Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06905550, M. Bruce Smith, Judge.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Defendant Sean Alan Hillman was convicted of vehicle theft and possession of methamphetamine and drug paraphernalia; he received an aggregate sentence of five years. On appeal, he challenges the trial court’s sentencing decisions. This challenge lacks merit. He also mounts a wide-ranging attack on the new Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM), which the trial court used to instruct the jury. Since his trial counsel did not object to the jury instructions, his claims are waived unless the alleged errors affected his substantial rights. He has not shown a reasonable probability of a better outcome if the jury had been instructed differently, so we conclude that his substantial rights were not affected. For the same reason, defendant has not shown that his trial counsel rendered unconstitutionally ineffective assistance by not objecting. The bottom line: The judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORIES
Abel Gutierrez parked his Jeep in front of his apartment building in Fresno at about 8:00 p.m. on July 15, 2006, a Saturday. On Sunday morning, it was missing and he reported it stolen. The following Wednesday, Abel’s son, Edgar Gutierrez, was driving in a nearby part of Fresno when he spotted his father’s stolen Jeep proceeding toward him along a street. Edgar was able to see the driver. He called the police and followed the Jeep until it stopped and parked in an alley behind a house. The police arrived and knocked on the door of a neighboring house. When defendant came out, Edgar identified him as the man who had been driving the Jeep. Edgar was allowed to take the Jeep home. The ignition switch had been “punched”—the keyhole had been enlarged to permit a screwdriver or other tool to be inserted—a common technique used by car thieves to start stolen cars. The interior had been badly damaged, and an expensive set of tools that had been inside was missing.
After obtaining consent, the police searched the house. In the living room, they found a small black vinyl bag. In the bag were a glass pipe, a substance that later testing showed to be methamphetamine, and two pieces of paper with defendant’s name written on them. In his statement to police, defendant denied knowing how the stolen car came to be parked in the alley near the house. He admitted to police that the black bag was his, but denied that the methamphetamine and pipe belonged to him.
The district attorney filed an information charging defendant, in counts 1 through 4, respectively, with unlawfully taking a motor vehicle (Veh. Code, § 10851, subd. (a)), receiving a stolen motor vehicle (§ 496d, subd. (a)), possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and possessing drug paraphernalia (Health & Saf. Code, § 11364). The information further alleged pursuant to Vehicle Code section 10851, subdivision (e), that defendant had been convicted of two prior vehicle thefts. Finally, the information alleged pursuant to Penal Code section 667.5, subdivision (b), that defendant had served a prior prison term.
At the trial, Abel and Edgar Gutierrez and police officers testified to the facts we have just described. Edgar identified defendant in court as the man he saw driving the Jeep. Defendant called no witnesses.
In his closing argument, defense counsel attempted to undermine Edgar Gutierrez’s eyewitness identification of defendant. Counsel said Edgar never testified that he passed defendant driving in the opposite direction, only that he saw him coming from some distance. He claimed Edgar’s testimony was inconsistent with a statement Edgar made to police: Edgar testified that he first saw defendant while both were driving, but told police he first saw defendant while defendant was driving and Edgar was stopped at a store. Counsel pointed out that Edgar never claimed he saw defendant get out of the Jeep and go in the house and that he was never asked to pick defendant out of a lineup.
Defense counsel also suggested that the thief might have been Steven Barnes. The Jeep was parked behind 3282 West Lansing Way, but the police found defendant inside 3244 West Lansing Way. Counsel argued that the police chose to knock at 3244 only because their records showed that Barnes, a parolee with a history of car theft, lived there. Barnes and defendant were relatives and might have resembled each other. The fact that Barnes was not in the house buttressed this theory, counsel contended, because the thief might have known he was being followed; in that case, running away after parking would have been more rational than going inside. Counsel also contended that the prosecution did not prove the methamphetamine did not belong to one of the other people who lived in the house. He claimed the officer’s testimony did not establish that the methamphetamine was in the bag defendant admitted owning but instead indicated that it was in a different bag.
The People requested that the jury be instructed pursuant to a set of CALCRIM instructions. Defendant did not submit a set of requested instructions. At the jury instruction conference, the court reviewed a list of instructions the parties had previously discussed in chambers. The list was compiled mainly from the set submitted by the People, with some modifications by the court. Defendant objected to none of the proposed instructions and did not propose any additional ones.
The jury found defendant guilty of unlawfully taking a vehicle, possessing a controlled substance, and possessing drug paraphernalia. It found him not guilty of receiving a stolen vehicle, a charge that had been included as an alternative to unlawful taking of a vehicle. After a separate court trial, the court found the prior-prison-term allegation true. Defendant admitted one prior vehicle-theft conviction.
