P. v. Williams
Filed 7/19/13 P. v. Williams CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
LEROY A. WILLIAMS,
Defendant and Appellant.
B242759
(Los Angeles
County
Super. Ct.
No. MA 051525)
APPEAL from
a judgment of the Superior Court
of
County, John Murphy, Judge.
Affirmed.
David L.
Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William
Bilderback II and Stephanie C. Santoro, Deputy Attorneys General, for
Plaintiff and Respondent.
* * * * * *
Appellant Leroy A. Williams challenges his conviction for three counts of
first degree robbery and one count of
attempted first degree robbery,
arguing the trial court’s elaboration on the prosecution’s burden of proof
during jury selection lessened that burden in violation of his constitutional
right to due process. We disagree and
affirm.
PROCEDURAL AND FACTUAL
BACKGROUND
A second amended
information charged appellant with three counts of first degree residential
robbery (Pen. Code, § 211)
name="_ftnref1" title="">[1] and
one count of attempted first degree robbery (§§ 211, 664) and alleged appellant
had used and discharged a firearm during the commission of the offenses (§
12022.53, subds. (b) & (c)).
Appellant pleaded not guilty and denied the allegations. After trial, a jury convicted appellant on
all counts and found the firearm use allegation true, but found the firearm
discharge allegation untrue. Appellant
was sentenced to a total state prison term of 26 years 4 months, and was
assessed restitution, and various fines, fees, and custody and conduct credits
not at issue in this appeal. He timely
appealed.
As demonstrated at
trial, in January 2011, Janet Rideaux, her adult son Richard Gardner, and a
friend, Marcus Anderson, lived in a two-story apartment in a four-unit
apartment complex in Lancaster. Rideaux was the manager at the time. Around noon
on January 8, all three residents were home, along with a family friend, Fred
Bussey, when appellant and a taller man, both with backpacks, knocked on the
door. Bussey was with Gardner
in Gardner’s upstairs bedroom;
Rideaux was upstairs in her bedroom; and Anderson
was downstairs on a computer. Rideaux
came down and answered the door, and the taller man asked for a rental
application. She let the men in, went
upstairs and knocked on Gardner’s
bedroom door to see if he had any applications; she was also on the
telephone. By the time Gardner
opened his bedroom door, the two men had come upstairs with Anderson;
they had guns and demanded money.
Appellant put his gun to either Anderson’s or Rideaux’s head.
One of the men
ordered the occupants on the floor in Gardner’s
bedroom and the taller one took Rideaux’s phone and told her to lie on the
bed. He repeatedly asked for “the moneyâ€
and threatened to shoot one of them, at which point Gardner told them there was
money in another bedroom. Rideaux
testified the taller man hit Gardner
in the back of the head with his gun, while Bussey and Gardner testified
appellant hit Anderson in the head
with his gun. Rideaux did not see if
appellant had a gun. After taking Gardner’s
cell phone and house phone, appellant took Rideaux into her bedroom, where he
took a small backpack containing $950 in cash and Rideaux’s driver’s license
and bank card.
Rideaux returned to
the bedroom with the rest of the occupants, although the testimony was
conflicting on whether appellant also returned.
Two shots were fired: one in Gardner’s
bedroom, which hit the floor near Bussey’s head, and one in the upstairs
hallway.
the taller one dropped Bussey’s wallet and keys, which he had taken
earlier. Bussey saw the men drive away
with a third person in a Toyota Corolla.
Rideaux called the police, but both Bussey and Anderson left before the
police arrived.
title="">[3] Rideaux and Gardner provided descriptions of
the men. Rideaux did not identify
appellant from a six-pack photographic lineup, but Gardner and Bussey did.
In the defense case,
appellant testified he did not participate in the robbery because he was
staying with his godmother in Los Angeles
from January 2 to February 1, at which point he returned to his mother’s home
in Lancaster. His godmother testified that, with the
exception of some hours on January 14 or 15, appellant stayed in the house with
her during that time and she specifically recalled him being at her home on
January 8. Appellant testified he did
not know Rideaux or Gardner, although he knew of Gardner because someone had
once obtained drugs from Gardner on appellant’s behalf.
During jury
selection, the court stated as follows regarding the prosecution’s burden of
proof: “Now, I have explained to you
that it is only the deputy D.A., Mr. Williams, that has the obligation to
bring forth any evidence at all. And he
has a standard that he has to meet.
