Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. CR19087, Gloria Trask, Judge. Affirmed.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant appeals from a jury verdict finding he was a mentally disordered sex offender (MDSO), and extending his civil commitment for an additional two years. (Welf. & Inst. Code, § 6316, et seq.) He argues that instructional error eased the prosecution’s burden of proof. We affirm.
BACKGROUND
In 1981, defendant pled guilty to one count alleging he committed a lewd and lascivious act by use of force, violence, duress, menace, or threat of great bodily injury. (Former Pen. Code, § 288, subd. (b) .) He was subsequently committed to Patton State Hospital as a MDSO.
At the time the charges were brought, the range of punishment for child molestation under this statute was three, five, or seven years in state prison.
Defendant’s commitment was extended several times between 1988 and 2005. In 2007, the prosecution petitioned to extend the commitment for another two years. At trial, psychiatric experts testified that defendant suffered from the mental disorders of schizoaffective disorder, depressed type, and pedophilia. Dr. Nakai, a Patton State Hospital psychiatrist who has treated defendant since 2001, opined that defendant was predisposed to reoffend and that he is still a threat to children. Similarly, two staff psychologists at Patton were of the opinion that defendant met the criteria for a MDSO offender.
At the conclusion of the trial, the jury found defendant was an MDSO, and the court extended his commitment for an additional two years. Defendant appeals.
DISCUSSION
On appeal, defendant contends the trial court committed prejudicial error in instructing the jury using the patterned instructions relating to the evaluation of conflicting evidence (CALCRIM No. 302), determining the credibility of witnesses (CALCRIM No. 226), and defining direct and circumstantial evidence. (CALCRIM No. 223.) In a related argument, defendant contends the instructions are ambiguous and it is reasonably likely the jury applied them in an unconstitutional way. We address the arguments in the order presented in the briefs.
Preliminarily, respondent argues the instructional challenges have been waived because defendant failed to object. Defendant did not object to these instructions during discussion of the instructions. Although an appellate court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant were affected thereby (Pen. Code, § 1259; People v. Hillhouse (2002) 27 Cal.4th 469, 503-506), failure to object forfeits the issue unless the error affects the defendant’s substantial rights. (People v. Anderson (2007) 152 Cal.App.4th 919, 927.)
We therefore review the challenged instructions to determine if defendant’s rights were affected by the instructions, that is, “whether there is a ‘reasonable likelihood’ that the jury understood the charge as the defendant asserts.” (People v. Kelly (1992) 1 Cal.4th 495, 525.) Not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. (People v. Huggins (2006) 38 Cal.4th 175, 192.) We find no error.
a. CALCRIM No. 302—Evaluating Conflicting Evidence
At trial, the court read the language of CALCRIM No. 302 to the jury. CALCRIM No. 302 states, “If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.”
The instruction tells the jury how to evaluate conflicting evidence, “if” the jury determines there is a conflict in the evidence. Defendant contends CALCRIM No. 302 contains a misstatement of constitutional law because it permits jurors to find for the government under an incorrect presumption. Specifically, defendant complains that the instruction improperly tells the jury it must “believe” or be “convinced” by evidence adduced at trial in order to decide a case. This is incorrect.
CALCRIM No. 302 does not create an improper presumption, nor does it create a conflict between the presumption of innocence and the admonition that the jury not favor one side or the other. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1191.) It simply guides the jury when and if it determines there is a conflict in the evidence. The instruction offers the same guidance to the jury that former CALJIC No. 2.22 did in such circumstances, and both versions of the instruction correctly emphasize that it is the convincing force of the testimony, not the number of witnesses, that is of critical importance. (People v. Reyes (2007) 151 Cal.App.4th 1491, 1497.)
Here, defendant does not point to a conflict in the evidence, or the manner in which that conflict was resolved against defendant as a result of the instruction, or prejudice from the pattern instruction in the absence of any conflicting evidence. The evidence of defendant’s diagnosis as a MDSO was overwhelming and there was no conflicting evidence, so he could not be prejudiced by the instruction even if there were an error. Further, we doubt defendant would prefer an instruction which told the jury it could render a verdict for one side or the other even if it disbelieved, or was not convinced, by the evidence adduced at trial.
There was no misstatement of law or error in reading CALCRIM No. 302 to the jury.
b. CALCRIM No. 226—Witnesses
Defendant also challenges the language of CALCRIM No. 226, arguing that the instruction tells the jury that the defense has the burden of disproving the charge. We disagree.
CALCRIM No. 226 tells the jury it must judge the credibility or believability of the witnesses, and outlines some considerations bearing on the jury’s determination of credibility. The pattern instruction mirrors the criteria set out in the Evidence Code as a general catalog of those matters having any tendency in reason to affect the credibility of a witness. (Evid. Code, § 780.)
A court has a sua sponte duty to instruct the jury on the factors relevant to a witness’s credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884.) CALCRIM No. 226 has been approved as an accurate statement of the law. (People v. Ibarra, supra, 156 Cal.App.4th at p. 1188;see also, People v. Campos (2007) 156 Cal.App.4th 1228, 1240.)
The instruction cannot be reasonably understood to mean that the defense has the burden of disproving the charge. There was no misstatement of law or error in the pattern instruction.
c. CALCRIM No. 223—Direct and Circumstantial Evidence.
Defendant also challenges the language of CALCRIM No. 223, which defines direct and circumstantial evidence. Defendant complains that CALCRIM No. 223 “insinuates” that defendant was required to disprove some element of the MDSO criteria. We disagree.
The language of CALCRIM No. 223 has been approved in prior decisions. (People v. Ibarra, supra, 156 Cal.App.4th at pp. 1186-1187; see also People v. Anderson, supra, 152 Cal.App.4th at pp. 930-932.) Defendant does not point to specific manner in which the instruction “insinuates” the defendant has the burden of proving anything. The instruction merely cautions that neither direct nor circumstantial evidence should be accorded greater weight simply because it is direct or circumstantial. (People v. Anderson, supra, at p. 930.) Other instructions set forth the prosecution’s burden of proof and the presumption that defendant was not a MDSO.
There was no misstatement of law or error in the pattern instruction.
d. There Was No Ambiguity in the Instructions Nor Was It “Reasonably Likely” the Jury Misapplied Them.
Defendant claims that even if the jury instructions are not clearly erroneous, they are ambiguous and resulted in a constitutional violation. Defendant sets out general legal principles applicable to ambiguous or erroneous instructions, but does not adequately explain how the three instructions violated his constitutional rights. Defendant complains that the CALCRIM No. 302 told the jury it must believe or be convinced by the evidence, that the jury must not disregard a witness’s testimony without reason, and that the jury should not favor one side over another, all of which are sound principles geared at preserving a defendant’s right to a fair trial. However, defendant goes on to state, without citation to the record, that the jury was also instructed it must “make a choice between the government witnesses and the non-existent respondent witnesses of whom to believe.” There was no such instruction and there is no room to argue that the instructions, when read together, are susceptible to such an interpretation.
The jury was properly instructed that the prosecution had the burden of proof and that he was presumed not to be a MDSO. The jury was also instructed to keep an open mind throughout the trial. There was overwhelming evidence that defendant continued to suffer from a mental disorder that predisposed him to the commission of sexual crimes and that he presents a substantial danger of bodily harm to others; defendant does not argue otherwise, nor does he argue the evidence was insufficient to support the jury’s finding. There was no ambiguity in the instructions which violated defendant’s constitutional rights.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P. J., Miller, J.