Filed 3/23/18 P. v. White CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
----

THE PEOPLE,

Plaintiff and Respondent,

v.

DARNELL LESHAWN WHITE,

Defendant and Appellant.
C083049

(Super. Ct. No. STKCRFECOD20150014492)



A jury convicted defendant Darnell Leshawn White of first degree murder, attempted murder, first degree robbery, and being a prohibited person in possession of a firearm. The trial court sentenced him to an indeterminate term of life without the possibility of parole and a determinate term of 19 years.
Defendant now contends the trial court violated his right to a fair trial by interfering with his counsel’s argument and by requiring his counsel to describe the reasonable doubt requirement in a way that shifted and misrepresented the burden of proof. Finding no merit in defendant’s contentions, we will affirm the judgment.
BACKGROUND
D.M. had previously purchased marijuana from defendant. One afternoon, while D.M. and her boyfriend were at their residence, the boyfriend answered his phone and then went to the front door. Defendant entered the residence pointing a gun and began rummaging through belongings and taking jewelry from the dresser.
D.M. subsequently saw a second man hitting her boyfriend in the head. That man and defendant then asked her boyfriend about the location of money. When her boyfriend refused to answer, D.M. told the robbers the money was under the washer. After forcing the boyfriend to get the money, the robbers made him and D.M. lie on their stomachs.
Shortly after, defendant said, “is that it?” and the boyfriend said, “I gave you everything that I got.” Defendant then told the other man, “All right, blap ‘em.” The other man started shooting.
D.M. was hit in the side, forearm, upper arm, shoulder, and neck. Her boyfriend was also shot and later died from his injuries.
Before the victim was taken to the hospital, she told responding officers that defendant was one of the attackers. She described him and identified his photo at the hospital. At trial she testified, “there is no doubt” in her mind defendant was the one who came into her apartment.
During closing argument at trial, defense counsel said of D.M.: “Is it possible that she was not certain that it was [defendant] who came into the room, took things, ordered the other person to shoot and then left, or has she become certain only after certain influences on her, anger, the need for vengeance, grief, talking with other family members who bolstered her opinion? You will have to decide that. If there is a reasonable possibility that [D.M.] is mistaken, that her certainty is actually exaggerated or fabricated, you must vote not guilty as the judge instructed you.” He then went on to say, “So let’s begin to consider whether you can say that [D.M.] is certainly correct or whether, no, she [c]ould be wrong.”
The trial court asked counsel to approach. In a bench conference, the trial court explained, “You stated the burden of proof is reasonable possibility? That’s not the burden.” Defense counsel responded, “It is.” The trial court said “Reasonable doubt,” to which defense counsel replied, “If there is a reasonable possibility that she is wrong, that is a reasonable doubt.” The trial court countered: “That’s not the burden. The burden of proof is reasonable doubt, not reasonable possibility, and I feel compelled to either remind the jury of that or you’re welcome to do so, because it does bear on the burden of proof.” Defense counsel responded, “Okay.”
Defense counsel then continued his closing: “I may have misspoken. If there is a reasonable doubt in your mind that [D.M.] is correct and that her certainty is correct, you must vote not guilty.”
The jury convicted defendant of first degree murder, attempted murder, first degree robbery, and being a prohibited person in possession of a firearm. The trial court sentenced him to an indeterminate term of life without the possibility of parole and a determinate term of 19 years.
DISCUSSION
Defendant contends the trial court violated his right to a fair trial by interfering with his counsel’s argument and by requiring his counsel to describe the reasonable doubt requirement in a way that shifted and misrepresented the burden of proof. We disagree.
Defense counsel’s initial statement -- “If there is a reasonable possibility that [D.M.] is mistaken, . . . you must vote not guilty” -- was potentially misleading in that it could cause the jury to conflate reasonable doubt with possibility. (See Pen. Code, § 1096 [reasonable doubt “ ‘is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt’ ”]; People v. Centeno (2014) 60 Cal.4th 659, 672 [“a ‘reasonable’ doubt is not a mere ‘ “possible” ’ or ‘ “imaginary” ’ doubt”].) As such, the trial court did not err in bringing the matter to defense counsel’s attention and indicating that if defense counsel did not remind the jury the burden of proof is reasonable doubt, the trial court would do so.
Defense counsel’s follow up statement to the jury -- “If there is a reasonable doubt in your mind that [D.M.] is correct and that her certainty is correct, you must vote not guilty” -- did not shift or misrepresent the burden of proof. His statement was a logical extension of the burden of proof: a defendant’s guilt must be proven beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.



/S/
MAURO, J.



We concur:



/S/
ROBIE, Acting P. J.



/S/
HOCH, J.