APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Super.Ct.No. VCR6558
The opinion of the court was delivered by: Ramirez P.J.
*See Concurring and Dissenting Opinion CERTIFIED FOR PUBLICATION
A jury found true a petition filed by the People to extend the commitment of defendant, Steven Moore, who had previously been adjudged not guilty by reason of insanity (Pen. Code, § 1026.5, subd. (b)(1)). Defendant contends that the trial court's comments about the reasonable doubt standard and its failure to instruct the jury that he had a right not to testify and a negative inference should not be drawn from his failure to testify require reversal of the jury's finding. We disagree and affirm. The facts adduced at the hearing on the petition are not relevant to this appeal.
1. Trial Court's Comments About Reasonable Doubt
At the beginning of voir dire, 18 prospective jurors were seated in the jury box. The remaining prospective jurors were seated in the audience, however, the trial court said to them, "[T]his is not the time to take a little nap because you might find yourself [in the jury box] later and we'll be asking you the same things we're asking [those in the jury box]. So . . . keep track of what we're asking."
Soon thereafter, the trial court said, "I'm going to start off by talking about general legal principles . . . . I talked about the burden of proof.[*fn1 ] I think of the word 'burden' is like a duty and in a case, in a trial[,] one of the sides always has the main duty to prove what's at issue in the case. And [in] this proceeding, the People . . . are the ones that have the duty, the burden of proving their case. [¶] And there are different standards we use in the law for how much do they have to prove. Do they have to prove it by a little to win or do they have to prove it by a lot to win[?]" The court explained that in a civil case, the burden was with the plaintiff and was by a preponderance of the evidence, which it defined as "[t]hey have to prove their case just by a little bit more than the other side . . . 50.1 percent . . . ." The court added, "This [case] is very different. The burden of proof here is beyond a reasonable doubt. That's a much higher standard. . . . [¶] . . . [It] means that the People have to prove their case beyond all of your reasonable doubts that you may have. At the end of [the] case if . . . you're . . . thinking, ' . . . I think [defendant] might be dangerous or the petition might be true, I do have some reasonable doubts, I'm sort of leaning toward the People, but I have some reasonable doubts,' you have to vote not true. Because that means the People didn't prove their case beyond a reasonable doubt. [¶] . . . [¶] . . . [T]he law tells us what the burden of proof is. It is beyond a reasonable doubt. It's what you have to follow in this case." The prospective jurors agreed they would do that. The court continued, "[P]roof beyond a reasonable doubt doesn't mean beyond all doubt. It would be almost impossible to prove something beyond what we call a shadow of a doubt, but beyond all doubt. . . . [T]he People are not required to eliminate every possible doubt in the world. They just have to prove it beyond all reasonable doubts. [¶] . . . [¶] I have a couple of examples that I think might help. [¶] If . . . all of you . . . [could] reach a verdict on what type of flag this is behind my desk, I think all of you could probably reach a verdict beyond a reasonable doubt, but you certainly couldn't reach a decision beyond all doubt." The trial court explained that this was so because the potential jurors were looking at an unfurled flag, that appeared, from the portion they were viewing, to be an American flag, but it was possible that a picture of the court's face was in the portion of the flag the potential jurors could not see, and, therefore, it was not an American flag. The court added, "I think you can look at where it's placed [i.e.,] it's in the courtroom, it looks like an American flag. I think you could say beyond a reasonable doubt [that it's an American flag], but you couldn't say it beyond all doubt. You could not because you couldn't see the whole thing." The trial court then talked about a puzzle of the face of President Obama that was missing a piece of his forehead, a piece of his chin and an ear. The court said, "You would probably still say beyond a reasonable doubt who it is. But you couldn't say beyond all doubt. . . . [¶] The People don't have to put every piece of the puzzle in place, but they have to put enough so you can say their petition is true beyond all reasonable doubt." The trial court's last example concerned its planning of an event for mid-August at noon, the clear implication being in San Bernardino, where the weather had to be at least 50 degrees. The court said, "I think I can say beyond a reasonable doubt . . . that the temperature is going to be above 50 degrees. . . . [¶] . . . I don't think I could say beyond all doubt. . . . [W]ho knows, . . . there could be some weird storm system or you never know what happens to the climate. You can never say beyond all doubt what the weather is going to be. [¶] [H]opefully, th[e]se examples illustrate the difference between proof beyond a reasonable doubt, which the People do have to prove[,] and proof beyond all doubt, which they don't."
