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People v. Williams

California Court of Appeals, Fourth District, First Division
Sep 9, 2008
No. D051474 (Cal. Ct. App. Sep. 9, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. CHRIS ANTHONY WILLIAMS, Defendant and Appellant. D051474 California Court of Appeal, Fourth District, First Division September 9, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCD205485, Roger W. Krauel, Judge.

O'ROURKE, J.

A jury convicted Chris Anthony Williams of selling cocaine base (Health and Saf. Code, § 11352, subd. (a), count 1) and possession of cocaine base for sale (§ 11351.5, count 2.) In bifurcated proceedings, the trial court found true an enhancement that Williams had a prison prior. (Pen. Code, §§ 667.5, subd. (b), and 668.)

Further statutory references are to the Health and Safety Code unless otherwise stated.

The trial court sentenced him to a total of six years as follows: five years for count 1, and one year for the enhancement. The sentence on count 2 was imposed but stayed under Penal Code section 654. The court, in the interest of justice and for purposes of sentencing, ordered the dismissal of four juvenile adjudications.

William contends: (1) the trial court's instruction with CALCRIM Nos. 220 and 222 violated his due process rights because they failed to advise the jury that the absence of evidence could create reasonable doubt; (2) the prosecutor committed misconduct; (3) the trial court prejudicially misread CALCRIM No. 359 to the jury; and (4) section 11351.5 violates constitutional guarantees of substantive due process and equal protection because it punishes differently the possession of cocaine base and cocaine powder. We affirm.

FACTUAL BACKGROUND

San Diego Police Officer Michael Day testified that on March 22, 2007, he was working as an undercover officer and entered the Chee Chee Club. Williams and another individual, Mr. Rouse, were standing at the club's entrance. Williams asked Day if he was looking for drugs. Day responded that he was looking for $20 worth of rock cocaine. Rouse extended his hand to receive a pre-recorded $20 bill from Day. Williams said, "No, give me the money." Rouse gave Williams the money. Williams asked Day if he wanted more drugs. Day responded, "Sure, I will buy another one," and gave Williams another pre-recorded $20 bill for a second piece of rock cocaine. Day entered the club and communicated Williams's description and location to other officers, and gave them a predesignated signal to arrest Williams. Day returned outside, and stood next to Rouse and Williams. Day positively identified Williams to the other officers. Williams was processed and booked in jail, where Day interviewed him and took his photo. Day testified he never had any hesitation that he had correctly identified Williams.

Williams testified that he was near the club waiting for a bus that was carrying his girlfriend. There were many individuals walking by, getting on the bus or entering or leaving the club. He denied knowing Rouse or talking to him that night.

DISCUSSION

I.

Williams contends the court's instructions with CALCRIM Nos. 220 and 222 violated his constitutional right to due process. He asserts the instruction on reasonable doubt (CALCRIM No. 220) limited the jurors to relying only on evidence received at trial and precluded them from taking into account the lack of evidence.

In reviewing challenged jury instructions, we must determine whether it is reasonably probable the jury could have applied the instruction in a way that violates the Constitution. (People v. Frye (1998) 18 Cal.4th 894, 957.) In conducting this inquiry, we consider the instructions as a whole. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.)

The court instructed the jury with CALCRIM No. 220 as follows: "In deciding whether the prosecution has 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." (CALCRIM No. 220.) "Evidence" was then defined as "the sworn testimony of witnesses, the exhibits admitted into evidence," and anything else that the court instructed was to be considered as evidence. (CALCRIM No. 222.)

Williams argues the jury was precluded from considering the absence of evidence in making its determination. Specifically, he claims the jury was not allowed to consider the absence of evidence regarding the pre-recorded money; the absence of cocaine on his person after the sale; detective Day's ignorance regarding whether the uniformed officers on this bust carried a transmitter; and, the identity of the official who directed the officers to make the arrest. Williams adds that the trial evidence was insufficient to convict him because: "the police report does not say [d]etective Day transmitted a description of Mr. Williams after the buy from inside the club. It does not say he left the club and was near Mr. Williams during his arrest. It does not say he saw Mr. Williams arrested."

Although the beyond a reasonable doubt standard is required for due process, the Constitution does not prohibit trial courts from defining reasonable doubt, as long as the court instructs the jury the defendant's guilt must be proved beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) Further, the Constitution does not require any particular wording to be used in instructing the jury as to the government's burden of proof. (Ibid.) The instruction the court gave on reasonable doubt defined it as doubt "based on reason which arises from the evidence or lack of evidence." (United States v. Johnson (1965) 343 F.2d 5, 6, fn. 1.)

Contrary to Williams's claim, CALCRIM No. 220 did not tell the jury reasonable doubt must arise solely from the evidence. (People v. Campos (2007) 156 Cal.App.4th 1228, 1238.) CALCRIM No. 220 provides that if the evidence does not prove the defendant guilty beyond a reasonable doubt, the jury must find the defendant not guilty. Because the prosecution is required to prove every element of the crime, the jury presumably understands a lack of evidence could lead to reasonable doubt.

Williams's reliance on People v. Simpson (1954) 43 Cal.2d 553 is misplaced. The defendant in Simpson argued the trial court's instruction on reasonable doubt shifted the burden to him to prove his innocence. The court instructed that the term "reasonable doubt" meant "a doubt which has some good reason for its existence arising out of evidence in the case; such doubt as you are able to find a reason for in the evidence." (Id. at p. 565, fns. omitted, italics ommitted.) The California Supreme Court held this language was unnecessary and possibly confusing because "reasonable doubt . . . may well grow out of the lack of evidence in the case as well as the evidence adduced." (Id. at p. 566.)

