P. v. Herrarte

Filed 8/19/09 P. v. Herrarte CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur H. Jean, Jr., Judge. Affirmed.

Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

Audel Enrique Herrarte was convicted of one count of elder abuse (Penal Code,  368, subd. (b)(1)).[1] The jury found true the special allegation that appellant personally inflicted great bodily injury on the victim ( 12022.7, subd. (c)). The court sentenced appellant to the upper term of four years for elder abuse, choosing the upper term because appellant was on probation. The court added an additional consecutive sentence of five years for the enhancement.

Appellant raises a single issue on appeal. He contends the trial courts inadvertent omission of a sentence from CALCRIM No. 220, the Judicial Councils presumption of innocence and reasonable doubt instruction, rendered the the trial constitutionally deficient and the jurys verdict suspect. He contends this omission led to a structural error in his trial, requiring reversal per se. We disagree. The omitted sentence states: Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. The sentence follows the language informing the jury that the defendant is presumed innocent and the presumption of innocence requires the People to prove the defendant guilty beyond a reasonable doubt, and is intended to specifically inform the jury that the prosecution must prove every element of a charge or offense beyond a reasonable doubt. Unlike the language which precedes it, the omitted sentence is not mandatory under either state or federal law. Accordingly, the trial court did not commit error. Moreover, even were we to assume the omission of this sentence constituted error, it would be harmless under the evidence presented. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution Evidence at Trial

Prior to his arrest and conviction, appellant lived in Long Beach with his father Carlos Enrique Herrarte, his mother, his sister Claudette, and two brothers, Gersom and Reggie.[2] On April 17, 2008, Carlos was awakened from a nap by Claudette and Gersom, who told him appellant was outside burning some religious literature. Carlos, who was 71 years old at the time and used a cane, went outside and told appellant to stop. Carlos hit appellant on the shoulder with the cane and then bent over to pick up the books and magazines, which belonged to him.[3] Appellant struck Carlos multiple times on his face and other parts of his body. Carlos fell to the ground. Appellant kicked Carlos and struck him on the back with the cane, causing the cane to break in two.

Carlos denied striking back once appellant began hitting him. Instead, he tried to grab or bear hug appellant to stop appellant from swinging.

Aracely Posadas, a neighbor, looked out her window and saw Carlos on the ground, being beaten by appellant. She became hysterical and shouted to her husband to call the police. She then ran downstairs and told Gersom to do something.

Appellants brother Gersom went outside because Posadas said appellant was hurting Carlos badly. He took pepper spray. When Gersom arrived, Carlos was on the ground, trying to stand up. His knees, elbow and eyes were bleeding. Appellant had returned to his attempts to burn the literature. Carlos again tried to save the magazines and books, which caused appellant to move toward him in a threatening manner. Gersom pepper sprayed appellant. Appellant walked away, saying: Okay, I am not going to hurt him anymore. Gersom called the police.

Carlos was driven to a hospital emergency room. His left eye was swollen shut. His face was bloody. He had scratches or abrasions on his arms and knees. His left shoulder was bruised. An artificial lens inserted by surgery in his left eye was displaced. A CT scan taken at the hospital revealed subdural bleeding in his brain. Carlos was in the hospital for several days so doctors could observe the bleeding, which could have resulted in coma or death.

After the police arrested appellant, they asked why he hit his father. Appellant said because he likes it and because Carlos did not help provide for the family. Appellant also said that he had begun hitting his father when he was 13 years old.

