Filed 7/2/14 P. v. Villa CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B250180
                                                                          (Super. Ct. No. 2013000955)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

HECTOR VALENTIN VILLA,

     Defendant and Appellant.




                   Hector Valentin Villa appeals from the judgment following his conviction
by jury of second degree robbery (Pen. Code,1 § 211) and two counts of battery on the
mother of his child (§ 243, subd. (e)(1)). The trial court sentenced appellant to three
years in state prison, and issued a protective order prohibiting his having contact with the
victim of the robbery. Appellant contends the court erred in limiting his counsel's
"formulation of reasonable doubt" in closing argument thereby lowering the prosecution's
burden of proof. He also contends, and respondent concedes, the court erred in issuing
the protective order. We strike the protective order but otherwise affirm the judgment.




         1 All statutory references are to the Penal Code unless otherwise stated.
                    FACTUAL AND PROCEDURAL BACKGROUND
                                 January 9, 2013, Robbery
              On January 9, 2013, Fidel Santiago was selling flowers on Ventura Avenue.
Appellant rode a bike toward Santiago, threw it down and grabbed a bunch of flowers
from his hand. When Santiago resisted, appellant knocked him down and struck him in
the mouth, forehead and cheek. Appellant took a white cell phone from Santiago's pants
pocket. When Santiago said he would call the police, appellant replied, "If you do, it will
be worse for you," which frightened Santiago. Nonetheless, Santiago called for help,
then grabbed the wheel of appellant's bike. Appellant was able to ride away. Santiago's
mouth and nose were bleeding. A witness called the police.
              Several hours later police officers detained appellant. Officer Jorge
Rodriguez asked him if he had a white cell phone. Appellant first responded that he gave
a white cell phone to his girlfriend, Christina Ramirez. He subsequently said someone
else gave it to her. Later that night Santiago identified appellant as his assailant. The
police recovered Santiago's cell phone from Ramirez.
                     October 21, 2012, and January 9, 2013, Batteries
              Appellant and Ramirez had a contentious relationship. On April 4, 2012,
and August 20, 2012, Ramirez contacted the Ventura Police Department to report that
appellant had punched her. She showed the police her injuries (bruised or red areas) on
each occasion. She hit appellant during each incident, but did not disclose that to the
police. No charges were filed against appellant.
              On October 21, 2012, while fighting with Ramirez, appellant struck her
several times with his hands and covered her face with blankets to muffle her screams.
Following the attack, Ramirez complained that the left side of her head hurt. At trial,
Officer David Ruggerio testified that Ramirez had bruises on her shoulders, back, and
one of her hands.
              On January 9, 2013, Ramirez and appellant agreed to meet at a liquor store.
Ramirez, who had recently given birth to their daughter, arrived before appellant. Upon
his arrival he slapped or punched Ramirez in the face.

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                                        DISCUSSION
                                 Reasonable Doubt Argument
               Appellant contends that the trial court erroneously sustained the
prosecution's objection to his "formulation of reasonable doubt," made in closing
argument. He urges that this constituted structural error by lowering the prosecution's
burden of proof. We disagree.
               Before closing argument, the trial court instructed jurors with CALCRIM
No. 220, as follows: "The fact that criminal charges have been filed against the
defendant is not evidence that the charges are 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. This presumption requires
that the People prove a defendant guilty 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."2
               In his closing argument, appellant's counsel sought to explain the concept
of reasonable doubt by offering his "formulation." He told the jury: "When you go back
to that jury room and thoughtfully discuss everything and talk about everything and some
of you might form a conclusion that, hey, I think this guy is guilty, I want you to ask

           2 Our Supreme Court approved the language used in CALCRIM No. 220 as
correctly and properly instructing jurors on the definition of the beyond a reasonable
doubt standard set forth in section 1096. (People v. Aranda (2012) 55 Cal.4th 342, 353-
354.) Section 1096 defines that standard as follows: "'It is not a mere possible doubt
. . . . It is that state of the case, which, after the entire comparison and consideration of all
the evidence, leaves the minds of jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.'"