[¶] The example that I use is
that I was reading a newspaper or magazine not long ago that was discussing the
‑‑ the ‑‑ five of the ten most reliable
automobiles. And, in reading the
article, I began to wonder, well, wonder what standard they are using
here. How do you determine what the most
reliable automobiles would be. [¶] And, as I read on, it became clear, the standard
that they used were [sic] the ‑‑
the cars that had the least visits to the repair shop. In other words, the cars that were repaired
less than any others. And then they
listed the ten over a period of the last five years. So that’s the standard they used to determine
the reliability of cars. [¶] The standard Mr. Williams, the D.A., has
to meet in this case is the standard of proof known as proof beyond a
reasonable doubt. So he has to prove to
you, if he can, that Mr. Williams is guilty of one or more of these
crimes. And the standard he has to meet
is a standard known as proof beyond a reasonable doubt. [¶]
And I’m going to read it to you right now. This is the definition of that standard that
he must reach.â€
With only slight
variation, the court read portions of standard instructions defining reasonable
doubt. Based on CALCRIM Nos. 103 and
220, the court instructed: “Proof beyond
a reasonable doubt is proof that leaves you with an abiding conviction ‑‑
abiding means continuing ‑‑ an abiding conviction that the charge
or charges are true. The evidence need
not eliminate all possible doubt because everything relating to human affairs,
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, impartially compare and consider all the evidence that is
to be received throughout this entire trial.
And unless the evidence proves the defendant guilty by a standard of
proof known as proof beyond a reasonable doubt, he is entitled to an acquittal,
and you must find him not guilty.†Based
on CALJIC No. 2.90, the court instructed:
“Reasonable doubt is not a mere possible doubt because everything in
life is open to some possible or imaginary doubt. Reasonable doubt is that state of the case
which after the entire comparison and consideration of all the evidence leaves
the mind of the jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charges.â€
The court further
elaborated: “What I want you to notice
about those definitions I have given you is that there is no mention of a
standard known as absolute certainty.
There is nothing about that standard that requires 100 percent
proof. There is nothing in that
definition that speaks of beyond a shadow of a doubt or anything else you may
have heard on television or read somewhere.
That is the standard of proof, beyond a reasonable doubt. It does not require absolute certainty. [¶]
And I do spend a given amount of time discussing what accused persons
rights are, but it is crucial that you understand that it is both sides in a
criminal case that are entitled to a fair trial. [¶]
And, in that regard, the deputy district attorney, Mr. Williams, wants
to be sure that you are not going to hold him to any higher standard than the
standard of proof that I have defined for you, proof beyond a reasonable
doubt.â€
Finally, the court
read how “another court has defined†the standard: “Proof beyond a reasonable doubt is proof
that leaves you firmly convinced that the defendant is guilty. It is not required that the government prove
guilt beyond all possible doubt.†The
court wanted the jurors “to think about that standard of proof beyond a
reasonable doubt. And if you are new to
the jury system ‑‑ and most of you are ‑‑ it’s a ‑‑
it’s a definition and standard that you have to let sink in for a while. So that is the situation.â€
After the close of
evidence and before deliberations, the court read CALCRIM No. 220, which
repeated the definition of the burden of proof beyond a reasonable doubt.
In closing
arguments, the prosecutor argued to the jury as follows:
“Now, I’m going to talk about the law. And I’m going to start with this phrase that
we have heard a bunch in this case, beyond a reasonable doubt. That’s the standard that I have to meet to
prove that a charge has been proved. I
can tell you what it is based on the jury instruction. It’s an abiding conviction that the charge is
true. But it doesn’t have to eliminate
all possible doubt. That’s what it is.
“I have done a lot of trials. And I have talked to a lot of jurors after
trials. And most of them tell me that is
not very helpful. I don’t really
necessarily understand exactly what that means.
“The courts ‑‑ the Supreme Court have told
prosecutors we have to be very careful when we try and explain what beyond a
reasonable doubt is and that we really should not stray away from what is
written in the instructions. So I’m not
going to.
“But I will tell you what it isn’t. It is not proof beyond any doubt or proof
beyond all doubt or proof beyond a shadow of a doubt. Everything in life is open to some doubt,
some possibility that maybe something else happened. That’s true of everything. I don’t have to prove it couldn’t possibly be
any other way. What I have to prove is
this is the only reasonable explanation, the only reasonable explanation that
fits all of the facts, all of the facts that you have heard in this trial.
