Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026175
SIMS, Acting P.J.A jury found defendant Victor Henderson Wyatt guilty of petty theft (Pen. Code § 484; undesignated section references are to the Penal Code). Defendant was sentenced to an aggregate term of six years in prison.
As is explained in more detail in the Factual and Procedural Background portion of this opinion, defendant admitted, outside the presence of the jury, having suffered two prior convictions for which he served prison terms. Based on those admissions, the parties stipulated that the charge submitted to the jury would be petty theft (§ 484) and that a guilty verdict on that charge would result in a finding that defendant was guilty of petty theft with priors (§ 666).
Defendant appeals, contending he was denied his constitutional right to due process and a fair trial when the trial court instructed the jury with CALCRIM No. 220, which negated the presumption of innocence and lessened the prosecution’s burden of proof. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Wal-Mart employees observed defendant enter the store’s electronics department, pick up two ink cartridges, conceal them in his jacket and carry them into the men’s restroom. When he came out of the restroom, he was no longer carrying the cartridge boxes. Defendant then returned to the electronics department, secreted a computer flash drive in the sleeve of his jacket and returned to the restroom. He then left the store without paying for the items. Store employees found empty ink cartridge packaging in the restroom.
Defendant was charged with petty theft with priors (§ 666). The information alleged a prior conviction of a serious or violent felony (§§ 1170.12, subds. (a) - (d); 667, subds. (b) - (i)) and two prior prison terms (§ 667.5, subd. (b)).
On the first day of trial, outside the presence of the jury, defendant admitted two prior convictions (one for a violation of section 211 and one for a violation of Health and Safety Code section 11352) for which he served separate prison terms. The parties stipulated that, for purposes of trial, the charge submitted to the jury would be petty theft (§ 484); however, based on defendant’s admissions, a guilty verdict on that charge would result in a finding that defendant was guilty of petty theft with priors (§ 666).
The jury returned a guilty verdict on the single count of petty theft. Based on defendant’s previous admission of the theft-related priors, the court found defendant guilty of violating section 666.
The court denied defendant’s Romero motion and sentenced him to the middle term of two years, doubled because of the strike, plus one year for each of the two prior prison terms, for an aggregate sentence of six years.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant was also sentenced to a concurrent term of 180 days in jail in an unrelated matter (case No. SCR46019).
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the reasonable doubt instruction embodied in Judicial Council of California Criminal Jury Instructions CALCRIM No. 220, negates the presumption of innocence and impermissibly dilutes the prosecution’s burden of proof.
CALCRIM No. 220 provides, in pertinent part, as follows: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime 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 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.”
Defendant contends that requiring the jury to “impartially compare and consider all the evidence” undermined the presumption of innocence and supplanted it with a lesser standard of impartiality. Defendant urges the phrase “impartially compare” implies a weighing of two opposed sets of evidence, thus imparting to the jury “the incorrect idea of comparing two sets of evidence” such that the prosecution would meet its burden if defendant failed to produce enough evidence on his side of the scale to outweigh the evidence against him. (Coffin v. United States (1895) 156 U.S. 432, 453 [39 L.Ed. 481].) Defendant also objects to inclusion of language requiring an “abiding conviction” without any additional reference to the gravity or weight of proof required.
A similar argument applied to the analogous CALJIC No. 2.90 was rejected by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 16 [127 L.Ed.2d 583] (Victor). Where CALCRIM No. 220 uses the verbs “compare and consider all the evidence,” CALJIC No. 2.90 uses the nouns requiring “the entire comparison and consideration of all the evidence” by the jury. When read in the context of the entire instruction, the Supreme Court concluded in Victor that the sanctity of the presumption of innocence and the prosecutor’s elevated burden of proving guilt beyond a reasonable doubt remained intact. (Victor, supra, 511 U.S. at p. 16 [127 L.Ed.2d 583].)
That reasoning was followed by the Court of Appeal, Fifth Appellate District, in People v. Hernandez Rios (2007) 151 Cal.App.4th 1154 at page 1157 (Hernandez Rios). Noting that the language of CALJIC No. 2.90 which refers to the “comparison and consideration of all the evidence” was approved by the United States Supreme Court in Victor, the Hernandez Rios court 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 rejected defendant’s claim that the instruction shifted the burden of proof. (Hernandez Rios, supra, 151 Cal.App.4th at p. 1157.)
This court also recently followed Victor, rejecting the argument that, without “the concept of lack of evidence” included in the basic definition of reasonable doubt, CALCRIM No. 220 violates defendant’s right to due process. (People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267 (Guerrero).) Based on the holding in Victor that “[a]n instruction cast in terms of an abiding conviction as to guilt, . . . correctly states the government’s burden of proof” (Victor, supra, 511 U.S. at pp. 14-15 [127 L.Ed.2d at p. 596]), we concluded that CALCRIM No. 220 “neither lowers the prosecution’s standard of proof nor raises the amount of doubt the jury must have in order to acquit,” and thus properly “instructs the jury to acquit in the absence of evidence.” (Guerrero, supra, 155 Cal.App.4th at pp. 1268-1269.)
The facts of this case do not compel us to diverge from our previous holding or that of our country’s highest court in Victor. Nothing in CALCRIM No. 220 suggests that the defense must present evidence or otherwise bears any burden of proof. We also consider the entire scope of instructions given during the trial in reviewing a challenge to a particular instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016 [appellate court considers the entire charge, not parts of an instruction or a particular instruction].) Here, the court instructed the jury with CALCRIM No. 100 (defendant is presumed innocent, does not have to prove he is not guilty, and may, but is not required to, present evidence), CALCRIM No. 103 (defendant is presumed innocent, the People have the burden of proving every element of the crime beyond a reasonable doubt and reasonable doubt is “proof that leaves you with an abiding conviction that the charge is true”) and CALCRIM No. 355 (defendant may rely on the evidence, without testifying, and argue the People have failed to prove the charges beyond a reasonable doubt). We also note that, between counsel for the People and counsel for defendant, the beyond a reasonable doubt standard was referred to in closing argument no less than four times.
The issue before us is “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385], People v. Wade (1995) 39 Cal.App.4th 1487, 1493 [appellate court must consider whether a “reasonable juror would apply the instruction in the manner suggested by defendant”].) We conclude it did not. CALCRIM No. 220 accurately states the law. That, coupled with the fact that both counsel repeatedly explained the appropriate burden of proof and the court adequately instructed the jury as to that burden, we conclude it is not reasonably likely the jury misapplied the instruction in CALCRIM No. 220. We reject defendant’s claim that the instruction negates the presumption of innocence and lessens the burden of proof.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., ROBIE, J.