Before the sentencing hearing, the trial court reviewed the probation officer’s report. Describing defendant’s criminal history, which began in 1996 when he was 13 years old, the report listed three juvenile offenses and 10 prior adult convictions. The juvenile offenses were unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) in 1996 and, in 2000, possessing drug paraphernalia (Health & Saf. Code, § 11364) and possessing a dangerous weapon (Pen. Code, § 12020, subd. (a)). The adult convictions were vandalism (Pen. Code, § 594, subd. (a)), driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), and giving a false identity to a peace officer (Pen. Code, § 148.9, subd. (a)), in 2001; possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)), receiving stolen property (Pen. Code, § 496, subd. (a)), unlawfully taking another vehicle, and twice driving with a suspended license in 2002; unlawfully taking yet another vehicle in 2003; and possessing a dangerous weapon again in 2004.
At the hearing, the court imposed a five-year aggregate sentence. It stated:
“The court denies probation. The defendant is ordered committed to the California Department of Corrections. The court has determined the base term at the aggravated level of four years. The court in determining those factors in aggravation, looks at the defendant’s prior convictions as an adult and those sustained petitions that he has suffered in juvenile delinquency proceedings. I’ve looked at the defendant’s, or I note that the defendant was on parole at the time that the crime occurred and that his prior performance on probation and parole has been unsatisfactory.
“The court intends to run the conviction for 11377 [possessing a controlled substance] concurrently, hence that may be used as a factor in aggravation as it was found by the jury. Based thereon the court sets the base term at the aggravated level of four years pursuant to Vehicle Code Section 10851(e) [taking a vehicle] and Penal Code Section 666.5 [increased sentence triad because of prior vehicle taking]. The court imposes the prior prison commitment pursuant to Penal Code Section 667.5 of one year for a total term of five years.
“The 11364 [paraphernalia possession], the defendant is given credit for time served on that.”
The court filed an abstract of judgment showing the four-year upper term for unlawfully taking a vehicle, a one-year enhancement for a prior prison term, and the three-year upper term, to be served concurrently, for possessing a controlled substance. The abstract shows no sentence for the paraphernalia offense.
DISCUSSION
I. Sentencing issues
A. Unlawful taking of a vehicle
1. Blakely/Cunningham
When it chose to impose the upper term of four years for unlawful taking of a vehicle, the trial court relied on aggravating factors that were not proved to the jury beyond a reasonable doubt. Defendant argues that this violated his Sixth Amendment right to trial by jury as interpreted in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). Our Supreme Court’s recent application of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II) is dispositive of this issue and requires affirmance of the sentence.
Defendant states that the trial court imposed the upper term “for both the underlying offense and the enhancement.” The court imposed only one upper term for the offense of unlawfully taking a vehicle as enhanced. Under Vehicle Code section 10851, subdivision (e), and Penal Code section 666.5, the usual sentence triad for unlawfully taking a vehicle is increased—from 16 months, two years or three years (Pen. Code, § 18; Veh. Code, § 10851, subd. (a)) to two, three, or four years—if the defendant has a prior conviction of unlawfully taking a vehicle. The court chose four years. Under Penal Code section 667.5, subdivision (b), the court is required to impose an enhancement of one year if defendant served a prior prison term. In applying these provisions, the court had only one opportunity to choose among lower, middle, and upper terms for the vehicle-taking offense.
In Blakely, the United States Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with “‘deliberate cruelty’” and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490: “‘Other 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.’” (Blakely, supra, 542 U.S. at p. 301.) It did not matter that the offense was a class B felony and that class B felonies carried a maximum sentence of 10 years; the state’s sentencing law did not allow the sentence to exceed 53 months without judicial factfinding. “Our precedents make clear … 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 defendant.” (Id. at p. 303.) The court continued:
“In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ [citation], and the judge exceeds his proper authority.” (Blakely, supra, 542 U.S. at pp. 303-304 .)
On January 22, 2007, the United States Supreme Court issued its decision in Cunningham, overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, 549 U.S. 270 [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law as it stood then was erroneous, therefore, unless it was supported by prior convictions, facts found by the jury, or facts admitted by the defendant. It has since been amended in response to Cunningham. (Sen. Bill No. 40 (2007-2008 Reg. Sess.) ch. 3; see Black II, supra, 41 Cal.4th at p. 808, fn. 2.)
