Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge. Super. Ct. No. 6900270-0
THE COURTSusan Pochter Stone, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Damon Marcell Rogers stands convicted, following a jury trial, of first degree robbery involving the personal use of a firearm (Pen. Code, §§ 211, 12022.53, subd. (b)). He admitted having served two prior prison terms (id., § 667.5, subd. (b)). Sentenced to 18 years in prison, he now appeals, claiming instructional error. We affirm.
Our factual summary is an abbreviated one, as the facts are not necessary for resolution of the issue raised on appeal.
On the night of January 10, 2006, two men accosted Claudia Sicairos inside her garage at the corner of Shaw and Marks. One, whom she identified at trial as appellant, pointed a gun at her and told her not to scream, but she did anyway. He took her backpack off her shoulders, while the second man came up from behind her, took her cell phone, and held her by the neck. Appellant struck her in the face. When Sicairos’s sister, Veronica Chaides, looked out the window and screamed for them to let her go, the men threw Sicairos to the ground and ran off. Appellant ran south. Chaides, who also identified appellant at trial as one of the attackers, called 911, and Sicairos gave a description of the men to the dispatcher. Both women also gave a description to the officers who responded.
Officer Verdugo, who checked the area south of the robbery site, did not find any of the stolen property. However, he did come in contact with appellant, who generally matched the description of one of the robbers and who was running southbound. Appellant, who seemed a little nervous, said he was running because he was trying to get away from his cousin, with whom he was playing. While Verdugo was pat-searching him, appellant pulled away and fled. He was apprehended after a short chase.
Appellant waived his rights and agreed to speak with the officers. He said he had gone to a nearby liquor store to buy cigars. When he returned to his residence, he did not go inside because his sister’s boyfriend was yelling at him. Instead, he ran to meet a female, whom he had known for about three days, in an adjoining apartment complex. Appellant was unable to show officers her apartment or provide a telephone number for her, although he said the meeting was prearranged. Appellant first said he had been running when initially contacted by Verdugo to avoid his sister’s boyfriend, Anthony, because he wanted the female to himself. Later, he said he had been running to avoid Anthony because he thought Anthony would want one of his cigars.
After appellant was taken into custody, Officer Logue brought Sicairos and Chaides separately to view him. Each woman identified appellant as one of the robbers.
Appellant testified at trial and denied participating in the robbery. On the night in question, he got ready for a date, went to a nearby liquor store to buy cigars, and then returned briefly to his residence. From there, he started walking southbound, then broke into a run because he knew his friend, Anthony, would either want one of his cigars or to go with him to his date’s house. He fled from Verdugo because he became scared when, even after a search of his person and a warrant check were negative, it appeared Verdugo was going to arrest him.
DISCUSSION
The trial court instructed the jury on reasonable doubt pursuant to CALCRIM No. 220, to wit:
“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 trail [sic].
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of each crime and special allegation 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 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 are [sic] 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 the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” (Italics added.)
This was immediately followed by CALCRIM No. 222, which told jurors, in pertinent part: “You must decide what the facts are in this case. You must use only the evidence that was presented in the courtroom. Evidence is the sworn testimony of the witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.” (Italics added.)
Appellant now contends these instructions, individually and when read together, limited the jury’s determination of reasonable doubt to the evidence received at trial and precluded it from considering the absence of evidence connecting him to the crimes in determining whether reasonable doubt existed. The error, he says, deprived him of his federal constitutional rights to due process and to present a defense. We have rejected this argument (People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093), as have other courts (e.g., People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510). We see no reason to revisit our previous holding.
Respondent suggests appellant’s claim of error has been forfeited because defense counsel requested the instructions at issue and sought no corrections or modifications thereto. We decline to find forfeiture, as the prosecutor also requested the instructions (one of which the trial court was required to give sua sponte in any event), and, based on the record before us, we cannot find or imply a clear tactical purpose for defense counsel’s requesting the specific language appellant now challenges. (People v. Guerrero, supra, 155 Cal.App.4th at p. 1267, fn. 3; see People v. Coffman & Marlow (2004) 34 Cal.4th 1, 49.) Counsel simply requested standard jury instructions.
People v. McCullough (1979) 100 Cal.App.3d 169, on which appellant relies, does not assist him. In that case, the jury asked a question concerning the elements of the charged crime. When the court reconvened, other questions were invited. During a discussion between the court and jurors of the concept of reasonable doubt, a juror asked, “‘So then the doubt must arise from the evidence?’” The trial court responded affirmatively, an answer the appellate court determined misled the jury, since reasonable doubt may grow out of a lack of evidence as well as the evidence adduced. (Id. at pp. 180-182; see Johnson v. Louisiana (1972) 406 U.S. 356, 360; People v. Simpson (1954) 43 Cal.2d 553, 566.) Here, by contrast, the trial court did not tell the jury that reasonable doubt must arise from the evidence and, given the court’s instructions as a whole, it is not reasonably likely jurors understood CALCRIM Nos. 220 and 222, individually or collectively, to preclude their consideration of any lack of evidence in determining whether reasonable doubt existed. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Westbrooks, supra, 151 Cal.App.4th at pp. 1509-1510; see Victor v. Nebraska (1994) 511 U.S. 1, 22-23 [reasonable doubt instruction did not violate defendant’s constitutional rights where there was no reasonable likelihood jurors applied instructions in way that violated Constitution]; Estelle v. McGuire (1991) 502 U.S. 62, 72 [challenged portion of instruction must be viewed in context of instructions as whole; reviewing court inquires whether there is reasonable likelihood jury applied instruction in way that violates Constitution].)
DISPOSITION
The judgment is affirmed.