B. Defense Evidence at Trial

Testifying on his own behalf, appellant stated that he decided to burn or discard his fathers religious materials because he felt that religion was damaging their family. While appellant was trying to light the literature on fire, Carlos came up behind him and began pulling on him, cursing and yelling. Appellant stood up to talk to his father. Carlos began to push and punch him. At first, appellant took the blows without retaliating, but when Carlos hit him in the face multiple times with his cane, appellant lost [his] cool and became angry. He grabbed Carlos by the shirt and began to strike him with his free hand. Appellant pulled [Carloss] shirt over his head so he couldnt see me and was just hitting him like that. Appellant didnt want [Carlos] to fall, so he kept him up for a time. Once Carlos fell to the ground, appellant stomped him. After that appellant just . . . hit him a couple more times and then stopped. At that point, Carlos got to his feet and hit appellant with the cane again. Appellant took the cane away and hit Carlos with it three times so Carlos could see what it [was] like. The cane broke. Appellant threw the pieces into the trash, initially stating that this was so Carlos would not have the cane to hit us with. He also stated that he understood striking someone with a weapon was a more serious offense than engaging in a fistfight, and he was trying to hide the evidence.

During the altercation, appellant said to his father: I thought you could fight me. I thought you could fuck me up. What happened? I told you you shouldnt go up against me because I am going to beat your ass. I am going to fuck you up. Appellant stopped when he heard Carlos screaming for his mom, which meant appellant was getting him good. Afterward, appellant was feeling good because he had beat [Carloss] ass. When Gersom came out of the house, appellant was going to hit him too before Gersom pepper-sprayed him.[4]

According to appellant, Carlos was not helpless during the altercation; he was fighting back and hitting [appellant] back. Appellant described the incident as like a fight that I was winning. Appellant admitted, however, that whenever Carlos tried to hit back, appellant was too fast and that he (appellant) was never hurt and suffered no injuries from anything Carlos did. Asked why he did not stop sooner, appellant said: Because he kept fighting. I was trying to show him that he couldnt fight with me. That he is much too old to be trying to fight with people like me, like younger that know how to beat people down. . . .  I was just trying to show him that he shouldnt be trying to fight with me . . . . In addition, appellant said he did not stop because [Carlos] kept grabbing me. And he kept . . . screaming dumb things, telling me dumb things. Appellant also said he stomped Carlos to keep him down because if Carlos got up, [h]e was going to start grabbing me and trying to take me to the ground and . . . start[] choking.

C. Pertinent Jury Instructions

With respect to the presumption of innocence and the prosecutions burden of proof, the court instructed the jury: 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. 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 of the 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.

The jury was also given the standard circumstantial evidence instruction, which included the admonition: You must decide whether a fact and issue has been proved based on all of the evidence presented. Before you may rely on circumstantial evidence to conclude that a fact necessary to find 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.[5]

The jury was given the instruction that describes the elements of the crime of elder abuse, but was not specifically told that each element must be proven beyond a reasonable doubt. However, the jury was told with respect to the special allegations that appellant personally inflicted great bodily injury and personally used a deadly weapon: The People have the burden of proving th[ese] allegation[s] beyond a reasonable doubt. The jury was also informed that [t]he People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense.[6]

D. Pertinent Argument

The prosecutor informed the jury that [t]he only issue in this case is whether or not when [appellant] beat his father, . . . that act . . . was in self-defense. She reiterated that [t]he defendant is entitled to only use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, he did not act in willful self-defense. . . .  [] And the right to use force and self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends. The prosecutor conceded that Carlos tapped or hit appellant with his cane, and argued: Even if you think that the initial strike with the cane on [appellant] justified some . . . physical response by [appellant], . . . [appellant] used more force than was reasonably necessary . . . to stop any danger. Describing the incident, the prosecutor asked the jury to consider: Do you think when Carlos Herrarte was there with his t-shirt pulled over his head, do you think [appellant] was a danger then? Do you think [Carlos] was a danger to [appellant]? Do you think any force after that was reasonably necessary in self-defense?

Defense counsel argued that appellant acted in self-defense and had a right to stop Carlos from making contact every time Carlos came at him and that in a fight, I have a right to stop you until [you are] no longer a threat.