Subsequently, the California Supreme Court issued its decision in Black II. It held that the upper term imposed in that case was not erroneous under Cunningham because it was authorized by the defendant’s prior offenses and the jury’s finding that the defendant committed the offense by means of force and fear. (Black II, supra, 41 Cal.4th at pp. 816-817, 818.) Whether the trial judge would have imposed the upper term based on one of these factors alone was irrelevant; the question was only whether it could have done so under the sentencing law. It could: California’s determinate sentencing law allows the trial court to impose the upper term based on a single aggravating factor. Each of these two factors authorized the upper term independently under California law and each was independently established by means consistent with the Sixth Amendment as interpreted in Blakely and Cunningham. The presence of either one alone would have been sufficient to render the upper term constitutional. (Black II, supra, at pp. 813, 814-815, 820.)
Black II clarifies that the trial court did not have to rely on one of the factors approved by Blakely and Cunningham if one of those factors was present in the record and the court was aware of it. The trial court in Black did not assert at sentencing that it was using the defendant’s prior convictions as an aggravating factor in support of the upper term. Instead, it said it was imposing the upper term because of “‘the nature, seriousness, and circumstances of the crime.’” (Black II, supra, 41 Cal.4th at p. 816.) It also stated that it considered “other aggravating circumstances set out in the district attorney’s sentencing brief.” These included the defendant’s criminal history. The probation report included the defendant’s criminal history also. This was sufficient even though the trial court did not mention defendant’s criminal history explicitly. (Id. at p. 818.)
Further, where a factor properly established under the Sixth Amendment is present, the court’s reliance on other factors that would not satisfy the Sixth Amendment on their own does not undermine the sentence:
“[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
In light of all this, we conclude that there was no constitutional error in the imposition of the upper term in the present case. The court expressly relied on “defendant’s prior convictions as an adult.” His record of prior convictions was more than sufficient under Black II to support the imposition of the upper term without any additional findings by the jury. Black II also compels the conclusion that the sentence is not vitiated by the court’s additional reliance on defendant’s juvenile record and unsatisfactory performance on probation and parole.
In sum: Since the upper term was authorized by defendant’s prior convictions, Black II precludes us from holding that the court erred under Blakely and Cunningham in imposing the upper term. Defendant argues that Black II was decided incorrectly and that the exception recognized in Blakely and Cunningham for prior convictions is too narrow to encompass a case like this one and of doubtful continuing vitality. He recognizes, however, that we are bound to follow Black II and that his arguments serve primarily to preserve his claims for later review.
2. Dual use of facts
For purposes of the prior prison-term enhancement, the information alleged four convictions on four different dates: possessing a controlled substance (June 3, 2002), unlawfully taking a vehicle (Sept. 18, 2002 and Jan. 14, 2003), and receiving stolen property (Mar. 4, 2003). When it found the allegations supporting the prison prior enhancement to be true, the court did not single any of these out; it simply found that defendant had served a prior prison term under Penal Code section 667.5, subdivision (b). As we have said, the court also relied on defendant’s criminal history in imposing the upper term. Defendant contends that the “trial court here erred by using the prior conviction in imposing the upper term for the substantive count while also imposing additional prison time for the enhancement for violation of Penal Code section 667.5 subdivision (b).” We disagree.
The information listed the same two vehicle thefts in support of the allegation that the current vehicle theft was committed while defendant had a record of committing that offense. The truth of that allegation was established when defendant admitted to one of these convictions, the one entered on January 14, 2003. Defendant does not contend that the dual-use prohibition was violated by the court’s reliance on that offense to impose the longer sentence permitted by Vehicle Code section 10851, subdivision (e), and Penal Code section 666.5, as well as the enhancement for a prior prison term. If he had made that claim, we would have rejected it, since there is no allegation that he would not have served a prison term if he had been convicted only of the other three prior offenses included in the complaint to support the prior prison-term allegation.
As a threshold matter, we agree with the People’s argument that this issue has been waived because defendant raised no objection on this basis in the trial court. “[T]he waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which … the court purportedly erred because it double-counted a particular sentencing factor … or failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353.) Defendant does not argue that trial counsel violated his constitutional right to effective assistance of counsel by failing to object.
Defendant argues that if any objection on Blakely/Cunningham grounds was required to preserve that issue, his trial counsel rendered ineffective assistance by not objecting on those grounds. He does not argue that counsel was ineffective when he failed to object to the sentence or the reasons stated for it on any other grounds.
