Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD209976, Kerry Wells, Judge.
HUFFMAN, Acting P. J.
A jury convicted Joshua Adrian Mora of first degree robbery of a person performing his duties as an operator of a taxicab for hire (Pen. Code, §§ 211, 212.5, subd. (a); count 1) and of making criminal threats (§ 422; count 2). The trial court sentenced Mora to a total prison term of three years.
All statutory references are to the Penal Code unless otherwise specified.
Mora appeals, contending the trial court prejudicially erred in failing to sua sponte instruct with regard to the robbery count on the lesser included offense of theft and on the warnings in CALCRIM Nos. 358 and 359 as to his statements entered into evidence. He also claims the presumption of innocence and the burden of proof were prejudicially undermined by the giving of CALCRIM Nos. 223 (Direct and Circumstantial Evidence defined), 226 (Witnesses) and 302 (Evaluating Conflicting Evidence). We affirm.
FACTUAL BACKGROUND
Mora does not challenge the sufficiency of the evidence to support his convictions, which shows that at around 6:15 p.m. on November 2, 2007, Bashir Warsame, a Somalian cab driver for a licensed taxicab company in San Diego, picked up an elderly couple who had hailed his cab waiting outside the Horton Plaza shopping center. As the couple were getting into the cab's backseat, Warsame noticed a man, later identified as Mora, sitting on a bench nearby. When Warsame turned to ask the couple where they wanted to go, Mora suddenly opened the front passenger door, smoking a cigarette, and without saying a word, sat down and immediately reclined the front passenger seat. Because Mora was wearing a white t-shirt, baggy overalls, had a shaved head and numerous tattoos, Warsame believed he was a gang member and was frightened.
When Warsame told Mora he already had customers and asked him to stop smoking because it was prohibited in the cab, Mora stared at Warsame with an angry look, continued smoking and did not respond. Thinking something was wrong, Warsame asked the couple whether Mora was with them. When they said he was not, Mora pointed to them and asked where they were going. When they told him their destination, Mora instructed Warsame to drop the couple off there and then take him to East County. Feeling unsafe with Mora, the cab driver told Mora to get out of the cab. When Mora put his hand inside his pocket and failed to respond, Warsame's fear heightened. Although he did not see a gun or knife and Mora did not mention having either, Warsame feared he might have one. Mora then began cursing at Warsame in a low, strong tone of voice, repeatedly using the "F" word and strong language one would use to threaten or frighten a person. When Mora continued to refuse to leave, the elderly couple got out of the cab.
Mora's behavior continued to frighten Warsame. When Warsame unbuckled his seatbelt and picked up his cell phone, which had been attached to a charger plugged into the cab's cigarette lighter, Mora continued to use rude, vulgar language toward Warsame, calling him a "motherfucker," and threatening that he would stab and kill Warsame if he called the police, and that Warsame would be dead before they arrived. Believing his threats because Mora appeared collected and confident in his actions and statements, and trying to calm him down to prevent an attack, Warsame told Mora he would not call the police.
Eventually, after about 10 minutes, during which time Mora continued to "[say] so many things," including asking Warsame whether he had any money, Warsame noticed the driver of another taxicab that had pulled up behind him was approaching his cab and he decided to get out of the cab to escape and call the police. Because of his fear of Mora, Warsame hastily exited the cab, leaving his keys in the ignition and rushed to the back of the car, calling the police on his cell phone. As he did so, Warsame saw Mora searching through the inside of his cab, get out of the cab with his charger and headset, as well as a cell phone he believed was his, and walk slowly away toward Horton Plaza with the same confidence and "bad" attitude he had displayed in the cab. Warsame followed Mora while talking to the police, but kept his distance because he was still afraid Mora had a weapon and would use it against him. As he watched Mora proceed to the second level of the plaza, Warsame saw him glance back at the cab area, pull out a dark shirt and hat from his back pocket and put them on and then move quickly away. Warsame stopped following Mora and waited for the police.
