Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 080733-5
Kline, P.J.
James Edward Jones appeals from a conviction of second degree robbery. He contends his conviction must be reversed because the trial court failed to instruct the jury on the specific intent required for conviction as an aider and abettor, and because the prosecutor’s closing argument diminished the presumption of innocence and misstated the reasonable doubt standard. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information, filed on July 11, 2008, with one count of second degree robbery (Pen. Code, § 211/212.5). It was alleged that appellant had suffered a prior robbery conviction subjecting him to punishment under the three strikes law (§§ 667, subds. (b)–(i), 1170.12) and sentence enhancements for the prior conviction (§ 667, subd. (a)(1)) and prison term served for that conviction (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
After a jury trial, on September 9, 2008, appellant was found guilty of the charged robbery. The court then found the alleged prior true. At sentencing on November 21, 2008, the court struck the prior for purposes of sections 1170.12 and 667.5. It imposed a total prison term of seven years, the mitigated term of two years for the robbery conviction and a consecutive five years for the prior conviction under section 667, subdivision (a)(1).
Appellant filed a timely notice of appeal on January 5, 2009.
STATEMENT OF FACTS
At about 8:00 p.m. on August 10, 2007, Tammy Crowson was working as a cashier at register four at the FoodMaxx in San Pablo. A man put a bag of Doritos chips on the conveyor belt and she scanned it and told him the price. The man was wearing an oversized “shirt jacket” and a hat, but no glasses or sunglasses. He handed her money, then as soon as she opened the cash register drawer he started grabbing the money from the drawer, saying, “ ‘don’t say anything or I’ll shoot.’ ” She saw the barrel of a gun under his sleeve. It looked real and she was scared, so she did not try to stop him. He took all the money and “took off.” She did not see anyone else leave the store. Crowson testified that the incident took at least five minutes and the man did not turn around, look behind him, or look in another direction. It was a busy night at the store and she had not noticed the man before it was his turn at the register.
Thomas Felix, working as a “loss prevention” officer at the store that evening, noticed appellant heading from the meat aisle toward the center aisle. Appellant was wearing a black leather coat, a cap or beanie, and sunglasses. With Felix in front, looking over his shoulder to keep appellant under surveillance, appellant walked down the center aisle and into the liquor aisle. There was a person in the liquor aisle wearing a “big coat.” Felix walked back toward the center aisle, passing between appellant and the other person, and from a couple of feet away, heard them exchange words, “something about register four.” Appellant and the other person passed by Felix and went to register four. Felix radioed his partner, Paul So, to post a guard outside and got into line at register four, with two or three people between himself and appellant and the person from the liquor aisle. The cashier, Crowson, appeared to be preoccupied with customers in front of appellant and the other person. That other person put a bag of chips on the conveyor belt and appellant stepped to the side a little bit, looked to his left and right, then stepped back. Felix stated that when appellant’s head turned, it was pointed in the direction of where the armed guard was moving toward the exit door. The other person approached the cashier and appellant remained at the beginning of the conveyor belt, a position that blocked people in line behind him from getting to the conveyor belt. Appellant then moved toward the candy bars next to the register and selected a few. Felix did not see what appellant did with the candy bars and did not see him pay for them.
Felix saw the other person begin what appeared to be a typical transaction, but after he handed Crowson a dollar and the register opened, the person took the money from the register. Crowson looked panicked and stepped to the side. Appellant was still by the candy bars when the perpetrator was taking the money from the register. Felix initially testified that the perpetrator looked back over his shoulder at appellant after getting the money, then after being shown a recording of the incident, said this look came as they were leaving the store. As the perpetrator finished, appellant was next to him, “shoulder to shoulder.” Felix said that appellant left the register simultaneously with the perpetrator, following him by “less than a second, ” and that they walked at a fast pace, but did not run, toward the exit. Footage from the surveillance camera at the exit shows appellant walking quickly, immediately behind the other person, from the register to the exit.
