P. v. Acevedo

Filed 10/30/07 P. v. Acevedo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Jose Juan Acevedo appeals an order granting him five years' probation, with terms and conditions, following his conviction of child molestation and sexual battery. (Pen. Code, 288, subd. (c)(1) & 243.4, subd. (e)(1).)[1] We conclude that the trial court properly instructed regarding reasonable doubt and affirm.

FACTS AND PROCEDURAL HISTORY

Acevedo lived with his girlfriend Lisa, their two children, and Lisa's two children from another relationship, Nicole and Daniel. In 2002, when Nicole was 15-years-old, she awoke one night to find Acevedo standing over her and placing his hand upon her breast. Nicole pulled down her nightshirt and Acevedo left the bedroom. Neither spoke of the incident.

On another evening, Nicole was again awakened by a feeling of pressure upon her breast. She opened her eyes and saw Acevedo touching her breast. On another occasion, she awoke when Acevedo pulled up her nightshirt. She pulled her nightshirt down and covered herself with blankets.

On April 21, 2005, Nicole was awakened by a sensation upon her breast. She opened her eyes and saw Acevedo. She removed his hand and he left the room.

Lisa noticed that Acevedo frequently left their bedroom at night. On one occasion, she followed him and found him standing in Nicole's bedroom.

Lisa's sister, Diana, also lived in the residence. She awoke one evening to find Acevedo pinching her breast nipple. Diana informed Lisa, and they asked Nicole if Acevedo had touched her improperly. Nicole initially denied that Acevedo had touched her improperly, but then stated that he had.

The jury convicted Acevedo of one count of child molestation and one count of sexual battery. ( 288, subd. (c)(1) & 243.4, subd. (e)(1).) It acquitted him of sexual battery against Diana. The trial court suspended imposition of sentence and granted Acevedo five years' formal probation. Terms and conditions of probation included confinement for 365 days in county jail (count 1), and 180 days in county jail (count 2), to be served concurrently.

Acevedo appeals and contends that the trial court erred by instructing with former CALCRIM 220, "Reasonable Doubt." The Attorney General responds that Acevedo has waived this issue on appeal by not objecting to the instruction at trial.

DISCUSSION

Acevedo argues that former CALCRIM 220 is confusing regarding the prosecutor's burden of proof. He points out that the instruction was amended two months prior to his trial, but the trial court did not instruct with the amended version. Acevedo asserts that the former instruction contains language different from section 1096, defining reasonable doubt.

Acevedo also contends that the trial court improperly instructed with the superfluous phrase "unless I specifically tell you otherwise" when it instructed: "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise." He points out that the evidence at trial did not involve another standard of proof. Acevedo argues that the errors are reversible per se.

As given, CALCRIM 220 instructed in part: ". . . . []   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. . . ." As amended, the instruction now states: ". . . . []   A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt." The amended instruction removes "each element of a crime" and substitutes "a defendant guilty."

Although Acevedo did not object to CALCRIM 220 (his counsel argued the instruction during summation), he has not forfeited the argument that the instruction either misstates the law or adversely affects his substantial rights. ( 1259 ["appellate court may also review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"]; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7 [defendant did not waive right to object to instruction alleged to be incorrect statement of law given in violation of due process].)

There is no standard formula for instructing regarding the meaning of reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) "[S]o long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. [Citation.] Rather, 'taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.'" (Ibid.) Section 1096a provides that a court "may" instruct with the reasonable doubt instruction of section 1096, but it does not require that precise language. (People v. Freeman (1994) 8 Cal.4th 450, 503.)

The trial court properly instructed with former CALCRIM 220 because it is a correct statement of the law regarding reasonable doubt. It is well-settled that due process of law requires the prosecutor to prove each element of a criminal offense beyond a reasonable doubt. (Sullivan v.Louisiana (1993) 508 U.S. 275, 277-278.) Moreover, People v.Westbrooks (2007) 151 Cal.App.4th 1500, 1509, recently rejected a challenge to former CALCRIM 220 on other grounds, and concluded that instructing with the instruction did not violate defendant's due process right to have guilt determined beyond a reasonable doubt.

There is no reasonable likelihood that the jury applied the instruction in a way that violates the constitutional command of reasonable doubt. (Estelle v. McGuire (1991) 502 U.S. 62, 72-73.) The instruction plainly requires the prosecutor to prove defendant guilty beyond a reasonable doubt. Indeed, the final sentence of the instruction states: "Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." In addition, the trial court instructed with CALCRIM 225 regarding circumstantial evidence and proof beyond a reasonable doubt, CALCRIM 355 regarding defendant's right not to testify and proof of the charges beyond a reasonable doubt, and CALCRIM 359 regarding acquittal unless the prosecutor proves guilt beyond a reasonable doubt.

The phrase "unless I specifically tell you otherwise," is superfluous here because evidence at trial involved no other standard of proof. Nevertheless, there is no reasonable likelihood the jury applied this phrase in a manner that violates the requirement of reasonable doubt. (Victor v.Nebraska, supra, 511 U.S. 1, 22-23; People v. Rowland (1992) 4Cal.4th 238, 282 [giving of an abstract instruction generally not a ground for reversal].)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Allan L. Steele, Judge

Superior Court County of Ventura

______________________________

Mark Brown, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Laura J. Hartquist, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All further statutory references are to the Penal Code.