Two court (and five calendar) days later, still during voir dire, one of the prospective jurors*fn2 said, "[A] strong conviction I have is the way I think the judge described reasonable doubt versus just doubt, some sort of doubt. And I think the way that [the trial court] outlined it about . . . the flag." Defense counsel, who was questioning this prospective juror at the time, replied, " . . . I'm going to deal with that in closing argument. I don't agree with any of that. I don't think this is the place for me to deal with that." The prospective juror replied, "There's doubt and reasonable doubt."
Trial began 13 days later. During opening statements, defense counsel told the jury, "What it is your job to do . . . i[s] to decide whether the prosecutor proves beyond a reasonable doubt that [defendant] suffers from a mental disorder defect or disorder and because of the disease[,] defect[, or] disorder he is unable to or has serious difficulty controlling his dangerous behavior and poses a substantial danger of physical harm to others . . . . [¶] . . . [¶] . . . [T]he law here is clear, as the jury instructions state. The question is whether or not the prosecution has proven beyond a reasonable doubt that [defendant] suffers from a mental disease, defect or disorder and whether because of th[at] . . . [,] he poses a substantial danger of physical harm to others and has a serious difficulty controlling his dangerous behavior."
Three days later, after the close of evidence, defense counsel began his argument to the jury by stating that defendant had no burden in this case and did not have to prove anything--that if the prosecutor did not prove his case beyond a reasonable doubt, the jury had to find for defendant. He added, "[T]his is . . . a case of whether [the prosecutor] proves the petition beyond a reasonable doubt. That's the law. We all agreed upon that." Then counsel said, "I was seething when the judge gave his descriptions of reasonable doubt [during voir dire]. He had three different descriptions. . . . I wanted to jump up and scream reasonable doubt is something that is defined in law, it's something for you [(the jury)] to decide. I'm going to remind you of what [the court] said . . . because it outlines where we're going to go. [¶] . . . [Concerning the puzzle of the President with the missing pieces, a]re you convinced beyond a reasonable doubt that it's really a picture of President Obama? [¶] . . . I saw a lot of heads nod . . . . What if you went to the National Republican senatorial website, pulled up extra things, and another site, you go to get other bits and pieces, do you really think it's going to be a normal thing or mock him? . . . You're not guaranteed those pieces that are missing are going to be part of it. We would think they would, but would we be convinced beyond a reasonable doubt? Maybe, maybe not."
Concerning being able to say without a reasonable doubt that it will be over 50 degrees in August, defense counsel said, "You're convinced beyond a reasonable doubt that August 21st it's going to be really hot in the afternoon? [¶] . . . [A]re you convinced beyond a reasonable doubt it's going to be hot? What if it's raining? What if we have some of our wonderful global issues? . . . [¶] . . . The judge . . . told you some things. There's a reason why I'm bringing this back to you. This is important how you interpret it."
Counsel then told the jury that he came into the courtroom the night before and cut from the unfurled flag behind the bench one of its 50 stars and put it on the table where he sat during trial, which he then pretended to reach for. He said, "Of course, I wouldn't . . . cut the flag. . . . But I know some of [you are] expecting when I reached over I was going to pull that [star] out. The point is [that the flag has] never been unfurled. You haven't seen the rest of it. [¶] When I said that to you, did that create a doubt? . . . [M]aybe there is a star missing, maybe not. The point is reasonable doubt is harder to define than that. [¶] . . . [¶] What does it mean? . . . [Y]ou've got the instruction. . . . I'm going to read it again. I ask you to follow along. It's so important that you got to know what it says. [¶] . . . 'The People are required to prove the petition beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the petition is true.' [¶] That's pretty strong language. An abiding conviction lasts a long time. You're convinced of this. [¶] 'The evidence does not need to eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] . . . Unless the evidence proves the petition beyond a reasonable doubt, you must find that the petition has not been proved.'"