Felix alerted his partner and told Crowson not to touch anything. He heard a gunshot and went outside, where he saw the perpetrator running down the parking lot, with the armed guard behind him. At Felix’s direction, the guard came back. Felix saw appellant walking in the same direction the perpetrator had been going and, because he looked like he was getting ready to run, tackled and cuffed him with the assistance of his partner. Felix testified that he told appellant he was being arrested and did not remember whether appellant said anything. Asked about the statement he gave to the police on the night of the incident, Felix acknowledged saying that appellant had said, “ ‘but I didn’t touch the money.’ ” About a week before trial, when asked by the district attorney about the incident, Felix had said the only thing he remembered appellant saying to him was, “you could have the candy bars, but what did I do, what did I do wrong?”
On cross-examination, Felix acknowledged that he had been fired about three weeks after this incident for “threatening to kick another employee’s ass” in front of other employees and customers. He testified, however, that he had been told he was being fired for being late and on the phone too much. He had also received written notice on four occasions of allegations that he had failed to comply with rules. When he testified at the preliminary hearing, he denied having any violations for failure to follow rules despite being asked twice. He testified at trial that he had answered this way because he had been told the violations would not remain on his record after six months, so he thought they would not show up. Felix also acknowledged that he had lied to the police about a domestic violence incident with his girlfriend, making it sound worse so she would be arrested.
Paul So, the other loss prevention person at the store, was outside when Felix notified him the suspects were leaving. One of the suspects “tried to pull out his gun, ” security guard Roy Dowling drew his gun and shot him, and the suspect ran off. According to So, Dowling did not chase after the suspect; he fired a second shot but So did not think it hit the suspect. The other suspect, appellant, “was just spooked” and “stood there like he was shocked” after the shot was fired. So did not see him attempt to run. Felix grabbed appellant and got him on the ground, and So assisted in detaining him. Appellant said, “ ‘I didn’t do anything, anything wrong.’ ”
The police officer who took appellant into custody found two candy bars inside appellant’s pants pocket, as well as one candy bar on the ground near appellant’s head. The police found a black plastic BB gun that resembled a real handgun on the ground in front of the store. The person who took the money from the register was not apprehended.
The police detective who interviewed Felix testified that Felix did not mention anything about a “look” between the robber and appellant. Based on a blood sample taken from appellant at 10:50 p.m., a toxicologist testified that appellant’s blood alcohol level at the time of the offense would have been approximately.06 percent.
DISCUSSION
I.
Appellant argues that the trial court failed to properly instruct the jury on the intent required to establish his guilt as an aider and abettor to the robbery. Specifically, he urges the instructions did not inform the jury that an aider and abettor must share the perpetrator’s specific intent to permanently deprive the victim of the property taken. He contends the issue may be raised despite his failure to object at trial because his substantial rights were affected (People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7; People v. Calderon (2004) 124 Cal.App.4th 80, 92), while respondent asserts the claim was forfeited because the instruction was correct in law and appellant did not request clarifying or amplifying instructions (People v. Guiuan (1998) 18 Cal.4th 558, 570). In any event, we find no error.
The trial court instructed the jury that a person is equally guilty of a crime whether he or she commits it personally or aids and abets the perpetrator. It instructed on aiding and abetting according to CALCRIM No. 401, as follows: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] One, the perpetrator committed the crime; [¶] Two, the defendant knew that the perpetrator intended to commit the crime; [¶] Three, before or during the commission of that crime the defendant intended to aid and abet the perpetrator in committing the crime; [¶] And, four, the defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to and does in fact aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”
The court instructed that, to prove the defendant guilty of robbery, the prosecution had to prove: “One, the defendant took property that was not his own; [¶] Two, the property was taken from another person’s possession and immediate presence; [¶] Three, the property was taken against that person’s will; [¶] Four, the defendant used force or fear to take the property or to prevent the person from resisting; [¶] And, five, when the defendant used force or fear to take the property he intended to deprive the owner of it permanently.” It further instructed that “[t]o be guilty of robbery as an aider and abettor the defendant must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of temporary safety.”
The court also instructed that “[t]he crime charged in this case requires proof of the union or joint operation of act and wrongful intent” and that, to find a person guilty of second degree robbery, the person “must not only intentionally commit the prohibited act, but must do so with a specific intent.”
