Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NA069404, Richard R. Romero, Judge.
Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal and the California Appellate Project, for defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General and Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.
MANELLA, J.
PROCEDURAL BACKGROUND
On January 22, 2007, a second amended information was filed charging appellant Daniel Christopher Brown and Derrick Adams Willie with three counts of attempted robbery. (§§ 211, 664.) The information alleged under all three counts that they had personally used a rifle (12022.53, subd. (b)) and that a principal had been armed with a semi-automatic weapon (§ 12022, subd. (a)(1)). The information charged Willie, who is not a party to this appeal, with additional offenses, and alleged that all of his offenses had been committed in association with a criminal street gang (§ 186.22, subd. (b)(1)(A).) Appellant pleaded not guilty and denied the special allegations.
All further statutory citations are to the Penal Code, unless otherwise indicated.
The information charged Willie with possession of a firearm as felon (§ 12021, subd. (a)(1)), unlawful distribution of an assault weapon (§ 12280, subd. (a)(1)), possession of ammunition as a felon (§ 12316, subd. (b)(1)), and possession of marijuana for sale (Health & Saf. Code, § 11359).
Trial by jury of appellant and Willie began on January 22, 2007. On February 5, 2007, the jury found appellant guilty as charged and found the special allegations to be true. The trial court sentenced appellant to a term of 20 years in prison.
The jury also found Willie guilty as charged and the special allegations true, with the exception of the allegations that he had personally used a firearm in connection with the three attempted robberies, and that his distribution of an assault weapon, possession of ammunition as a felon, and possession of marijuana for sale were gang-related.
Because Willie is not a party to this appeal, we limit our summary of the facts to the evidence bearing on the crimes in which appellant allegedly participated and to appellant’s contentions on appeal.
A. Prosecution Evidence
At 1:00 a.m. on March 3, 2006, Roque Santos was driving home in his red Astro van. When he left the van to open a gate, an African-American man pointed a gun at him, told him to walk away, and took the van.
At approximately 8:00 a.m. on March 2, 2006, an A.T. Systems armored car carrying more than $30 million arrived at a branch office of the Farmers & Merchant Bank in Long Beach. Gabriel Perez drove the armored car, which also contained Jaime Arrieta. Accompanying the armored car was a marked A.T. Systems “chase” truck driven by Anthony Del Valle. Del Valle was assigned to protect Arrieta, who acted as a “hopper,” that is, transported money to and from the armored car when it made stops.
It was raining as Perez backed the armored car up to within a few feet of the bank door. Del Valle parked his truck nearby. After the bank manager unlocked the bank door, Arrieta and Del Valle moved money from the armored car into the bank. In accordance with A.T. Systems procedure, Perez remained in the armored car. Inside the bank, Arrieta and Del Valle collected money that they were to transport elsewhere, and Arrieta pushed a cart bearing the money outside to the armored car.
Arrieta testified as follows: While Del Valle stood inside the bank and held the door open for him, Arrieta moved the cart to the rear of the armored car. A man wearing a mask -- who was identified by other witnesses as appellant -- approached Arrieta, pointed a rifle at his chest, and said, “‘Give me the money.’” A second masked man also appeared and pointed a rifle at Arrieta. Del Valle emerged from the bank and fired his gun at the two men, hitting appellant three times in the stomach. Appellant fell to the ground while his accomplice ran to a red or burgundy van, accompanied by a third man. The two men entered the van and drove away. The armored car also left.
Del Valle testified that after he opened the bank door for Arrieta’s cart, he retreated momentarily into the bank to retrieve his umbrella. From within the bank he looked through the door -- which had remained open -- and saw three armed men confront Arrieta. He fired his gun at the three men. The man closest to Arrieta fell down, and the other two men fled in a red van.
Perez testified that after Arrieta left the armored car, he remained in the driver’s seat looking over paperwork. He noticed three men dressed in black running toward the armored car, and shouted an alarm to Arrieta. He soon heard Arrieta scream, “‘Take whatever you want,’” followed by shots. When he saw two of the men running from the armored car, he surmised that the third man had entered the open rear door of the armored car. Perez drove the armored car away from the bank to find help and to “bounce [the third man] around until he was out of [the armored car].” Perez saw the two fleeing men enter a red van, which he unsuccessfully tried to intercept. He then returned to the bank.
Susan Stencil, who operates a business near the bank, testified as follows: While she was standing across the street from the bank, she saw the armored car, and noticed a red or “maroonish” van drive slowly by the front of the bank. The van soon returned and stopped in the middle of the street. A black man wearing a mask and carrying a rifle left the van and walked quickly toward the armored car, followed by two more men from the van. She took cover behind a truck and heard shots.
Investigating officers found two loaded rifles outside the bank. They also discovered Santos’s van in an alleyway in Long Beach. Willie’s fingerprints matched prints on a gun found in the van, and DNA testing identified Willie as a probable source of genetic material on the gun. When Willie was arrested, he stated that he was a member of the East Coast Crips gang.
Fresh bloodstains were also found in the van. DNA testing on the blood stains led the investigation officers to arrest Darrell Slack as appellant’s and Willie’s accomplice.
B. Defense Evidence
Long Beach Police Officer Asif Khan testified that he and his partner arrived at the bank at approximately 8:30 a.m. on March 3, 3006. According to Khan, the scene was “very chaotic.” The officers found appellant, who was wounded, as well as numerous shell casings and two long-barreled rifles. Khan interviewed Perez and Arrieta, each of whom said that the three perpetrators had long-barreled guns.
Kahn was offered as a witness on behalf of Willie.
Long Beach Police Detective Steven Prell testified that when he arrived at the bank on the date of the crime, he directed a technician to place numbers on shell casings found at the site. Approximate 48 Long Beach police officers and three FBI agents were present when he arrived.
Prell was offered as a witness on behalf of appellant.
The prosecutor presented brief rebuttal testimony from Perez and Del Valle. Perez testified that he did not tell investigating officers that each perpetrator had a long-barreled gun, and Del Valle reaffirmed that he saw two long-barreled guns. Del Valle also stated that no one had asked him for money.
DISCUSSION
Appellant contends that (1) there was error in the selection of the jury, (2) the evidence was insufficient to support his convictions for the attempted robbery of Del Valle and Perez, and (3) the jury was misinstructed on the prosecutor’s burden of proof.
A. Error in Jury Selection
Appellant contends that the trial court erred in denying his motion for a new jury panel under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258, rejected on another ground in Johnson v. California (2005) 545 U.S. 162. He argues that the prosecutor failed to show she had genuine nondiscriminatory motives for exercising a peremptory challenge to a prospective African-American female juror. We disagree.
Respondent contends that appellant forfeited his federal claim by failing to mention Batson when he objected to the peremptory challenge before the trial court. Respondent is mistaken. (People v. Yeoman (2003) 31 Cal.4th 93, 117.)
1. Governing Principles
Generally, “[t]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution [citation] as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution. [Citation.] . . . [¶] ‘A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity. . . . Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenges at issue.” (People v. Burgener (2003) 29 Cal.4th 833, 863-864, quoting People v. Jenkins (2000) 22 Cal.4th 900, 993.)
To carry this burden, the prosecutor “need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice. [Citation.]” (People v. Arias (1996) 13 Cal.4th 92, 136.) Thus, justification for a challenge may be properly found in “‘bare looks and gestures’” that may alienate a party (People v. Wheeler, supra, at p. 276), and a challenge “based on ‘hunches’ and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias.” (People v. Turner (1994) 8 Cal.4th 137, 165, rejected on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
“The trial court’s ruling on this issue is reviewed for substantial evidence[, provided that] . . . ‘the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror.’ [Citations.]” (People v. McDermott (2002) 28 Cal.4th 946, 971, quoting People v. Silva (2001) 25 Cal.4th 345, 386.)
2. Underlying Proceedings
During voir dire, prospective Juror No. 18 (who later became prospective Juror No. 9) [Juror No. 18] stated that she was a physical therapist. She was divorced, and had four minor children. Her ex-husband, who had been a paramedic, died “in the line of duty” in 2005. She explained that his death was “related to fire and smoke inhalation.” Her first cousin and a neighbor were Los Angeles County deputy sheriffs. Another first cousin “basically was a career criminal” who had “been arrested for armed robbery and three strikes and been placed in prison.” According to Juror No. 18, the armed robbery involved an elderly person, rather than a bank. She also had a cousin who had been arrested for vehicular manslaughter, incarcerated, and released.
Juror No. 18 had been a juror in a murder case in which the jury had hung. When she was asked whether the jurors had “acted reasonably and honestly and did their best to reach a verdict,” she answered, “I did.” She also indicated that in the previous year someone had vandalized her car by knocking out the back window.
Juror No. 18 worked in a trauma center where her patients had included gang members. When asked whether she had encountered problems with these patients, she answered, “Not particularly, no. Just the contact.” The prosecutor conducted the following examination on this matter:
“[Prosecutor]: No. 18, in the trauma center did you treat any Crips?
“[Juror No. 18]: Yes.
“[Prosecutor]: How did you know they were Crips?
“[Juror No. 18]: Um, they don’t mind telling you that they are affiliated with a gang.
“[Prosecutor]: Did you see any tattoos?
“[Juror No. 18]: Yes.”
When the prosecutor asked Juror No. 18 for her opinion about gangs, she answered: “[T]hey do a lot that’s wrong and disrupt our society.”
The prosecutor initially accepted jury panels containing Juror No. 18, but eventually exercised a peremptory challenge to her. Appellant’s counsel raised an objection under Wheeler, contending that the prosecutor had exercised the challenge because Juror No. 18 was a black female. Appellant’s counsel argued that the prosecutor had previously exercised a peremptory challenge against a black male, and that there were no blacks on the current panel; she also observed that only one remaining member of the juror pool was black. Noting that Juror No. 18 “appeared [to be] a very strong D.A. juror,” the trial court found that this constituted a prima facie showing of discrimination, and asked the prosecutor to explain her peremptory challenge.
The prosecutor responded: “I will never keep a juror who has hung a serious case and states they hung . . . . This juror hung. No matter what color she is, she hung. And she answered your question in a way that she was hung, and it was a [murder case], a very serious case.” She added: “And she has two different cousins who have been convicted of serious crimes, including robbery that was armed -- that’s what this [case] is about -- and . . . some kind of manslaughter. [¶] Not only that, she serves and helps Crips. The hung jury and serving and helping Crips -- it is her obligation morally to treat Crips and help them . . . .” The prosecutor further explained that she had accepted another juror who had served on a hung jury in a case involving a violent felony -- shooting at an inhabited dwelling -- because the juror indicated he was not responsible for the deadlock.
After questioning the prosecutor about her grounds for excusing Juror No. 18, the trial court denied the Wheeler motion, stating: “It’s a facially valid reason for excusing a juror that he served on a prior case where the jury was deadlocked, and a reasonable and competent D.A. can use that as -- and would use it, in my opinion, as a basis for excusing a juror regardless of race.”
3. Analysis
At the threshold, appellant argues that the trial court did not make a “sincere and reasoned attempt to evaluate each stated reason” for the peremptory challenge (People v. Silva, supra, 25 Cal.4th at p. 386). The record does not support this contention. The trial court did not accept the prosecutor’s asserted reasons at face value, but questioned her about each reason, and elicited a clarification from her as to why she had not excused another juror who had served on a hung jury. Because the trial court made the requisite sincere and reasoned evaluation (see People v. Williams (1997) 16 Cal.4th 153, 189), we review its determinations for the existence of substantial evidence. Under that standard, we find no error.
