APPEAL from a judgment of the Superior Court of Yolo County, Doris L. Shockley, Judge. Affirmed. (Super. Ct. No. 04-3525).
The opinion of the court was delivered by: Davis , J.*fn2
CERTIFIED FOR PUBLICATION
A jury convicted defendant Randy Dean Pierce of second degree murder (Pen. Code, § 187, subd. (a)) and the court sentenced him to prison for 15 years to life.
1. SEE CONCURRING OPINION
During closing arguments, counsel for the prosecution and for defendant spoke to the jury concerning the meaning of the phrase "an abiding conviction that the charge is true" as that phrase appears in CALCRIM No. 220, California's instruction regarding proof beyond a reasonable doubt. Defendant contends that, through a combination of the court's limitation on defendant's argument and the argument of the prosecutor, the jury was misled as to the requirement of "permanen[cy]" as it relates to "an abiding conviction." Because we find that there is no reasonable likelihood that the jury was misled or otherwise did not have an adequate understanding of the prosecution's burden of proof, we affirm the judgment.
Proof Beyond a Reasonable Doubt
Given the issues involved in this appeal, it is unnecessary to detail the facts. Suffice it to say that defendant was convicted of murder after he ran over his supposed friend with a truck. At trial, the following exchange took place during defendant's closing argument:
"[Defense counsel]: And beyond a reasonable doubt, what does that mean? That means that you have to have proof that leaves you with an abiding conviction that something is true. It is a permanent sort of a belief. It is not something if you were to find him guilty of first degree murder and wake up the next day and think to yourself, man, I hope that I was right, that's not an abiding conviction. You have to be so convinced that it is a permanent decision for you.
"[Prosecutor]: Objection. Misstates the law. "[The Court]: Please restate the law. "[Defense Counsel]: That is. It is an abiding --"[The Court]: I'm not going to argue with you. "[Defense Counsel]: Okay. It does not mean it is more likely than not he's guilty. It does not mean that he is probably guilty, it does not mean that you think he's guilty, it has to mean that you are convinced beyond a reasonable doubt that it is true."
During rebuttal, the prosecutor stated: "Defense counsel talked about the instruction for beyond a reasonable doubt, and I want to read that one to you. She said you have to be comfortable with it tomorrow, think about it tomorrow, and that's when I objected about misstating the law. Listen for anything about tomorrow, the future, next week, or even ten minutes after your verdict in this instruction, because you're not going to hear it."
The prosecutor then read from the reasonable doubt instruction the trial court gave here, CALCRIM No. 220, and made the following statement: "All it says is proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. It doesn't say tomorrow, next week, next hour, you know, when you're deliberating, when you've made your decision, that's when it counts. There's no legal requirement of and we'll come back in a week and make sure you're all good with this."
Defendant made no objection to the prosecutor's statements.
As noted, defendant claims the combination of the trial court effectively sustaining the objection to his closing argument and the prosecutor's statements gave the jury an inaccurate definition of the standard of proof in a criminal case. He argues that the jury was misled into thinking that the concept of "an abiding conviction" did not require a sense of "permanen[ce]" of a juror's belief in the truth of the charge.
A. The Trial Court's "Ruling"
Defendant points first to the trial court's response to the prosecutor's objection to defense counsel's argument that "abiding" means "permanent" ("Please restate the law") and contends the trial court impliedly sustained the objection and thereby erroneously foreclosed this defense argument. We do not think the trial court impliedly sustained the prosecutor's objection, but instead properly directed defense counsel to restate the law as set out in the jury instructions.
By failing to say "sustained" or "overruled" in response to the prosecutor's objection that defense counsel's argument misstated the law, the trial court can be seen to have wisely refused to wade into the issue of whether defense counsel's attempt to further define the word "abiding" was accurate or not. It is common, where one attorney objects to the other attorney's argument as misstating the law, for a trial court to simply direct the jury to the jury instructions, without actually ruling on the objection. That is effectively what the trial court did here by telling defense counsel to "restate the law." By doing this, the trial court implicitly directed defense counsel to the instructions and reminded the jurors of those instructions (by having defense counsel "restate the law" from those instructions; in fact, the prosecutor picked up on this and read to the jury the trial court's instruction on reasonable doubt). Thus, the trial court did not err when it simply directed defense counsel to "restate the law"--i.e., to return to the applicable jury instruction (on reasonable doubt), which, as we shall see, was a proper statement of the law. Nor did the trial court mislead the jury; as we shall also see, the meaning of the word "abiding" in that instruction is self-evident and needs no further elaboration.
B. The Prosecutor's Statements to the Jury
Turning to the prosecutor's challenged statements to the jury, the People initially argue that defendant has forfeited this contention on appeal by failing to object in the trial court to the statements of which he now complains.
It is the general rule that a defendant cannot complain on appeal of prosecutorial misconduct--in this case, misleading the jury on the law--unless the defendant objected at trial and requested an admonishment from the court to the jury to disregard the impropriety. (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).) As noted, defendant did not object to the prosecutor's argument.
Even if we assume for the sake of argument, however, that the issue of the prosecutor's statements has been preserved for appellate review, this issue ultimately comes down to whether there is a reasonable likelihood that the jury misunderstood the concept of "reasonable doubt" based on those statements. This is because when a claim of prosecutorial misconduct "focuses upon comments made by the prosecutor before the jury, the question [of the comments' prejudicial impact] is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (Samayoa, supra, 15 Cal.4th at p. 841; People v. Ayala (2000) 23 Cal.4th 225, 284.) We conclude there is no reasonable likelihood that the jury here so construed or applied any of the prosecutor's remarks relating to "an abiding conviction."
Defendant's challenge here involving "abiding" and "permanen[ce]" centers on the following statements the prosecutor made to the jury regarding the reasonable doubt instruction: "Listen for anything about tomorrow, the future, next week, or even ten minutes after your verdict in this instruction, because you're not going to hear it"; "It doesn't say tomorrow, next week, next ...