P. v. Swinger
Filed 8/14/07 P. v. Swinger CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. SHIRLEY LORETTA SWINGER, Defendant and Appellant. | E041685 (Super.Ct.No. RIF128325) OPINION |
APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
A jury found defendant guilty of one count of burglary (Pen. Code, 459)[1]and one count of using or passing a counterfeit bill ( 476). Defendant thereafter admitted that she had sustained two prior prison terms ( 667.5, subd. (b)). As a result, defendant was sentenced to a total term of four years in state prison. Defendants sole contention on appeal is that Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 220, which defines reasonable doubt, is erroneous because it does not define abiding conviction. We reject this contention and affirm the judgment.
I
FACTUAL BACKGROUND
On February 3, 2006, Mireya Bedolla was working at a Walgreens in Moreno Valley when, in the early morning hours, defendant and codefendant Norris Miller[2]approached the cash register with items totaling $141.64. The two gave Bedolla two $100 dollar bills, which Bedolla believed might be counterfeit. When Bedolla went to check one of the bills, defendant placed another $100 dollar bill on the counter, which was not counterfeit. Defendant then picked up one of the first $100 dollar bills. After Bedolla felt the two $100 dollar bills, she told defendant and Miller that she had to call for the manager to look at the bills.
Riverside County Deputy Sheriff Mario Chavez, who had received training on recognizing counterfeit bills, was dispatched to the Walgreens store. Deputy Chavez spoke to either the manager or security officer, who told him that defendant and Miller had passed counterfeit bills. Deputy Chavez then obtained the two $100 dollar bills from the security guard. Deputy Chavez also talked to Bedolla, who said she thought the bills were counterfeit because of a black line on the upper left-hand corner on one of them.
After defendant waived her constitutional rights, she told Deputy Chavez that she had placed two $100 dollar bills on the counter. Miller, after waiving his constitutional rights, stated that he had placed the bills on the counter.
After further interviewing defendant and Miller, Deputy Chavez arrested them and placed them in the back of the police car. He also placed a digital tape recorder behind the head rests in the backseat. Defendant told Miller that she [n]eed[ed] to get these other hundred dollar bills off [her]. She asked Miller, Babe, babe, why did you tell that me [sic] that they can pass[?] After Deputy Chavez listened to the tape, he went to the Riverside County jail and recovered three additional $100 dollar bills that were in the right pocket of Millers jacket.
Secret Service Special Agent William Chamberlain, who was assigned to the Riverside office and investigated financial crimes such as counterfeit bills, identity theft, and credit card fraud, examined the bills. He found the bills to be counterfeit based on their lack of color, security thread, and synthetic red and blue fibers. He also noted that the clarity of the bills was inconsistent with genuine bills.
II
DISCUSSION
Defendant claims the instruction defining reasonable doubt, CALCRIM No. 220, is unconstitutional and violates her due process rights under the Fifth and Fourteenth Amendments because it does not define abiding conviction.
CALCRIM No. 220, as read to the jury, states:
The fact that a criminal charge has been filed against the defendants is not evidence that the charges are true. You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial. As Ive previously indicated, a defendant in a criminal case is presumed to be innocent, and 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 that 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 defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.
The trial court also instructed the jury, You must decide whether a fact in issue has been proved based on all the evidence presented during the trial. (CALCRIM No. 223.) In addition, the court instructed the jury that [b]efore 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 (CALCRIM No. 225) and that [y]ou may not convict the defendant unless the prosecution has proved his or her guilt beyond a reasonable doubt (CALCRIM No. 359). Further, the court instructed that defendant could rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. (CALCRIM No. 355.)
While acknowledging that CALCRIM No. 220 is essentially the same as CALJIC No. 2.90, the former standard jury instruction defining reasonable doubt, defendant claims that, [i]rrespective of no appellate court holding the latest version of CALJIC No. 2.90 was violative of due process, the CALCRIM instruction on reasonable doubt should be deemed unconstitutional because it does not define abiding conviction. Defendant further maintains that the elimination of the term moral certainty from the 1994 revision of CALJIC No. 2.90[3]and CALCRIM No. 220 has caused juries to misunderstand or lessen the Peoples burden of proof when abiding conviction is not defined.
A. Waiver
Preliminarily, the People respond that defendants trial counsel waived this contention by failing to object to, or to request modification of, the challenged instruction. Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.] (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012, quoting People v. Andrews (1989) 49 Cal.3d 200, 218.) Defendants position, however, is essentially that the instruction, as given, was not correct in law. Hence, we believe she did not have to raise this argument at trial. ( 1259, 1469.)
Likewise, we find defendant did not, as the People suggest, invite the error because defense counsel agreed that the trial court should give CALCRIM No. 220 without any modification or amplification. The doctrine of invited error, which prevents an accused from gaining a reversal on appeal because of an error made by the trial court at his behest (People v. Wickersham (1982) 32 Cal.3d 307, 330, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201), requires more than mere assent by defense counsel; defense counsel must have intentionally caused the trial court to err before defendant can be held to have invited the error (People v. Marshall (1990) 50 Cal.3d 907, 931).
B. CALCRIM No. 220 is Not Constitutionally Defective
The key term at issue here, abiding conviction, is identical in CALJIC No. 2.90, the former standard jury instruction defining reasonable doubt, and CALCRIM No. 220. CALJIC No. 2.90 has been repeatedly upheld as proper by the courts of our state. (See, e.g., People v. Brown (2004) 33 Cal.4th 382, 392; People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287, and cases cited therein.) Likewise, claims that the elimination of the term moral evidence or moral certainty from CALJIC No. 2.90 requires reversal have been soundly rejected: . . . An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the governments burden of proof. [Citation.] [Citation.] (Brown, at p. 392, quoting Victor v. Nebraska (1994) 511 U.S. 1, 5 [114 S.Ct. 1239, 127 L.Ed.2d 583]; see also People v. Aguilar (1997) 58 Cal.App.4th 1196, 1207-1208, and cases cited therein.)
Although these cases address CALJIC No. 2.90 and not CALCRIM No. 220, those instructions are, in defendants own words, in essence the same. We therefore reject defendants claim that CALCRIM No. 220 is constitutionally defective, based on the reasoning of the cases cited, ante.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
GAUT
J.
KING
J.
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[1] All future statutory references are to the Penal Code unless otherwise stated.
[2] Defendant and Miller were tried together; however, Miller is not a party to this appeal.
[3] CALJIC No. 2.90 states: A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt. [] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.