About ten minutes later, San Diego Police Officer Carla Keller, responded to the area on bicycle, and talked with Warsame. After taking his statement, Keller and other officers searched for Mora. About 40 minutes later, Keller found him laying down, passed out like sleeping, in front of the Sam Goody store in Horton Plaza with a cell phone earpiece and charger in his right hand. Keller kicked the bottom of Mora's shoe to wake him up. When Mora sat up and started cursing at her, Keller handcuffed him and called for cover for her safety. Other police officers subsequently brought Warsame to the location, where he identified Mora as the person who had threatened him and had taken his property. After Mora was arrested for suspected robbery of Warsame, the charger and headset in Mora's possession were returned to Warsame.
The above evidence was presented in the prosecution's case at Mora's trial for robbery and making a criminal threat. In addition, Warsame, who testified with the assistance of an English-Somali interpreter because his English is "not strong" and he did not want to make a "mistake" in his testimony, stated he had "no doubt" and "there was no mistake" that Mora had threatened to stab him and had said he would be dead before the police arrived if he called them. Warsame was "100%" sure these threats took place inside the cab and he did not recall telling the responding officer that Mora said them after he left the cab with Warsame's property. Nor did Warsame recall telling the officer that Mora had requested to be taken to the county jail.
Warsame further testified that at no time during the incident had Mora exhibited the symptoms he had seen in alcohol intoxicated persons. He did not see Mora stumble or sway back and forth as he was walking away from the cab like other people he had seen who had been under the influence of alcohol.
Officer Keller additionally testified that when she talked with Warsame about the incident he was calm, spoke in English with her, and they were both easily able to understand and communicate with each other. She remembered Warsame telling her that Mora asked for a ride to the county jail and also said Mora had taken his charger and earpiece. Keller believed Warsame had said that Mora threatened to stab him outside the cab, but she "[did not] remember exactly."
Based on her training and experience, Keller said Mora's behavior and symptoms were consistent with being under the influence of narcotics, but not alcohol. Although no drugs or drug paraphernalia were found on Mora, and no tests were conducted to determine whether he was actually under the influence of something because he was arrested as the suspect in the cab incident, Keller believed she could have arrested Mora for being under the influence of narcotics as an independent basis.
The Defense Case
Mora testified on his own behalf. He admitted he had previously been convicted of misdemeanor identity theft in September 2006 and had been a former gang member. On the day before the cab incident, he had left his home to get "high" with some friends after having an argument with his girlfriend about his drug usage. Mora, who had his cell phone and charger with him, then spent the night with his friends, drinking alcohol and using methamphetamine and marijuana. He ended up downtown the next day with several friends, drinking more alcohol at bars near Horton Plaza. Mora testified that after he left a bar to grab a cab that evening at Horton Plaza, he only had "flashes" of memory about what happened. By the time he got into Warsame's cab, he was "real faded" or "drunk," and was still coming down from the drugs he had used and specifically did not recall getting into the cab, what happened inside or what happened after he got out of the cab. Mora essentially denied remembering threatening Warsame, demanding his money, rifling through or taking his property, or having any intent to do those things. He only remembered wanting to charge his phone. Mora said he felt bad and embarrassed about his behavior that night.
On cross-examination, Mora claimed he was telling the truth about being so drunk that he could not remember anything about the incident. He believed the problem was merely a "language barrier" with Warsame getting upset because he was smoking in his cab. Mora explained that he "never said he didn't do it" or "wasn't there," and that he would never rob anybody and that he did not rob Warsame "because [he] can't remember." Mora also asserted that the charger and earpiece found in his possession were his.
In closing, Mora's counsel essentially argued that the question for the jury was Mora's mental condition or intent and that because of his intoxication there was not sufficient evidence to rise to the level of specific intent to commit the crimes with which he was charged in this case. The jury resolved the issue against Mora.
