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CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Plaintiff and Respondent,
(Super. Ct. Nos.
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tehama
County, Edward J. King III, Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General,
Dane R. Gillette and Mary Jo Graves, Chief Assistant
Attorneys General, Michael P. Farrell, Senior Assistant
Attorney General, Carlos A. Martinez, Supervising Deputy
Attorney General, and Catherine G. Tennant, Deputy Attorney
General, for Plaintiff and Respondent.
Pursuant to California Rules of Court, rule 8.1110, this
opinion is certified for publication with the exception of Parts
XVI through XX of the Discussion.
Effective January 1, 2006, the California Judicial Council
adopted the “Judicial Council of California Criminal Jury
Instructions (2006-2007)” which instructions are cited as
In the published portion of this
opinion, we consider various challenges to a number of the new
Most of the challenges involve isolated
language that defendant reads out of context from the
instruction as a whole or the other instructions given to the
Other challenges concern language virtually identical to
that previously approved in the CALJIC instructions that were
used in California for many years.
We reject each of
In the unpublished portion of this opinion, we address
various sentencing issues, which we also conclude are without
In Tehama County Superior Court case No. NCR66211,
defendant pleaded guilty to one count of possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a))
and admitted a prior strike (Pen. Code, §§ 1170.12, subds. (a)(d), and 667, subds. (b)-(i)) and a prior prison term (Pen.
Code, § 667.5).
In Tehama County Superior Court case No.
NCR67197, defendant was convicted by a jury of second degree
robbery (Pen. Code, § 211) and presenting false identification
to a peace officer (Pen. Code, § 148.9, subd. (a)).
He was also
found to have used a deadly weapon in connection with the
robbery (Pen. Code, § 12022, subd. (b)(1)).
He appealed both
convictions and we have consolidated those appeals for all
We affirm the judgments in their entirety.
FACTS AND PROCEEDINGS
Case No. NCR66211
In April 2005, Officer Eric Magrini responded to a call
regarding a disturbance in an apartment complex in Red Bluff.
He was directed to a particular apartment and knocked on the
Magrini noticed tattoos on defendant’s arm of a type common
to those who have served time in prison and asked if defendant
was on probation or parole.
Defendant initially said no but
later admitted he was on parole.
Magrini went into the apartment and began looking around.
He found a spoon with a crystallized substance on it, a piece of
cotton, and a hypodermic needle.
not belong to him.
Defendant said these items did
A woman in the apartment also denied
ownership or knowledge of the items.
Defendant was handcuffed and taken to a patrol car by
He resisted “mildly” by pushing back against
the officer as he was being taken to the car.
When Magrini took
defendant out of the patrol car at the jail, Magrini found a
bindle containing a white substance on the floorboard, which had
not been there before defendant was put into the car.
bindle tested positive for methamphetamine.
Defendant was charged with possession of a controlled
substance, possession of drug paraphernalia (Health & Saf. Code,
§ 11364), and resisting arrest.
The information also alleged
defendant had served a prior prison term and had been convicted
of a serious or violent felony within the meaning of Penal Code
sections 1170.12, subdivisions (a) through (d) and 667,
subdivisions (b) through (i).
As noted earlier, defendant
pleaded guilty to the possession charge and admitted the prior
prison term and the prior serious or violent felony conviction.
Case No. NCR67197
Late in the evening of October 5, 2005, Rosalio S. was
visiting his girlfriend, April H., at the home of April’s
While Rosalio and April sat in a car in front of the
home, they saw a red Honda drive by slowly, turn around, and
come back their way.
There were two people in the car.
Rosalio and April saw the car parked a short distance behind
Two men got out of the car and walked up to Rosalio, who
was sitting on the driver’s side of the car with the window
The larger man, later identified as defendant, leaned on
the door, and asked what Rosalio and April were doing.
other man, later identified as Aaron Perry, stood beside
Defendant told them they had to move the car because
neighbors were “tripping” at the sight of an unknown car in the
April told the men she lived there.
Defendant and Perry then reached into the car holding
Defendant put his knife to Rosalio’s throat and asked
if Rosalio had any money or drugs.
He demanded Rosalio’s wallet
and Rosalio gave it to him.
Defendant then reached across
Rosalio and grabbed a cell phone from a console in the car.
Perry took a leather jacket from the back seat of the car and
the two left with the stolen property.
Rosalio and April reported the crime to police officers a
few minutes later, and gave the officers a description of the
car the thieves left in.
The officer radioed the description of
the car to others and four or five minutes later another officer
saw a car that matched that description and followed it.
car stopped near a gas station and defendant and Perry, and a
woman named Andrea Lafferty, got out.
Perry walked toward a
house, while defendant and Lafferty walked to the gas station.
The three were detained and searched and defendant and
Perry were found to have pocketknives.
At Perry’s feet on the
ground outside the car, officers found the cell phone taken from
the victim’s car.
Officers found Rosalio’s wallet on the
ground, directly under the right front passenger seat.
found Rosalio’s leather jacket in the trunk of the car.
Defendant identified himself to the officers as Kyle
The officers brought Rosalio and April to the gas station
and they identified defendant and Perry as the men who robbed
At trial the jury found defendant guilty of second degree
robbery and giving police false identification.
admitted he had served a prior prison term.
Defendant was sentenced on both matters to an aggregate
term of seven years four months in prison.
The trial judge
ordered him to serve the upper term of five years for the
robbery, with a consecutive one-year enhancement for the use of
a weapon; a concurrent term of six months for giving false
identification; and a consecutive, 16 months for his possession
As noted, defendant raises a number of challenges to the
new CALCRIM jury instructions.
He admits his attorney did not
object to any of these instructions at trial.
Failure to object to instructional error forfeits the issue
on appeal unless the error affects defendant’s substantial
(Pen. Code, § 1259; People v. Flood (1998) 18 Cal.4th
470, 482, fn. 7; People v. Rodrigues (1994) 8 Cal.4th 1060,
The question is whether the error resulted in a
miscarriage of justice under People v. Watson (1956) 46 Cal.2d
(People v. Arredondo (1975) 52 Cal.App.3d 973, 978.)
Defendant argues the instructional errors led to a
miscarriage of justice and further argues that, to the extent
his challenges have been forfeited by counsel’s failure to
object, he received ineffective assistance of counsel.
address defendant’s challenges on the merits, both to determine
whether there has been a miscarriage of justice and to determine
whether he received ineffective assistance of counsel.
CALCRIM No. 200
Defendant raises two challenges to the opening instruction
given by the court, CALCRIM No. 200.
That instruction reads:
“Members of the jury, I will now instruct you on the law
[I will give you a copy of these instructions to
use in the jury room.] [Each of you has a copy of these
instructions to use in the jury room.]
“You must decide what the facts are.
It is up to you,
exclusively, to decide what happened, based only on the evidence
that has been presented to you in this trial.
“Do not let bias, sympathy, prejudice, or public opinion
influence your decision.
“You must reach your verdict without any consideration of
“You must follow the law as I explain it to you, even if
you disagree with it.
If you believe that the attorneys’
comments on the law conflict with my instructions, you must
follow my instructions.
“Pay careful attention to all of these instructions and
consider them together.
If I repeat any instruction or idea, do
not conclude that it is more important than any other
instruction or idea just because I repeated it.
“Some words or phrases used during this trial have legal
meanings that are different from their meanings in everyday use.
These words and phrases will be specifically defined in these
Please be sure to listen carefully and follow the
instructions that I give you.
Words and phrases not
specifically defined in these instructions are to be applied
using their ordinary, everyday meanings.
“Some of these instructions may not apply, depending on
your findings about the facts of the case.
[Do not assume just
because I give a particular instruction that I am suggesting
anything about the facts.]
After you have decided what the
facts are, follow the instructions that do apply to the facts as
you find them.”
Defendant contends the opening sentence of this
instruction, where the court says it is about to instruct the
jury on the law “that applies,” wrongly implies that all of the
instructions that will follow apply to the case.
argues this single sentence usurps the jury’s fundamental duty
to decide the facts and to decide which instructions apply to
This argument depends upon a strained interpretation of a
single sentence read out of context.
