Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Nos. FSB041131, FSB048489. Arthur A. Harrison, Judge.
David McNeil Morse, 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, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Raymond M. DiGuiseppe, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, J.
A jury found defendant guilty of four counts of robbery (Pen. Code, § 211) (counts 1, 2, 5, and 6) and one count of attempted robbery (§§ 664/211) (count 3). In addition, the jury found true that defendant had used a deadly and dangerous weapon in the commission of three of the counts, rendering the crimes serious felonies (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). In a bifurcated proceeding, the trial court found true that defendant had sustained six prior serious and violent felony convictions (§§ 1192.7, subd. (c), 667.5, subd. (c)) and that defendant was released from custody on bail at the time he committed two of the current offenses (§ 12022.1). Defendant was sentenced to consecutive terms of 25 years to life on each count, for a total of 125 years to life. Defendant’s sole contention on appeal is that the jury instruction given to the jury on the definition of “reasonable doubt” found in Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 220 violates due process. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
The trial court declared a mistrial as to another count of robbery on which the jury deadlocked. The People ultimately dismissed that charge.
The information alleged that defendant had sustained two other prior serious and violent felony convictions. However, the People dismissed one, and the trial court made a not-true finding on the other.
The trial court struck the weapon use and on-bail enhancements.
I
FACTUAL BACKGROUND
In August and September 2003, defendant robbed two Shell gas stations (counts 1 and 2) and attempted to rob a 7-Eleven convenience store (count 3) in San Bernardino with the use of a knife. Surveillance cameras captured the robberies and the attempted robbery. Defendant was repeatedly identified as the perpetrator of the crimes. Defendant was subsequently arrested and released on bail.
While on bail, on February 26 and 27, 2005, defendant robbed two more Shell gas stations (counts 5 and 6) in San Bernardino and Colton, respectively. Police recognized defendant and his vehicle from the surveillance footage. Defendant was apprehended driving the get-away vehicle and identified as the perpetrator of the crimes.
II
DISCUSSION
Defendant urges that his convictions must be reversed because the trial court committed structural error in instructing the jury with the CALCRIM instruction on reasonable doubt. Specifically, he claims the instruction (CALCRIM No. 220) violates due process because it fails to clearly convey that the evidence must induce in each juror a sense of “subjective certitude” before the defendant may be convicted, as opposed to simply an objective conclusion based on impartial review of the facts. He further asserts the instruction fails to unambiguously define “abiding conviction.”
We review de novo the validity of the trial court’s jury instructions. (People v. Burch (2007) 148 Cal.App.4th 862, 870.) The trial court here instructed the jury in accordance with CALCRIM No. 220 that the defendant is presumed innocent unless the People prove each element of the crime or special allegation beyond a reasonable doubt. The instruction defined “[p]roof beyond a reasonable doubt” as “proof that leaves you with an abiding conviction that the charge is true.” The jury was told that to decide whether the People had proved their case beyond a reasonable doubt it must “impartially consider and compare all the evidence that was received throughout the entire trial.”
The trial court read CALCRIM No. 220 as follows: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant . . . 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 and allegation 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 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 consider and compare all the evidence that was received throughout the entire 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.”
At the outset we note that defendant did not take issue with CALCRIM No. 220, even though before instructing the jury the court inquired whether either counsel had any objections to the instructions the court intended to give or whether either counsel desired additional instructions. “Generally, ‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’” (People v. Campos (2007) 156 Cal.App.4th 1228, 1236, original quotation marks corrected (Campos).) Defendant has therefore forfeited his challenge to the language of CALCRIM No. 220.
In any event, as the court noted in Campos,the California Supreme Court and the Courts of Appeal in every appellate district have rejected similar challenges to the language used in CALCRIM No. 220. (Campos, supra, 156 Cal.App.4th at p. 1239, and cases cited therein.) These cases concluded that the contents of the reasonable doubt instruction did not violate due process or lessen the burden of proof below that of finding guilt beyond a reasonable doubt. (See, e.g., People v. Rios (2007) 151 Cal.App.4th 1154, 1156-1159; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508-1509; People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093.)