DISCUSSION
The general rule in a criminal case is that the trial court must instruct on the "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681.) Thus, when a defendant raises claims of instructional error, " 'we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights.' [Citation.] We determine the correctness of the jury instructions from the entire charge of the court, not from considering only parts of an instruction or one particular instruction. [Citation.] The absence of an essential element from one instruction may be cured by another instruction or the instructions taken as a whole. [Citation.] Further, in examining the entire charge we assume that jurors are 'intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" (People v. Smith (2008) 168 Cal.App.4th 7, 13 (Smith).) The United States Supreme Court applies these same standards in reviewing claims that an instruction has violated a defendant's due process. (Estelle v. McGuire (1991) 502 U.S. 62, 72; Smith, supra, 168 Cal.App.4th at pp. 13-14.)
With these preliminary rules in mind, we address Mora's various contentions of instructional error.
A. Lesser Included Offense of Theft for Robbery
Mora asserts the trial court erred in failing to instruct sua sponte on the offense of theft as a lesser included offense of robbery because a plausible view of the evidence in this case supported a finding that he merely committed a theft. We disagree.
The law is well established that the obligation to instruct in criminal cases, even absent a request, on the general principles of law relevant to the issues raised by the evidence, "includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) In reviewing a claim that the evidence supports the giving of instructions on such lesser included offenses, we apply the independent or de novo standard of review. (People v. Cole (2004) 33 Cal.4th 1158, 1218 (Cole).) "A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, ' "that is, evidence that a reasonable jury could find persuasive" ' [citation], which, if accepted, ' "would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' [citations]." (Ibid.; original italics.)
As relevant here, theft is necessarily included in the crime of robbery because robbery is an aggravated form of theft with the additional element of force or fear. (People v. Sanchez (2003) 113 Cal.App.4th 325, 333.) However, the duty to sua sponte instruct the jury on theft arises only if the evidence raises a question whether the element of force and fear has been unequivocally established. (People v. Brew (1991) 2 Cal.App.4th 99, 105.) The element of force or fear can be committed by direct violence on the victim, or by conduct that intimidates the victim to the extent it suspends his or her free exercise of will or resistance. (People v. Wright (1996) 52 Cal.App.4th 203, 210.) If the intent to steal arises only after the victim is assaulted or intimidated, the robbery element of stealing by force or fear is generally absent, and a lesser included offense instruction should be given. (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056.) However, "[c]ircumstances otherwise constituting a mere theft will establish a robbery where the perpetrator peacefully acquires the victim's property, but then uses force [or fear] to retain or escape with it." (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 222 (Miller).)
In this case, Mora's defense against the charge of robbery at trial was that he was so intoxicated he could not form the intent necessary to commit such a specific intent crime or that he did not intend to take the property of another because he thought the property he was taking from the cab was his own. He did not challenge the element of force or fear, essentially conceding such existed, and asserted he could not remember his conduct that night due to his voluntary intoxication.
On appeal, Mora now advances a different position, claiming that because the evidence supports a finding he intended to take the charger and earpiece and only used force or fear after the taking, the court's duty to instruct the jury on the lesser offense of theft was triggered. He bases this argument on Officer Keller's testimony that she believed Warsame said Mora threatened to stab him outside the cab rather than inside the cab. The evidence at trial, however, showed that Mora's aggressive conduct and statements from the time he entered the cab until he left the cab to walk away with Warsame's property went far beyond just threatening to stab Warsame, including using rude and vulgar language, demanding money and telling him he would be dead before the police arrived if he called them. All of these circumstances were part of the "force or fear" Mora applied to accomplish the taking of Warsame's property from the cab.
Moreover, even under Mora's newly presented theory of the evidence, that arguably showed his intent to take Warsame's property occurred after his initial intimidating behavior in the cab and before his threats to stab Warsame outside the cab, a robbery and not mere theft is shown because Mora was using force or fear to carry away and retain possession of the property he had just taken. (Miller, supra, 115 Cal.App.4th at p. 222.) Contrary to Mora's additional suggestion that a lesser offense instruction on theft was required because the evidence showed he only wanted to use Warsame's property to charge his cell phone, the reason for intending to take property is irrelevant to the question of whether the element of force or fear is established by the evidence.