“It is well established in
California that the correctness of jury instructions is to be
determined from the entire charge of the court, not from a
consideration of parts of an instruction or from a particular
(People v. Burgener (1986) 41 Cal.3d 505, 538-
539, disapproved on other grounds in People v. Reyes (1998) 19
Cal.4th 743, 753-754.)
Elsewhere in CALCRIM No. 200, the jury
is told it “must decide what the facts are.”
“Some of these instructions may not apply, depending
on your findings about the facts of the case.
Do not assume
because I give a particular instruction that I have suggested
anything about the facts.
After you have decided what the facts
are, follow the instructions that do apply to the facts as you
Read as a whole, CALCRIM No. 200 makes it
abundantly clear in straightforward language that it is the jury
who decides the facts and the jury who determines which
instructions apply to those facts.
Defendant next challenges that portion of the instruction
“You must reach your verdict without any
consideration of punishment.”
Defendant contends this sentence
gives the false impression the jury must reach a verdict in the
case when, in fact, it is not required to do so.
reads the instruction with the wrong emphasis on the sentence in
That sentence does not tell the jury it must reach a
verdict, but tells the jury that, in reaching a verdict, it must
not consider punishment.
And we note that, elsewhere, in CALCRIM No. 3550, the jury
“You should try to agree on a verdict if you can.”
This instruction further explained:
“If you are able to reach a
unanimous decision on only one or only some of the charges, fill
in those verdict forms only . . . .”
Read as a whole, the
instructions did not tell the jury it had to reach a verdict.
There was no error.
CALCRIM Nos. 223 and 224
Defendant challenges CALCRIM Nos. 223 and 224 concerning
the use of direct and circumstantial evidence.
He argues these
instructions are confusing and misleading and, when given
However, as to the latter point,
defendant fails to explain where the contradiction lies or
provide any argument or authorities to support this contention.
A point not argued or supported by citation to authority is
(Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974,
As given by the trial court, CALCRIM No. 223 read:
may be proved by direct or circumstantial evidence or by a
combination of both.
Direct evidence can . . . prove a fact by
For example, if a witness testifies he saw it raining
outside before he came into the courthouse, that testimony is
direct evidence that it was raining.
also may be called indirect evidence.
does not directly prove the fact to be decided, but is evidence
of another fact or group of facts from which you may conclude
the truth of the fact in question.
For example, if a witness
testifies that he saw someone come inside wearing a raincoat
covered with drops of water, that testimony is circumstantial
evidence because it may support a conclusion that it was raining
“Both direct evidence and circumstantial evidence are
acceptable types of evidence to prove or disprove the elements
of the charge, including intent and acts necessary to a
conviction, and neither is necessarily more reliable than the
Neither is entitled to any greater weight than the
You must decide whether a fact in issue has been proved
based on all of the evidence.”
Defendant argues this instruction gives the false
impression that direct and circumstantial evidence must be
accorded equal weight, when in fact it is for the jury to decide
what weight to give particular testimony or other evidence.
According to defendant, this instruction “could erroneously
leave the jurors with the impression they are not free to give
specific circumstantial evidence greater weight than other
specific direct evidence or vice versa.”
Defendant cites no legal authority for his argument, which
is not surprising.
CALCRIM No. 223 does not suggest to jurors
they must accord direct and circumstantial evidence equal weight
or that the jurors are not free to give the evidence, whether
direct or circumstantial, whatever weight they deem appropriate.
It states that neither direct nor circumstantial evidence “is
necessarily more reliable than the other” and that neither “is
entitled to greater weight than the other.”
The fact that one
type of evidence is not necessarily more reliable than another
does not preclude the jury from so finding in a given case.
fact that one type of evidence is not entitled to greater weight
than another does not preclude the jury from nevertheless giving
one type greater weight than another.
Reasonably read, the
instruction cautions only that neither direct nor circumstantial
evidence should be accorded greater weight simply because it is
direct or circumstantial evidence.
Defendant raises a number of challenges to CALCRIM No. 224.
As given here, that instruction read:
“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 Defendants guilty, you must be convinced that the only
reasonable conclusion supported by the circumstantial evidence
is that the Defendants are 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
Defendant contends that because this instruction is limited
to circumstantial evidence and sets forth basic reasonable doubt
and burden of proof principles, it gives the false impression
these principles apply only to circumstantial evidence, not
Defendant misreads the instruction.
No. 224 does not set out basic reasonable doubt and burden of
proof principles; these are described elsewhere.
instruction reiterates that each fact necessary for conviction
must be proved beyond a reasonable doubt, the obvious purpose of
the instruction is to limit the use of circumstantial evidence
in establishing such proof.
It cautions the jury not to rely on
circumstantial evidence to find the defendant guilty unless the
only reasonable conclusion to be drawn from it points to the
In other words, in determining whether a
fact necessary for conviction has been proved beyond a
reasonable doubt, circumstantial evidence may be relied on only
if the only reasonable inference that may be drawn from it
points to the defendant’s guilt.
The same limitation does not apply to direct evidence.
Circumstantial evidence involves a two-step process:
presentation of the evidence followed by a determination of what
reasonable inference or inferences may be drawn from it.
contrast, direct evidence stands on its own.
that does not require an inference.
It is evidence
Thus, as to direct
evidence, there is no need to decide whether there is an
opposing inference that suggests innocence.
Defendant next contends the instruction should not be
limited to circumstantial evidence, because California law has
long recognized the principle that “if two reasonable
interpretations of the evidence exist, the one favoring the
defendant’s innocence must be adopted,” and this principle
applies to both direct and circumstantial evidence.
this argument mixes apples with oranges.
Defendant cites as
support a number of cases where the juries had been instructed
that if two conclusions can be drawn from the evidence as a
whole, one pointing to guilt and the other pointing to
innocence, it must find the defendant not guilty.
v. Bender (1945) 27 Cal.2d 164, 175-177 (Bender); People v.
Foster (1926) 198 Cal. 112, 127-128; People v. Barthleman (1898)
120 Cal. 7, 10-11; People v. Naumcheff (1952) 114 Cal.App.2d
278, 281-282; People v. Haywood (1952) 109 Cal.App.2d 867, 872;
People v. Carroll (1947) 79 Cal.App.2d 146, 150.)
question addressed by CALCRIM No. 224 is not how to consider the
evidence as a whole but how to consider specific circumstantial
The instruction concerns whether a necessary fact may
reasonably be inferred from circumstantial evidence when that
evidence can be construed in a way that points to the
defendant’s innocence, not whether the evidence as a whole may
reasonably be construed to point to the defendant’s innocence.
Defendant next contends the authority for CALJIC No. 2.01,
the predecessor to CALCRIM No. 224, was Bender, supra, 27 Cal.2d
164, and Bender did not hold the instruction should be given
only in circumstantial evidence cases.
Rather, according to
defendant, the court stated “the instruction, as applied to all
of the evidence, was ‘eminently proper . . . .’”
unlike the present case, the evidence in Bender that tended to
show the defendant killed his wife was “entirely
(Bender, supra, at p. 174.)
Thus, while the
instruction may have been proper as to all the evidence, all the
evidence in Bender was circumstantial.
Defendant contends CALCRIM No. 224 improperly couches the
jury’s choices in terms of whether the circumstantial evidence
points to him being guilty or innocent, rather than being guilty
or not guilty.
According to defendant, this places a burden on
him to prove his innocence.
Defendant’s argument stems from People v. Han (2000) 78
Cal.App.4th 797 (Han).
In Han, the defendant raised this same
argument in connection with the trial court’s rejection of a
proposed modification of CALJIC No. 2.01 to “substitute a lack
of finding of guilt for one of innocence.”
(Han, supra, at p.
The Court of Appeal agreed the modification would have
made the instruction more accurate, explaining:
the semantic difference and appreciate the defense argument.
might even speculate that the instruction will be cleaned up
eventually by the CALJIC committee to cure this minor anomaly,
for we agree that the language is inapt and potentially
misleading in this respect standing alone.”
(Id. at p. 809.)
However, the court went on to conclude the defendant was not
harmed because other instructions, primarily the reasonable
doubt instruction, prevented any confusion.