Defense counsel then went on to give the jury what he called three examples of reasonable doubt. The first was the reasonable doubts he entertained about the future success of his impending marriage, yet he married anyway, despite not being convinced beyond a reasonable doubt that it would be successful before he entered into it. The next was his decision to become a parent, about which he had reasonable doubts as to his future success before making the decision, but he ultimately made the correct one to have a family despite his reasonable doubts. The third was a hypothetical, i.e., if he was faced with the decision to turn off the life support for a loved one who was in a persistent vegetative state. He said that the decision to end the life would be made despite a reasonable doubt that the person is beyond hope--the doubt being due to the possibility that some day, in the future, the person would come out of his or her vegetative state. He added, "If we had [in] our society . . . the concept of reasonable doubt no one would get off the freeway, society would come to a halt. But in a criminal case we have that standard." He described the standards of proof that he said were less than proof beyond a reasonable doubt, specifically, reasonable suspicion, probable cause, proof by a preponderance and clear and convincing proof. He added, "so [proof beyond a reasonable doubt] is a very high standard." He reiterated that the prosecutor had to prove all the criteria to sustain the petition by this standard. He made six more references to this standard during the rest of his argument.
During closing argument, the prosecutor said, ". . . I thought it was interesting that . . . [defense counsel] had great disagreements with the way that the judge decided to describe the law to you and then went to the jury instructions to show how what the judge had told you wasn't really right. [¶] But what did the judge tell you after he . . . was done with his preliminary statements? What did I tell you when I was making my preliminary statements? That you have to go with the law that the judge instructs you on. . . . [¶] We may . . . make comments about what the law is. And, you know, we're not perfect in that regard. Sometimes we miss some words. Sometimes we miss some things. Sometimes we don't put everything on the chart that should be there. [¶] But, hopefully, essentially if we're doing what we're supposed to we point out the differences. . . . [¶] . . . [¶] [N]o matter what I say, no matter what [defense counsel] has to say, you need to look at the evidence. You need to look at the law, apply the law. What the witnesses have to say, that's your evidence. . . . [¶] . . . [¶] Our burden of proof in this case is beyond a reasonable doubt. And it is the People's burden. That is, the evidence that we're talking about has to be proven beyond a reasonable doubt."
Defendant here contends that the trial court's remarks during voir dire trivialized the reasonable doubt standard, diluted the concept of reasonable doubt and lowered the People's burden of proof, constituting structural error. We begin by quoting the following, with which we wholeheartedly agree:
"Over a quarter of a century ago, a thoughtful Court of Appeal opinion collected cases from a number of jurisdictions on the fate of 'innovative' and '[w]ell intentioned efforts' by trial courts 'to "clarify" and "explain'" reasonable doubt that instead created 'confusion and uncertainty' and led to reversals on appeal. [Citation.] A few excerpts from those cases are instructive: '[Citation]: " . . . [T]he term 'reasonable doubt' best defines itself. All attempts at definition are likely to prove confusing and dangerous." [Citation.]: "Every attempt to explain [the definition of reasonable doubt] renders an explanation of the explanation necessary." [Citation.]: "It is in a term which needs no definition, and it is erroneous to give instruction resulting in an elaboration of it." [Citation.]: "[G]enerally, the attempted definitions of [reasonable doubt] . . . are simply misleading and confusing, and not proper explanations of their meaning at all." [Citation.]: "As it is difficult, if not impossible, to give a precise and intelligible definition of what a reasonable doubt is, without extending an instruction into almost a treatise upon the subject, . . . the better practice is to follow as nearly as practicable the language of the [statute], which is certainly as intelligible and as easily comprehended as the definition given in this case.'" [Citation.] [¶] To any trial judge who feels the urge to clarify or explain reasonable doubt, we commend the concise history of the reasonable doubt standard that appears in the latest CALJIC compendium. (California Jury Instruction, Criminal, Appendix B (Jan. 2004 ed.).) Originating in English cases of centuries ago, that history came to fruition only in the past decade with 'the universal approval' by federal and state courts alike of CALJIC No. 2.90, 'conclusively settl[ing]' its 'legal sufficiency and propriety.' [Citation.] We trust that any trial judge who reads that history will heed the two English bards: . . . 'Let it be.' (Lennon & McCartney (Northern Songs 1970) 'Let It Be.')" (People v. Johnson (2004) 119 Cal. App.4th 976, 986.)