“ ‘A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.’ (People v. Cooper (1991) 53 Cal.3d 1158, 1164; see People v. Beeman (1984) 35 Cal.3d 547, 561 [(Beeman)].)” (People v. Hill (1998) 17 Cal.4th 800, 851.) “[O]utside of the natural and probable consequences doctrine, an aider and abettor’s mental state must be at least that required of the direct perpetrator. ‘To prove that a defendant is an accomplice... the prosecution must show that the defendant acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” ([Beeman, at p.] 560.) When the offense charged is a specific intent crime, the accomplice must “share the specific intent of the perpetrator”; this occurs when the accomplice “knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” (Ibid.)’ ” (People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy), quoting People v. Prettyman (1996) 14 Cal.4th 248, 259.) “When the charged crime and the intended crime are the same, i.e., when guilt is not predicated on the natural and probable consequences doctrine, the aider and abettor must, indeed, share the actual perpetrator’s intent.” (McCoy, at p. 1118, fn. 1.)
Appellant argues that CALCRIM No. 401, in directing that one “aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime, ” describes the mental state required for aider and abettor liability under the natural and probable consequences doctrine, not the mental state required where the charged offense is the same as the intended one. He urges that the quoted language is taken from Beeman, supra, 35 Cal.3d at page 560, which involved aider and abettor liability under the natural and probable consequences doctrine, was designed to describe culpability in that situation where the accomplice intends a different crime than the one in fact committed, and does not direct the jury that the aider and abettor must intend the offense committed. By contrast, appellant maintains that former CALJIC No. 3.01 correctly stated the element of shared intent. Former CALJIC No. 3.01 provided: “A person aids and abets the commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime.”
We fail to see the distinction appellant attempts to draw. Both instructions require that the aider and abettor have knowledge of the perpetrator’s “unlawful purpose.” CALCRIM No. 401 requires that the aider and abettor “intends to... aid, facilitate, promote, encourage, or instigate” the perpetrator’s commission of the crime and “does in fact, aid, facilitate, promote, encourage, or instigate” commission of the crime. Former CALJIC No. 3.01 required that the aider and abettor have “the intent or purpose of committing or encouraging or facilitating” commission of the crime and “[b]y act or advice aid[], promote[], encourage[] or instigate[]” commission of the crime.”
Appellant appears to suggest that Beeman established a test for aider and abettor liability applicable only in the context of a case based on the natural and probable consequences doctrine. He quotes People v. Hickles (1997) 56 Cal.App.4th 1183, 1194, “ ‘[W]hen a particular aiding and abetting case triggers application of the “natural and probable consequences” doctrine, the Beeman test applies.’ ” Read in context, however, the passage from Hickles does not suggest a limitation of the Beeman test, but rather identifies the additional elements a jury must find beyond that test in a natural and probable consequences case. Hickles, discussing the need for jury instructions on the elements of the target crime in such a case, quoted People v. Prettyman, supra, 14 Cal.4th at page 262: “ ‘[W]hen a particular aiding and abetting case triggers application of the “natural and probable consequences” doctrine, the Beeman test applies, and the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant’s confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.’ ” (People v. Hickles, supra, 56 Cal.App.4th at p. 1194.)
In the present case, the only crime at issue was robbery. The jury could not have been confused about what crime it was required to find appellant intended to commit. Appellant suggests, however, that the phrasing of the instructions defining the elements of robbery indicated the intent element referred to the perpetrator’s intent, not appellant’s intent as aider and abettor. The jury instructions referred to “the defendant’s” actions and intent in taking property from another, and appellant maintains that because the prosecutor did not suggest appellant personally took the money or employed force or fear, the jury would not have viewed the instructions on robbery as applying to his intent.
“ ‘ “[T]he 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 instruction.” ’ ” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248, quoting People v. Castillo (1997) 16 Cal.4th 1009, 1016.) The instructions told the jury that it could find a person guilty of robbery only if the person both intentionally committed the prohibited act and did so with a specific intent. The instructions then stated that a defendant could be found guilty of a crime either by committing it personally or by aiding and abetting another person’s commission, and that a person is equally guilty of the crime whether he or she committed it personally or by aiding and abetting, and went on to detail the elements of aiding and abetting and of robbery. Thus, the jury was instructed that appellant could be found guilty as an aider and abettor if the prosecutor proved that the perpetrator committed a robbery, defined as taking property not his own from another person’s possession and immediate presence, against the person’s will, by means of force or fear and with the intent to deprive the owner of the property permanently; that appellant knew the perpetrator intended to commit the robbery; that before or during the robbery appellant intended to aid and abet the perpetrator in committing the robbery; and that appellant’s words or conduct in fact aided and abetted the perpetrator’s commission of the robbery. The instructions gave the jury no way to find appellant guilty without finding that he shared the perpetrator’s intent to permanently deprive the victim of the property.
Additionally, the arguments of counsel made clear that this determination of intent was required. The prosecutor argued: “For the defendant to be guilty of robbery, as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while the perpetrator carried away the property to a place of temporary safety. [¶] Aiding and abetting the robbery requires that the defendant knew of the perpetrator’s unlawful purpose, the defendant with words or conduct intended to aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of the robbery.” Defense counsel told the jury: “Being present while someone commits a crime is not the same as being guilty of the crime. Knowing even if someone commits a crime and standing there is not the same as being guilty of the crime. You have to actually know that person’s intent, share that person’s intent, and act to assist that person’s intent.” “Before you can be found legally culpable you have to have known the perpetrator’s intent. You have to believe that Mr. Jones as he stood there knew what the perpetrator was going to do, that it was robbery. It was to share that intent, meant to further that intent, and actually have done something that does so.” In closing, defense counsel stated: “And you can’t find Mr. Jones guilty of robbery, you can’t know in your heart of hearts that Mr. Jones, standing in that line buzzed on alcohol, and then walking out, that he meant, that he knew what the robber was going to do, that he shared that intent and that he meant to do something to further it.”
Appellant also argues that the portion of CALCRIM No. 400 stating, “[a] person is equally guilty of the crime whether he or she commits it personally or aided and abetted the perpetrator who committed it” is incorrect, because an aider and abettor can be found guilty of a greater or lesser offense than that committed by the perpetrator. (McCoy, supra, 25 Cal.4th at p. 1122; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164 (Samaniego).) McCoy held that an aider and abettor could be convicted of murder even if the direct perpetrator of a homicide was guilty of a lesser offense due to defenses or extenuating circumstances that are personal to the perpetrator and do not affect the aider and abettor (in that case, unreasonable self defense). Samaniego applied McCoy’sreasoning to conclude that an aider and abettor can be less culpable than the perpetrator, for example, if the perpetrator commits a premeditated murder and the aider and abettor did not premeditate. Samaniego explained McCoy’sreasoning: “ ‘when a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person’s guilt is determined by the combined acts of all the participants as well as that person’s own mens rea. If that person’s mens rea is more culpable than another’s, that person’s guilt may be greater even if the other might be deemed the actual perpetrator.’ (McCoy, supra, 25 Cal.4th at pp. 1117, 1122, italics added.) ‘ “[O]nce it is proved that ‘the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea.’ ” ’ (Id. at p. 1118.)” (Samaniego, supra, 172 Cal.App.4th at p. 1164.)
Appellant correctly takes from these cases the principle that an aider and abettor’s liability depends on his or her own intent. It does not follow, however, that the instructions in the present case failed to tell the jury that appellant, and not just the perpetrator, had to have the specific intent required for robbery. Unlike the situations in McCoy or Samaniego, the present case does not involve a variety of potential mental states. The prosecution maintained that appellant intentionally acted with the perpetrator to facilitate the robbery, with the shared intent of committing this crime. Appellant maintained he had nothing to do with the perpetrator or the robbery and was only in the wrong place at the wrong time. There is no basis upon which the jury could have concluded that appellant had knowledge of the perpetrator’s intent and intended to facilitate commission of the offense, but did not share the intent to permanently deprive the owner of the property. As Samaniego noted, “CALCRIM No. 400’s direction that ‘[a] person is equally guilty of the crime [of which the perpetrator is guilty], whether he or she committed it personally or aided and abetted the perpetrator who committed it’ ” is “generally correct in all but the most exceptional circumstances.” (Samaniego, supra, 172 Cal.App.4th at p. 1165.)