We cannot agree with the Han court’s criticism of CALJIC
For a defendant to be found not guilty, it is not
necessary that the evidence as a whole prove his innocence, only
that the evidence as a whole fails to prove his guilt beyond a
In other words, a not guilty verdict is based
on the insufficiency of the evidence of guilt.
However, when considering isolated items of evidence, the
issue is different.
A particular item of evidence may fall into
one of three categories:
it may tend to prove guilt; it may
tend to prove innocence; or it may have no bearing on guilt or
If the evidence falls into the latter category, it
does not support either a guilty or a not guilty verdict.
effect, the evidence is not relevant to the case and should be
Thus, if a particular item of evidence,
circumstantial or otherwise, is relevant to the jury’s ultimate
determination, it is relevant only because it tends to prove
either guilt or innocence.
CALCRIM No. 224 simply recognizes this distinction when the
jury is considering the circumstantial evidence as a whole.
Notably, each of the cases cited by defendant in support of his
preceding argument--that CALCRIM No. 224 should not be limited
to circumstantial evidence--also recognizes this distinction.
In each, the instruction given referred to guilt and innocence
rather than guilt and the absence of guilt.
(See Bender, supra,
27 Cal.2d at p. 177 [“‘If the evidence in this case is
susceptible of two constructions or interpretations, each of
which appears to you to be reasonable, and one of which points
to the guilt of the defendant, and the other to his
innocence’”]; People v. Foster, supra, 198 Cal. at p. 128
[“considering the evidence as a whole, if it was susceptible of
two reasonable interpretations, ‘one looking towards guilt and
the other towards the innocence of the defendant’”]; People v.
Barthleman, supra, 120 Cal. at p. 10 [“‘The jury are instructed
that if the evidence points to two conclusions, one consistent
with the defendant’s guilt, the other consistent with the
defendant’s innocence’”]; People v. Naumcheff, supra, 114
Cal.App.2d at p. 281 [“‘if from the evidence you can with equal
propriety draw two conclusions, the one of guilt, the other of
innocence’”]; People v. Haywood, supra, 109 Cal.App.2d at p. 872
[“‘the testimony in this case if its weight and effect be such
as two conclusions can be reasonably drawn from it, the one
favoring the defendant's innocence, and the other tending to
establish his guilt’”]; People v. Carroll, supra, 79 Cal.App.2d
at p. 150 [“‘You are instructed that if from the evidence you
can with equal propriety draw two conclusions, the one of guilt,
the other of innocence’”].)
Defendant’s final contention on CALCRIM No. 224 concerns
use of the word “convinced.”
He argues the instruction
incorrectly defines the burden of proof in terms of being
convinced of guilt rather than proof beyond a reasonable doubt.
According to defendant, “an instruction is deficient if it
merely requires the jurors be ‘convinced’ or ‘satisfied’ the
defendant is guilty.”
CALCRIM No. 224 does not undermine the burden of proof.
explained above, the instruction does not define the burden of
proof; this is done elsewhere.
Although the instruction
reiterates that burden, it does not do so erroneously.
No. 224 begins:
“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
Telling the jury it must be “convinced” that
each essential fact has been proved “beyond a reasonable doubt”
in no way undermines the applicable burden of proof.
“Also, before you may rely on
circumstantial evidence to find the defendants guilty, you must
be convinced that the only reasonable conclusion supported by
the circumstantial evidence is that the defendant is guilty.”
This does not concern the burden of proof but the threshold
inquiry regarding the use of circumstantial evidence.
such evidence may be considered, the jury must conclude, i.e.,
be convinced, the only reasonable inference from the evidence
points to the defendant’s guilt.
Defendant does not contend
there is any defect in this threshold inquiry.
CALCRIM No. 226
Defendant challenges CALCRIM No. 226, the instruction on
determining the credibility of witnesses.
As given here, it
“You alone must judge the credibility or believability of
In deciding whether testimony is true and
accurate, use your common sense and experience.
of each witness must be judged by the same standard.
set aside any bias or prejudice you may have, including any
based on the witness’s gender, race, religion or national
You may believe all, part, or none of a witness’s
Consider the testimony of each witness and decide
how much of it you believe. . . .
“In evaluating a witness’s testimony, you may consider
anything that . . . reasonably tends to prove or disprove the
truth or accuracy of that testimony.
Among the factors that you
may consider are:
“How well could the witness see, hear, or otherwise
perceive the things about which the witness has testified?
“How well was the witness able to remember and describe
“What was the witness’s behavior while testifying?
“Did the witness understand the questions and answer them
“Was the witness’s testimony influenced by a factor such as
bias or prejudice, a personal relationship with someone involved
in the case, or a personal interest in how the case is decided?
“What was the witness’s attitude toward the case or about
“Did the witness make a statement in the past that is
consistent or inconsistent with his or her testimony?
“How reasonable is the testimony when you consider all the
other evidence in the case?
“Did other evidence prove or disprove any fact about which
the witness has testified?
“Did the witness admit to being untruthful?
“What is the witness’s character for truthfulness?
“Has the witness engaged in other conduct that reflects on
his or her believability?
“Do not automatically reject testimony just because of
inconsistencies or conflicts.
are important or not.
Consider whether the differences
People sometimes honestly forget things
or make mistakes about what they remember.
Also, two people may
witness the same event yet see or hear it differently.
“If you do not believe a witness’s testimony that he or she
no longer remembers something, that testimony is inconsistent
with the witness’s earlier statement on that subject.
“If you decide that a witness deliberately lied about
something significant in this case, you should consider not
believing anything that witness says.
Or, if you think the
witness lied about some things, but told the truth about others,
you may simply accept the part that you think is true and ignore
Defendant takes issue with a single word in this
He argues that instead of saying
“[p]eople sometimes honestly forget things or make mistakes
about what they remember,” the instruction should have retained
the language in the predecessor instruction, CALJIC No. 2.21.1.
That instruction read:
“Failure of recollection is common.
Innocent misrecollection is not uncommon.”
(7th ed. 2003).)
(CALJIC No. 2.21.1
According to defendant, “sometimes” is
different from “not uncommon” and reflects a less frequent
Thus, defendant argues, CALCRIM No. 226 “gives the
eyewitness a false aura of credibility.”
Assuming “not uncommon” and “sometimes” reflect a different
level of frequency, defendant cites no authority for the
proposition, implicit in his argument, that the “not uncommon”
language of the prior instruction stated the correct standard.
A point not argued or supported by citation to authority is
(Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p.
At any rate, defendant has it backward.
The function of
the challenged statement, as evident from the context of the
instruction as a whole, is not to quantify how often witnesses
make mistakes, but to caution the jury not to reject a witness’s
testimony just because of inconsistencies or conflicts.
defendant argues, the language of the new instruction suggests
honest misrecollection occurs less frequently than was suggested
by the prior instruction, this implies the new instruction would
lead the jury to conclude inconsistencies or conflicts in a
witness’s testimony are due less frequently to honest mistake
and, consequently, more frequently due to dishonesty.
the new instruction would make the witnesses appear less, rather
than more, credible.
But, as indicated, the function of the challenged statement
is not to comment on the witness’s credibility but to caution
against rejection of the witness’s testimony just because of
inconsistencies or conflicts in it.
The language of both former
CALJIC No. 2.21.1 and CALCRIM No. 226 adequately make the point.
CALCRIM No. 251
Defendant challenges CALCRIM No. 251, the instruction on
the required union of actus reus and mens rea.
He contends the
instruction contains an insufficient description of the actus
As given here, CALCRIM No. 251 stated:
“The crime charged
in Count I, as to both Defendants, requires proof of the union,
or joint operation, of act and wrongful intent.
to be guilty of the crime of robbery, a person must not only
intentionally commit the prohibited act, but must do so with the
The act and intent required are explained in
the instructions for the crime.”
Defendant points out that former CALJIC No. 3.31, the
predecessor of CALCRIM No. 251, informed the jury there must
exist “a union or joint operation of act or conduct and a
certain specific intent in the mind of the perpetrator.”
(CALJIC No. 3.31 (7th ed. 2003), italics added.)