DISCUSSION

The second paragraph of CALCRIM No. 220 states: 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 [unless I specifically tell you otherwise.][7] (Italics added.) Unless there is some point on which the prosecution bears a lesser burden of proof, a court should not give the bracketed portion of the third sentence. In preparing the instructions, the court mistakenly struck through the entire sentence (the italicized language), and failed to read that portion of the instruction to the jury. Appellant contends this constitutes structural error, reversible per se. For the reasons discussed below, appellant is mistaken.[8]

A. The Language Omitted Is Not Mandatory Under California Law

CALCRIM No. 220 is a critical instruction because it informs the jury concerning the presumption of innocence and the prosecutions burden of proof. (See People v. Mayo (2006) 140 Cal.App.4th 535, 556, (Johnson, J., conc.) [In criminal trials, among the most critical and most difficult concepts the trial judge must convey to the jury are, first, the defendant enters the courtroom an innocent person and, second, the defendant can only be convicted if the prosecution produces evidence of guilt so overwhelming, it exceeds an extremely high threshold -- erasing all reasonable doubt.].) The first two sentences of the second paragraph inform the the jurors that a defendant is presumed to be innocent and that the prosecution must prove the defendants guilt beyond a reasonable doubt. The purpose of the third sentence, the language inadvertently omitted by the court, is to inform the jury that the prosecutor is obliged to prove each element of the charged crimes beyond a reasonable doubt. (People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601.) As explained in People v. Ramos (2008) 163 Cal.App.4th 1082, prior to a revision, the third sentence of the second paragraph of CALCRIM No. 220 stated: This presumption requires that the People prove each element of a crime [and special allegation] beyond a reasonable doubt. (163 Cal.App.4th at p. 1088, fn. 3.) The new language, together with the instructions enumerat[ing] each of the elements of the charged crime[s] and the special allegation[s], and stat[ing] that the People were obligated to prove each of those elements in order for [the] defendant to be found guilty[,] similarly informs the jury that the prosecution [i]s required to prove each element of the charged crime beyond a reasonable doubt. (Id. at pp. 1088-1089, fn. omitted.)

Although the language informing the jurors that the prosecution must prove each element of the charges beyond a reasonable doubt is useful and informative, no case has held that it is mandatory. To the contrary, our Supreme Court has said: It would be correct to instruct that the People must prove every element of the offense beyond a reasonable doubt, but a defendant is not entitled to that instruction. (People v. Ochoa (2001) 26 Cal.4th 398, 444, fn. 13, disapproved on another point in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; accord, People v. Osband (1996) 13 Cal.4th 622, 678; People v. Reed (1952) 38 Cal.2d 423, 430; see also People v. Orchard (1971) 17 Cal.App.3d 568, 576-577 [where trial court instructed on the presumption of innocence and reasonable doubt, compared the standards of proof in civil and criminal cases, and defined all essential terms of the crime charged, an instruction respecting proof of each element beyond a reasonable doubt need not have been given].)

Additionally, we note that CALJIC No. 2.90, the instruction on which CALCRIM No. 220 is based, which was regularly given prior to the Judicial Councils adoption of the CALCRIM instructions, contains no specific language describing the prosecutions burden of proof with respect to the elements of the charged offenses. The parallel paragraph of CALJIC No. 2.90 simply states: A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt. (See People v. Thomas (2007) 150 Cal.App.4th 461, 465-466 [Judicial Councils adoption of CALCRIM instructions did not render any of the CALJIC instructions invalid or outdated.].)

Finally, we should not overlook that the Legislature has weighed in on this point. Section 1096 statutorily defines both the prosecutions burden of proof and the term reasonable doubt. It provides: A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. The companion provision, section 1096a, states: In charging a jury, the court may read to the jury Section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given. The language of section 1096, deemed by the Legislature to be a sufficient instruction on the prosecutions burden of proof and reasonable doubt, does not expressly inform the jury that the prosecution has the burden of proving every element of every charge or offense beyond a reasonable doubt.