Appellant contends that the prosecutor’s asserted grounds for exercising the peremptory challenge were pretextual because Juror No. 18 never indicated she was responsible for hanging the jury in the murder trial, and she otherwise stated that gangs engage in wrongful and disruptive conduct. We disagree. That Juror No. 18 had served on a hung jury in a case involving a serious felony is itself an adequate race-neutral basis for the peremptory challenge, regardless of whether she was known to be responsible for the deadlock. (See People v. Rodriguez (1999) 76 Cal.App.4th 1093, 1108, 1114.) In addition, her incarcerated relatives constitute an adequate race-neutral basis (ibid.), as do her occupational relationships with Crips, in view of the gang-related allegations against Willie (see People v. Landry (1996) 49 Cal.App.4th 785, 789-790; People v. Perez (1996) 48 Cal.App.4th 1310, 1314-1315).
Appellant notes that the prosecutor repeatedly accepted prospective Juror No. 1, who had also served on a hung jury, before exercising a peremptory challenge against him. During voir dire, prospective Juror No. 1 stated that he had previously served on several juries, all of which had reached a decision, with the exception of a jury in a shoplifting case. Because shoplifting is a considerably less serious offense than those charged in the underlying case, the record establishes that the prospective juror fell outside the prosecutor’s stated concerns about prior jury performance.
Moreover, the prosecutor accepted Juror No. 18 several times before excusing her, which raises the reasonable inference that the prosecutor properly exercised her challenge in response to the dynamics of the jury selection process, and not on the basis of racial bias. As our Supreme Court explained in People v. Johnson (1989) 47 Cal.3d 1194, 1220-1221: “[T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view. If the panel as seated appears to contain a sufficient number of jurors who appear strong-willed and favorable to a lawyer’s position, the lawyer might be satisfied with a jury that includes one or more passive or timid appearing jurors. However, if one or more of the supposed favorable or strong jurors is excused either for cause or peremptory challenge and the replacement jurors appear to be passive or timid types, it would not be unusual or unreasonable for the lawyer to peremptorily challenge one of these apparently less favorable jurors even though other similar types remain. These same considerations apply when considering the . . . experience of the prospective jurors.” That the prosecutor repeatedly accepted Juror No. 18 before excusing her indicates that the prosecutor was concerned about the role that Juror No. 18 would play on the jury, as its composition evolved, rather than racial bias.
Finally, appellant suggests that a comparative analysis of the prosecutor’s peremptory challenges by this court will establish that the prosecutor impermissibly exercised her challenge against Juror No. 18. Because appellant did not ask the trial court to conduct a comparative analysis, he has forfeited this contention. (People v. Heard (2003) 31 Cal.4th 946, 971.)
B. Attempted Robbery of Perez and Del Valle
Appellant was convicted of three counts of attempted robbery, each based on the A.T. Systems employee involved in the incident. He contends that his convictions for the attempted robbery of Del Valle (count 1) and Perez (count 3) fail for want of substantial evidence. The crux of his contention is that there is no evidence that appellant and his accomplices exercised force against Del Valle and Perez or tried to instill fear in them. For the reasons explained below, this contention fails.
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“Robbery is the taking of personal property in the possession of another from his person or immediate presence, against his will, accomplished by means of force or fear. (§ 211.) Robbery is both assaultive and larcenous and is a crime against property and persons. [Citation.]” (People v. Bonner (2000) 80 Cal.App.4th 759, 763-764 (Bonner).) Under these principles, when the property taken is jointly held by two or more individuals, a defendant may be convicted only for the robbery of each individual subjected to force or fear. (People v. Ramos (1982) 30 Cal.3d 553, 589.) As the court explained in Bonner: “Property may be in the joint possession of several persons. Thus, while a robbery may involve a single act, a conviction of robbery is proper for each person in possession of the property against whom force or fear is applied to accomplish the taking. [Citations].” (Bonner, supra, 80 Cal.App.4th at pp. 763-764.)
In the case before us, appellant was charged with attempted robbery, rather than robbery. “The crime of attempt occurs when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission. (§ 21a.) ‘“An attempt connotes the intent to accomplish its object, both in law . . . and in ordinary language.” [Citation.]’ [Citation.] The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime. [Citation.] Where the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown. [Citation.]” (Bonner, supra, 80 Cal.App.4th at p. 764.)
