Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS081056A.
ELIA, J.
Following a jury trial, appellant was found guilty of two counts of false imprisonment (Pen. Code, § 237, subd. (a), counts one and two), two counts of second degree robbery (Pen. Code, § 211, counts three and four), and one count of commercial burglary (Pen. Code, § 459, count five). As to each count, the jury found true a firearm use allegation.
On July 22, 2009, the court sentenced appellant to 17 years, four months in state prison. Appellant filed a timely notice of appeal.
On appeal, appellant raises three issues. First, he contends that the prosecutor committed Griffin error depriving him of due process and a fair trial. Second, he was deprived of due process and fair trial by the court's error in allowing the prosecutor to question character witnesses regarding appellant's Nortenõ affiliation without any evidence of violent acts or conduct on his part. Finally, he was deprived of due process and a fair trial by the court's refusal to answer a jury question during deliberations regarding the application of the reasonable doubt instruction. For reasons that follow we affirm the judgment.
Griffin v. California (1965) 380 U.S. 609.
Evidence Adduced at Trial and Proceedings Below
On October 9, 2007, two men robbed the Union Bank of California in Prunedale. Luisa Parra (Parra), the branch customer service manager and bank tellers Christina Quintero (Quintero) and Karina Rocha (Rocha) arrived to open the bank at about 7:15 a.m. Approximately 10 minutes after the bank opened, two men entered the bank and quickly approached Quintero's teller station. One man jumped over the counter, held a gun to Quintero's head and demanded money. This man stood about a foot away from Quintero holding a small black gun in one hand and a beige bag in his other hand.
After emptying the money from Quintero's station, the robber stood 12 to 18 inches away from Parra, pointed the gun in her face and forced her to lead them to the bank vault. All three employees and both robbers went into the vault area. The robbers took around $43,000 in cash. They put the money into bags they carried with them.
As the robbers were taking the money from the vault, Parra looked out of the bank windows and stated, "they're coming." The two robbers panicked and asked how to get to the back door. As the robbers fled, they pushed the three bank employees into a room near the vault area and shut the door. After a few seconds, Parra crawled out of the room to see if the robbers were still there and to trigger the bank's silent alarm system. Parra ducked under the counter, looked up quickly and then saw that the robbers were still in the bank, having mistakenly tried to leave through a door that lead to the restrooms and a storage area. Parra waited for the robbers to leave. After the robbers left through a rear exit door, Parra activated the alarm to summon the police. A few minutes later, the police arrived.
During the course of the robbery both Parra and Quintero were able to observe the robber who had the gun at close range. Although this robber had something that covered much of his face, Parra could see his eyes and eyebrows. According to Parra, this robber's eyes were dark and his eyes brows were "bushy." Parra was convinced the eyebrows were "fake." Quintero testified that this robber's eyebrows were "thick."
When Parra returned to the bank after speaking with the investigating officers at the police station, she noticed "fuzz behind the door" to the teller stations. She pointed it out to the branch manager Gina DeFranco. The item was put it in a plastic bag and DeFranco locked it in her desk. DeFranco kept the bag locked in her desk until a police detective collected it a week later. A DNA sample taken from the fuzzy side of the item was consistent with a DNA sample taken from appellant.
At trial, the item was described as a "fake eyebrow" with an "adhesive side" and a "faux-fur" side. A senior criminalist at the Jan Breshensky DNA Laboratory was able to develop a DNA profile for a major contributor to the fur side and a major contributor to the adhesive side as well as a minor contributor to the adhesive side. She could not rule out appellant as the major contributor to the fur side.
Several months after the robbery, the police showed Parra and Quintero a photographic lineup of suspects. Both women identified appellant as the robber who had threatened them at gunpoint. In the courtroom, appellant was asked to stand and face Parra. Parra described appellant's eyes and eyebrows, height and build as similar to the robber she saw on the morning of the robbery.
Parra was 50 percent sure that appellant was the robber with the gun and Quintero was 75 percent sure.
Elizabeth Fleming, an administrative assistant charged with tracking time cards and related records at appellant's employer, testified that during September and the first week of October 2007, appellant never clocked in to work later than 9:13 a.m. On the day of the robbery, however, appellant clocked in to work at 12:07 p.m.
