P. v. Carter

Filed 9/11/07 P. v. Carter CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Curtis B. Rappe, Judge. Affirmed.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Shawn Carter was convicted, following a jury trial, of one count of second degree murder in violation of Penal Code section 187. Appellant admitted that he had suffered a prior serious felony conviction within the meaning of sections 667, subdivision (a) and subdivisions (b) through (i) and 1170.12. The trial court sentenced appellant to a total term of 35 years to life in state prison.

Appellant appeals from the judgment of conviction, contending that the trial court erred in instructing the jury with CALCRIM Nos. 220 and 222 concerning reasonable doubt. We affirm the judgment of conviction.

Facts

On August 28, 2003, appellant was released from state prison after serving about seven years. He went to the home of his wife, Alice Carroll. The next day, he became convinced that his suspicions that she was seeing other men were true. He also came to realize that she had lied to him when she told him that she had given birth to his son.

According to appellant, on the evening of the 29th, he had an argument with Carroll which became physical. He slapped her and choked her briefly. She appeared to be fine. They had sex and went to sleep. The next morning, he was unable to awaken her and called 911. Paramedics responded and determined that Carroll was dead.

The coroner determined that the cause of death was blunt head trauma and strangulation, with each mode of injury being independently fatal.

Discussion

Appellant contends that the trial court erred in instructing the jury on reasonable doubt using CALCRIM No. 220, and that this instruction violated his federal due process right to have his guilt determined beyond a reasonable doubt. Respondent contends that appellant has waived this claim by failing to object in the trial court. (People v. Bolin (1998) 18 Cal.4th 297, 327.) We review the claim pursuant to Penal Code section 1259, and see no error.[1]

We agree with our colleagues in the Fourth District Court of Appeal who have found no merit to identical challenges to CALCRIM Nos. 220 and 222, and with our colleagues in the Fifth District who have found the instructions to be proper. (People v. Westbrooks (2007) 151 Cal.App.4th 1500; People v. Rios (2007) 151 Cal.App.4th 1154.)

CALCRIM No. 220 provides: "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 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 guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."

Reasonable doubt may arise from the lack of evidence in a case as well as the evidence presented at trial. (People v. Simpson (1954) 43 Cal.2d 553, 566; Johnson v. Louisiana (1972) 406 U.S. 356, 360 ["a reasonable doubt [is] one 'based on reason which arises from the evidence or lack of evidence.'"].)[2]

Appellant contends that the above instruction, read together with CALCRIM

No. 222 defining the term evidence, improperly tells the jury that reasonable doubt must arise from the evidence presented at trial.[3] He further contends that the error precluded the jury from considering whether reasonable doubt existed based on the lack of direct evidence to show that he struck or intended to kill Carroll.

The standard for reviewing claims of ambiguous jury instructions is whether there is a reasonable likelihood that the jury applied the instruction in a manner that violates the Constitution. (People v. Frye (1998) 18 Cal.4th 894, 957.) We see no reasonable likelihood that the jury understood and applied the instruction in the manner suggested by appellant.

The plain language of CALCRIM No. 220 tells the jury that "[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. Thus, we see no violation of appellant's federal constitutional rights.

We do not agree with appellant that CALCRIM Nos. 220 and 222 are the equivalent of the confusing and erroneous instructions given in People v. Simpson, supra, 43 Cal.2d 553 and People v. McCullough (1979) 100 Cal.App.3d 169. In both cases, the trial court directly and expressly told the jury that doubt must arise from the evidence presented at trial. In Simpson, the trial court told the jury that reasonable doubt means "a doubt which has some good reason for its existence arising out of the evidence in the case." In McCullough, the trial court told the jury, in response to a question, that "doubt must arise from the evidence." There are no such statements in CALCRIM Nos. 220 and 222.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1] Penal Code section 1259 permits review of an instruction given by the trial court even though it was not objected to, if the substantial rights of the defendant were affected thereby. "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim -- at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)

[2] As long as the trial court instructs the jury that a defendant's guilt must be proven beyond a reasonable doubt, the U.S. Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. (Victor v. Nebraska (1994) 511 U.S. 1, 5.)

[3] CALCRIM No. 222 defines "evidence" as "the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence."