P. v. Dorsey
Filed 12/12/08 P. v. Dorsey CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. JERRY W. DORSEY, Defendant and Appellant. | E044792 (Super.Ct.No. RIF130539) OPINION |
APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
Following a jury trial, defendant was found guilty of battery upon a correctional officer (Pen. Code, 4501.5).[1] The jury also found true that defendant had sustained two prior strike convictions ( 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)) and two prior prison terms ( 667.5, subd. (b)). The People later agreed to dismiss one strike prior in exchange for defendants agreement to a six-year prison term. Defendant was sentenced in accordance with the agreement. On appeal, defendant contends Judicial Council of California Criminal Jury Instructions (CALCRIM) Nos. 223 and 302 violate the due process clause of the Fourteenth Amendment by shifting the burden of proof to the defendant and undermining the presumption of innocence. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
In December of 2005, defendant was an inmate at the California Rehabilitation Center (CRC) in Norco. On the morning of December 15, defendant became upset when he and others were asked by Correctional Officer Vincente Gonzales to step aside, as they were holding up the beverage line and blocking others from being seated. In response to the officers request for defendants identification card, defendant threw it on the table rather than hand it to the officer. Defendant again became upset, using profanities, when he was directed to step outside so the officer could talk to him.
After mealtime was complete and the chow hall had been cleared, Gonzales informed Correctional Officer Roberto Valdes of defendants behavior. Gonzales and Valdes, accompanied by Correctional Officer Victor Luna, went to the large open dormitory room and approached defendant as he lay in his bunk. Valdes repeatedly directed defendant to stand up and accompany them to the sergeants office. Defendant eventually stood up but refused to cooperate when asked to place his hands behind him. As defendant put on his jacket, he stepped forward and punched Valdes in the chest. When defendant moved as if he might hit him again, Valdes responded by grabbing defendant and pinning him to the locker. A struggle ensued, and Gonzales and Luna joined Valdes in the struggle. Defendant refused directives from all three officers to stop and be handcuffed.
Eventually, the three officers were able to subdue defendant and get him handcuffed. Defendant refused to get up off the floor or move once the officers got him off the floor. Defendant was taken to the medical clinic for evaluation pursuant to procedure, but he continued to resist. At one point, he stuck his leg out, causing Valdes to stumble. Valdes suffered scrapes to his right hand, as well as teeth marks gouged in his skin.
II
DISCUSSION
Defendant contends the new jury instructions, specifically CALCRIM Nos. 223 (direct and circumstantial evidence) and 302 (evaluating conflicting evidence), violate his federal constitutional right to due process by shifting the burden of proof to defendant and undermining the presumption of innocence. We review defendants constitutional challenges pursuant to Penal Code sections 1259 and 1469.[2] Defendants arguments have been soundly rejected by our colleagues in both the Third and Fifth Districts in People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson) and People v. Ibarra (2007) 156 Cal.App.4th 1174 (Ibarra). We adopt the reasoning in those opinions and affirm.
A. CALCRIM No. 223
CALCRIM No. 223 defines direct and circumstantial evidence, which a party could present, and explains the difference between the two. The portion of CALCRIM No. 223 that defendant challenges was read by the trial court as follows: Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge including intent, mental state, and acts necessary to [support 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 has been proved based on all the evidence. Before upon may rely on circumstantial evidence to conclude that a fact necessary to prove the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. (Italics added.)
Defendant advances essentially the same arguments rejected in Anderson, supra, 152 Cal.App.4th at pages 929 and 930 and Ibarra, supra, 156 Cal.App.4th at page 1186. We adopt the reasoning of those two decisions and hold that the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
B. CALCRIM No. 302
CALCRIM No. 302 provides guidance regarding the evaluation of conflicting evidence. As given by the trial court here, CALCRIM No. 302 read: If you determine that 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 except [sic] 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 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. Defendant contends that this language inferentially suggests that a jury must believe the exculpatory evidence before affording any weight to that evidence.
Again, the contention is the latest in a series of semantic challenges to CALCRIM No. 302 that have been rejected by Courts of Appeal. Defendants arguments have been rejected in Anderson and Ibarra. (Anderson, supra, 152 Cal.App.4th at pp. 938-940; Ibarra, supra, 156 Cal.App.4th at pp. 1190-1191; see also People v. Reyes (2007) 151 Cal.App.4th 1491, 1497.) We adopt the reasoning of Anderson and Ibarra and hold that the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting P.J.
KING
J.
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[1] All future statutory references are to the Penal Code unless otherwise stated.
[2] Accordingly, we reject the Peoples argument that defendant forfeited or waived his instructional challenges by choosing to have the trial court instruct the jury with the challenged CALCRIM jury instructions.