In view of the binding precedent from our Supreme Court and the Legislatures clear directive, we conclude that the trial courts omission of the language at issue was not error under California law.[9]

B. The Instruction, As Given, Did Not Violate Federal Constitutional Principles

Appellant does not cite or discuss the binding California Supreme Court precedent, CALJIC No. 2.90 or section 1096.[10] Instead, he argues that the omission of the third sentence of the second paragraph of CALCRIM No. 220 constitutes federal constitutional error. Here, too, he is mistaken.

There is no question that [t]he reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence -- that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. [Citation.] (In re Winship (1970) 397 U.S. 358, 363.) The United States Supreme Court has said that due process requires the government to prove beyond a reasonable doubt every element of a charged offense (Victor v. Nebraska (1994) 511 U.S. 1, 5; Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278; Carella v. California (1989) 491 U.S. 263, 265) and that a jury instruction violates due process if it fails to give effect to that requirement (Middleton v. McNeil (2004) 541 U.S. 433, 437). However, the court has also made clear that so long as the court instructs the jury on the necessity that the defendants guilt be proved beyond a reasonable doubt, [citation], the Constitution does not require that any particular form of words be used in advising the jury of the governments burden of proof. (Victor v. Nebraska, supra, 511 U.S. at p. 5; see People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093 [The United States Constitution does not require jury instructions to contain any specific language, but they must convey both that the accused is presumed innocent until proved guilty and that the accused may be convicted only upon proof beyond a reasonable doubt.].) Accordingly, in Victor v. Nebraska, the Supreme Court upheld CALJIC No. 2.90 -- which, as we discussed, does not expressly advise the jury that the prosecutions burden extends to every element of each offense -- against a due process challenge, stating [t]here is no reasonable likelihood that the jurors who determined petitioner[s] guilt applied the instruction[] in a way that violated the [United States] Constitution. (Victor v. Nebraska, supra, 511 U.S. at pp. 22-23.)

Ignoring the clear implication of the United States Supreme Courts holding in Victorv. Nebraska, appellant focuses on two recent California appellate decisions -- People v. Ramos, supra, 163 Cal.App.4th 1082, and People v. Wyatt, supra, 165 Cal.App.4th 1592 -- contending that the very sentence that save[d] CALCRIM No. 220 from the federal constitutional challenges raised in those cases, was the sentence omitted by the trial court here. In Ramos and Wyatt, the defendants argued that CALCRIM No. 220 as written and generally given fails to specifically inform the jury that the prosecution has the burden of proving each element of the offenses charged beyond a reasonable doubt. The courts simply pointed out that despite the deliberate omission of the word element, the sentence at issue fully instructed the jury on the point. Neither court held that omission of this language would constitute federal constitutional error. To the contrary, the court in Ramos stated: [The] defendant cites numerous out-of-state authorities indicating that many other jurisdictions use the each element or every element language in their jury instructions on reasonable doubt. While we do not doubt that the use of such language is appropriate [citation], [the] defendant has not cited any California or United State Supreme Court authority holding that it is constitutionally required. (People v. Ramos, supra, 163 Cal.App.4th at p. 1090.) The court further noted that the comparable CALJIC instruction (CALJIIC No. 2.90), which for decades was the standard reasonable doubt instruction in our state, does not specify that each and every element must be proven beyond a reasonable doubt. (163 Cal.App.4th at p. 1090, fn. 7.) As appellant cites no authority supporting the proposition that the jury must, as a matter of federal constitutional law, be specifically instructed concerning the burden of proof on the elements of the charges, and we are aware of none, we conclude the omission did not violate federal law.

