave CALCRIM No. No. 222, which, in pertinent part, defined 'evidence' as 'the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.' That instruction also stated that '[n]othing that the attorneys say is evidence,' that their remarks and questions are not evidence, and '[o]nly the witnesses' answers are evidence.'
"Appellant contends that because reasonable doubt may arise from the lack of evidence in a case as well as from the evidence presented at trial. (People v. Simpson (1954) 43 Cal.2d 553, 566, the italicized language in CALCRIM No. No. 220 combined with the definition of evidence given in CALCRIM No. No. 222 'contain[s] a flaw resulting in a due process violation because the possibility that a reasonable doubt may arise from the lack of evidence is not included in the basic definition of reasonable doubt.' As argued by appellant, 'by requiring a reasonable doubt to be based on the evidence presented, and by excluding argument as evidence, the instruction prevents the jury from basing a reasonable doubt upon the absence of sufficient evidence, even where defense counsel has argued that sufficient evidence is lacking.' Appellant also contends that the instruction implies that 'lack of evidence does not suffice for acquittal; rather, the defendant must adduce evidence that promotes a reasonable doubt.' We see no reasonable likelihood that the jury understood and applied the instruction in the manner suggested by appellant.
"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, 361-362, and cases cited therein.) 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 the accused may be convicted only upon proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) When reviewing the correctness of reasonable doubt charges, the proper constitutional inquiry is 'whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.' (Id. at p.6.) ' "The essential connection to a 'beyond a reasonable doubt' factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings." [Citation.] Where such an error exists, it is considered structural and thus is not subject to harmless error review. [Citation.] However, if a jury instruction is deemed "ambiguous," it will violate due process only when a reasonable likelihood exists that the jury has applied the challenged instruction in a manner that violates the Constitution. [Citation.] Any challenged instruction must be considered in light of the full set of jury instructions and the trial record as a whole. [Citation.]' (Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812, 820-821; see also People v. Smithey (1999) 20 Cal.4th 936, 963.)
"Here, the plain language of the instruction given tells the jury that '[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.' (CALCRIM No. No. 220.) . . . . The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. . . .
"Nothing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial. (People v. Hernandez (2007) 151 Cal.App.4th 1154.)
"We see no violation of appellant's federal constitutional rights in the language of CALCRIM No. 220."
We agree.
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., HALLER, J.