“And when I say it fits all of the facts, that’s a key
part of this whole thing. And I’ll tell
you the way I usually explain it to people.
“When I was little – I have a little brother. And we used to play this game called what is
it, kind of like twenty questions, where I think of something and I start
giving him clues, and we see how quickly he can figure out what it is.
“So I want you guys to play what is it for a
second. I’m thinking of something. And I tell you it’s an animal. It’s gray.
It has big ears, a long nose, tusks.
It weighs a ton. It loves
peanuts, and you can see it in the circus.
“At some point on this list, every one of you knows
what I’m thinking of. All right. I’m thinking of an elephant.
“And some of you maybe got it after three or four
clues. And some of you maybe got it
after six or seven clues. But everybody
got it.
“There is only one answer that fits all those clues. That’s the way beyond a reasonable doubt
works. There has to be only one
reasonable answer that fits all this evidence.
“But all the evidence, because if I’m a defense
attorney playing what is it, I’m going to want to pick these apart and say,
well, look. An animal that’s gray, I
mean that could be a mouse. Right? Or an animal that has a long nose, well, that
could be an anteater. Or, you know, an
animal you see in the circus, that could be a lion. Right?
“If you only had one of these pieces of information,
or two, who knows? But if you have all
of them, there is only one answer that fits, and that’s an elephant.
“And it’s the same way with criminal cases. If all I had was there was a robbery that
happened and somebody said, yeah, it was a male Black, 5-foot, eight, 160
pounds, we wouldn’t be here. Right? One thing alone doesn’t do it. But all of those things together, the descriptions
that were given of all these people, the fact he was picked out of six-packs by
different people, all of these people came into court and without any
hesitation said, oh, no, that’s him, that’s definitely him, all of those things
together show proof beyond a reasonable doubt.
There is only one explanation, and that’s that it was him.â€
DISCUSSION
Appellant argues the
trial court’s elaboration on the prosecution’s burden of proof during jury
selection lessened that burden in violation of his due process rights.
jurors to improperly “rank†the parties’ versions of events in derogation of
the reasonable doubt standard; (2) the court overemphasized that the
prosecution need not prove appellant’s guilt with “absolute certaintyâ€; (3) the
court’s alternative definition using the phrase “firmly convinced†equated the
standard of proof to “clear and
convincing†evidence; (4) taken cumulatively, the errors lowered the burden
of proof to “clear and convincing†evidence; and (5) the prosecutor’s comments
during closing argument contributed to the errors.
Although the court
would have been better served avoiding the commentary appellant now challenges
(see Johnson, supra, 119 Cal.App.4th
at pp. 985-986), we reject appellant’s arguments that the court erred. Because we find no error, there was no
cumulative error. The prosecution’s
comments during closing arguments also had no impact on the jury’s
understanding of the proper standard in this case.
“Under the due
process clauses of the Fifth and Fourteenth Amendments, the prosecution must
prove a defendant’s guilt of a criminal offense beyond a reasonable doubt, and
a trial court must so inform the jury.â€
(People v. Aranda (2012) 55
Cal.4th 342, 356 (Aranda), citing
(Victor) & In re Winship (1970) 397 U.S. 358, 364.) In assessing challenges to jury instructions
on the burden of proof, we must determine “whether there is a reasonable
likelihood that the jury understood the instructions to allow [a] conviction
based on proof insufficient to meet†the beyond a reasonable doubt
standard. (Victor, supra, at p. 6.)
At the outset, we
note that the challenged comments by the court occurred during jury selection,
and its “‘comments “were not intended to be, and were not, a substitute for
full instructions at the end of the trial.â€â€™â€
(People v. Avila (2009) 46
Cal.4th 680, 716 (Avila).) The court properly instructed the jury on the
burden of proof beyond a reasonable doubt at the close of evidence, which came
13 days after the court’s comments during voir dire. That mitigated any potential problems created
by the court’s comments during jury selection.
(People v. Claxton (1982) 129
Cal.App.3d 638, 669 (Claxton)
[finding trial court’s elaboration on burden of proof during voir dire was not
erroneous because court properly instructed jury after nine days of trial],
disapproved on other grounds by People v.
Fuentes (1998) 61 Cal.App.4th 956, 969, fn. 12.)