Detective Opseth testified that when he got the DNA report back from the laboratory, he placed appellant under arrest on March 7, 2008. After he gave Miranda advisements to appellant, Detective Opseth asked appellant where he was on October 9th of 2007. Appellant said that he could not recall because it was a long time ago. In addition, appellant stated that he had never been in the Union Bank in Prunedale, he did not have an account there, and had no reason to be in the bank.
Defense Evidence
Appellant introduced evidence of his reputation for honesty through the testimony of three character witnesses, Jovana Cisneros, Herminia Jimenez and Gerardo Morales. In addition, appellant called Jesus Martinez who testified that he had known appellant since grade school. Martinez stated that he also knew Javier Diaz Mejia; that in June or July of 2007, Mejia told him "My girlfriend works at a bank in Prunedale" and "[w]e could jack the place." Martinez understood that Mejia meant rob the bank. Martinez declined.
Miguel Magdaleno testified that he knew appellant as his wife's cousin. He considered him to be a friend. He knew Mejia as someone who "hung out" with appellant. At a baby shower he attended in October 2007, Mejia showed him a black gun with a wooden handle. The gun appeared similar to the photograph of a gun he was shown in defense exhibits B and C.
Discussion
Alleged Griffin Error
During defense counsel's opening statement, he told the jury that on the morning of the robbery, appellant was having breakfast with his girlfriend Christina Orozco; and that Orozco and appellant would testify to that fact. After the close of evidence, the prosecutor asked the court to allow him to comment on appellant's failure to call logical witnesses. The prosecutor stated that he would not make any comments on defense counsel's failure to make good on his opening statement to bring in Christina Orozco, but he thought it was proper for him to comment on why she was not there to tell the jury where appellant was on the day of the robbery, or why other friends were not there to provide an alibi.
Defense counsel objected to the prosecutor's proposal arguing that the prosecutor was "shifting the burden to have me prove why he failed to prove this case and -- I'm sorry, when he failed to prove the case he wants me to prove my case and bring in an alibi witness.... and just because I've chosen in my strategy to leave out certain witnesses, trim the defense list, doesn't mean that should be held against my client.... I don't believe that... he should be allowed to talk about my failure to bring in alibi witnesses for him. [¶]... I believe [it] would be prejudicial at this point."
"A prosecutor may call attention to the defense's failure to put on exculpatory evidence, but only if those comments are not aimed at the defendant's failure to testify and are not of such a character that the jury would naturally and necessarily interpret them to be a comment on the failure to testify." (People v. Guzman (2000) 80 Cal.App.4th 1282, 1289.)
Simply put, "[t]he Fifth Amendment prohibits a prosecutor from commenting, directly or indirectly, on a defendant's decision not to testify on his own behalf. (Griffin v. California (1965) 380 U.S. 609...; People v. Lewis (2001) 25 Cal.4th 610, 670..., [directing the jury's attention to defendant's failure to testify runs the risk of inviting the jury to consider the defendant's silence as evidence of guilt].)" (People v. Taylor (2010) 48 Cal.4th 574, 632-633.)
Furthermore, it is "error for the prosecution to refer to the absence of evidence that only the defendant's testimony could provide. [Citation.]" (People v. Hughes (2002) 27 Cal.4th 287, 372.) Nevertheless, Griffin does not prohibit " ' "comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses." ' [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208, 257.)
Appellant contends that the prosecutor violated the constitutional prohibition against commenting on his failure to testify in his opening argument to the jury when he argued the following. "Next, alibi. Now [defense counsel] brought in... three or four character witnesses, but he did not bring in the mother... of the defendant's two children. This is a man who works eight to five, or at least is supposed to be to work morning hours, works for either - you know, a couple times that month he worked - he came in at three or five or six, but generally he's eight to five, five days a week. [¶] He takes half a day off. Where in the world was he? He's got two women he has children with, he has two children now. Where are those people? Why aren't they coming in to tell us where he was? A man like that, with a job. I mean, if I take half a day off I know where I am, I know where I went. Where are those people, those logical witnesses that the Defense has not called, to account for this gentleman's presence? His obligations, he has a cell phone, he has all kinds of indicators as to where he would be. Where are those people? Why weren't those people called?" (Italics added.)
Later, the prosecutor returned to the subject of appellant's lack of an alibi, arguing, "What about all of his friends, what would they say? And were these character witnesses there? No, they weren't there. Can they tell us where he was that day? No. Can anybody tell us where he was that day? No." (Italics added.)