Similarly, to the extent Mora refers to his voluntary intoxication defense as somehow negating robbery, such is irrelevant to the issue of whether there was evidence of force or fear during the incident and only concerns the issue of whether Mora possessed the requisite intent for that crime. Because both robbery and the lesser offense of theft require specific intent to permanently deprive a person of his or her property "[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" (see CALCRIM Nos. 1600, 1800), if such element were negated, then not only would there be no robbery, there would be no theft. As noted above, "[a] trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence,..., which, if accepted, ' "would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' [citations]." (Cole, supra, 33 Cal.4th at p. 1218, original italics.) In this case, there was no such substantial evidence.
Even assuming an evidentiary basis for the lesser instruction, any instructional error was harmless because it is not reasonably probable that, had the court instructed the jury on theft, the result would have been different. (People v. Breverman (1998)19 Cal.4th 142, 176-177 (Breverman); People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence at trial concerning Mora's actions, his various threats, and Warsame's reactions established that Mora caused Warsame to be in fear through threats and intimidation while he searched for and took Warsame's property from his cab and carried it away. No prejudicial instructional error is shown on this record.
B. CALCRIM Nos. 358 and 359
Mora next complains that the trial court prejudicially erred in failing to sua sponte instruct the jury under CALCRIM Nos. 358 and 359 on his out-of-court statements because there was a conflict in the evidence regarding the accuracy, content and timing of his pretrial statements which the jury would have likely resolved in his favor had it been given these instructions. The People essentially concede the court erred in failing to instruct on CALCRIM Nos. 358 and 359 with regard to the robbery count, but assert the error was harmless on this record. We agree.
CALCRIM No. 358 (Evidence of Defendant's Statements) provides:
"You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [¶] [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]
CALCRIM No. 359 (Corpus Delecti: Independent Evidence of a Charged Crime) provides:
"The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant's out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant's statement[s] alone. [¶] You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt."
The trial court has a sua sponte duty to give CALCRIM No. 358 when there is evidence of an out-of-court oral statement by the defendant and to give the bracketed cautionary portion of the instruction when there is evidence of an incriminating out-of-court oral statement by the defendant. (People v. Beagle (1972) 6 Cal.3d 441, 455-456, disapproved on other grounds in People v. Castro (1985) 38 Cal.3d 301.) The court also generally has a duty to instruct on the corpus delecti rule under CALCRIM No. 359 whenever a defendant's extrajudicial statements form part of the prosecution's evidence. (People v. Howk (1961) 56 Cal.2d 687, 706.) However, these instructional duties do not apply when the defendant's statements constitute an element of the crime charged, such as in making criminal threats. (People v. Zichko (2004) 118 Cal.App.4th 1055, 1057 (Zichko).)
In this case, the parties recognize that the trial court was only required to instruct the jury with CALCRIM Nos. 358 and 359 as to the count 1 robbery charge because Mora's statements themselves could constitute the count 2 charge of making criminal threats. (Zichko, supra, 118 Cal.App.4th at p. 1057.) Although the trial court thus erred in failing to instruct under these instructions as to count 1, reversal is not required unless there is a reasonable probability Mora would have obtained a more favorable outcome had the instructions been given. (People v. Dickey (2005) 35 Cal.4th 884, 905 (Dickey).) We can find no such probability in this case.
Mora's major premise for finding prejudicial error in the failure to give CALCRIM Nos. 358 and 359 is that Warsame's English was "not strong" and therefore gave rise to the question of whether his testimony about Mora's statements during the cab incident was accurately repeated at trial. As an extension of this premise, Mora additionally argues that the evidence conflicted regarding "if and where [he] said any threatening words" because Officer Keller testified Warsame said the threats by Mora to stab him were made outside the cab while Warsame testified they were made in the cab.