We find no instructional error.
II.
Appellant also contends his conviction must be reversed because the prosecutor’s argument to the jury diminished the presumption of innocence and standard of proof beyond a reasonable doubt. The argument is based on the prosecutor telling the jury that reasonable doubt is “a gut feeling” and “nothing can be proven beyond a reasonable doubt.”
The prosecutor argued: “Now, reasonable doubt is kind of mushy term, it’s hard to define exactly, but one way to look at it is that it is a bit of a gut feeling when-.” Defense counsel objected and the court told the jury, “[t]he legal standard for reasonable doubt is the one I have given to you, but counsel are permitted to argue to you how you should apply that and use different language to do so, but the controlling language is the legal instruction I gave you. [¶] With that the objection is overruled.” The prosecutor continued: “As I was going to say, gut feeling. You got to know that the facts as they are stated, as they have been presented to you, there was only one reasonable interpretation. It’s not a mathematical certainty. I can’t give you a point at which you have to say guilty or not guilty, but it’s when you know that the defendant is actually guilty of the crime with which he is charged. When there are no other reasonable explanations for the facts as they have been presented to you. [¶] And remember, I don’t have to eliminate all possible doubt, all possible explanations here. That’s not the standard. In fact, that’s impossible to do. We have all seen movies like the Truman Show and the Matrix. They challenge the very notion of reality, who we are, how we live, how we know, how we think, how we interact with one another. Nothing can be proven beyond a reasonable doubt.” The prosecutor then went on to argue that it was not reasonable to think appellant did not know the robber or what was going to happen, that he was a victim of circumstance who just happened to walk into the store to steal candy bars, stood in line behind a person who robbed the store, and walked out right as the robber did, or that he was so drunk he did not realize what was happening. He concluded: “Simply put, the facts here suggest one thing, the defendant is guilty beyond a reasonable doubt, that he did know what the robber was going to do, and that he did in fact aid and abet him.”
Defense counsel argued that appellant was guilty of theft for his “mistake” of taking candy bars from the store without paying for them, but that he was not guilty of robbery, pointing out that he entered the store alone and did nothing suspicious in walking through the store to the cashiers line, and suggesting that Felix was not a credible witness and had recast the facts to suggest a connection between appellant and the robber that did not exist. Regarding the standard of proof, defense counsel told the jury: “[T]he prosecution’s right, it’s not beyond all possible doubt. [¶]... [¶]... [I]t’s not up here 100 percent I know for sure this is what happened, but it’s what the law calls an abiding conviction.... [¶]... [W]hen you find someone not guilty, you’re not finding them innocent. I know that sounds kind of weird, but you’re finding that the prosecution didn’t prove beyond a reasonable doubt. You can sit there after rendering a verdict of not guilty and think you know what, I think he is probably guilty. That is not prove [sic] beyond a reasonable doubt. [¶]... Beyond a reasonable doubt, what the jury instruction talks about is this concept of an abiding conviction. It’s something that says [sic] with you, that you are going to feel as confident in a year from now, five years from now, if you saw me walking down the street ten years from now and we thought about this trial that we did together you would be like, you know what, I made the right decision. It’s a moral certainty. It’s something that stays with you that you don’t have any qualms about.”
The prosecutor returned to the concept of reasonable doubt briefly in closing argument, stating: “Ultimately, the proof here is proof beyond a reasonable doubt. What are the reasonable conclusions you can draw from the evidence?”
In reviewing appellant’s claim, we must determine “whether there is a reasonable likelihood that the jury misconstrued or misapplied” the prosecutor’s words. (People v. Clair (1992) 2 Cal.4th 629, 663.) “Although the same standard is applicable for instructions by the court and comments by the prosecutor, it must be used with recognition of the differing nature and force of its two objects in the eyes of the jury. We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (Id. at p. 663, fn. 8.)