He argues that
by dropping the words “or conduct,” CALCRIM No. 251 “fails to
assure the jurors will understand the need to find the required
concurrence between the defendant’s conduct and mens rea.”
Although not raised by defendant, this same argument could
be made with respect to CALCRIM No. 250, which concerns general
intent crimes and was given here in connection with the charge
of providing false identification to a peace officer.
predecessor to CALCRIM No. 250, CALJIC No. 3.30, also referred
to “act or conduct.”
(CALJIC No. 3.30 (7th ed. 2003).)
The People contend the language of CALCRIM No. 251 is much
simpler than its predecessor and “there is no need to include
‘conduct’ in the instruction, since the word ‘act’ plainly
encompasses an individual’s conduct.”
We agree with the People.
With respect to a joint
operation instruction, the words “act” and “conduct” essentially
convey the same meaning.
The function of CALCRIM No. 251 is to
alert the jury that, where a crime requires a specific intent or
mental state, the defendant must have that specific intent or
mental state at the same time he performs the acts necessary for
In other words, there must be a temporal concurrence
between the required mental state and the outward actions of the
Whether those outward actions involve a discrete act
or a course of conduct is immaterial.
CALCRIM No. 300
Defendant challenges CALCRIM No. 300, which reads:
“Neither side is required to call all witnesses who may have
information about the case or to produce all physical evidence
that might be relevant.”
He concedes this instruction “may be
technically correct as far as it goes.”
However, he argues that
because the instruction applies to both sides, and says that
neither side is required to call all witnesses or produce all
physical evidence, “the jury might be left with the belief the
defense is required to produce ‘some’ evidence.”
defendant, the instruction permits the jury to conclude he must
prove or disprove certain facts or issues and his failure to
produce evidence might be seen as an admission of guilt.
We are not persuaded.
In People v. Simms (1970) 10
Cal.App.3d 299 (Simms), the court considered CALJIC No. 2.11,
the predecessor of CALCRIM No. 300.
CALJIC No. 2.11 read:
“Neither side is required to call as witnesses all persons who
may have been present at any of the events disclosed by the
evidence . . . .
Neither side is required to produce all
objects or documents mentioned or suggested by the evidence.”
(CALJIC No. 2.11 (7th ed. 2003), italics added.)
In response to
the defendant’s argument, the instruction could have led the
jury to infer the burden of proof was to be shared by the People
and the defendant, the Simms court said:
“This contention is
unsupported by any authority and we therefore are entitled to
reject it on this ground.
We observe, moreover,
that the instruction is a correct statement of law and that it
was proper to so instruct.
With respect to the
burden of proof, the jury was thoroughly instructed on this
Although such instructions on the burden of proof did
not immediately follow the questioned instruction, defendant
does not point out that there was any confusion.
entitled to assume that the jurors followed the court’s
(Simms, supra, at p. 313.)
In the present matter, the jury was instructed with CALCRIM
No. 220 on the presumption of innocence and the prosecution’s
burden of proof.
This was reiterated in CALCRIM No. 315, which,
as given here, stated:
“The People have the burden of proving
beyond a reasonable doubt that it was the Defendant who
committed the crime.
If the People have not met this burden,
you must find the Defendants not guilty.”
reinforced by CALCRIM No. 355:
It was also
“[D]efendant Anderson has an
absolute constitutional right not to testify.
He or she [sic]
may rely on the state of the evidence and argue that the People
have failed to prove the charges beyond a reasonable doubt.
. . .”
In evaluating a claim the jury could have misconstrued an
instruction, the test on review is “‘“whether there is a
reasonable likelihood that the jury has applied the challenged
instruction in a way” that violates the Constitution.’”
v. Raley (1992) 2 Cal.4th 870, 901, quoting Estelle v. McGuire
(1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399].)
In light of the
burden of proof instructions given by the court, which we
presume the jury followed (People v. Adcox (1988) 47 Cal.3d 207,
253), it is not reasonably likely the jury would have
misunderstood CALCRIM No. 300 as defendant suggests.
CALCRIM No. 302
Defendant challenges CALCRIM No. 302, the instruction on
evaluating conflicting evidence, on several bases.
here, CALCRIM No. 302 read:
“If you determine there is a
conflict in the evidence, you must decide what evidence, if any,
Do not simply count the number of witnesses who
agree or disagree on a point and accept the testimony of the
greater number of witnesses.
On the other hand, do not
disregard the testimony of the greater number of witnesses, or
any witness, without a reason or because of prejudice or a
desire to favor one side or the other.
What is important is
whether the testimony or any other evidence convinces you, not
just the number of witnesses who testify about a certain point.”
Defendant contends that by instructing the jury not to
disregard the testimony of a witness without a reason, CALCRIM
No. 302 “creates the presumption all witnesses are deemed to be
truthful, ‘unless’ a juror has a reason to conclude otherwise.”
According to defendant, when this presumption is applied to
prosecution witnesses, it undermines the presumption of
innocence by requiring the jury to accept the testimony unless
the defendant disproves it.
This argument disregards CALCRIM No. 226, which was given
by the court shortly before the court read CALCRIM No. 302.
noted above, CALCRIM No. 226 instructed the jurors they alone
must determine the credibility or believability of the witnesses
and set forth a number of factors the jurors may consider in
making this determination.
It is this instruction that informs
the jurors’ assessment of whether there may be a reason to
disregard a witness’s testimony or any part thereof.
No. 302 does not create a presumption of credibility.
cautions the jurors not to disregard testimony on a whim.
this regard, CALCRIM No. 302 is no different from former CALJIC
No. 2.22, which cautioned jurors not to disregard the testimony
of the greater number of witnesses “merely from caprice, whim or
(CALJIC No. 2.22 (7th ed. 2003).)
In People v.
Rincon-Pineda (1975) 14 Cal.3d 864, the state high court
directed that CALJIC No. 2.22 “be given in every criminal case
in which conflicting testimony has been presented.”
(Id. at pp.
Defendant next contends CALCRIM No. 302 conflicts with the
presumption of innocence by instructing the jury “not to ‘favor
one side over the other.’”
Defendant misreads the instruction.
CALCRIM No. 302 cautions the jury not to disregard testimony
“without a reason or because of prejudice or a desire to favor
one side or the other.”
The instruction does
not tell the jury not to favor one side over the other; it
cautions against disregarding testimony because of a desire to
favor one side over the other.
Defendant contends CALCRIM No. 302 improperly implies that
disbelief of defense witnesses necessarily means that
prosecution witnesses are believable.
However, defendant does
not explain how the instruction does so.
To the extent this is
merely a restatement of defendant’s argument that the
instruction creates a presumption of credibility of prosecution
witnesses, this has been addressed above.
Finally, defendant contends CALCRIM No. 302 improperly
instructs the jury to choose between the People’s witnesses and
those of the defense.
Defendant argues the jury may instead
accept some portions of a witness’s testimony and reject other
This contention is again based on a misreading of the
CALCRIM No. 302 cautions not to “simply count the
number of witnesses who agree or disagree on a point and accept
the testimony of the greater number of witnesses.”
It further cautions:
“What is important is whether the
testimony or any other evidence convinces you, not just the
number of witnesses who testify about a certain point.”
The instruction says nothing about choosing
between prosecution and defense witnesses.
It merely states the
common sense notion that the number of witnesses who have given
testimony on a particular point is not the test for the truth of
It does no more.
The jury remains free to choose
the witness or witnesses it believes and what part of a
witness’s testimony it finds believable.
CALCRIM No. 316
Defendant challenges CALCRIM No. 316 that, as given here,
“If you find that a witness has committed a crime or
other misconduct, you may consider that fact only in evaluating
the credibility of the witness’s testimony.
The fact that a
witness may have committed a crime or other misconduct does not
necessarily destroy or impair a witness’s credibility.
It is up
to you to decide the weight of that fact and whether that fact
makes the witness less believable.”
Defendant contends that by
saying the jury “may consider” instead of “must consider” prior
crimes evidence, the instruction “effectively informs the jury
it is not obligated to consider relevant and critical evidence.”
He argues this violates his constitutional right to have the
jury consider defense evidence or a defense theory.