We would reject defendant’s claim even if the issue had not been waived. It is true that the court would have erred if it had used a conviction underlying a prior prison term both to impose an enhancement under Penal Code section 667.5, subdivision (b), and as the justification of an upper term. This is a consequence of the rules contained in Penal Code section 1170, subdivision (b), and California Rules of Court, rule 4.420(c), that an aggravating factor supporting an upper term cannot also be a fact upon which an enhancement is based. Here, however, defendant’s prior adult criminal record consisted of 10 convictions. Even without the four prior convictions listed in the complaint to establish the prior prison-term enhancement, six convictions remained as a basis for the upper term. In addition, the court relied on defendant’s juvenile record and his unsatisfactory performance on probation and parole. These facts were an ample basis for imposing the upper term, and the more reasonable interpretation of the sentencing transcript is that the court relied on them to impose the upper term and on other portions of defendant’s criminal record to impose the enhancement. We do not believe that the court was required to state that, when it said defendant’s criminal record justified the upper term, it was not relying on those parts of his criminal record that it was using to justify other parts of the sentence. Even if there were a rule requiring the court to make that statement, in this case, we would determine the error of not making it to be harmless. The court followed the probation officer’s recommendation to impose the upper term even though the prosecution stated at the sentencing hearing that it would be satisfied with the middle term. In light of this, there is no reasonable probability that the court would have imposed a lesser sentence if it had known of a requirement to segregate those parts of defendant’s record it was using to justify the upper term from those it was using to impose the prior prison-term enhancement. (People v. Watson (1956) 46 Cal.2d 818.)
The prosecution’s request was for the middle term of three years on the vehicle theft count, one year for the prior prison-term enhancement, and eight months for the drug-possession count, for a total of four years eight months. This was only four months less than the sentence the court imposed, but the point is that it was less. This persuades us that there is no real chance the court would reduce the sentence if told it must allocate some parts of defendant’s record to the upper-term analysis and other, different parts to the prison-prior-enhancement analysis.
Defendant cites People v. Wright (1982) 30 Cal.3d 705 for the proposition that “the improper dual use of facts required remand for resentencing.” This citation is erroneous. The material quoted in defendant’s brief is from a dissenting opinion by Chief Justice Bird. (People v. Wright, supra, 30 Cal.3d at pp. 715, 720-721 (dis. opn. of Bird, C.J.).) The majority in that case agreed with a holding of the Court of Appeal that the trial court’s erroneous finding of an aggravating factor of multiple victims did not require a remand. (Id. at p. 714.)
People v. Alvarado (1982) 133 Cal.App.3d 1003, upon which defendant also relies, fails to carry his point. The Court of Appeal there held that the trial court erred when it imposed a firearm enhancement and selected the upper term based on a finding of great violence or a threat of bodily harm. The finding of great violence or a threat of bodily harm was based solely on the defendant’s gun use and there was only one other aggravating factor supporting the upper term. (This other factor was planning and professionalism in the execution of the crime.) The Court of Appeal observed that some Court of Appeal panels are inclined always to remand where a trial court employed an invalid aggravating factor along with valid factors, while others carry out a standard harmless-error analysis. The Alvarado court concluded that, because there was only one other aggravating factor, the error was not harmless and the case should be remanded. (Id. at pp. 1026-1028.)
In this case, we believe the better interpretation of the sentencing transcript is that the court intended, in imposing the upper term, to rely only on those portions of defendant’s criminal history that it was not relying on for other purposes. Under that interpretation, the dual-use problem does not arise. Further, we agree with those courts that apply a harmless-error analysis to this type of situation and conclude that any dual-use error was harmless.
Defendant also cites People v. Roberson (1978) 81 Cal.App.3d 890, 893 (Roberson), overruled on other grounds by People v. Crowson (1983) 33 Cal.3d 623, 632, footnote 10. Roberson pleaded guilty to committing robbery while armed. (Roberson, supra, 81 Cal.App.3d at p. 893.) His criminal record included five prior felonies. (Id. at p. 892 & fn. 1.) The court imposed the upper term for robbery. As aggravating factors, it relied on a threat of violence, planning as evidenced by the use of a gun and a ski mask, a pattern of violent conduct, and prior convictions indicating excessive criminality. (Id. at p. 893.) It imposed an additional two years as an enhancement for being armed. (Ibid.) The Court of Appeal held that the court improperly relied on the gun use twice, both basing the enhancement on it and mentioning it as one of the reasons for the upper term. It remanded for resentencing, saying the court had to decide whether to use that factor for enhancement or aggravation; it could not be used for both. (Ibid.)