Taking the
automobile example first, there was no reasonable likelihood jurors would have
interpreted the court’s comments as defining the reasonable doubt standard, let
alone that they must “rank†the parties’ versions of events and choose which of
the two is more believable. The court
was obviously attempting to explain to the jury the concept of a “standardâ€;
the example in no way purported to define the standard of proof to be applied
in this case. In fact, in the very next
sentence, the court explained the prosecutor’s standard of proof was beyond a
reasonable doubt. People v. Garcia (1975) 54 Cal.App.3d 61 (Garcia), cited by appellant, is therefore distinguishable. First, Garcia
involved a jury instruction given to the jury at the close of evidence, not
during jury selection. (
proper instructions, that defined reasonable doubt as “‘doubt that presents
itself in the minds of reasonable people who are weighing the evidence in the
scales, one side against the other, in a logical manner in an effort to
determine wherein lies the truth,’†which the court viewed as imposing no more
than a preponderance of the evidence standard.
(Ibid.) Here, prospective jurors would not have
understood the court’s example as calling for a standard less than proof beyond
a reasonable doubt.
We also think there
was no reasonable likelihood jurors interpreted the court’s explanation of the
“absolute certainty†concept to lessen the prosecution’s burden of proof. The court’s comments were substantively correct. (See, e.g., People v. Cash (2002) 28 Cal.4th 703, 740-741 [approving of
instruction that standard does not require a “‘degree of proof which, excluding
all possibility of error, produces
absolute certainty’â€]; People v. Andrews (1965)
234 Cal.App.2d 69, 76-77 [“Even the rigid requirement of the reasonable doubt
rule stops short of absolute certainty . . . .â€].) Paraphrasing or elaborating on the standard
jury instruction on reasonable doubt can be dangerous. (See, e.g., Johnson, supra, 119 Cal.App.4th at p. 985;
63-65 [“Well intentioned efforts to ‘clarify’ and ‘explain’ [accepted
instructions] have had the result of creating confusion and uncertainty, and
have repeatedly been struck down by the courts of review of this state.â€].) However, the court’s comments came during
jury selection as the court was attempting to determine if prospective jurors
were qualified to serve. A juror is not
qualified if he or she will not follow the law, and it is a common daily
practice for the court and trial counsel to ask jurors whether they will follow
the reasonable doubt instruction.
This case is readily
distinguishable from the cases finding error in a trial court’s discussion of
the reasonable doubt standard during jury selection. In Johnson,
for example, the trial court questioned prospective jurors at length on their
understanding of the reasonable doubt standard and, in the process, equated
proof beyond a reasonable doubt to everyday decisionmaking and even went so far
as to tell prospective jurors they were “brain dead†if they believed they
could be convinced of the defendant’s guilt beyond all doubt. (Johnson,
supra, 119 Cal.App.4th at p. 980.)
The prosecutor also emphasized these comments in closing arguments. (Id.
at p. 983.) The court held the
trial court’s “tinkering†with the statutory definition of reasonable doubt,
“no matter how well intentioned,†lowered the prosecution’s burden of
proof. (Id. at p. 985.)
Similarly, in People v. Johnson
(2004) 115 Cal.App.4th 1169, 1171-1172, the court found error in the trial
court’s comments during jury selection equating the decision to convict with a
decision to take a vacation or get on an airplane.
The trial court’s
comments in this case are much more similar to the comments found permissible
in Claxton, in which the trial judge
explained the reasonable doubt standard during jury selection as “‘you are in
there in deliberations and you have a doubt.
Well, you take it out here ‑‑ it is a mental trick, but you
can do it ‑‑ and see if it is based on reason. You are discussing the evidence and thinking
about the evidence. If it is based on
reason it is a reasonable doubt; if it is just some weird doubt it is not a
reasonable doubt, in fact it is an unreasonable doubt and you should reject
it. That’s all it amounts to. It is a heavier burden than in civil law but
it is not an impossible burden. The
[People] don’t have to prove their case beyond all possible doubt. It is just beyond a reasonable doubt, a doubt
based on reason.’†(Claxton, supra, 129 Cal.App.3d at p. 668.) The court also emphasized the comments were
unlike those in Garcia because they
came during voir dire, not at the close of evidence just before the jury began
deliberating. (Id. at p. 669.)
Here, as in
brief, made in passing during jury selection alongside a reading of the
complete definitions in the standard instructions, and did not equate the
decision to convict to everyday decisionmaking or otherwise misstate the
standard. And the court instructed on
the standard definition before deliberations.
