P. v. Nelson
Filed 12/12/08 P. v. Nelson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MITCHELL NELSON, Defendant and Appellant. | E042605 (Super.Ct.No. SWF15564) OPINION |
APPEAL from the Superior Court of Riverside County. Charles W. Hayden, Judge. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art VI, 6 of the Cal. Const.) Affirmed.
Neil Auwarter, 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, Collette Cavalier and Rhonda Cartwright-Ladendorf, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant of possession of a destructive device (Pen. Code, 12303.3)[1]and attempted arson ( 455). He was sentenced to prison for five years and appeals, contending that standard Judicial Council of California Criminal Jury Instructions, CALCRIM Nos. 223 and 302, are defective and require reversal of his conviction for attempted arson. We reject his contentions and affirm.
Facts
On a scale of 1 to 10, 10 being the strongest case against defendant, this was an 11. On February 26, 2006, defendant was seen by the victims neighbor. The victims neighbor was acquainted with defendant due to previous contacts with him. The victims neighbor saw defendant light and throw a Molotov Cocktail into the bed of the victims truck, which was parked in their driveway. The victims were alerted by the neighbor and they went outside their home. The victims saw defendant, and they too were familiar with him due to his presence on the street. Defendant had been a source of irritation to the neighbors and defendant was heard yelling Fuck you and laughing at them. Subsequently, the neighbor put out the fire. Defendant offered no evidence at trial.
Issue and Discussion
The jury was given CALCRIM No. 220, the standard instruction on reasonable doubt.[2] It was also given CALCRIM No. 223, which provides, in pertinent part, Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. . . . Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may conclude the truth of the fact in question. . . . [] Both direct and circumstantial evidence are acceptable types of evidence to . . . disprove the elements of a charge, including intent and mental state and acts necessary to 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 in issue has been proved based on all the evidence. (Original italics omitted, italics added.)
Defendant here contends that the above-italicized language suggested the defense must disprove a charge to warrant acquittal[,]thereby shift[ing] to the defendant the burden of disproving guilt[.] We disagree. Given the presence at this trial of the standard instruction on reasonable doubt, and the standard instructions on the sufficiency of circumstantial evidence, there is no reasonable likelihood that the jury interpreted CALCRIM No. 223 to mean that it could ignore the Peoples obligation to prove defendants guilt beyond a reasonable doubt. (See People v. Clair (1992) 2 Cal.4th 629, 663.)
The jury was also given CALCRIM No. 302, which provides, If you determine 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 accept 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 a 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. (Italics added.) Defendant here asserts that CALCRIM No. 302 contradicts the principles that the People have the burden of proof of the charges beyond a reasonable doubt and the defendant has no burden of proof and need only show that a reasonable doubt as to guilt exists. Specifically, he asserts that the italicized portion of the instruction, when considered with the portion of CALCRIM No. 223 to which he objects is incorrect because exculpatory evidence need not be believed in order to raise a reasonable doubt. In other words, defendant asserts, if there is a conflict in the evidence, exculpatory evidence that is sufficiently weighty to create a reasonable doubt necessitates acquittalregardless of whether jurors affirmatively believe that evidence. Defendants assertion makes no sense and certainly has no application whatsoever to this case. First, CALCRIM No. 302, even if considered with CALCRIM No. 223, does not inform the jury that it must believe exculpatory evidence in order to find reasonable doubt. Moreover, defendants objection to the instructions has no place in this trial, as there was no exculpatory evidence. Finally, if exculpatory evidence serves as the basis upon which a jury forms reasonable doubt, it, indeed, must be believed by the jury, or it is meaningless. On the other hand, if the jury has a reasonable doubt because of some defect it perceives in the proof presented by the People, which is the only basis upon which the jurors in this case could have acquitted defendant, even defendants tortured interpretation of these instructions was inapplicable.
We find it curious, given the posture of this trial, that defendant argues that these asserted instructional errors affect only his conviction of attempted arson and not of possession of a destructive device. He states that the reason is because attempted arson requires an intent to set fire to something. However, the defendant lit a sock which had been stuffed into a beer bottle containing gasoline and then threw it 10 feet into the bed of the victims truck. The facts demonstrate, without contradiction, that defendant had a motive to attempt to destroy the victims property. As stated before, there was no exculpatory evidence offered at trial, and there was no reason in the evidence presented to distinguish between defendants specific intent to set fire to the victims truck and his specific intent to intimidate or terrify another person or to wrongly damage or destroy someone elses property, which was required for his conviction of possessing a destructive device. The fact that quick action on the part of the victims neighbor in putting out the fire with her garden hose prevented the truck from being substantially damaged had nothing whatsoever to do with defendants intent when he threw the device.
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
HOLLENHORST
J.
GAUT
J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] That instruction provides, The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [] A defendant in a criminal case is presumed to be innocent. The 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. [] 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 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.