Our case is distinguishable. In Roberson the court expressly mentioned the gun in both contexts, that of the enhancement and that of the upper term. Here, the court never said it was relying specifically on the offenses on which the prior prison-term enhancement was based as part of the grounds for imposing the upper term, and the record is best interpreted to mean the court was not doing so. Further, the Roberson court never considered whether the error might be harmless.
Another portion of the Roberson opinion is more closely analogous to the present case and supports our conclusion. The trial court imposed two, one-year enhancements for prior prison terms served. The Court of Appeal rejected the claim that this was an improper dual use because the court had also relied on the defendant’s criminal record to impose the upper term. There were five priors, of which the court used two for enhancements; the remaining three sufficed to support the upper term. (Roberson, supra, 81 Cal.App.3d at p. 894.) The only difference between this part of Roberson and the present case is that in Roberson, the trial court expressly said it had not relied on those two priors in selecting the upper term. (Ibid.) As we have said, we do not believe the trial court was required to make this express statement under the circumstances, and, even if it were, the error of omitting the statement is harmless.
For all these reasons, we conclude that the court’s reliance on defendant’s criminal record both to impose the upper term and to enhance the sentence for a prior prison term under Penal Code section 667.5, subdivision (b), was not reversible error.
Another potential dual-use problem arises from the trial judge’s use of the current controlled-substance-possession conviction as an aggravating factor supporting imposition of the upper term for the vehicle-taking conviction. As we have noted, when explaining its decision to impose the upper term for that charge, the court said: “The court intends to run the conviction for 11377 [possessing a controlled substance] concurrently, hence that may be used as a factor in aggravation as it was found by the jury.” The court’s view seems to be that, because it was imposing only a concurrent sentence for the drug count, it was free to use the conviction on that count as a factor in aggravation on the vehicle count (and also that the jury’s finding obviates any possible Blakely/Cunningham problem). We will assume that this was erroneous; we know of no authority for the proposition that imposing a concurrent sentence for one current offense frees the court to use that offense as an aggravator for purposes of imposing sentence for another current offense. Defendant’s claim on this point has been waived, however, since he made no objection in the trial court. Further, if we were to reach the merits of the claim, we would find the error harmless. It is not reasonably probable that the court would have imposed the middle term if it had relied only on the factors properly cited.
B. Possession of a controlled substance
1. Blakely/Cunningham
Defendant argues that the court erred under Blakely and Cunningham when it imposed the three-year concurrent upper term for the methamphetamine-possession offense. We reject this argument for the same reason we rejected it in the context of the vehicle-theft offense: The upper term was authorized by defendant’s prior convictions.
Defendant contends that the trial court did not expressly say it was relying on his prior convictions, or on anything else, when it imposed the upper term for the drug offense. As he reads the transcript, the court recited grounds for imposing the upper term for the vehicle conviction but no grounds for imposing the upper term for the drug conviction.
We will discuss later the failure to state grounds for the upper term for the drug offense as potential state-law error. This failure cannot be federal constitutional error under Blakely and Cunningham. As we have said, Black II determined that the trial court need not have relied expressly on one of the factors approved by Blakely and Cunningham if one of those factors was present in the record and the court was aware of it. These criteria are satisfied here. An increased sentence may properly be based on prior convictions under Blakely and Cunningham in that defendant’s prior convictions were in the record and the court was aware of them.
2. Dual use of facts
Defendant claims the court improperly used the convictions which formed the basis of his prior prison-term enhancement for the additional purpose of justifying the upper term on the drug offense. This contention mirrors defendant’s dual-use claim in connection with the upper term for the vehicle offense, and we reject it for the same three reasons: The claim has been waived because defendant failed to make an objection in the trial court; the court’s comments are most reasonably understood as imposing the upper term based on those parts of defendant’s criminal record that the court was not using for other purposes; and any error in the court’s failure to expressly state that it was not relying on any part of that record twice was harmless.
Defendant also claims that when the court said it was free to use the current drug offense as a factor in aggravation because it was imposing a concurrent sentence, it was using the mere fact of an offense to find that the same offense was aggravated. We do not agree. As we have explained, our view is that the court was using this offense as an aggravating factor for the vehicle offense. The claim of error on this basis was waived by lack of objection in the trial court, and the error was, in any event, harmless, as stated earlier.
3. Failure to state expressly the aggravating factors
Defendant argues that the court failed to explain on the record why it was imposing the upper term for the drug-possession conviction; it recited aggravating factors for the vehicle offense, but not the drug offense. A trial court is required to state the reasons for its sentencing choice on the record at the time of sentencing. (Pen. Code, § 1170, subd. (c).)