Once again, defendant misreads the instruction.
function of CALCRIM No. 316 is not to inform the jury what
evidence may or may not be considered.
CALCRIM No. 220 informs
the jury it must consider “all the evidence that was received
throughout the entire trial.”
The function of CALCRIM No. 316
is to inform the jury how prior crimes evidence may be used.
Such evidence may be considered only in evaluating the witness’s
Thus, CALCRIM No. 220 tells the jury it must
consider all evidence and CALCRIM No. 316 limits consideration
of prior crimes evidence to the issue of credibility.
does not challenge this limitation on the use of prior crimes
CALCRIM No. 355
Defendant contends CALCRIM No. 355, the instruction that
tells the jury not to consider defendant’s failure to testify,
does just the opposite by “permitting or encouraging the jury to
consider and/or to rely on [his] silence prior to trial and/or
failure to testify at trial.”
As given here, CALCRIM No. 355 read:
has an absolute constitutional right not to testify.
He or she
[sic] may rely on the state of the evidence and argue that the
People have failed to prove the charges beyond a reasonable
Do not consider, for any reason at all, the fact that
the defendant did not testify.
Do not discuss that fact during
your deliberations or let it influence your decision in any
Defendant argues that by saying he may rely on the state of
the evidence and “argue” the People have failed to prove the
charges, the instruction implies he has a burden to argue the
prosecution has not proved its case.
Defendant takes this one
step further and asserts “it is not up to him to prove he is not
This argument cannot withstand scrutiny for two reasons.
First, it contains a logically unwarranted leap from what
defendant sees as a requirement that he argue he is not guilty
to one that he proves he is not guilty.
A “requirement,” even
if there was one, that defendant argue he is not guilty has
nothing to do with the production of evidence.
A defendant can
argue the People have not proven their case without testifying
or presenting any evidence.
Second, the instruction does not imply a defendant must
argue he is not guilty.
It says the defendant may rely on the
evidence and may argue the People have not proven their case.
The defendant is under no obligation to argue anything, and the
instruction does not imply otherwise.
CALCRIM No. 370
Defendant challenges CALCRIM No. 370, that instructs the
jury on the use of motive evidence, on several grounds.
However, as we shall explain, none of these grounds can
withstand careful consideration.
As given here, CALCRIM No. 370 read:
“The People are not
required to prove that the Defendants had a motive to commit any
of the crimes charged.
In reaching your verdict you may,
however, consider whether the Defendants had a motive.
Having a motive may be a factor tending to show that the
Defendants are guilty.
Not having a motive may be a factor
tending to show the Defendants are not guilty.”
Defendant contends that by saying, “In reaching your
verdict,” the instruction improperly implies the jury is
obligated to reach a verdict in the case.
However, as explained
in section II, ante, another instruction, CALCRIM No. 3550,
“You should try to agree on a verdict if you can.”
“[If you are able to reach a unanimous
decision on only one or only some of the (charges/ [or]
defendants), fill in (that/those) verdict form[s] only . . . .”
The correctness of jury instructions is determined from the
entire charge of the court.
(People v. Burgener, supra, 41
Cal.3d at pp. 538-539.)
Defendant next argues the second sentence of CALCRIM No.
370, which informs the jury it may consider whether he “had a
motive,” wrongly implies any motive will suffice, not just a
motive to commit the charged offenses.
However, this ignores
the first sentence of the instruction, which says “[t]he People
are not required to prove that the defendant has a motive to
commit (any of the crimes/the crime) charged.”
The second sentence of the instruction must be read in the
context of the first.
Thus, it does not imply any motive may be
Defendant next contends CALCRIM No. 370 “employs erroneous
burden shifting language by implying a defense obligation to
‘show the defendant is not guilty.’”
This is a reference to the
final sentence of the instruction, which says a lack of motive
may be a factor tending to show the defendant is not guilty.
However, this sentence says nothing about the burden of proof,
which is discussed elsewhere in the instructions.
370 addresses the issue of relevance.
It tells the jury how it
may apply motive evidence, if any has been presented.
no burden shifting.
Defendant’s final contention regarding CALCRIM No. 370 is
that it “effectively informs the jury motive alone may be the
basis for a finding of guilt.”
This argument is based on the
statement in the instruction that “[h]aving a motive may be a
factor tending to show that the defendant is guilty.”
Defendant cites as support People v. Owens (1994) 27
Cal.App.4th 1155 (Owens), where the jury was instructed:
People have introduced evidence tending to prove that there are
more than three acts of substantial sexual conduct or lewd and
lascivious conduct upon which a conviction in Count I may be
(Id. at p. 1158.)
The defendant there argued the
instruction gave the impression the court had concluded the
evidence showed more than three acts off misconduct had been
committed, thereby relieving the prosecution of its burden of
The Court of Appeal agreed, explaining:
“Instructing the jury that the People have introduced evidence
‘tending to prove’ appellant’s guilt carries the inference that
the People have, in fact, established guilt.
would be eliminated if the phrase ‘for the purpose of showing’
was substituted for ‘tending to prove’ . . . .”
(Id. at pp.
Owens is inapposite.
The problem there was that the trial
court informed the jury the People had presented evidence
tending to prove the fact in issue.
CALCRIM No. 370 does not
say evidence tending to prove the defendant had a motive to
commit the crime has been presented.
Instead, it says such
evidence, if it has been presented, may tend to prove guilt.
Defendant argues the instruction should have expressly
informed the jury that motive evidence alone is insufficient for
He points to several other instructions that do so.
(See, e.g., CALCRIM Nos. 359, 362, 371, 372, 376, 415, 1191.)
Defendant argues a reasonable juror would conclude the omission
of a similar statement in CALCRIM No. 370 was intentional, i.e.,
that motive evidence is enough for conviction.
This argument is belied by the language of the instruction
as a whole.
CALCRIM No. 370 says that motive “may be a factor
tending to show that the defendant is guilty.”
Saying motive is a factor that may tend to prove guilt is a far
cry from saying it is a factor that alone may prove guilt.
fact that evidence tends to prove guilt merely establishes its
relevance on the issue.
CALCRIM No. 220
Defendant challenges CALCRIM No. 220, which states the
basic presumption of innocence and defines reasonable doubt.
given here, it read:
“The fact that a criminal charge has been filed against the
defendant[s] is not evidence that the charge is true.
not be biased against the defendant[s] just because
(he/she/they) (has/have) 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 a defendant
guilty beyond a reasonable doubt.
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].
“Proof beyond a reasonable doubt is proof that leaves you
with an abiding conviction that the charge is true.
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
Unless the evidence proves the defendant[s]
guilty beyond a reasonable doubt, (he/she/they) (is/are)
entitled to an acquittal and you must find (him/her/them) not
Defendant contends CALCRIM No. 220 contains language that
may be read to infer bias against the defendant for some reasons
Defendant refers specifically to the first
paragraph of the instruction.
He argues that by enumerating
certain reasons for which bias against the defendant is not
permissible, all other reasons are fair game.
This argument is without merit.
The function of CALCRIM
No. 220 is to inform the jury of the presumption of innocence
and the People’s burden to prove guilt beyond a reasonable
Consistent with this function, the instruction tells the
jury that the fact the defendant has been arrested, charged with
a crime, or brought to trial may not be considered against him.
These factors relate directly to the presumption of innocence.
Defendant does not suggest what other factors should have been
included in the instruction.
In CALCRIM No. 200, the jury was
“Do not let bias, sympathy, prejudice, or public opinion
influence your decision.”
For CALCRIM No. 220 simply to have
repeated a blanket prohibition against bias would have been
outside its purpose.
CALCRIM No. 1600
Defendant contends CALCRIM No. 1600, which sets forth the
elements of the crime of robbery, is deficient in two ways:
it does not require proof the victim was actually afraid, and
(2) it does not require proof of force beyond that necessary to
accomplish seizure of the property.
We conclude there is no
requirement that the instruction define the terms fear or force
as defendant suggests.
As given here, CALCRIM No. 1600 read:
“The Defendants are
charged in Count I with robbery.