Here, in contrast, the instruction did not tell the jury reasonable doubt had to arise solely out of the evidence in the case. The court simply instructed the jury to consider all of the evidence presented, and Williams raised the specter of evidence that could be perceived as lacking in the prosecution's case. Thus use of CALCRIM No. 220 did not violate Williams's due process rights.

II.

We reject Williams's contention the prosecutor committed misconduct during closing arguments. The contention is based on the following exchange:

"[Prosecutor:] The last thing I want to cover . . . Reasonable doubt is not beyond all possible doubt. It's not, 'I have this little feeling in the back of my mind that it could be somebody else,' or 'maybe there was somebody else wearing the same thing,' or 'I have got this gut feeling.' [¶] For instance, we have all watched police shows where detectives solve this big case; and at the end the chief says, 'Detective, come in here. How did you know that the gun was going to be under that car?' [¶] And the detective says, 'Well, chief, I just had a gut feeling.' That doesn't fly. that's not reasonable. A gut feeling that it might be another guy is not reasonable.

"[Defense counsel:] Objection, your honor. Misstates the law.

"The Court: Overruled.

"[Prosecutor:] What is reasonable is that you can sit back there in the deliberation room and go through the evidence with a fine-tooth comb and think about the testimony that we had; and at the end of that, if reasonably thought out, a true-faith belief, you believe that it's not the defendant, that it was not him that sold detective Day drugs that day, then come back not guilty. [¶] But that's not the case here. Each one of us knows beyond a reasonable doubt that it was the defendant, and I ask you to return that verdict."

A prosecutor's intemperate behavior violates the federal constitution when it comprises a pattern of conduct so egregious that it infects the entire trial with such unfairness as to make the conviction a denial of due process. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury." (People v. Crew (2003) 31 Cal.4th 822, 839.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Ayala (2000) 23 Cal.4th 225, 284.) " 'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.)

Generally, a defendant cannot raise a prosecutorial misconduct claim on appeal unless he first makes an assignment of misconduct at trial, stating the grounds, and on that basis, requests the jury be admonished to disregard the impropriety. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) "To determine whether an admonition would have been effective, we consider the statements in context." (People v. Edelbacher (1989) 47 Cal.3d 983, 1030.) Here, the claim is waived. Although Williams objected to the prosecutor's remarks, the objection was not based on prosecutorial misconduct. Williams has failed to show that a proper objection and an admonition would not have cured any error.

Even assuming the prosecutor erred by inartfully explaining reasonable doubt, we conclude Williams was not prejudiced because the jury was correctly instructed on the reasonable doubt standard as follows: "The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." This court found nonprejudicial error in a case in which the prosecutor misstated the reasonable doubt standard; we also concluded the error was waived, and reiterated that "[w]e must presume the jury followed the instruction and that the error was thereby rendered harmless." (People v. Nguyen (1995) 40 Cal.App.4th 28, 36-37.)

III.

Williams contends the court erred in orally instructing with CALCRIM No. 359, which states, "The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant's out-of-court statements to convict him if you conclude that other evidence shows that the charged crime was committed." (Italics added.) The trial court inadvertently stated "must" instead of "may." We conclude any error was nonprejudicial because the jury received the correct written version of CALCRIM No. 359, which must govern over the oral delivery of the instruction. (People v. Crittenden (1994) 9 Cal.4th 83, 138.)

Williams contends, "the record does not confirm that the written instructions went into the jury room." Under Evidence Code section 664, we presume "that official duty has been regularly performed." This rebuttable presumption imposes against the one whom it operates the burden of proof regarding the nonexistence of the presumed fact. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) Here, as Williams concedes, the trial court instructed the jury with CALCRIM No. 200, which states, "I will give you a copy of the instructions to use in the jury room." Williams has failed to meet his burden of showing the jury did not receive the written instruction.

IV.

Williams contends that section 11351.5 violates constitutional guarantees of substantive due process and equal protection and caused him to serve additional time in prison. The Attorney General points out that the contention is waived, and in the alternative, Williams received a five-year sentence for violation of section 11352, which sets forth the same sentencing range for the sale of cocaine, cocaine base and other narcotics. Moreover, his sentence on the section 11351.5 conviction was stayed under Penal Code section 654. Williams concedes in his reply brief that he "does not purport to complain of [section 11351.5's] disproportionate effect on his . . . prison term" because his sentence was stayed. Nonetheless, Williams contends, "to the extent the conviction and sentence on count 2 marks [his] record or, if for any other reason the remainder of the judgment against him is invalidated, leaving count 2 in force, this argument has been lodged and will apply."

We agree with the Attorney General that Williams did not raise a constitutional due process or equal protection challenge in the trial court; therefore, he may not raise it for the first time on appeal. (People v. Carpenter (1997) 15 Cal.4th 312, 362;

In light of our conclusion that this contention is not properly before us, we deny Williams's motion to take judicial notice of legislative analysis reports of AB 337.

superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107.) As a general rule constitutional issues are resolved on appeal only if absolutely necessary, and such a case is not presented here. (People v. Marsh (1984) 36 Cal.3d 134, 144; Williams v. Superior court (2007) 147 Cal.App.4th 36, 55 ["Our role is limited to ruling on the factual matters before us, not hypothetical situations or theoretical constitutional issues"].)

DISPOSITION

The judgment is affirmed.

WE CONCUR:, HALLER, Acting P. J., McDONALD, J.


Summaries of

People v. Williams

California Court of Appeals, Fourth District, First Division
Sep 9, 2008
No. D051474 (Cal. Ct. App. Sep. 9, 2008)
Case details for

People v. Williams

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHRIS ANTHONY WILLIAMS, Defendant…

Court:California Court of Appeals, Fourth District, First Division

Date published: Sep 9, 2008

Citations

No. D051474 (Cal. Ct. App. Sep. 9, 2008)