We agree that the trial court’s oral comments about the sentence for the drug offense are unclear. We need not decide whether it erred, however. Defendant made no objection in the trial court to the court’s statement of reasons for its sentencing choice, so he may not raise the issue on appeal.
II. Jury instructions
On appeal for the first time, defendant claims that several of the CALCRIM instructions the court read to the jury were erroneous. He does not claim the court failed to give any correct instruction requested by a party or any instruction it was required to give sua sponte, such as an instruction on a lesser-included offense. Instead, he claims that wording in some of the newly approved CALCRIM instructions states the law incorrectly and violates multiple state and federal constitutional provisions.
Defendant made no objections to the jury instructions at trial. The general principle that trial error not objected to in the trial court is waived on appeal applies to instructional error, but only if the error did not affect the defendant’s substantial rights. (Pen. Code, § 1259; People v. Prieto (2003) 30 Cal.4th 226, 247.) The error affected defendant’s substantial rights only if it is reasonably probable that defendant would have obtained a more favorable outcome absent the error. (People v. Elsey (2000) 81 Cal.App.4th 948, 953, fn. 2; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) For the reasons that follow, defendant has not shown that he would have obtained a better outcome if the court had used some other language to convey the points at issue. Therefore, his claims are waived.
Defendant’s criticisms of the instructions proceed on an exceedingly general level. The substance of his claims and their abstract nature can be conveyed in the form of a table.
Instruction language* Citation: CALCRIM No.* Defendant’s argument
Instruction language
Citation: CALCRIM No.
Defendant’s argument
“Because he is presumed innocent, thedefendant does not have to prove that he is notguilty.”
100
“This is an incorrect statement of the law.A criminal defendant is not required to proveanything. [¶] … [¶] CALCRIM… improperly permits the jurors toconclude the defendant must prove or disprovecertain specific issues and facts attrial.”
“After you’ve heard all of theevidence and the attorneys have given their finalarguments, I will instruct you on the law thatapplies to this case.”
100
“This erroneously implies that pretrial… and all midtrial instructions do notapply to the case,” so “it is likelyappellant was convicted based on incompleteinstructions.”
“The evidence usually includes witnesstestimony and exhibits.”
100
“This is incomplete and implies nothingelse constitutes evidence. Evidence may alsoinclude matters such as out-of-court statementsand stipulations.”
“When I refer to the People, I mean theattorney from the District Attorney’sOffice … who is trying this case on behalfof the People of the State of California.”
100
“Referring to the prosecution as ‘ThePeople’ violates a criminaldefendant’s state and federal substantiveand procedural due process rights as well as theright to fair trial by jury” because italigns the prosecution with the jury and impliesthat the defendant, unlike the prosecution andjury, is not one of the people.
References to defendant as “thedefendant” rather than by his name.
Throughout the instructions
The term “defendant” implies thatdefendant is obligated to defend himself byproving his innocence; it also “dehumanizesand stigmatizes the defendant.”
“You must not allow anything that happensoutside of the courtroom to affect your decisionunless I tell you otherwise.”
101
“[T]his instruction is too limited. Thejury should have been instructed, ‘Do notallow anything except the evidence admitted herein court to affect your deliberations. Forexample, you must not be influenced by thingsthat happen outside the court [unless I tell youotherwise] or things that happen in court thatare not evidence, such as spectatorconduct.’”
“Keep an open mind throughout the trial. Donot make up your mind about the verdict or anyissue until after you have discussed the casewith the other jurors duringdeliberations.”
101
The instruction “implies a juror may beginto form opinions about the verdict or otherissues prior to the commencement of deliberationsas long as the juror does not ‘make up[their] mind .…’ Such prematuredeliberation is improper and undermines thepresumption of innocence.”
“[Y]ou may use your notes only to remindyourself of what happened during the trial. But,remember, your notes may be inaccurate orincomplete.” “You must accept [thecourt reporter’s] notes as accurate.”
102, 104
“There is no legal basis for requiring ajuror to accept the court reporter’s notesover the juror’s own recollection and/ornotes.”
“You must decide what the facts are in thiscase.”
104
Jurors’ duty is only to decide whether theprosecution has proved its case beyond areasonable doubt, not to decide what the factsare. This instruction “improperlyreinforces the jurors’ misconception aboutthe trial being a truth seeking forum,” andundermines the presumption of innocence, whichcould coerce a verdict.