It is with the italicized language that appellant takes issue. He contends that the prosecutor's argument would necessarily have called the jury's attention to appellant's failure to testify for three reasons. First, defense counsel had promised appellant's testimony, leading the jury to expect it. Second, the prosecutor's personal attestation that " 'If I take a half day off I know where I am, I know where I went' would certainly have evoked a jury response to the effect, 'If the prosecutor knows where he was on a half day holiday, appellant should too and should tell us about it.' " Third, the prosecutor expanded his argument beyond the " 'logical witness' scope as to the third party witnesses when he asked the rhetorical question, 'Can anybody tell us where he was that day? No' The 'anybody' category obviously included appellant."
Respondent argues that appellant has forfeited this issue because defense counsel failed to object to the alleged improper comments during the trial.
Where, as here, defense counsel did not object at trial to alleged prosecutorial misconduct, the defendant may argue on appeal that counsel's inaction violated the defendant's constitutional right to effective assistance of counsel. (People v. Lopez (2008) 42 Cal.4th 960, 966.) For this reason, we will address the merits of appellant's claim of Griffin error despite the lack of a contemporaneous objection below. However, we point out that where the prosecutor's comments were not improper, there was no reason for an objection by defense counsel and the claim of ineffective assistance of counsel must fail. (Id. at p. 968.)
Although appellant does not raise the issue of ineffective assistance of counsel in his opening brief, our Supreme Court has stated that, when "applying a forfeiture rule... would likely have the effect of converting an appellate issue into a habeas corpus claim of ineffective assistance of counsel for failure to preserve the question by timely objection... we would be loath to invoke a rule that would proliferate rather than reduce the nature and scope of legal proceedings. [Citation.] After all, judicial economy is a principal rationale of the forfeiture doctrine. [Citation.]" (People v. Butler (2003) 31 Cal.4th 1119, 1128.)
As can be seen, defense counsel did not mention Griffin or reference appellant's Fifth Amendment right not to testify when he argued against the prosecutor's motion seeking leave to comment on the appellant's failure to call logical witnesses. Nor did counsel object on this ground during the prosecutor's opening argument.
" 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood that the jury understood or applied the complained-of comments in an improper or erroneous manner.' [Citation.]" (People v. Wilson (2005) 36 Cal.4th 309, 337.) "In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "We presume the jurors treated 'the prosecutor's comments as words spoken by an advocate in an attempt to persuade' [citation]...." (People v. Cole (2004) 33 Cal.4th 1158, 1204.) In addition, while a defendant may single out certain comments made by the prosecutor during argument in order to demonstrate misconduct, as the reviewing court we "must view the statements in the context of the argument as a whole." (Id. at p. 1203.)
We are not convinced that the prosecutor's argument constituted misconduct, or that there is a reasonable likelihood that the jurors understood the prosecutor's argument as an improper comment on appellant's failure to testify. Through the testimony of Detective Opseth, the jury learned that appellant could not recall where he was on October 9, 2007. We believe that the prosecutor's argument was not a comment on appellant's failure to testify, but rather a fleeting reference to appellant's inability to recall his whereabouts on the day in question.
Notwithstanding the foregoing, even if we were to presume error, it was not prejudicial. "[Griffin ] error requires reversal unless we can conclude it was harmless beyond a reasonable doubt. [Citations.]... [W]e ask whether, absent the prosecutor's reference to [the defendant]'s failure to testify, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty? [Citation.]" (People v. Hardy (1992) 2 Cal.4th 86, 154.) " ' "[I]ndirect, brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error." ' [Citations.]" (People v. Boyette (2002) 29 Cal.4th 381, 455-456, fn. omitted.)
Appellant argues that the prosecution's evidence in this case was far from overwhelming. Respectfully, we disagree. Appellant was uncharacteristically late for work on the morning of the robbery. Two bank employees, both of whom had close contact with the robber, identified appellant as one of the robbers from a photographic line up. One teller even identified appellant in court as similar in both height and build and had similar eyes and eyebrows. Finally, appellant denied ever being in the bank, but DNA consistent with his DNA was found on the "fake" eyebrow that was discovered in the bank after the robbery.
Given this evidence, we conclude that any alleged Griffin error was harmless beyond a reasonable doubt.