However, as noted above, Keller's testimony only related to Mora's threat to stab Warsame and did not address Mora's other threatening statements and behavior during the cab incident. As to the stabbing threat, Keller was uncertain whether it was made inside or outside the cab, while Warsame was unequivocal that that threat, as well as Mora's other threatening statements and behavior, occurred inside the cab. Thus contrary to Mora's assertion, any purported conflict in the testimony concerning his threatening statements made during the incident was not material.
Nor do we find that there was any conflict in the evidence about the exact words Mora purportedly used during the incident simply because Warsame was a non-English speaker. Although he testified with the assistance of a translator, Warsame explained that he did so to prevent making any mistakes even though he was comfortable communicating in English. Warsame was certain as to the accuracy of his testimony about Mora's statements, testifying he had "no doubt" and "there was no mistake" about them. Keller confirmed in her testimony that on the night of the incident she was able to easily converse with Warsame in English without any problems. Mora did not dispute having made the statements or having engaged in the conduct that Warsame described during the incident, he merely testified he did not remember what had happened due to his voluntary intoxication and was ashamed for the way he behaved.
Moreover, other instructions told the jurors how to evaluate the accuracy and credibility of the witnesses' testimony at trial (CALCRIM No. 226) as well as how to evaluate the prior statements of a witness (CALCRIM No. 318). This latter instruction specifically told the jury: "You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] 1. To evaluate whether the witness's testimony in court is believable; and [¶] 2. As evidence that the information in those earlier statements is true." (CALCRIM No. 318.) These instructions, coupled with the instructions on the elements of robbery (CALCRIM No. 1600) and the reasonable doubt standard (CALCRIM No. 220), adequately alerted the jury to carefully review the testimony of the witnesses and essentially told the jury the same thing as CALCRIM No. 358.
Although there was no instruction given that covered the bracketed "consider with caution" advisal in CALCRIM No. 358, such is not prejudicial because Mora did not contest making the threatening statements nor their accuracy, and has not challenged on appeal his conviction for making criminal threats, for which the jury had to specifically find he harbored the intent to threaten Warsame with unlawful bodily injury. (CALCRIM No. 1300 (Criminal Threat).) There was simply no evidence presented that Mora's statements as reported by Warsame were not made, were fabricated or inaccurately remembered. (See People v. Stankewitz (1990) 51 Cal.3d 72, 94.)
As to CALCRIM No. 359, unlike CALCRIM No. 358, "the corpus delicti rule is designed to provide independent evidence that the crime occurred, not to help determine whether the statement was made." (People v. Carpenter (1997) 15 Cal.4th 312, 394, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107.) Here, based on Warsame's and Keller's testimony, there was some evidence of each element of robbery independent of Mora's statements; i.e., that Mora took the property of another, from Warsame's cab in his immediate presence, against Warsame's will, using threatening behavior to take and carry away the property, and cumulatively from which his intent to deprive Warsame of the property permanently can be inferred. Further, because the corpus delicti of a crime can be proven by statements a defendant made during the commission of the crime (Carpenter, supra, 15 Cal.4th at p. 394), and robbery is a continuing crime until the perpetrator is in a place of safety after carrying away the property, Mora's threatening statements made both inside the cab and outside, which were not admissions or confessions, arguably did not require the giving of the corpus delicti rule.
In sum, we believe any error in the court's failure to give CALCRIM Nos. 358 and 359 regarding the count 1 robbery was harmless because on this record, it is not reasonably probable that a more favorable result would have occurred had the court given such instructions. (Dickey, supra, 35 Cal.4th at pp. 905; Breverman, supra, 19 Cal.4th at pp. 176-177.)