“A defendant has an absolute constitutionalright not to testify. He or she may rely on thestate of the evidence and argue that the Peoplehave failed to prove the charges beyond areasonable doubt. Do not consider for any reasonat all the fact that the defendant did nottestify. Do not discuss that fact during yourdeliberations or let it influence your decisionin any way.”
355
The instruction “improperly implies thatappellant has the burden to ‘argue’that the case wasn’t proven.”
“I will now instruct you upon the law thatapplies to this case.”
200
“[T]his is an improper comment on theevidence which invades the province of the jury.It is the jurors who must determine whether ornot an instruction applies to the case based ontheir evaluation of the evidence.”
“You must reach your verdict without anyconsideration of punishment.”
200
“Jurors need not reach a verdict. It isimproperly coercive to imply that jurors areobligated to reach” one.
“The fact that a criminal charge has beenfiled against the defendant is not evidence thatthe charge is true. You must not be biasedagainst the defendant just because he’sbeen arrested, charged with a crime, or broughtto trial.”
220
The instruction “improperly implies thatbias against the defendant for some reasons maybe permissible. The instruction tells the jurythey should not be biased against the defendantbased solely on three events, which leaves openthe permissibility for the jury to be biased forany other reason.”
Direct and circumstantial evidence are bothacceptable and “[n]either is entitled toany greater weight than the other.”
223
Although correct “conceptually,” theinstruction “could erroneously leave thejurors with the impression they are not free togive specific circumstantial evidence greaterweight than other specific direct evidence orvice versa.”
“[B]efore you may rely on circumstantialevidence to find the defendant guilty, you mustbe convinced that the only reasonable conclusionsupported by the circumstantial evidence is thedefendant is guilty.” Further, if the jurycan draw two or more reasonable conclusions fromcircumstantial evidence “and one of thosereasonable conclusions points to innocence andanother to guilt, you must accept the one thatpoints to innocence.”
224
By mentioning only circumstantial evidence, theinstruction erroneously implies that the ruleabout two reasonable conclusions does not alsoapply to direct evidence, particularly since itwas given after CALCRIM No. 223, which describesboth direct and circumstantial evidence. Also,the instruction implies that the jury must choosebetween finding the defendant guilty and findinghim innocent—rather than merely not provenguilty—thereby undermining the presumptionof innocence. Finally, “the instruction isimproper as it defines the burden of proof interms of being ‘convinced.’”
“Do not automatically reject testimony justbecause of inconsistencies or conflicts. Considerwhether the differences are important or not.People sometimes honestly forget things or makemistakes about what they remember. Also twopeople may witness the same event yet see or hearit differently.”
226
The language of CALJIC No. 2.21.1 was superior:“‘Failure of recollection is common.Innocent misrecollection is notuncommon.’” Saying that something iscommon or not uncommon suggests that it happensmore frequently than saying that it happensmerely sometimes. CALCRIM No. 226 therefore givesan eyewitness identification “a false auraof credibility by implying that more often thannot the identification provided by the purportedeyewitness is accurate. This, combined withCALCRIM’s omission of any specificinstruction on mistaken eyewitness identificationunjustifiably loads the deck in favor of theeyewitness .…”
“Neither side is required to call allwitnesses who may have information about the caseor to produce all physical evidence that might berelevant.”
300
“[B]y instructing the jury the defense neednot produce ‘all’ relevant evidence,the jury might be left with the belief thedefense is required to produce ‘some’evidence,” thereby undermining thepresumption of innocence.
“You have heard eyewitness testimonyidentifying the defendant. As with any otherwitness, you must decide whether an eyewitnessgave truthful and accurate testimony. Inevaluating identification testimony, consider thefollowing questions:” Thirteen questionsfollowed as set forth in the pattern instruction.These included the question, “Were thereany other circumstances affecting thewitness’s ability to make an accurateidentification [?]”
315
“[T]he instruction is misleading because itprevents the jurors from formulating their ownquestions which they might determine arenecessary, in their minds, for making a properdetermination of the identificationtestimony.”
We have no hesitation in concluding that, even if the jury had been instructed differently along the lines defendant suggests, there is no reasonable probability that it would have reached a verdict more favorable to him or would have failed to reach a verdict. The evidence the jury had to consider was both straightforward and powerful. Someone stole the Gutierrezes’ car from their home. Edgar Gutierrez saw defendant driving it around the neighborhood and followed him home. The Gutierrezes’ apartment was near the intersection of Palm and Dakota Avenues in Fresno. Defendant’s house was near the intersection of Weber and Dakota Avenues, about two miles away. He testified that he “looked at the driver pretty good” and nothing was blocking his view. When the police brought defendant out of the house, they admonished Edgar not to conclude that he was the same person just because the police had detained him. Even after hearing this warning, Edgar had no doubt that defendant was the person he had just seen driving the stolen car. He identified defendant again in court. On the drug and paraphernalia charges, the jury heard police testimony that they found a bag in the house containing the drugs, the pipe, and papers with defendant’s name on them; an officer further testified that defendant admitted he owned the bag but denied that the drugs or pipe belonged to him.