We also reject defendant’s contention that CALCRIM No. 220’s language that the jurors must impartially compare and consider the evidence that was received throughout the entire trial “skews the concept of reasonable doubt to the point that the jurors are left with the impression that they are engaged in a narrowly rational process of fixing the objective probabilities . . . .” Instead, this language simply clarifies that the jurors may only consider evidence introduced at trial in reaching their verdict. (See People v. Rios, supra, 151 Cal.App.4th at p. 1157; People v. Westbrooks, supra, 151 Cal.App.4th at p. 1509.) The Rios court explained, “CALCRIM No. 220 uses verbs requiring the jury to ‘compare and consider all the evidence that was received throughout the entire trial.’ CALJIC No. 2.90 uses nouns requiring ‘the entire comparison and consideration of all the evidence’ by the jury.” (Rios, at p. 1157.) It concluded that, like CALJIC No. 2.90, the challenged language of CALCRIM No. 220 serves to inform the jury that its decision must be based on the evidence, and it rejected defendant’s claim that the instruction shifted the burden of proof. (Rios, at p. 1127.)
CALCRIM No. 220 defines proof beyond a reasonable doubt as proof that leaves one with an “abiding conviction.” Defendant’s claim that the instruction injects intolerable ambiguity into the phrase “abiding conviction” is also meritless. As stated in Campos, “[t]he definition of reasonable doubt in CALCRIM No. 220 is derived from CALJIC No. 2.90 which in turn was taken directly from the language of section 1096 which, when given, requires ‘no further instruction . . . defining reasonable doubt . . . .’ (§ 1096a.) In Victor v. Nebraska (1994) 511 U.S. 1, 14-15 [127 L.Ed.2d 583, 114 S.Ct. 1239], the United States Supreme Court sustained the then language of CALJIC No. 2.90, and stated: ‘An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.’” (Campos, supra, 156 Cal.App.4th at p. 1239.)
Additionally, “[t]he California Supreme Court has also rejected similar challenges to the ‘abiding conviction’ language. Just last year, in People v. Cook (2006) 39 Cal.4th 566, 601 [47 Cal.Rptr.3d 22, 139 P.3d 492], it rejected a claim that CALJIC No. 2.90’s “‘an abiding conviction to a moral certainty’” language eroded the reasonable doubt standard. (See also People v. Heard (2003) 31 Cal.4th 946, 980 [4 Cal.Rptr.3d 131, 75 P.3d 53] [rejecting defendant’s claim that the reasonable doubt instruction in CALJIC No. 2.90 is ‘“hopelessly confusing”’]; People v. Freeman (1994) 8 Cal.4th 450, 501-505 [34 Cal.Rptr.2d 558, 882 P.2d 249] (Freeman) [defining beyond a reasonable doubt by use of ‘abiding conviction’ was proper].) Freeman cautioned against departing from the ‘abiding conviction’ language. (Freeman, supra, at p. 505.)” (Campos, supra, 156 Cal.App.4th at p. 1239.)
Defendant acknowledges that the language in section 1096 and CALJIC No. 2.90 “leave[s] an impression of substantive similarity” to CALCRIM No. 220’s definition of “proof that leaves you with an abiding conviction that the charge is true.” He nonetheless argues that the particular phraseology obscures the requirement of “subjective servitude” -- that each juror must have a subjective feeling of confidence in the defendant’s guilt -- because it omits reference to the jurors’ “minds” and “feeling[s].” However, as explained by appellate cases examining the instruction, CALCRIM No. 220 is directly based on section 1096. (Campos, supra, 156 Cal.App.4th at p. 1239 and cases cited therein; see also Commentary to CALCRIM No. 220 [“[t]his instruction is based directly on Penal Code section 1096”].) In addition, CALCRIM No. 220 repeatedly uses the word “you” in its instruction to the jury. Contrary to defendant’s assertion, the language of CALCRIM No. 220 plainly informs the jurors that each of them must individually conclude the evidence establishes guilt beyond a reasonable doubt before the defendant may be convicted.
In summary, we agree with the analysis of the appellate cases rejecting challenges to the reasonable doubt instruction found in CALCRIM No. 220 and hold that because there is no reasonable likelihood that the jury understood CALCRIM No. 220 in the manner suggested by defendant, the trial court did not err in giving such instruction to the jury. Defendant’s contentions are without merit.
As Campos explains, “In light of this impressive and controlling array of legal authority, we find no compelling reason to revisit this issue. Moreover, we caution the bar that adoption of the Judicial Council of California Criminal Jury Instructions is not an excuse for advocates to dust off the old, hackneyed arguments that were thoroughly discredited under similarly worded CALJIC instructions and recycle them before this court.” (Campos, supra, 156 Cal.App.4th at p. 1239.)
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., KING, J.
Before trial, without objection from defense counsel, the trial court gave the jury substantially the same instruction as above under CALCRIM No. 103.