Gang Evidence
On the fourth day of trial, defense counsel asked the court to prevent the prosecutor from cross-examining appellant's character witnesses regarding appellant's alleged gang ties if the witnesses were to testify to appellant's character for non-violence. The prosecutor responded that if the appellant's witnesses testified to his character for non-violence, then it was relevant that appellant associated with or had been housed with Nortenõ gang members and "that this gang is quite violent." Defense counsel objected on the ground that it was "mere speculation, it's highly prejudicial under 352."
The court reiterated defense counsel's position that just because someone goes through the booking process and gets housed with a certain group (Nortenõs or Surenõs) it does not necessary mean they are gang affiliated. Defense counsel argued that an arrestee can "either go with a group of people that they don't know, that are likely to harm them, or they can be put in with people that they know. And in this case my client elected to be with a group of people that he felt comfortable with, that didn't think would beat him up, and that's not an indication that he is a gang member."
Thereafter, the court noted that the bailiff, who was familiar with the booking process at the county jail, had explained that not all Hispanics are put into gang pods; that there were some that go into the general population. Defense counsel told the court that it was his experience with a lot of his clients that were not gang members but were put into a gang pod because they knew a gang member from the same neighborhood and that person would vouch for them. Thus, "the fact of being place[d] inside a [gang] pod and being accepted and not being beaten up does not make that person a gang member." The prosecutor pointed out that appellant had three "red Nor Cal star tattoos" that were consistent with the bailiff's description of gang tattoos.
The court ruled that the prosecutor had a good faith belief that appellant was a gang member and allowed the prosecutor to cross-examine appellant's character witness concerning this if they testified to appellant's character for non-violence. Defense counsel responded that based on the court's ruling he would "forego asking my character witnesses regarding their opinion of [appellant's] character for violence or non-violence." True to his word, defense counsel did not question any of the character witnesses on appellant's reputation for non-violence.
Appellant argues that it was error for the trial court to permit the prosecutor to question the character witnesses regarding appellant's "affiliation or association of some indeterminate nature with an Hispanic gang. Neither California (nor any other jurisdiction) permits a party to cross-examine the other party's character witness regarding the other party's diffuse affiliation with an organization that may be viewed as undesirable."
A defendant may introduce evidence of his or her character to show a nondisposition to commit an offense. (Evid. Code, § 1102, subd. (a); People v. Stoll (1989) 49 Cal.3d 1136, 1153; People v. Guerra (2006) 37 Cal.4th 1067, 1118.) Thus, evidence of appellant's reputation for non-violence was admissible under Evidence Code section 1102, and was relevant to show that he would not commit a violent robbery.
Nevertheless, as the Law Revision Commission Comment to Evidence Code section 1102 notes, "if the defendant first introduces evidence of his good character to show the likelihood of innocence, the prosecution may meet his evidence by introducing evidence of the defendant's bad character to show the likelihood of guilt." (West's Anno. Cal. Evid. Code, § 1102, p. 311.)
Thus, "[a] defendant who elicits character or reputation testimony opens the door to the prosecution's introduction of hearsay evidence that undermines testimony of his good reputation or of character inconsistent with the charged offense. 'When a defendant elects to initiate inquiry into his own character, presumably to establish that one with his lofty traits would be unlikely to commit the offense charged, an anomalous rule comes into effect. Opinion based upon hearsay is permitted. [Citations.] But the price a defendant must pay for attempting to prove his good name is to throw open a vast subject which the law has kept closed to shield him. [Citations.] The prosecution may pursue the inquiry with cross-examination as to the contents and extent of the hearsay upon which the opinion was based, and may disclose rumors, talk, and reports circulating in the community.' [Citation.]" (People v. Tuggles (2009) 179 Cal.App.4th 339, 357.)
As this court has said before, "When a witness offers an opinion of a defendant's good character, it is often based on personal knowledge as well as reputation. [Citation.] This opens the door for the prosecutor to offer rebuttal evidence of defendant's character. [Citation.] Character evidence includes opinions, reputation, and specific instances of the person's conduct. [Citation.] The prosecutor can test the witness's opinion by asking about his or her knowledge of the defendant's misconduct [citation], even if the witness professes ignorance. [Citation.]" (People v. Lopez (2005) 129 Cal.App.4th 1508, 1528.)
