P. v. Nava

Filed 10/9/07 P. v. Nava CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Lynn Atkinson, Judge.

Susan D. Shors, 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, Senior Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Edgar Nava appeals from a judgment of 27 years to life. He contends that the trial court erred in instructing the jury. For the following reasons, we affirm the judgment.

STATEMENT OF THE CASE

On June 20, 2006, the Kings County District Attorneys Office filed information No. 06CM7235 charging Nava in count 1with assault by an inmate serving a life term (Pen. Code, 4500)^[1]; and in count 2, with possession of a stabbing instrument by an inmate ( 4502, subd. (a)). It was further alleged that Nava had suffered a prior serious felony conviction for murder. ( 187, subd. (a).)

On June 21, 2006, Nava pled not guilty and denied the special allegation.

On October 10, 2006, a jury was impaneled to try the case.

On October 11, 2006, an amended information was filed, alleging two additional serious prior convictions.

On October 11, 2006, the jury found Nava guilty as charged on both counts. Nava admitted the prior strikes.

On November 14, 2006, the trial court sentenced Nava to 27 years to life in state prison as follows: 9 years to life, tripled, on count 1; 25 years to life was imposed and ordered stayed under section 654 on count 2. A fine of $5,400 was imposed under section 1202.4 and an identical fine imposed and stayed under section 1202.45. A court security charge of $40 also was imposed. No credit for time served was awarded.

On December 29, 2006, Nava timely filed his notice of appeal.

FACTS

The parties stipulated to the following facts. Nava was a state prison inmate serving a life term at the California Substance Abuse Treatment Facility in Kings County. At approximately 9:10 a.m. on November 28, 2005, correctional officers Tim Patton and James Kalkis were supervising the yard. Officer Patton noticed inmate Vasquez walking in circles which was unusual for him. Inmate Arnaiz approached Vasquez and it looked like they were talking. Nava approached Vasquez from the back and hit him with a stabbing motion. No weapon could be seen in Navas hand. Vasquez began fighting with Nava. Arnaiz made stabbing motions toward the front of Vasquezs body. Vasquez knocked Arnaiz to the ground. Nava made stabbing motions to Vasquezs back.

Vasquez was not seen making stabbing motions. None of the three inmates obeyed the officers commands to hit the ground. The officers then sprayed Nava and Arnaiz in the face with pepper spray. Nava then obeyed the officers commands, but Arnaiz kept stabbing Vasquez. Arnaiz then threw a dark-colored object into the air; it landed three feet away in the grass. The object was a typical inmate-manufactured weapon of melted plastic. It had a handle on one end and a sharpened edge on the other. A similar weapon was found broken in two pieces 20-25 feet away.

Vasquez had puncture wounds all over his torso and was bleeding. There were about 13 wounds. Nava was not wounded, but had reddened skin from the pepper spray.

DISCUSSION

I.

CALCRIM No. 224 (circumstantial evidence instruction)

Nava raises a single issue on appeal. He contends that the trial court erred in instructing the jury to find Nava guilty or innocent, because that instruction improperly lowered the prosecutions burden of proof by allowing the jury to find guilt if they believe the defendant is not innocent. We disagree.

When considering a claim that the trial court improperly instructed the jury, a reviewing court must determine whether there is a reasonable likelihood the jury construed or applied the instructions in an objectionable fashion. (People v. Osband (1996) 13 Cal.4th 622, 685-686.) The reviewing court reviews all instructions given, not just the instruction complained of, to determine whether the jury charge as a whole is correct. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1249.)

The jury was instructed as follows:

Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.

Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt,you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable. (Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 224, italics added.)

Innocence is semantically different from not guilty. (People v. Han (2000) 78 Cal.App.4th 797, 809.) According to Nava, a criminal defendant need not prove his or her innocence. Rather, it is the burden of the prosecution to prove beyond a reasonable doubt that the defendant is guilty. While there are semantic differences between innocence and not guilty, there was no error in this case because, when read in conjunction with CALCRIM No. 220 on reasonable doubt, CALCRIM No. 224 did not lower the prosecutions burden of proof. The jury was instructed in CALCRIM No. 220 that: 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. Thus, CALCRIM No. 220 creates a dichotomy for the jury: guilt or innocence, with innocence being presumed. Thus, any finding other than guilt is automatically a finding of innocence. With CALCRIM No. 220 in mind, CALCRIM No. 224 is not erroneous because if the jury does not find guilt, it must find innocence. Therefore, CALCRIM No. 224 is not constitutionally defective when viewed as a whole and read in conjunction with the reasonable doubt instruction. (See People v. Frye (1998) 18 Cal.4th 894, 958 [jury instructions that contain the word innocence or innocent do not suggest that defendant has the burden of establishing innocence].)

DISPOSITION

The judgment is affirmed.

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^* Before Ardaiz, P.J., Harris, J. and Dawson, J.

^[1]All subsequent section citations are to the Penal Code unless otherwise indicated.