Jurors would not have reasonably interpreted the court’s brief
additional comments on absolute certainty during jury selection as reducing the
burden of proof or requiring them to “err in favor of the prosecutor,†as
appellant contends.
title="">[8]
Further, there was
no reasonable likelihood jurors would have interpreted the court’s additional
definition incorporating the “firmly convinced†standard as lowering the burden
of proof to “clear and convincing†evidence in the context of this case. Our high court and the United States Supreme
Court have approved the use of “abiding conviction†to define proof beyond a
reasonable doubt. (Victor, supra, 511 U.S. at pp. 14-15 [“An instruction cast in
terms on an abiding conviction as to guilt, without reference to moral
certainty, correctly states the government’s burden of proof.â€];
503-504 & fn. 9 (Freeman);
see also § 1096 [defining reasonable doubt using “abiding convictionâ€
phrase]; People v. Stone (2008) 160
Cal.App.4th 323, 334 [collecting cases since Freeman rejecting challenges to “abiding conviction†phrase].) We note courts in other jurisdictions have
approved the use of the phrase “firmly convinced†to define proof beyond a
reasonable doubt. (See, e.g.,
F.2d 1275, 1278 [rejecting argument that “firmly convinced†phrase equated
standard with “clear and convincing†standard]; State v. Jackson (2007) 283 Conn. 111, 120-123 [collecting cases];
cf. Victor, supra, at pp. 26-27
(conc. opn. of Ginsburg, J.) [approving “clear, straightforward, and accurateâ€
definition by Federal Judicial Center that includes two references to the
“firmly convinced†phrase].)
We need not decide
here whether the “firmly convinced†definition, on its own, would satisfy due
process. The trial court read that
definition along with the “abiding conviction†definition in the standard
instructions, and, in context, we see no reason why jurors would have
interpreted the phrase “firmly convinced†to mean anything less than the proper
“abiding conviction†standard. The first
definition was adequate without the second definition (which has not been
approved by our Supreme Court), and we cannot say prospective jurors reasonably
understood the phrase “firmly convinced†as lowering the prosecution’s burden
of proof.
Finally, the
prosecutor’s comments in closing did not contribute to any erroneous
understanding of the reasonable doubt standard in the minds of jurors. The court’s instructions on reasonable doubt
were correct and, at the close of evidence, jurors were instructed if they
believed the attorneys’ comments on the law conflicted with the court’s
instructions, they must follow the court’s instructions, which we presume they
did. (Avila, supra, 46 Cal.4th at p. 719.) The prosecutor repeated the proper definition
given by the court, although it was unnecessary for him to comment that the
reasonable doubt definition was “not very helpful.†He also probably should have avoided the
elephant analogy, given that courts have found similar analogies can reduce the
prosecutor’s burden of proof and constitute prosecutorial misconduct (a claim
not raised here). (See, e.g.,
1260, 1266-1268 [finding error in the prosecutor’s argument that proof beyond a
reasonable doubt was like having six of eight pieces of a picture of the Statue
of Liberty because the image was almost immediately recognizable and the six
pieces improperly quantified the reasonable doubt standard as 75 percent
certainty].) But while the prosecutor
told the jury they may have identified the object as an elephant before he gave
them all the clues, he argued, “There is only one answer that fits all those clues. That’s the way beyond a reasonable doubt
works. There has to be only one
reasonable answer that fits all this evidence.â€
In other words, he used the elephant analogy to argue the jury must
reach a conclusion based on all the facts, which did not lower the burden of
proof.
title="">[9]
Trial judges should
limit themselves to the standard instructions on reasonable doubt because
“varying from the standard is a ‘perilous exercise.’†(Freeman,
supra, 8 Cal.4th at p. 504; see also Garcia,
supra, 54 Cal.App.3d at pp. 64-66 [discussing unsuccessful
departures].) In this case, however, we
find no reasonable likelihood the jury would have interpreted the court’s
comments as lowering the burden of proof beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
name="_ftn1" title="">[1]
the Penal Code.
name="_ftn2" title="">[2] The testimony from Rideaux, Bussey,
and Gardner was inconsistent on the details surrounding the shots, such as who
fired them, the order in which they were fired, and where the bullets ended
up. Those details are not pertinent to
this appeal so we need not discuss them further.