C. CALCRIM Nos. 223, 226 and 302
Finally, Mora contends the trial court prejudicially erred in instructing the jury under CALCRIM Nos. 223 (Direct and Circumstantial Evidence: Defined), 226 (Witnesses), and 302 (Evaluating Conflicting Evidence), instructions that govern the jurors' consideration of the evidence given in this case, because they "incorrectly reflect the applicable burden of proof." Mora specifically argues that because CALCRIM No. 223 states that both direct and circumstantial evidence are acceptable "to prove or disprove the elements of a charge," CALCRIM No. 226 asks the jurors to consider anything tending to "prove or disprove the truth or accuracy" of witness testimony and whether "other evidence prove[d] or disprove[d] any fact about which [a] witness testified," and CALCRIM No. 302 tells jurors that in resolving conflicts in the evidence "you must decide what evidence, if any, to believe," that such instructions undermine the presumption of innocence and improperly shift the burden of proof to the defense.
Mora did not object below that any of these instructions were incorrect statements of law or request that any of them should be modified or limited with regard to the parsed language of each to which he now complains. Generally, a failure to object to instructional error forfeits the issue on appeal if the instruction is correct in law and the defendant has failed to request clarification. (People v. Guerra (2006) 37 Cal.4th 1067, 1138; People v. Campos (2007) 156 Cal.App.4th 1228, 1236 (Campos).) The three challenged instructions, which are generally used in the guilt phase of all criminal trials to define direct and circumstantial evidence (CALCRIM No. 223; formerly CALJIC No. 2.00), discuss the believability of witnesses (CALCRIM No. 226; formerly CALJIC Nos. 2.20 [believability], 2.21.1 [discrepancies in testimony] and 2.21.2 [witness wilfully false]), and tell the jury how to weigh the conflicting evidence of witnesses (CALCRIM No. 302; formerly CALJIC No. 2.22), have all been upheld as correct statements of the law. (See People v. Smith (2008) 168 Cal.App.4th 7, 18 (Smith) [discussing CALCRIM No. 223; People v. Warner (2008) 166 Cal.App.4th 653, 656-659 (Warner) [discussing CALCRIM No. 226]; Campos, supra, 156 Cal.App.4th at pp. 1239-1240 [discussing CALCRIM No. 226]); People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1188, 1190-1191 (Ibarra) [discussing all three instructions]; People v. Anderson (2007) 152 Cal.App.4th 919, 929-940 (Anderson) [discussing all three instructions]; People v. Reyes (2007) 151 Cal.App.4th 1491, 1497-1498 (Reyes) [discussing CALCRIM No. 302].) Although we believe Mora has technically forfeited his three instructional claims by failing to object to the particular language of each properly given instruction he now challenges, we briefly address and reject his arguments that the giving of the instructions affected his substantial rights by impermissibly shifting the burden of proof from the prosecution to the defense.
As already noted, we are guided in our review by the general principle that unless Mora has demonstrated there is a reasonable likelihood that the jury understood the challenged instruction in a manner that violated his rights after a consideration of the instructions as a whole, we will find no instructional error. (See Smith, supra, 168 Cal.App.4th at p. 13.)
A. CALCRIM No. 223
CALCRIM No. 223, as read to the jury, provided in pertinent part:
"Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence." (Italics added.)
Mora argues the above italicized phrase "improperly suggests the defense must disprove a charge to warrant acquittal" undermines the presumption of innocence and improperly shifts the burden of proof to the defense because the defense is only required to raise a reasonable doubt and does not need to prove anything. Mora, however, does not explain how a reasonable jury could understand the italicized portion of CALCRIM No. 223 in this manner, especially when read in context with the instructions as a whole. Nothing in the plain language of CALCRIM No. 223 discusses the burden of proof or the reasonable doubt standard which are generally given to the jury in other instructions.