Many of the cases appellant relies upon actually involve erroneous statements by the trial court about the reasonable doubt standard. People v. Johnson (2004) 115 Cal.App.4th 1169, 1171-1172, found that a trial court’s likening of the beyond a reasonable doubt standard to the decision making involved in deciding to get on an airplane or take a vacation lowered the prosecution’s burden of proof to a preponderance of the evidence and reversed the convictions. In People v. Johnson (2004) 119 Cal.App.4th 976, 979-980, the court told the jury that any thinking juror would have “some doubt, ” that the beyond a reasonable doubt standard did not call for elimination of all doubt, and that the decision the jurors had to make was like the decisions they made in every day life; the prosecutor then reiterated these comments. People v. Johnson found that instructional error in describing the burden of proof was structural error requiring reversal per se. (Id. at p. 986.)
Reversible error was also found in U.S. v. Hernandez (3d Cir. 1999) 176 F.3d 719, where the trial court commented to the jury that there was no specific definition of beyond a reasonable doubt, it was “what you in your own heart and your own soul and your own spirit and your own judgment determine is proof beyond a reasonable doubt, ” the instructions given at the end of trial would not provide a “ruler or measuring rod, ” and “[i]t’s what you feel inside as you listen to the evidence.” (Id. at pp. 729, 735.) Although a correct instruction on the beyond a reasonable doubt standard was given at the end of the trial, Hernandez found this insufficient because the earlier comments permitted the jurors to decide based on “ ‘gut feeling, ’ ” and warned that the actual instruction would not be helpful, creating a reasonable likelihood of jurors turning to the court’s earlier comments for guidance. (Id. at pp. 733, 735.)
The cases appellant cites involving prosecutors’ comments, as in the present case, found harmless error. In People v. Nguyen (1995) 40 Cal.App.4th 28, 35-36, the court “strongly disapprove[d]” of the prosecutor’s comments that the reasonable doubt standard is one the jurors “use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you’re driving.” The contention was deemed waived by the failure to object at trial, but the court nevertheless observed that the defendant was not prejudiced because the prosecutor directed the jury to read the reasonable doubt instruction and the jury was correctly instructed on the standard. (Id. at pp. 36-37.) Randolph v. State (Nev. 2001) 36 P.3d 424, 430, found harmless error where the prosecutor equated the beyond a reasonable doubt standard to a “gut feeling, ” but the trial court promptly struck the comment and correct instructions on the standard were given.
We have no doubt the prosecutor’s reference to a “gut feeling” in explaining the beyond a reasonable doubt standard was erroneous and the defense objection should not have been overruled. The question is whether the error was prejudicial in the circumstances presented here.
The jury was correctly instructed pursuant to CALCRIM No. 220: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.” Although the court overruled the objection to the prosecutor’s “gut feeling” comment, it cautioned the jury that “[t]he legal standard for reasonable doubt is the one I have given to you.” Defense counsel elaborated on the language of the jury instruction, telling the jury that believing appellant “probably” was guilty was not enough, and explaining the “abiding conviction” required by the beyond a reasonable doubt standard. We find no reasonable likelihood that the jury would have applied the prosecutor’s comment, contrary to the trial court’s instructions on the beyond a reasonable doubt standard.
Nor are we persuaded to the contrary by the prosecutor’s apparent misstatement that “[n]othing can be proven beyond a reasonable doubt.” As indicated above, this statement followed the prosecutor’s remarks that the reasonable doubt standard was “not a mathematical certainty” and applied “[w]hen there are no other reasonable explanations for the facts as they have been presented to you, ” and reminded the jurors that he did not have to eliminate all possible doubt and all possible explanations. The prosecutor told the jury it was impossible to eliminate all possible doubt, referred to the inapplicability of movies that challenge reality, and concluded, “[n]othing can be proven beyond a reasonable doubt.” It is clear, in context, that the prosecutor meant to say “nothing can be proven beyond any doubt, ” as he had been saying. There is no reasonable likelihood the jury would have understood otherwise; if it had taken the prosecutor’s statement literally, it would have had to conclude the prosecutor was saying it was impossible to prove a criminal defendant guilty.
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.