Nevertheless, "[l]egions of cases and other legal authorities have recognized the prejudicial effect of gang evidence upon jurors. [Citations.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 232, fn. 17.) Given the highly inflammatory nature of such evidence, there is a real danger that a jury will improperly infer that a defendant who is a gang member has a criminal disposition and is necessarily guilty of the charged crime. (People v. Williams (1997) 16 Cal.4th 153, 193.)
Given its inflammatory impact, "[g]ang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense." (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) "Thus, as general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative." (People v. Albarran, supra, 149 Cal.App.4th at p. 223, italics added.)
Nevertheless, in this case, no gang evidence was admitted because defense counsel made a tactical decision to forego asking his character witnesses about appellant's reputation for non-violence. Thus, we must determine how appellant was prejudiced.
In essence, appellant argues that the resulting prejudice is the absence of evidence of his character for non-violence from his defense. He asserts that the trial court's ruling "resulted in an improper curtailment of appellant's character evidence just as effectively as if the court had refused to permit defense counsel to question the defense witnesses on appellant's character for honesty. The court's ruling thus violated [his] right to present a complete defense, and must be reviewed under the Chapman standard."
Of course, under the Chapman standard, reversal is required unless we conclude beyond a reasonable doubt the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24.) We point out, however, that a defendant is not denied his right to present a defense "whenever 'critical evidence' favorable to him is excluded." (Montana v. Egelhoff (1996) 518 U.S. 37, 53.)
Even so, assuming for the sake of argument that the federal constitutional standard for reversal applies here, the evidence that appellant had a reputation for non-violence was not such that it would overcome the evidence of appellant's involvement in the robbery. Appellant mounted a full defense through the testimony of Jesus Martinez and Miguel Magdelano trying to show that someone else (Mejia) was responsible for the robbery, and through the testimony of his character witnesses that he was an honest person, thereby implying that he would not have been involved with a scheme to rob a bank. The jury rejected that testimony. Given the eyewitness testimony, the DNA evidence, and appellant's uncharacteristic tardiness in arriving for work on the morning of the robbery, we have no doubt that any alleged error was harmless beyond a reasonable doubt. Contrary to appellant's assertion, this was not a close case and the DNA evidence on the "fake" eyebrow was highly persuasive when viewed in conjunction with the eyewitness testimony that one of the robbers was wearing "fake" eyebrows.
Generally, trial error is not subject to the more stringent standard of prejudice (i.e., harmless beyond a reasonable doubt) for federal constitutional error under Chapman v. California, supra, 386 U.S. 18. Although the Chapman standard presumably would apply when a trial court completely excludes all evidence in support of a defendant's defense (see People v. Fudge (1994) 7 Cal.4th 1075, 1103-1104), the Chapman standard does not apply when the trial court admits other evidence that supports the defendant's defense. (Fudge, supra, 7 Cal.4th at p. 1103 [if the trial court erred, the trial court's ruling was an error of law merely; there was no refusal to allow defendant to present a defense, but only a rejection of some evidence concerning the defense].)
Finally, appellant asserts that the trial court's erroneous ruling that caused him to forego evidence cannot be deemed harmless beyond a reasonable doubt when viewed in conjunction with other errors in the trial. Appellant does not specify what those errors are.
The combined effects of multiple errors may indeed render a trial fundamentally unfair. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) However, since we have found any assumed error to be nonprejudicial on an individual basis, viewed as a whole, such errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.) An appellate court cannot reverse a conviction based on cumulative error if it "ha[s] not identified any error that was prejudicial, whether considered separately or cumulatively." (People v. Burney (2009) 47 Cal.4th 203, 256.)
Jury Question on Reasonable Doubt Standard
During deliberations, the court received a question from the jury that read as follows. "Please clarify for us the difference between 'reasonable doubt' and 'beyond the shadow of doubt, ' 'might, ' 'could, ' 'what-if's - etc. Thank you." After discussions with counsel, the court answered the question by informing the jury that "there is no burden that requires proof beyond a shadow of doubt." The court told the jury that the reasonable doubt definition given as part of the jury instructions was the best statement of the standard. Thereafter, the court re-read the reasonable doubt instruction to the jury. The jury did not ask any follow-up questions. They returned a verdict later the same day.