“To prove the Defendants are guilty of this crime, the
People must prove that:
The Defendants took property that was not their own;
The property was taken from another person’s
possession and immediate presence;
The property was taken against that person’s will;
The Defendants used force or fear to take the property
or to prevent the person from resisting;
When the Defendants used force or fear to take the
property, they intended to deprive the owner of it
permanently/or to remove it from the owner’s possession for so
extended a period of time that the owner would be deprived of a
major portion of the value or enjoyment of the property.
“The Defendants’ intent to take the property must have been
formed before or during the time they used force or fear.
the Defendants did not form this required intent until after
using the force or fear, then they did not commit robbery.
“A person takes something when he or she gains possession
of it and moves it some distance.
The distance moved may be
“The property taken may be of any value, however slight.
Two or more people may possess something at the same time.
“A person does not have to actually hold or touch something
to possess it.
It is enough if the person has control over it
or the right to control it, either personally or through another
Case law supports defendant’s assertions that the fear
necessary for robbery is subjective in nature, requiring proof
“that the victim was in fact afraid, and that such fear allowed
the crime to be accomplished.”
(People v. Mungia (1991) 234
Cal.App.3d 1703, 1709, fn. 2.)
Case law also establishes that
the force necessary to elevate a theft to a robbery must be
something more than that required to seize the property.
(People v. Bolander (1994) 23 Cal.App.4th 155, 163; People v.
Morales (1975) 49 Cal.App.3d 134, 139.)
However, defendant cites no authority for the proposition
that the jury must be instructed on these aspects of the force
or fear elements.
“[W]hen terms have no technical meaning
peculiar to the law, but are commonly understood by those
familiar with the English language, instructions as to their
meaning are not required.”
(People v. Anderson (1966) 64 Cal.2d
In Anderson, supra, at page 640, the state high
“The terms ‘force’ and ‘fear’ as used in the
definition of the crime of robbery have no technical meaning
peculiar to the law and must be presumed to be within the
understanding of jurors.”
(See also People v. Griffin (2004) 33
Cal.4th 1015, 1095; People v. Mungia, supra, 234 Cal.App.3d at
Defendant acknowledges the foregoing principle, but asserts
it does not apply “when the evidence raises the issue of whether
the force used was substantially more than that required to
commit the underlying offense.”
However, even if this were
true, the present matter does not involve a taking by force.
Rather, defendant put a knife to the victim’s throat and took
the property without any resistance.
This was not a matter of
the defendant pulling the property from the victim’s hands.
victim gave it up willingly out of fear.
argument about the level of force required has no application in
The trial court was not required to define the terms
fear and force for the jury.
CALCRIM No. 376
Defendant challenges CALCRIM No. 376, the instruction on
possession of recently stolen property.
As given to the jury,
“If you conclude that the Defendants knew they possessed
the property and you conclude the property had in fact recently
been stolen, you may not convict the Defendants of robbery based
on those facts alone.
However, if you also find that supporting
evidence tends to prove their guilt, then you may conclude that
the evidence is sufficient to prove they committed robbery.
“The supporting evidence need only be slight and may not be
enough by itself to prove . . . guilt.
You may consider how,
where, and when the Defendants possessed the property, along
with any other relevant circumstances tending to prove their
guilt of robbery.
“Remember that you may not convict the Defendant of any
crime unless you are convinced . . . that each fact essential to
the conclusion that the Defendant is guilty of that crime has
been proved beyond a reasonable doubt.”
Defendant contends CALCRIM No. 376 has three defects:
It informs the jury that possession of recently stolen property
may tend to prove guilt of robbery when, alternately, it may
prove guilt of the lesser-included offense of theft.
instruction creates an improper inference of guilt from
possession alone by ignoring the added requirement that the
possession be unexplained.
(3) The instruction improperly
informs the jury that only slight corroborating evidence is
necessary to support a guilty verdict.
We find no such defects
in the instruction.
The first alleged defect--that the instruction improperly
informs the jury possession of stolen property may tend to prove
robbery rather than theft--was rejected by the state high court
in People v. Lang (1989) 49 Cal.3d 991.
There, the jury was
instructed that giving a false explanation for the possession of
stolen property is a circumstance that may be considered with
other evidence in deciding if the defendant is guilty of the
offense charged, where the offense charged was robbery.
p. 1024 & fn. 16.)
The defendant argued the instruction was
erroneous in permitting an inference that he was guilty of
robbery rather than grand theft.
The high court disagreed,
“The instruction did not state that defendant’s
false statements supported an inference of guilt only as to the
offense of robbery.
The instruction was therefore a correct
statement of law because, as defendant concedes, the falsestatement evidence would support an inference of guilt as to
either grand theft or robbery.
Nothing in the instruction’s
language suggested it was intended to assist the jury in
deciding which of these offenses defendant committed. . . .”
(Id. at p. 1024.)
Regarding the second alleged defect, defendant asserts
CALCRIM No. 376 “misstates the common law permissive inference
of guilt of theft from possession of recently stolen property by
removing the requirement that such possession must be
He cites two cases which he contends establish a
common law requirement that the possession must be unexplained,
People v. McFarland (1962) 58 Cal.2d 748 (McFarland), and Barnes
v. United States (1973) 412 U.S. 837 [37 L.Ed.2d 380] (Barnes).
However, neither case supports defendant’s assertion.
In McFarland, the court stated the following rule:
recently stolen property is found in the conscious possession of
a defendant who, upon being questioned by the police, gives a
false explanation regarding his possession or remains silent
under circumstances indicating a consciousness of guilt, an
inference of guilt is permissible and it is for the jury to
determine whether or not the inference should be drawn in the
light of all the evidence.”
(McFarland, supra, 58 Cal.2d at p.
However, before stating the foregoing rule, the state
high court in McFarland acknowledged the more general rule that
possession of recently stolen property together with other
corroborating evidence is sufficient to infer guilt.
(Id. at p.
The court went on to state that a failure to explain or a
false explanation of such possession is one type of
In other words, the court in McFarland
did not say that possession must be unexplained to be relevant
but that the lack of an explanation for possession is one type
of corroborating evidence sufficient to support a conviction.
In Barnes, the jury was instructed that “‘[p]ossession of
recently stolen property, if not satisfactorily explained, is
ordinarily a circumstance from which you may reasonably draw the
inference and find, in the light of surrounding circumstances
shown by the evidence in the case, that the person in possession
knew the property had been stolen.’”
(Barnes, supra, 412 U.S.
at pp. 839-840 [37 L.Ed.2d at p. 384].)
The United States
Supreme Court found no problem in this instruction, which
permitted an inference of guilt from unexplained possession.
other words, as in McFarland, possession of recently stolen
property coupled with a lack of explanation is sufficient to
However, the court did not say this was the
only acceptable type of corroborating evidence.
Defendant contends CALCRIM No. 376 permits the jury to
completely ignore any explanation for the possession, no matter
The instructions in general tell the
jury to consider all relevant evidence.
CALCRIM No. 376
reiterates that the People must prove guilt beyond a reasonable
doubt and contains no limitation on the evidence that may be
considered in determining if the People have done so.
was not restricted in any way from trying to explain away his
possession of the stolen property.
Defendant argues conscious possession of stolen property
that is satisfactorily explained provides no rational basis for
an inference of guilt.
However, assuming this is so, CALCRIM
No. 376 does not create a presumption of guilt from possession
alone, explained or unexplained.
It expressly states a
determination of guilt cannot be based on possession alone.
Even where there is corroborating evidence, the instruction says
only that this may be considered in determining guilt.
Turning now to the third alleged defect in the instruction-it improperly informs the jury that only slight corroborating
evidence is sufficient to support a guilty verdict--defendant
runs head-on into McFarland, one of the cases cited in support
of his prior argument.
In McFarland, the state high court
stated corroborating evidence accompanying possession of
recently stolen property need only be slight.
supra, 58 Cal.2d at p. 754.)
Defendant acknowledges the jury in McFarland was instructed
that corroborating evidence need only be slight, but asserts the
court “did not give this instruction a ringing endorsement.”
relies on the following passage from the opinion:
“There can be
no question that the instruction complained of was correct to
the extent that it dealt with the incriminating effect of false
explanations and statements constituting admissions, and such
conduct on the part of defendant was shown to be present as to
every count relating to possession except the one concerning the
recently stolen toolbox, which defendant had in his possession
at the same time and place as the recently stolen property
involved in the other counts.