C. Omission of the Language at Issue Did Not Prejudice Appellant

Finally, even assuming the omission of the language at issue rendered the instruction constitutionally inadequate under applicable federal principles, appellant is mistaken in his contention that it would require reversal per se. Appellant contends that [c]ourts have applied a per se rule of reversal to a defective reasonable doubt instruction. (Italics deleted.) This is a misstatement of the applicable rule. In Sullivan v. Louisiana, the Supreme Court held that giving the jury a defectively narrow definition of reasonable doubt was reversible per se because it constituted a structural defect[] in the constitution of the trial mechanism, which def[ied] analysis by harmless-error standards and vitiate[d] all the jurys findings.[11] (Sullivan v. Louisiana, supra, 508 U.S. at p. 281, quoting Arizona v. Fulminante (1991) 499 U.S. 279). Since Sullivan, the Supreme Court has repeatedly explained that lesser instructional error, even where the error involves the instructions relating to reasonable doubt or the prosecutions burden of proof, is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18. (See, e.g., Hedgpeth v. Pulido (2008) __ U.S. __ [129 S.Ct. 530, 532] [[W]hile there are some errors to which [harmless-error analysis] does not apply, they are the exception and not the rule; harmless-error analysis applies to instructional errors so long as the error at issue does not categorically vitiat[e] all the jurys findings]; Kentucky v. Whorton (1979) 441 U.S. 786, 789 [[T]he failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. . . .  [S]uch a failure must be evaluated in light of the totality of the circumstances -- including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors -- to determine whether the defendant received a constitutionally fair trial]; Neder v. U.S. (1999) 527 U.S. 1, 9-10 [harmless-error analysis applied where court omitted instruction on element of charged offense]; Rose v. Clark (1986) 478 U.S. 570, 579, overruled in part or on another ground in Brecht v. Abrahamson (1993) 507 U.S. 619 [harmless-error analysis applied where instruction appeared to shift burden of proof on malice to defendant].)

Here, appellant contends that the omission of the language at issue created a risk that the jurors would misunderstand the prosecutions burden with respect to the elements of the offense of elder abuse. In view of the Supreme Courts holdings that harmless-error analysis is appropriate where the instructions completely omitted an element of the charged offense (Neder v. U.S.) or erroneously shifted the burden of proof on an important element of a charge (Rose v. Clark), there is no basis for appellants conclusion that the type of error he alleges here would be subject to per se reversal.

Chapman harmless-error analysis mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless. [Citation.] The question is whether, on the whole record . . . the error . . . [is] harmless beyond a reasonable doubt. (Rose v. Clark, supra, 478 U.S. at p. 584, quoting U.S. v. Hastings (1983) 461 U.S. 499, 509, fn. 7.) Here, there was no dispute that appellant severely beat a 71-year-old man who walked with a cane, causing him to suffer a detached lens and subdural bleeding, and to be hospitalized for several days. The sole issue was whether appellant acted in self-defense. A factual issue was raised concerning whether Carlos struck appellant with his cane once or several times before the beating began. But the jury was told by the prosecutor herself to assume that appellant had been struck at least once and to focus on whether the response was disproportionate or excessive. In this regard, the jury was correctly informed that [t]he People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense.

Appellant conceded in his testimony that he was never hurt by anything Carlos did and that his reaction was the result of los[ing] [his] cool and becom[ing] angry. Although an offensive touching, [that] inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to resist with such force as is reasonable under the circumstances (People v. Myers (1998) 61 Cal.App.4th 328, 335), there is no right to retaliate against an assailant out of anger (People v. Smith (1981) 122 Cal.App.3d 581, 588). Appellants initial act was to grab Carlos by his shirt and repeatedly strike him in the face, deliberately preventing the older man from falling as appellant continued to hit him. Once Carlos was on the ground, appellant stomped him and hit him with the cane. Appellant did not seriously attempt to justify his actions by reference to fear of further assault, but said that he performed these acts in order to show [Carlos] that he couldnt fight with [appellant][;] [t]hat he is much too old to be trying to fight with people like [appellant], like younger that know how to beat people down. With respect to hitting Carlos with the cane, appellant stated that he did it so Carlos could see what it [was] like.