Appellant claims that the trial court's response to the jury's question about the reasonable doubt standard was inadequate and violated Penal Code section 1138 as well as his constitutionally protected right to a fair trial. Respectfully, we disagree.
The duty of a trial judge to answer the jury's questions during deliberations is set forth in Penal Code section 1138, which provides in relevant part: "After the jury have retired for deliberation... if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given...."
In People v. Beardslee (1991) 53 Cal.3d 68, 97, our Supreme Court discussed the trial court's duty arising under Penal Code section 1138 stating: "The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]"
In People v. Moore (1996) 44 Cal.App.4th 1323, the court addressed this point by explaining that the trial court is not required to elaborate "on the standard instructions in every instance. When the original instructions are full and complete, the trial court has discretion to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Jury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury's inclination. Although comments diverging from the standard should be embarked on with care, a trial court must do more than figuratively throw up its hands and tell the jury it cannot help. It must consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice. [Citation.]" (Moore, supra, 44 Cal.App.4th at p. 1331 citing People v. Beardslee, supra, 53 Cal.3d at p. 97.)
Here, the record shows the court considered the jury's question, and properly answered it, fulfilling its duty under Penal Code section 1138. The first part of the jury's question related to its confusion as to the applicable standard. That is, was the standard beyond a reasonable doubt or beyond a shadow of a doubt? The court considered the question, and helped the jury better understand the legal principle by explaining that the standard is beyond a reasonable doubt. The court's answer was entirely proper, and thoroughly clarified the standard applicable to the prosecution's burden of proof.
As to the second part of the question, appellant argues that the jury "explicitly sought guidance as to whether points of uncertainty-the 'what ifs'-were cognizable as grounds for finding reasonable doubt, or whether they were not cognizable because they were relevant only to 'a shadow of a doubt.' " Appellant contends that the trial court should have informed the jury that the points of uncertainty regarding his guilt were "clearly appropriate for consideration in determining whether they believe the proof beyond a reasonable doubt standard had been met."
Appellant's argument implies that CALCRIM No. 220, which is the reasonable doubt instruction read in this case, does not inform the jury that the points of uncertainty regarding guilt can be considered in determining whether they believe the proof beyond a reasonable doubt standard has been met. By points of uncertainty it appears that appellant means unresolved factual matters or absence of evidence from the prosecution's case.
Relevant to this issue, the court gave the standard CALCRIM No. 220 instruction on reasonable doubt as follows: "In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
Appellant points out that in his concurring opinion in People v. Brigham (1975) 25 Cal.3d 283, 298, Justice Mosk wrote that there are at least three possible legitimate sources of jury doubt in every trial including the absence of evidence from the prosecution's case. Similarly, appellant notes that in Johnson v. Louisiana (1972) 406 U.S. 356, 360, the United States Supreme Court observed that numerous cases have defined reasonable doubt as one based on reason that arises from the evidence or lack of evidence.
Certainly, reasonable doubt may arise from the lack of evidence at trial as well as from the evidence presented. (People v. Simpson (1954) 43 Cal.2d 553, 566.) However, the "plain language of CALCRIM No. 220 does not instruct otherwise. The only reasonable understanding of the language, '[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty, ' is that a lack of evidence could lead to reasonable doubt." (People v. Campos (2007) 156 Cal.App.4th 1228, 1238.)
Since CALCRIM 220 fully apprises the jury that lack of evidence can be considered in determining whether the reasonable doubt standard has been met, the court was not required to elaborate further. (See, e.g., People v. Guerrero (2007)155 Cal.App.4th 1264, 1268-1269 [if the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant]; People v. Flores (2007) 153 Cal.App.4th 1088, 1093 [nothing about CALCRIM 220 and 222 implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial]; People v. Garelick (2008) 161 Cal.App.4th 1107, 1119; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509 [rejecting the contention that CALCRIM No. 220 prohibited the jury from considering the lack of physical evidence implicating the defendant in the crime in determining his guilt].)
Accordingly, we conclude that the trial court did not err in responding to the jury's question. As a result appellant was not denied due process and a fair trial.
Contrary to appellant's suggestion, error in responding to jury questions is grounds for reversal only if a defendant can demonstrate prejudice. (People v. Beardslee, supra, 53 Cal.3d 68, 97.) Since the court responded to the jury with an accurate statement of the law, it is impossible for appellant to demonstrate prejudice.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.