Given this record, the instructional issues defendant raises—whether considered separately or cumulatively—present no significant likelihood of a better outcome if the jury had been instructed differently. Many of defendant’s points concern the presumption of innocence and the prosecution’s burden of proving the offenses beyond a reasonable doubt. It is undisputed, however, that the jury was instructed repeatedly that defendant was presumed innocent and that the prosecution had the burden of proving the offenses beyond a reasonable doubt. Defendant’s arguments are about language he claims diminished the clarity of these express and repeated instructions. This case simply was not close enough for this kind of supposed “diminution of clarity” to be prejudicial.
Many of defendant’s remaining claims involve speculation about improbable erroneous inferences the jurors might have drawn from the choice of language in the CALCRIM instructions, for instance, that pretrial and midtrial instructions do not apply to the case; that defendant is not a person or is an enemy of the people; that bias against defendant for some reasons is permissible; that no piece of direct evidence can have more weight than any piece of circumstantial evidence or vice versa; and that the jury may find defendant guilty based on direct evidence that supports a reasonable conclusion that he is not guilty even though it could not do the same based on circumstantial evidence supporting this conclusion. These claims also fail to show a reasonable probability of a different outcome if different instructional language had been used. Saying it is conceivable that jurors might reach one of these mistaken conclusions is not the same as showing that it is reasonably probable that the jury has done so and would not have found defendant guilty otherwise.
A few of defendant’s claims relate to eyewitness identifications. He argues that CALCRIM No. 226, discussing honest mistakes and forgetting by witnesses, “loads the deck” in favor of the credibility of eyewitnesses by saying that mistakes and forgetting happen sometimes rather than saying they are common or not uncommon. He contends that CALCRIM No. 315 might discourage jurors from considering matters not embraced within its list of 13 questions about eyewitness identifications even though one of those questions is a catchall asking about any other relevant circumstances. These arguments also constitute speculation about improbable erroneous inferences jurors might draw; defendant has not shown a reasonable probability of a different outcome if the language had been adjusted.
Finally, a few of defendant’s claims assert novel legal propositions: that jurors’ notes have authority equal to the court reporter’s transcript and that the court invades the province of the jury by telling it that the law contained in the instructions is the law that applies to the case. Even if these propositions turned out to be true, there would be no showing here of a reasonable probability of a different outcome absent the alleged error. Defendant has pointed to no reason to suspect any conflict between any juror’s notes and the court reporter’s transcript, and he does not claim that the jury could reasonably have found that the law about which it was instructed was not the law that applied to the case.
For all these reasons, we hold that the claimed instructional errors could not have affected defendant’s substantial rights. His lack of objection at trial therefore waived his claims for purposes of the appeal.
Attempting to overcome the waiver problem, defendant argues that his trial counsel rendered ineffective assistance by failing to object to the instructions. To establish ineffective assistance of counsel, defendant must show that counsel’s performance “fell below an objective standard of reasonableness,” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) We need not determine whether counsel’s decision not to object was professionally unreasonable here, however. We can resolve the ineffective-assistance claim by proceeding directly to the issue of prejudice, i.e., the issue of whether there is a reasonable probability that the outcome would have been different absent counsel’s challenged actions or omissions. (Strickland v. Washington, supra, 466 U.S. at p. 697.) This is, of course, the same as the standard we have just applied in determining that defendant’s substantial rights were not affected by the instructions. It follows that defendant has not demonstrated ineffective assistance of counsel.
We are aware that claims of error very similar to defendant’s have been considered and rejected by a panel of this court (which included two members of the present panel) in People v. Ibarra (2007) 156 Cal.App.4th 1174, as well as by the Third District Court of Appeal in People v. Anderson (2007) 152 Cal.App.4th 919. By limiting our analysis in this case to consideration of whether a different outcome would be reasonably probable if the jury had been instructed as defendant now claims it should have been, we do not mean to distance ourselves in any way from our previous opinion, which we would fully reaffirm here if there were any need to do so. In light of the facts of this case, however, it is simply unnecessary for us to examine the issues in the same manner, for here they could not have affected defendant’s substantial rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Levy, J.