Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV037547, Katrina West, Judge.
Victoria H. Stafford, 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, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant Joseph Dominic Schlone was convicted by a jury of second degree burglary and petty theft. He argues his conviction should be reversed because of a defective reasonable doubt instruction given to the jury. He also contends the trial court should have stayed his conviction for petty theft pursuant to Penal Code section 654.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was questioned by police and then arrested after a license plate connected him to the theft of a flat screen computer monitor from a commercial building. He was charged with second degree commercial burglary in violation of Penal Code section 459 (count 1) and petty theft in violation of Penal Code section 484, subdivision (a) (count 2). One prior prison term within the meaning of Penal Code section 667.5, subsection (b), was also alleged based on a conviction in 2004 for a violation of Health and Safety Code section 11378, possession for sale of a controlled substance.
Evidence presented at trial indicated defendant drove to a business located in an industrial area with a male companion. The two men entered the business, where defendant spoke with an accounting manager to ask whether the business sold a particular product. When the accounting manager left defendant and the companion alone to obtain some product literature, the companion unplugged a flat screen computer monitor and carried it away on foot. Defendant then got back in the vehicle and drove away, but the accounting manager was able to obtain the license plate number on the vehicle. A security camera also recorded the incident, and the video was admitted into evidence and shown to the jury.
During interviews with a police investigator, one of which was recorded and presented to the jury, defendant claimed that he never intended to take the monitor, that he tried to stop his companion from stealing the monitor, and that he had money in his pocket to buy a saw but had driven to the wrong location. He also claimed he did not know what the companion was doing when he put the monitor under his jacket. A police investigator searched defendant’s residence but did not find a monitor.
A jury convicted defendant on both counts. In a separate proceeding, the trial court found the prior prison term allegation to be true. The trial court sentenced defendant to a total of three years in state prison, including two years on count 1 and another year for the prior prison term. The trial court also imposed a concurrent six-month term on count 2.
DISCUSSION
Section 654Citing People v. Bernal (1994) 22 Cal.App.4th 1455, 1458, defendant contends the trial court should have stayed the sentence on the petty theft offense (count 2) pursuant to Penal Code section 654, which prohibits multiple punishments for crimes arising from a single, indivisible course of conduct. The People correctly agree with defendant’s argument. When a defendant commits a petty theft during the course of a burglary, the defendant may be convicted of both offenses, but punishment for the petty theft must be stayed pursuant to Penal Code section 654. (Ibid.) Defendant is therefore entitled to a modification of the abstract of judgment to show that the concurrent six-month term for petty theft is stayed.
CALCRIM No. 220 reads as follows: “The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial.
As defendant contends, the trial court instructed the jury using Judicial Council of California Criminal Jury Instructions, CALCRIM No. 220. Defendant objected to this instruction during trial and argues it should not have been given. Defendant believes the instruction is constitutionally defective because it does not require proof of each element beyond a reasonable doubt. He argues the error was prejudicial and requires reversal of his conviction.
The jury was instructed twice using CALCRIM No. 220—once before the presentation of evidence and again after the presentation of evidence. As defendant points out in his opening brief, the transcript indicates the trial court may have misread the challenged portion of the instruction on both occasions. However, the misreading was slight, and the jury was given a copy of the instructions. As a result, there is no basis for concluding this slight misreading could have had any effect on the jury’s verdict.
To support his argument, defendant focuses on the portion of the instruction that informs the jury it “must impartially compare and consider all the evidence that was received throughout the entire trial.” (Italics added.) Defendant believes the jury could only have interpreted this portion of the instruction to mean it must compare the evidence presented by the prosecution with the evidence presented by the defense. Since he did not testify, but the prosecution presented testimony by the victim and a police officer, defendant believes the instruction allowed the jury to base his conviction on an absence of defense evidence rather than the strength of the prosecution’s case against him. According to defendant, the instruction effectively required him to present affirmative evidence demonstrating reasonable doubt in order to avoid such an unfavorable comparison. Because he is not constitutionally required to present affirmative evidence and may instead rely on an absence of evidence to prove guilt beyond a reasonable doubt, defendant argues the instruction unconstitutionally shifted the burden of proof.
“The Due Process Clause requires the government to prove a criminal defendant’s guilt beyond a reasonable doubt, and trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires.” (Victor v. Nebraska (1994) 511 U.S. 1, 22 (Victor).) However, “the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” (Id. at p. 5.) “[S]o long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” (Ibid.) “Rather, ‘taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.’ ” (Ibid., quoting Holland v. United States (1954) 348 U.S. 121, 140.) Accordingly, we must consider the instructions as a whole and determine whether there is a reasonable likelihood the jury understood and applied the challenged instruction in a manner that would allow a conviction based on a lesser showing than reasonable doubt. (Victor, supra, 511 U.S. at pp. 6, 16, 22.)
Terminology similar to that challenged by petitioner in this appeal has long been a part of jury instructions explaining the presumption of innocence and the reasonable doubt standard of proof. (See, e.g., Victor, supra, 511 U.S. at p. 8 et seq.) As defendant acknowledges, a parallel instruction, CALJIC No. 2.90, includes similar terminology. However, defendant contends the arrangement of the wording in CALCRIM No. 220, as compared with that in CALJIC No. 2.90, is detrimental to his defense because it encourages the jury to make the unfavorable comparison described above. In pertinent part, CALJIC No. 2.90 reads as follows: “Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” (Italics added.)
As noted by the appellate court in People v. Hearwon (1999) 72 Cal.App.4th 1285, 1286-1287 (Hearon), there have been numerous challenges to the efficacy of this version of CALJIC No. 2.90, and all such challenges have been consistently rejected. The court in Hearon therefore stated, “[w]e regard the issue as conclusively settled” and then advised appellate attorneys “to take this frivolous contention off their menus.” (Ibid.) In our view, both instructions convey the same message and correctly state the law even though the words in each are arranged in a slightly different manner. In other words, despite defendant’s efforts to conjure up some material difference between these two instructions, we conclude there is none. Nor can we fathom any likelihood the jury could have understood or applied the challenged instruction in the manner suggested by defendant. Rather, we agree with other appellate courts that have recently concluded similar challenges to the same language in CALCRIM No. 220 are meritless. (See, e.g., People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1505-1510; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1159.)
Even if we viewed defendant’s reading of the challenged language in CALCRIM No. 220 as a possibility, there would be no justification for a reversal. Other relevant instructions eliminated any such possibility. Most notably, the jury was instructed as follows prior to the presentation of evidence: “After the People present their evidence, the defense may also present evidence, but is not required to do so because he is presumed innocent, the defendant does not have to prove that he is not guilty.” Following the presentation of evidence, the jury was given the following instruction: “A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove a charge[] beyond a reasonable doubt. Do not consider, for any reason at all, the fact[] that the defendant did not testify. Do not discuss the fact during your deliberations or let it influence your decision in any way.” Accordingly, on the record before us, we conclude there is no reasonable likelihood the jury applied CALCRIM No. 220 in an unconstitutional manner.
DISPOSITION
The six-month prison term imposed on count 2 is modified to stay the term pursuant to Penal Code section 654. The Superior Court of San Bernardino County is directed to amend the abstract of judgment to reflect the modification and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GAUT, J., MILLER, J.
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].
“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 entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty.”