In the light of the entire
record, the instruction, although not worded as clearly as would
have been desirable with respect to consideration of defendant’s
silence upon questioning by the police, cannot be said to have
resulted in a miscarriage of justice.”
(McFarland, supra, 58
Cal.2d at pp. 759-760.)
Defendant’s reliance on the foregoing passage is misplaced.
It is clear the discussion does not concern the quantum of
corroborating evidence necessary to support a conviction but the
danger of using a defendant’s failure to explain possession of
recently stolen property in light of his constitutional right to
On the question of the amount of corroborating
evidence, the court said:
“Possession of recently stolen
property is so incriminating that to warrant conviction there
need only be, in addition to possession, slight corroboration in
the form of statements or conduct of the defendant tending to
show his guilt.”
(McFarland, supra, 58 Cal.2d at p. 754.)
Defendant asserts other cases have interpreted McFarland as
standing for the principle that “proof of conscious possession
of recently stolen property simply leads to a permissible
inference the person knew the property was stolen, but the jury
must determine guilt in light of such inference as well as all
of the evidence in the case.”
He cites People v. Dupre (1968)
262 Cal.App.2d 56 (Dupre) and Rollins v. Superior Court (1963)
223 Cal.App.2d 219 (Rollins).
However, as we shall explain,
these cases do not support defendant’s assertion.
In Dupre, it was conceded the defendant was found in
possession of recently stolen property and the question was
whether she knew the property was stolen at the time.
supra, 262 Cal.App.2d at p. 57.)
She gave a rational
explanation for how she came by the property honestly, and there
was no evidence to suggest she knew it was stolen.
(Id. at pp.
Her conviction for receiving stolen property was
The only reference to McFarland in the opinion was to quote
the rule discussed above about possession coupled with a false
explanation or no explanation permitting an inference of guilt.
(Dupre, supra, 262 Cal.App.2d at p. 59.)
There was no
discussion of conscious possession permitting an inference only
that the person knew the property was stolen.
Because there was
no corroborating evidence of guilt in that case, there was no
occasion to discuss the quantum of evidence necessary to support
an inference of guilt.
In Rollins, the defendant sought a writ of prohibition to
prevent the People from proceeding with a prosecution against
him for burglary.
Because there was no evidence the defendant
had been found in possession of recently stolen property and he
had never been questioned about the property, the court granted
(Rollins, supra, 223 Cal.App.2d at p. 222.)
in Dupre, the only reference to McFarland in the case was to
quote the rule of possession coupled with a false explanation.
Because there was no evidence of possession, there was
no occasion to discuss the quantum of evidence necessary to
support an inference of guilt.
Defendant attempts to refute other authorities supporting
the rule that only slight corroboration is necessary to support
evidence of possession of recently stolen property.
need not consider those authorities.
McFarland establishes the
rule that, because the possession of recently stolen property is
so incriminating, only slight corroboration is needed to support
an inference of guilt.
Regardless of these other authorities
and the cases on which they are based, the logic of the slight
corroboration rule enunciated in McFarland remains sound.
any rate, we are bound by McFarland (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455), and need look no
CALCRIM No. 3145
Defendant challenges CALCRIM No. 3145, the instruction
defining the enhancement for use of a deadly weapon.
here, it read:
“If you find . . . Defendant Anderson guilty of
the crime charged in Count I, you must then decide whether the
People have proved the additional allegation that the Defendant
personally used a deadly or dangerous weapon during the
commission or attempted commission of that crime.
decide whether the People have proved this allegation for each
crime and return a separate finding for each crime.
“A deadly or dangerous weapon is any object, instrument, or
weapon that is inherently deadly or dangerous, or one that is
used in such a way that it is capable of causing and likely to
cause . . . great bodily injury.
“In deciding whether any object is a deadly weapon,
consider all of the surrounding circumstances, including when
and where the object was possessed, and where . . . the person
who possessed the object was going, and whether the object was
changed from its standard form and any other evidence that
indicates whether the object would be used for a dangerous,
rather than a harmless, purpose.
“Great bodily injury means significant or substantial
It is an injury that is greater than minor or
“Someone personally uses a deadly or dangerous weapon if he
or she intentionally does any of the following:
Displays the weapon in a menacing manner.
“The People have the burden of proving each allegation
beyond a reasonable doubt.
If the People have not met this
burden, you must find that the allegation . . . has not been
Defendant contends the foregoing instruction is defective
in two ways:
(1) it tells the jurors they must decide if the
enhancement has been proved; and (2) it shifts the burden to him
to prove a harmless purpose for the weapon.
The first alleged defect concerns the first sentence of the
instruction, which says that if the jury finds the defendant
guilty of the underlying crime, it “must then decide” the
Defendant argues this language could
improperly coerce the jury into reaching a decision on the
enhancement when it is unable to do so.
However, as explained
in connection with defendant’s challenge to CALCRIM No. 200,
another instruction, CALCRIM No. 3550, clarifies that the jury
need only try and reach a decision on the matters at issue.
Defendant argues there is no assurance the jury will follow
CALCRIM No. 3550.
However, we presume the jury followed the
instruction as given.
(People v. Adcox, supra, 47 Cal.3d at p.
As to the second alleged defect, defendant points to the
third paragraph of the instruction, which states that, in
deciding if the object is a deadly weapon, the jury should
consider all of the surrounding circumstances, including
“whether the object would be used for a dangerous, rather than a
Defendant argues this language puts a
burden on him to show the object has a harmless purpose.
The language in question cannot reasonably be read to
shift the burden of proof to defendant.
the jury may consider.
It merely states what
Any shifting of burden is expressly
dispelled by the concluding sentences of the instruction:
People have the burden of proving each allegation beyond a
If the People have not met this burden, you
must find that the allegation . . . has not been proven.”
Reference to Jurors Collectively
Defendant contends the CALCRIM instructions, as a whole,
improperly refer to the jurors collectively as “you” rather than
advising each juror of his or her duties.
defendant, “[b]y addressing the jurors collectively, these
instructions fail to assure each juror understands his or her
right and duty to individually evaluate the witnesses.”
People respond that use of the term “you” is “a highly effective
way of communicating the instructions directly to each
Without a reference to individual instructions in order to
determine if use of the term “you” is misleading when considered
in context, it is nearly impossible to evaluate defendant’s
At any rate, we do not agree the term “you” necessarily
reflects a collective reference.
It can just as easily be
understood by the individual jurors as a reference to him or to
Any juror being told, “[i]t is up to you
exclusively to decide what happened based only on the evidence
that has been presented to you in this trial,” or “[y]ou must
set aside any bias or prejudice you may have,” can just as
easily view this as a reference to him or her as to the jury as
There is nothing inherently misleading in this
Cumulative Instructional Error
Defendant contends cumulative instructional error requires
However, having found no individual instructional
error, there is no occasion to consider cumulative impact.
Denial of Romero Motion
In connection with Tehama County Superior Court Case No.
NCR66211, defendant was charged with and admitted a strike under
the three strikes law.
Prior to sentencing, he moved to strike
the strike pursuant to Penal Code section 1385 and People v.
Superior Court (Romero) (1996) 13 Cal.4th 497.
denied the motion, explaining:
The trial court
“The motion to strike the strike
will--the Court in exercising its discretion will deny that
request, based on all of the information contained in the
It just doesn’t seem appropriate to strike
this strike based on the Defendant’s entire record.”
Defendant contends the trial court failed to state adequate
reasons for denying his motion to strike.
He does not dispute
that adequate reasons may be reflected in the probation report.
However, he argues the court cannot simply incorporate the
probation report by reference but instead must set forth the
matters from the report that supports its decision.
Defendant failed to object to the trial court’s statement
of reasons for denying his motion to strike.
on failure to state reasons for sentencing choices must be made
at sentencing or are forfeited.
Cal.4th 331, 353.)
(People v. Scott (1994) 9
At any rate, defendant’s challenge to the
court’s statement of reasons is without merit.