At one point during his testimony, appellant tried to justify his actions by claiming that Carlos was not helpless, and that he was fighting back and hitting [appellant] back. However, appellant also boasted that whenever Carlos tried to hit back, appellant was too fast and that he did not stop until he heard Carlos screaming for his mom, signifying that appellant had beat[en] his ass. Appellants own testimony thus ultimately undercut any claim of self-defense. The undisputed evidence established that appellants actions were more retaliatory than defensive, that the beating administered was an overreaction to a mild attack, and that appellant could have protected himself from further touching with a far less severe response. On this record, no addition to the jury instructions could have produced a different result.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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[1] Statutory references are to the Penal Code. Appellant had originally been charged with assault with a deadly weapon ( 245, subd. (a)(1)) and two counts of resisting an executive officer ( 69). The court dismissed the resisting counts. The jury found appellant not guilty of assault with a deadly weapon.

[2] In order to avoid confusion, the Herrartes will be referred to by their first names.

[3] Carlos denied ever hitting appellant with the cane before.

[4] Appellant admitted he had been arrested on Christmas day 2007 for assaulting an older sister.

[5] Prior to trial, during jury selection, the judge informed the prospective jurors that appellant had entered a plea of not guilty to the charges and special allegations and [i]t is now incumbent upon the prosecution to prove his guilt beyond a reasonable doubt, if [it] can do so. The court further advised the prospective jurors that [a] defendant in a criminal case is presumed to be innocent until the contrary is proved. And in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. [] This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.

[6] The court defined lawful self-defense as arising where: [1.] The defendant . . . reasonably believed that he was in imminent danger of suffering bodily injury or imminent danger of being touched unlawfully; 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and 3. The defendant used no more force than reasonably necessary to defend against that danger. The court further explained that [a] defendant is not required to retreat. He is entitled to stand his ground and defend himself[,] and, if reasonably necessary, to pursue an assailant until the danger of bodily injury is past and that [t]he right to use force in self-defense continues only so long as the danger exists and reasonably appears to exist. When the attacker either withdraws or no longer appears capable of inflicting any injury, th[e]n the right to use that force ends.

[7] The first paragraph informs the jurors that the fact a criminal charge has been filed is not evidence the charge is true and that they must not be biased against the defendant just because [he has] been arrested, charged with a crime, or brought to trial. The third paragraph defines [p]roof beyond a reasonable doubt as proof that leaves you with an abiding conviction that the charge is true and explains that the evidence presented need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. It directs the jury to impartially compare and consider all the evidence that was received throughout the entire trial. The court accurately read these portions of the instruction, and appellant does not contend that the court erred in defining or explaining reasonable doubt.

[8] Respondent contends appellants failure to raise any issue concerning CALCRIM No. 220 at trial has resulted in forfeiture. As explained in People v. Andersen (1994) 26 Cal.App.4th 1241: [F]ailure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.] Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim -- at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was. Accordingly, it seems far better to state straightforwardly . . . that an appellate court may ascertain whether the defendants substantial rights will be affected by the asserted instructional error and, if so, may consider the merits and reverse the conviction if error indeed occurred, even though the defendant failed to object in the trial court. (Id. at p. 1249; see also 1259 [The appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.].)

[9] We note, however, that Rule 2.1050 of the California Rules of Court states that the CALCRIM instructions are the official instructions for use in the state of California and strongly encourage[s] use of the Judicial Council instructions. The rule further provides: If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors.

[10] Respondent, too, fails to mention these authorities.

[11] The instruction at issue was described as essentially identical to the instruction found unconstitutional in Cage v. Louisiana (1990) 498 U.S. 39, disapproved in part or other grounds in Estelle v. McGuire (1991) 502 U.S. 62. (Sullivan v. Louisiana, supra, 508 U.S. at p. 277.) In Cage, the court gave a definition of reasonable doubt that equated the doubt necessary for acquittal with grave uncertainty and actual substantial doubt. The Supreme Court concluded the definitional terms as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable-doubt standard. (Cage v. Louisiana, supra, 498 U.S. at p. 41.)