As pointed out by the People in their respondent's brief, the challenged language of CALCRIM No. 223 is substantially similar to CALCRIM No. 2.00, which has long been recognized as a correct statement of law regarding the relationship between direct and circumstantial evidence. (See People v. Bloyd (1987) 43 Cal.3d 333, 351.) In addition, recent courts addressing various challenges to CALCRIM No. 223, have found that its language when read in context merely means "neither direct nor circumstantial evidence should be accorded greater weight simply because it is direct or circumstantial evidence." (Anderson, supra, 152 Cal.App.4th at p. 930; see also Smith, supra, 168 Cal.App.4th at p. 18; Ibarra, supra, 156 Cal.App.4th at p. 1186.)
Mora has simply not shown that there is any reasonable likelihood that the jury in this case understood the language of CALCRIM No. 223 as requiring him to prove his innocence.
B. CALCRIM No. 226
Nor has Mora shown that there is any reasonable likelihood that the jury here understood the phrase "to prove or disprove" the truth or accuracy of a witness's testimony or the question of whether "other evidence prove[d] or disapprove[d] any fact about which the witness testified" contained within the language of CALCRIM No. 226 to require Mora to prove his innocence. He merely argues that such language in the instruction "fails to specify that disproving certain testimony does not render it useless, such as testimony that raises reasonable doubt," and suggests a defendant "must present evidence that disproves any evidence against him" thereby impermissibly lightening the prosecution's burden of proof. Like his challenge to the language in CALCRIM No. 223, Mora does not explain how a reasonable jury could read the instruction to support a lesser standard of proof or to require the defendant to shoulder the burden of proof. Nothing in CALCRIM No. 226 mentions the burden of proof or the reasonable doubt standard which again are presented in separate instructions given the jury. The instruction only concerns factors to consider in assessing a witnesses' credibility.
CALCRIM No. 226, as given the jury, provided in pertinent part: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness's gender, race, religion, or national origin. You may believe all, part, or none of any witness's testimony. 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: [¶]... [Listing numerous factors relevant to evaluating the credibility of a witness's testimony, including:] [¶] Did other evidence prove or disprove any fact about which the witness testified?... [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. 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 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 the rest."
In addition, courts have long endorsed CALJIC No. 2.20, which is substantially the same as CALCRIM No. 226, regarding the circumstances a jury may consider in determining the believability of a witness, i.e., "you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness...." (CALJIC No. 2.20; People v. Carrera (1989) 49 Cal.3d 291, 313.) More recently, the courts in Warner, supra, 166 Cal.App.4th 653, and Campos, supra, 156 Cal.App.4th 1228, have rejected challenges to other portions of CALCRIM No. 226 on grounds they permit a lesser standard of proof than required by the prosecution's burden of proof in a criminal case. As in those cases, "[w]hen the instructions here are considered as a whole, it is not reasonably likely that the jury would understand CALCRIM No. 226 to mean what [Mora] claims. [Citation.]" (Campos, supra, at p. 1240.) No instructional error is shown with regard to CALCRIM No. 226.
C. CALCRIM No. 302
Mora's claim regarding CALCRIM No. 302 likewise suffers from the same problem as his other instructional claims. As given in this case, CALCRIM No. 302 provided:
"If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. 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." (Italics added.)
Mora argues that the italicized portion improperly "requires exculpatory evidence to be 'believed' in order to raise a reasonable doubt," when in fact "exculpatory evidence of sufficient weight can create a reasonable doubt to necessitate acquittal, regardless of whether jurors affirmatively believe that evidence." (Original italics.)
However, nothing in the plain language of CALCRIM No. 302 mentions the prosecution's burden of proof or the reasonable doubt standard. Nor does the instruction tell the jury the defendant must prove his innocence or that the jurors must accept the prosecution's evidence if it disbelieves the defense evidence. Because CALCRIM No. 302 is substantially similar to CALJIC No. 2.22 on weighing conflicting testimony, which was approved in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884, and provides the same guidance for doing so, courts have consistently rejected similar claims as raised by Mora. (See Ibarra, supra, 156 Cal.App.4th at pp. 1190-1191; Anderson, supra, 152 Cal.App.4th at p. 939; Reyes, supra, 151 Cal.App.4th at p. 1497.) No instructional error is shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.