Because a defendant can commit attempted robbery without satisfying the elements of robbery, he or she may be properly convicted of the attempted robbery of a person against whom no force or fear was actually applied. In Bonner, the defendant planned to rob a hotel manager who took cash and checks to a bank each week, usually accompanied by his assistant. (Bonner, supra, 80 Cal.App.4th at pp. 761-762.) The defendant armed himself and waited in the hotel garage for the manager and his assistant to drive to the bank. (Ibid.) Before they appeared, two other hotel employees discovered the defendant, and he fled. (Ibid.) The defendant was convicted of two counts of attempted robbery, one count based on the attempted robbery of the manager, and the other on the attempted robbery of the assistant. (Id. at p. 763.) On appeal, the defendant contended that he had been improperly convicted of two counts of attempted robbery because he never was in close proximity to either intended victim and he made no demand upon them. (Ibid.) In addition, he argued that the evidence of his intent to rob the manager and the assistant was insufficient to support the two convictions because his intentions or the number of his victims might have changed before he actually encountered his victims. (Id. at p. 765.)
The court in Bonner rejected these contentions, reasoning that multiple convictions for attempted robbery are permissible even when an attempted robbery is interrupted before the perpetrator is in the presence of the victims, provided that the number and identities of the intended victims can be determined. (Bonner, supra, 80 Cal.App.4th at pp. 764-765.) It stated: “Appellant was guilty of attempted robbery at the moment his acts in the furtherance of his intent went beyond mere preparation, i.e., when appellant performed acts placing his plan in operation. [¶] It is clear at the moment appellant entered the garage, he intended to rob both the manager and assistant manager. Any later event that interrupted those crimes was irrelevant to appellant’s liability for two counts of attempted robbery. The possibility that only one of the intended victims would go to the bank that day is as irrelevant to determining the proper number of counts as the possibility no one would go the bank that day is irrelevant to determining whether an attempt occurred at all. [¶] The evidence clearly showed appellant’s intent to rob both the manager and assistant manager. Appellant did not merely prepare to rob the two, he engaged in acts that would ordinarily result in the commission of the crime but for an interruption.” (Id. at p. 765.)
In our view, Bonner is dispositive of the question before us. It is undisputed that Arrieta, Perez, and Del Valle were in joint possession of all money transported in the armored car. (See 2 Witkin & Epstein, Cal. Criminal Law (3d. ed. 2000) Crimes Against Property, § 92, pp. 122-123.) Moreover, the record establishes that appellant and his accomplices intended to subject all three men to force or fear.
Inexplicably, respondent neither cites nor discusses Bonner. We note, moreover, that respondent’s brief contains references to individuals not involved in this case (at page 12) and otherwise shows signs of cutting and pasting.
At trial, undisputed evidence was presented that the armored car arrived at the bank each morning at 8:00 a.m., or shortly thereafter, and that appellant and his accomplices prepared for the robbery by stealing Santos’s van, arming themselves, and donning masks. In addition, the evidence supports the reasonable inference that appellant and his accomplices were aware of the presence of Arrieta, Perez, and Del Valle before they left Santos’s van. According to Susan Stencil, the van drove slowly past the armored car once before it returned. In so doing, appellant and his accomplices would have had a view of Perez, who was seated in the armored car, as well as Del Valle’s marked chase truck. In addition, Stencil testified that she saw more than one A.T. Systems employee working near the rear of the armored car when the robbers left the van. Although she mistakenly believed that she saw three employees, her testimony indicates that both Arrieta and Del Valle were visible as appellant and his accomplices ran toward the armored car.
Stencil testified that she thought she saw three A.T. Systems employees behind the armored car when the men left the van: two employees were bringing out the money cart while another employee stood at the back of the armored car. She also stated that the event happened very fast, and that she did not “stand and count.”
