P. v. Lane

Filed 8/8/08 P. v. Lane CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed.

A jury convicted Deidra Lane of selling cocaine base. (Health & Saf. Code,  11352, subd. (a).) On appeal, Lane challenges the language of California's pattern jury instructions that inform the jury about the presumption of innocence and the reasonable doubt standard. (CALCRIM Nos. 103 & 220.) We reject Lane's contentions, and affirm.

FACTUAL SUMMARY

In June 2006, Lane was arrested for selling rock cocaine to an undercover officer during a "buy-bust" operation. The undercover officer gave a premarked $20 bill to Kwizera Shaffic, who approached Lane, who then gave an item to Shaffic. Shaffic then returned to the undercover officer and gave the officer rock cocaine. After the undercover officer gave a prearranged signal, uniformed officers arrested Lane and Shaffic. Lane was in possession of the marked $20 bill.

In defense, Lane called a witness who said that Lane did not give Shaffic any drugs in exchange for the $20. Lane also presented evidence suggesting that she was not an illegal drug user at the time of the sale. During closing argument, Lane's counsel emphasized the weaknesses in the prosecution's case, including the fact that no other drugs or drug paraphernalia were found on Lane at the time of the arrest, and that the undercover officer did not directly see Lane give Shaffic the drugs.

The jury convicted Lane of selling cocaine base, but acquitted her of possessing cocaine base for sale. Lane admitted the truth of three no-probation allegations and two prior prison term allegations. (Pen. Code,  1203, subd. (e)(4), 667.5, subd. (b).) The court sentenced Lane to four years in state prison, but suspended the execution of the sentence to permit Lane to serve her commitment at the California Rehabilitation Center for narcotics treatment. (Welf. & Inst. Code,  3051.)

DISCUSSION

The court instructed the jury on reasonable doubt and presumption of innocence concepts by using CALCRIM No. 103^[1](read before the presentation of the evidence) and CALCRIM No. 2.90^[2](read after the presentation of evidence).

Lane contends the phrase "impartially compare and consider all the evidence" used in these instructions "undermined" the presumption-of-innocence principle because the phrase "supplanted" the presumption "with a civil standard of impartiality." Lane asserts that: "By using the phrase 'impartially compare,' . . . the court implie[d] a weighing of two opposed sets of evidencethe proverbial 'balancing of scales,' " and that a direction to weigh the evidence is improper because it could suggest the prosecution must prevail if the defendant did not produce any evidence.

Several California appellate courts, including this one, have rejected similar challenges to the pattern reasonable doubt and presumption of innocence instructions. (See, e.g., People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; People v. Rios (2007) 151 Cal.App.4th 1154, 1156-1157; see also People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093.) We agree with the reasoning and conclusions in these decisions.

Viewing the instructions as a whole, a reasonable juror would not believe that the "impartially compare and consider all the evidence" phrase lessens a prosecution's burden to prove its case beyond a reasonable doubt or alters the presumption of innocence concept. The instructions plainly and clearly state: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt." The instruction then tells the jurors that in deciding whether the People have met this burden, the jurors "must impartially compare and consider all the evidence received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty."

As this court recently explained, the compare-and-consider phrase "merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial." (People v. Westbrooks, supra, 151 Cal.App.4th at p. 1509.) There is nothing in the instruction that would suggest to a jury it must find in the prosecution's favor if the defendant does not produce any evidence, nor is there anything in the instruction that suggests the concepts of "compare" and "consider" mean that the jury is not bound to presume a defendant's innocence or that the jury should not apply the beyond-a-reasonable doubt standard. Moreover, in a separate instruction, the court specifically told the jury that "the defense may . . . present evidence but is not required to do so. Because [the defendant] is presumed innocent, the defendant does not have to prove that she is not guilty." (See CALCRIM No. 100.)

CALCRIM Nos. 103 and 220 correctly define the concepts of reasonable doubt and the presumption of innocence. Taken as a whole, the instructions correctly communicated these concepts to the jury.

In this regard, Lane's heavy reliance on Coffin v. United States (1895) 156 U.S. 432 is misplaced. In Coffin, the United States Supreme Court found the trial court had properly instructed on reasonable doubt but erred by refusing to specifically instruct on the presumption of innocence. (Id. at pp. 452-461.) In this case, the court twice instructed on the presumption of Lane's innocenceonce before the testimony began and once at the conclusion of the testimony.

DISPOSITION

The judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

McINTYRE, J.

IRION, J.

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^[1] This instruction stated: "I will now explain the presumption of innocence and the People's burden of proof. The defendant has pleaded not guilty to the charge. The fact that criminal charges have been filed against the defendant are not evidence that the charges are true. You must not be bias[ed] against the defendant just because she has been arrested, charged with a crime or brought to trial. [] A defendant in a criminal case is presumed to be innocent. This presumption requires the People prove each element of the crime 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. [] 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 is received throughout the entire trial. [] Unless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal, and you must find her not guilty. You must decide what the facts are in this case. You must use only the evidence that is presented in this courtroom. 'Evidence' is the sworn testimony of witnesses, the exhibits admitted into evidence and anything else I tell you to consider as evidence." (Italics added.)

^[2] This instruction stated: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. And you must not be bias[ed] against the defendant just because she's 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 each element of a crime beyond a reasonable doubt. [] Whatever I tell you the People--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 should 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 received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty." (Italics added.)