Our task is to determine de novo whether there is a reasonable likelihood the jury applied the trial court's remarks in an unconstitutional manner. (Victor v. Nebraska (1994) 511 U.S. 1, 5 [114 S.Ct. 1239]; People v. Posey (2004) 32 Cal.4th 193, 218.) We conclude that there is no such reasonable likelihood.
Defendant draws our attention to a number of cases in which, he asserts, the trial courts made remarks similar to those made here, which were deemed to be constitutional error.
The first is People v. Johnson (2004) 115 Cal.App.4th 1169 (Johnson I), in which the trial court said during voir dire, "'The burden is proof beyond a reasonable doubt. A doubt that has reason to it, not a ridiculous doubt, not a mere possible doubt. Because we all have a possible doubt whether we will be here tomorrow. That's certainly a possibility. We could be [killed] tonight. . . . [I]t's a possibility. It's not reasonable for us to think that we will [be killed tonight] because we plan our lives around the prospect of being alive. We take vacations; we get on airplanes. We do all these things because we have a belief beyond a reasonable doubt that we will be here tomorrow or we will be here in [the future] . . . . But we wouldn't plan our lives ahead if we had a reasonable doubt that we would, in fact, be alive.'"
The Johnson I court cited an earlier decision, People v. Nguyen (1995) 40 Cal.App.4th 28, 35 (Nguyen), in which the prosecutor had argued to the jury that beyond a reasonable doubt is '"a very reachable standard that you use every day in your lives when you make . . . decisions . . . about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes.'" The Nguyen court concluded, "'The . . . argument that people apply a reasonable doubt standard "every day" and that it is the same standard people customarily use in deciding whether to change lanes trivializes the reasonable doubt standard. It is clear the almost reflexive decision to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce. [Citations.]' [Citation.]" (Johnson I, supra, 115 Cal.App.4th at pp. 1171-1172.) The Johnson I court then cited People v. Brannon (1873) 47 Cal. 96, stating that the judgment of a person in the ordinary affairs of life is governed by the preponderance standard. (Johnson, supra, at p. 1172.) The Johnson I court concluded, "The same applies to making decisions to take vacations and get on airplanes. . . . [¶] We are not prepared to say that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors or that such people finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor. Nor can we say that people make such decisions while aware of the concept of 'beyond a reasonable doubt.' Accordingly, per Brannon, the trial court's attempt to explain reasonable doubt had the effect of lowering the prosecutor's burden of proof. [¶] . . . [The] instruction . . . reduced the prosecution's burden to a preponderance of the evidence." (Ibid.)
The difference between the comments made in Johnson I and those here rests with the Johnson I court's emphasis on the fact that planning vacations or scheduling flights, like changing lanes in Nguyen, are not characterized by the deep deliberative process required of jurors in criminal cases. Rather, they are often made impulsively, almost reflexively and certainly in the absence of abiding conviction or after a determination that the decision is a correct one beyond reasonable doubt. Here, in contrast, the trial court was merely trying to make the point that there is a difference between reasonable doubt and any possible doubt, just as the standard instruction given here on reasonable doubt, with which defendant finds no fault, provided. It stated, "The evidence does not need to eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." Because the trial court here did not invite the jurors to view their duty to decide if the petition had been proven beyond a reasonable doubt using the same impulsive, reflexive, and nondeep deliberative processes as the examples used in Nguyen and Johnson I, neither of those opinions mandate a conclusion that error occurred here.