Because the record discloses that appellant was aware of Arrieta, Perez, and Del Valle, and intended to apply force or fear against each of them in order to take the money in their possession, it contains sufficient evidence to support his convictions for attempted robbery. Appellant’s reliance on several cases for the contrary position is misplaced, as these cases discuss the elements of robbery, but do not address attempted robbery. (See People v. Ramos, supra, 30 Cal.3d at pp. 587-589; People v. Cash (2002) 28 Cal.4th 703, 734-735; People v. Marquez (2000) 78 Cal.App.4th 1302, 1306-1309; People v. Wright (1996) 52 Cal.App.4th 203, 209-211.) In sum, substantial evidence supports appellant’s convictions for attempted robbery.
C. Instructional Error
Appellant contends that the jury received inadequate instructions regarding the prosecutor’s burden of proof. The trial court instructed the jury with CALCRIM No. 220, which states in pertinent part: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.” Appellant contends this instruction failed to inform the jury that the prosecutor was obliged to prove each element of the offenses charged against appellant beyond a reasonable doubt. He thus argues that the instruction denied him due process, and violated Evidence Code section 502. We disagree.
As given to the jury, CALCRIM No. 220 states: “The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] 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. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find either or both of them not guilty.”
Evidence Code section 502 provides: “The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.”
Respondent argues that appellant forfeited this contention by failing to raise it before the trial court. However, as our Supreme Court explained People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7, a criminal defendant’s claim that an instruction misstated the law or violated his right to due process “is not of the type that must be preserved by objection.” We therefore address the merits of appellant’s contention.
Under the United States Constitution and California law, the government must prove each element of a charged offense beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5; People v. Osband (1996) 13 Cal.4th 622, 678-679; § 1096.) Whether an instruction correctly conveys this standard must be determined by examining the instruction in the context of all the instructions, viewed as an entirety. (Victor v. Nebraska, supra, 511 U.S. at p. 5; see People v. Chavez (1985) 39 Cal.3d 823, 830-831.) To the extent appellant contends CALCRIM No. 220 is ambiguous, we assess “whether there is a reasonable likelihood that the jury applied the instruction in a way that denied fundamental fairness. [Citations.]” (People v. Rios (2007) 151 Cal.App.4th 1154, 1157.)
Under these standards, we see no instructional error. In giving CALCRIM No. 220, the trial court told the jury: “Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.” (Italics added.) The jury also received versions of CALCRIM Nos. 460 and 1600, which define the elements of attempted robbery. Each instruction states, “To prove that the defendant is guilty of this crime, the People must prove that:” and then lists the separate elements of the offense. (Italics added.) In addition, the jury received CALCRIM Nos. 3115 and 3146, which explain the special allegations asserted against appellant, and state: “The People have the burden of proving each allegation beyond a reasonable doubt.” Aside from these instructions, the trial court expressly told the jury during voir dire and at the beginning of trial that the prosecutor was obliged to prove each element of a crime and each allegation beyond a reasonable doubt. Accordingly, CALCRIM No. 220, viewed in context, correctly informed the jury that the prosecutor was obliged to prove each element of the crimes and each allegation beyond a reasonable doubt.
Appellant suggests that adequate instructions on the burden of proof must make express use of the phrase, “the People must prove each element of a crime beyond a reasonable doubt.” None of the cases he cites supports this proposition, and each is factually distinguishable. In three of these cases, the court held that the trial court’s failure to provide any instruction defining the burden of proof following the presentation of evidence constituted reversible error (People v. Vann (1974) 12 Cal.3d 220, 225-228; People v. Phillips (1997) 59 Cal.App.4th 952, 957-958; People v. Crawford (1997) 58 Cal.App.4th 815, 821-826); in the fourth case, a justice discussing an unrelated issue in a concurring and dissenting opinion observed that the trial court must correctly instruct the jury on the burden of proof (People v. Harris (1994) 9 Cal.4th 407, 438 (con. and dis. opn. of Mosk, J.)). In sum, there was no instructional error.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.