In ruling on a motion to strike prior serious felony
findings under the three strikes law, the trial court “must
consider whether, in light of the nature and circumstances of
his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character,
and prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more
serious and/or violent felonies.”
(People v. Williams (1998)
17 Cal.4th 148, 161.)
A trial court must state reasons for its sentencing
(Pen. Code, § 1170, subd. (c); People v. Fernandez
(1990) 226 Cal.App.3d 669, 678.)
Incorporation by reference
from a report will not suffice.
(People v. DeLoach (1989) 207
Cal.App.3d 323, 339.)
Although a decision granting a motion to strike a strike is
a sentencing choice requiring a statement of reasons, the same
cannot be said of a decision denying such motion.
strikes law creates a sentencing norm from which a trial court
may depart only upon valid justification.
“[T]he three strikes
law not only establishes a sentencing norm, it carefully
circumscribes the trial court’s power to depart from this norm
. . . .
In doing so, the law creates a strong presumption that
any sentence that conforms to these sentencing norms is both
rational and proper.”
(People v. Carmony (2004) 33 Cal.4th 367,
378; id. at p. 375.)
Because it is not a deviation from the norm, a trial court
is not required to state reasons for declining to exercise its
discretion under Penal Code section 1385.
(People v. Zichwic
(2001) 94 Cal.App.4th 944, 960; People v. Gillispie (1997) 60
Cal.App.4th 429, 433.)
On a silent record, it is presumed the
court properly applied the law to the circumstances presented.
(Gillispie, supra, at p. 434.)
All that is required is some
indication in the record that the court recognized it had
discretion on the issue.
The record here adequately
satisfies this requirement.
Failure to Set Forth Aggravating Factors
Defendant contends the trial court failed to state the
aggravating factors warranting imposition of the upper term on
the robbery count.
As in the previous section, defendant argues
the court merely referred to the probation report.
First, as with his argument regarding reasons for denial of
his motion to strike, defendant failed to object at sentencing.
The contention is therefore forfeited.
9 Cal.4th at p. 353.)
(People v. Scott, supra,
Had defendant objected, it would have
been a simple matter for the court to list the aggravating
factors from the probation report.
At any rate, the court did make reference to the individual
factors in the probation report.
That report listed the
following aggravating factors related to the robbery count:
“The defendant’s prior convictions as an adult are numerous.”
(2) “The defendant has served two prior prison terms.”
defendant was on parole when the crimes were committed.”
“The defendant’s prior performance on parole was
No mitigating factors were listed.
At sentencing, the court stated:
“I’m going to declare
67197, which is the robbery case, to be the principal term.
find that the facts in aggravation--well, I should back up a
The Defendant in that case would be eligible for
probation only if there are unusual circumstances that exist.
do not find any unusual circumstances in this case which would
warrant probation, but I would have denied probation in any
event because of the Defendant’s prior record, his two prior
prison commitments and his three parole violations.
So he would
not have been a candidate, a good candidate, for probation in
Now I also find that the facts in aggravation
outweigh those in mitigation.
I therefore will impose the upper
term . . . .”
Clearly, the court’s mention of the aggravating factors
supporting imposition of the upper term was a reference back to
the factors mentioned in connection with the denial of
probation, i.e., defendant’s prior record, his prison terms, and
his parole violations.
The court need be no more specific.
Defendant contends imposition of the upper term on the robbery
count ran afoul of the Sixth Amendment of the United States
Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S.
466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542
U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California
(2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).
In Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], the
United States Supreme Court held that “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.”
(Id. at p.
490 [147 L.Ed.2d at p. 455].)
In Blakely, the Supreme Court applied the rule of Apprendi
to invalidate a state court sentence.
The high court explained
that “the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the
(Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d
at p. 413].)
In Cunningham, the Supreme Court applied Apprendi and
Blakely to California’s determinate sentencing law and held that
by “assign[ing] to the trial judge, not to the jury, authority
to find the facts that expose a defendant to an elevated ‘upper
term’ sentence,” California’s determinate sentencing law
“violates a defendant’s right to trial by jury safeguarded
by the Sixth and Fourteenth Amendments.”
(Id. at p. ___ [166
L.Ed.2d at p. 864], overruling on this point People v. Black
(2005) 35 Cal.4th 1238, vacated in Black v. California (Feb. 20,
2007) ___ U.S. ___ [167 L.Ed.2d 36].)
As explained in the preceding section, the court imposed
the upper term on the robbery counts based on defendant’s “prior
record, his two prior prison commitments and his three parole
Defendant contends the trial court’s findings on
these three factors usurped the jury’s role and therefore
violated his Sixth Amendment rights.
The People contend defendant has forfeited the issue by
failing to raise it in the trial court.
That is not correct.
Defendant was sentenced on February 10, 2006.
On June 20, 2005,
our Supreme Court decided People v. Black, supra, 35 Cal.4th
1238, which held that a defendant does not have a right to a
jury determination of aggravating factors used to impose the
(Id. at p. 1244.)
time of defendant’s sentencing.
Black was controlling law at the
Cunningham, which overruled
Black on this point, was not decided until January 22, 2007.
Defendant was not required to make a futile objection.
pointless to require a defendant to ask a trial court to
overrule a decision of the California Supreme Court.
Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287,
292, fn. 1.)
The People next contend imposition of the upper term on the
robbery count did not run afoul of Apprendi, Blakely and
Cunningham, because the trial court relied solely on factors
relating to defendant’s prior convictions.
The rule of Apprendi and Blakely does not apply when a
defendant’s prior record is used to increase his or her
punishment for a new offense.
(Apprendi, supra, 530 U.S. at p.
490 [147 L.Ed.2d at p. 455]; accord, United States v. Booker
(2005) 543 U.S. 220, 231 [160 L.Ed.2d 621, 641-642].)
addition to defendant’s prior record, the trial court relied on
his two prior prison commitments and his three parole
It has been held that the “prior conviction” exception to
the rule of Apprendi and Blakely encompasses not only the fact
of a prior conviction, but any matter relating to recidivism
that is not related to an element of the crime committed, such
as the fact the defendant has served a prison term.
Thomas (2001) 91 Cal.App.4th 212, 222-223.)
Although the fact
of a prior prison term is not, strictly speaking, the fact of a
prior conviction, it presupposes and is dependent on one or more
As for defendant’s three parole violations, these too are a
matter of his criminal record and relate to recidivism rather
than the current offenses.
Arguably, this factor falls within
the prior conviction exception to Apprendi.
But we need not
decide that issue here because, assuming it does not fall within
the exception, the trial court’s consideration of this factor
Blakely error is reviewed under a harmless-beyond-areasonable-doubt standard.
(Washington v. Recuenco (2006) 548
U.S. ___ [165 L.Ed.2d 466].)
In this instance, any error in not
submitting the issue of whether defendant had three prior parole
violations to the jury was harmless beyond a reasonable doubt.
According to the probation report, defendant was sentenced to
state prison on July 21, 2000.
He was later released on parole
but returned to prison on July 15, 2003, on a parole violation.
On September 9, 2004, and June 15, 2005, defendant was again
returned to prison on additional parole violations.
Defendant does not dispute the information in the probation
report or suggest there is any evidence to the contrary.
Accordingly, we are persuaded beyond a reasonable doubt that if
the jury had been instructed on the aggravating circumstance of
defendant’s three parole violations, it would have found that
circumstance to exist.
Defendant contends that, even with prior convictions, the
trial court makes other findings of fact that should be reserved
to the jury.
For example, defendant argues, the court must
decide if the prior convictions are numerous and of increasing
seriousness, the length of time between priors, and whether
prior prison terms were, in fact, served or followed a
revocation of probation.
However, these issues are either
irrelevant or follow naturally from a review of a defendant’s
record of convictions.
We conclude imposition of the upper term on the robbery
count was supported by defendant’s record of prior convictions
and prison terms, which fall outside the scope of Blakely, and
his prior parole violations, which either fall outside Blakely
or it was harmless for the court to have considered.
there was no Sixth Amendment violation.
Defendant contends cumulative errors require reversal of
the entire judgment.
However, inasmuch as we have found no
errors, we need not consider cumulative impact.
The judgment is affirmed.