The next case defendant cites, People v. Johnson (2004) 119 Cal.App.4th 976 (Johnson II), is equally unhelpful to his position. In Johnson II, "The [trial] court authorized the prospective jurors to find [defendant] guilty even if they were to have 'some doubt' about his guilt and characterized a juror who renders a guilty verdict with 'no doubt' about his guilt as 'brain dead.' . . . [¶] . . . [¶] The [trial] court equated proof beyond a reasonable doubt to everyday decision making in a juror's life . . . ." (Id. at pp. 980-981.) In fact, the trial court said, "'Everything you do, you can look at what's reasonable and possible, and . . . every decision you make . . . [is] based on . . . reason . . . . [¶] . . . [T]hat's not a definition of reasonable doubt, but that's what we want you to bring to court with you, the same thing you use every day in making your . . . decision[s]. . . . [F]igure out what happened beyond a reasonable doubt, not beyond all possible doubt. . . . [Y]ou are never going to know what . . . happened beyond all possible doubt . . . .'" (Id. at p. 982.) The trial court reiterated that "jurors are . . . simply to make the 'kind of decisions you make every day in your life.' [¶] . . . The thing that you're doing is [making the] kind of decisions you make every day in your life, figuring out what happened, whether the defendant is guilty or not guilty. [¶] 'That's the kind of thing . . . that you decide every day in your life.' [¶] . . . [T]he [trial] court [again] instructed that jurors who find an accused person guilty or not guilty engage in the same decision making process they 'use every day. When you get out of bed, you make those same decisions.'" (Id. at pp. 982-983.) Likewise, the prosecutor, during his argument to the jury, "characterized a juror who could return a guilty verdict without 'some doubt' about [defendant's] guilt as 'brain dead' and equated proof beyond a reasonable doubt to everyday decision making in a juror's life[.]" (Id. at p. 983.) The appellate court concluded that the trial court's remarks lowered the prosecution's burden of proof. (Id. at p. 985.) As stated before, the trial court here did not equate proof beyond a reasonable doubt with everyday decisions people make. Additionally, this trial court did not say that a juror could find in favor of the petition even though having some doubts about its veracity.
In People v. Katzenberger (2009) 178 Cal.App.4th 1260 (Katzenberger), the prosecutor made a PowerPoint presentation during closing argument to illustrate the reasonable doubt standard. "The . . . presentation consisted of eight puzzle pieces forming a picture of the Statue of Liberty. The first six pieces came on to the screen sequentially, leaving two additional pieces missing. The prosecutor argued it was possible to know what was depicted 'beyond a reasonable doubt' even without the missing pieces. The prosecutor then added the two missing pieces to show the picture was in fact the Statue of Liberty." (Id. at p. 1262.) Defense counsel, after unsuccessfully objecting to the presentation, said during his argument to the jury that the presentation was "'a travesty and . . . not reasonable doubt at all.'" (Id. at p. 1265.) The trial court then reread the reasonable doubt instruction "to 'clarify things.'" (Ibid.) The appellate court concluded that the presentation "misrepresented the 'beyond a reasonable doubt' standard." (Id. at p. 1266.) The Katzenberger court cited a New York case in which the jury was shown a jigsaw puzzle of Abraham Lincoln to illustrate the principle that the jury did not need all their questions answered in order to convict. (Ibid.) The New York appellate court held that this was error because the average juror could recognize Lincoln "'long before all of the pieces are in place[, which is o]bviously . . . not the quantum of proof required in a criminal case.'" (Ibid.) The Katzenberger court held, "The Statue of Liberty is almost immediately recognizable in the prosecution's . . . presentation. Indeed, some jurors might guess that the picture is of the Statue of Liberty when the first or second piece is displayed. . . . [M]ost jurors would recognize the image well before the initial six pieces are in place. The presentation, with the prosecutor's accompanying argument, leaves the distinct impression that the reasonable doubt standard may be met by a few pieces of evidence. It invites the jury to guess or jump to a conclusion, a process completely at odds with the jury's serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt. [¶] . . . [¶] [Additionally, t]he prosecutor's puzzle analogy . . . contains a quantitative component similar to those in [two federal cases that resulted in reversals]. Specifically, the puzzle of the Statue of Liberty is composed of eight pieces. When the sixth piece of the slide show was in place, leaving two missing pieces, the prosecutor told the jury, 'this picture is beyond a reasonable doubt [the Statue of Liberty],' inappropriately suggesting a specific quantitative measure of reasonable doubt, i.e., 75%." (Id. at pp. 1266-1267, italics added.)
In contrast to the facts in Katzenberger, the trial court's analogy here did not convey the distinct impression that the reasonable doubt standard could be met by a few pieces of evidence. The trial court did not tell the prospective jurors how many pieces composed the puzzle of President Obama. Unlike the puzzle in Katzenberger, the jurors were not called upon to speculate or guess what it depicted as each piece was put in place. Rather, the trial court described an almost completed puzzle, with just a few pieces missing. The implication of the puzzle story, as clearly stated by the trial court, was that the People were not obliged to put on every piece of evidence they had--just enough evidence to convince the jury beyond a reasonable doubt of the truth of the petition. This implication was consistent with the instructions the jury was given that neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that ...