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yourself, if at that moment, you know, someone knocks on the door and says, 'Hey, we've
got a video of what happened there on the Avenue. We've got a video. Do you want to
see it?' You need to be convinced that I don't need to see it. I know, and there's too
many inconsistencies in this case." At this point the prosecutor objected that counsel's
argument "Misstates our burden." The court sustained the objection without further
comment.
               Out of the presence of the jury appellant's counsel urged the correctness of
his argument. The trial court disagreed, noting that counsel's description of reasonable
doubt was inaccurate and that undoubtedly any juror would like to see a video of what
happened no matter what their belief in defendant's guilt or innocence, and the argument
mischaracterized the concept of "an abiding conviction." Counsel replied that he was not
"couching it in terms of . . . whether they would like to see it . . . but whether they [felt]
like they still need[ed] to see it in order to be sure of their decision."
               In claiming the trial court's ruling concerning his reasonable doubt video
formulation lowered the prosecution's burden of proof, appellant cites People v. Johnson
(2004) 119 Cal.App.4th 976. Johnson is unavailing. In Johnson, the trial court not only
equated the decision to convict with everyday decision making but also said prospective
jurors were "brain dead" if they believed they could be convinced beyond all doubt of a
defendant's guilt. (Id. at p. 980.) In that context, the reviewing court concluded the trial
court's "tinkering" with the statutory definition of reasonable doubt, "no matter how well
intentioned," lowered the prosecution's burden of proof. Trial courts should not elaborate
upon or attempt to clarify or improve the language of the pattern instruction on
reasonable doubt. (Id. at pp. 985-986.) In this case, appellant's video formulation
suggested that if, after reaching a verdict of guilt, jurors wished to see a video of the
events, they must have a reasonable doubt. That is neither logically sound nor legally
correct. To want more is not to say that what you have is not sufficient.
               In People v. Katzenberger (2009) 178 Cal.App.4th 1260, the prosecutor
used a puzzle of the Statue of Liberty, displayed 75 percent of its pieces, and told the

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jury, "'this picture is beyond a reasonable doubt.'" (Id. at pp. 1267-1268.) The court
disapproved the "prosecutor's use of an easily recognizable iconic image along with the
suggestion of a quantitative measure of reasonable doubt combined to convey an
impression of a lesser standard of proof than the constitutionally required standard of
proof beyond a reasonable doubt." (Id. at p. 1268.) Similarly, counsel's video
formulation suggested a quantitative measure of proof, by communicating that jurors
would have a reasonable doubt if they wanted to see more evidence after reaching a
verdict of guilt.
               Here, the trial court's one-word ruling sustaining the objection to the video
formulation did not lower the prosecution's burden of proof. The court properly
instructed the jury with CALCRIM No. 220. We presume the jury understood and
correctly applied the instruction. (People v. Ryan (1981) 116 Cal.App.3d 168, 179.)
Even if it were error to sustain the objection, the error was hardly "structural." The ruling
did not alter, modify or "tinker" with the standard instruction on reasonable doubt.
(People v. Johnson, supra, 119 Cal.App.4th at p. 986; People v. Castro (1945) 68
Cal.App.2d 491, 497.)
                                       No Contact Order
               Appellant contends, and respondent properly concedes, the trial court
lacked authority to issue its order prohibiting appellant from having any contact with
Santiago, absent evidence of a threat of future harm. (People v. Ponce (2009) 173
Cal.App.4th 378, 381-382; People v. Robertson (2012) 208 Cal.App.4th 965, 995-996.)
We will strike the no-contact order.




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                                      DISPOSITION
              The protective order is stricken. The trial court is directed to amend the
abstract of judgment accordingly and forward it to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
              NOT TO BE PUBLISHED.



                                          PERREN, J.

We concur:



              GILBERT, P. J.



              YEGAN, J.




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                                Nancy L. Ayers, Judge
                          Superior Court County of Ventura
                         ______________________________


             Miriam R. Arichea, under appointment by the Court of Appeal, for
Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee,
Peggy Z. Huang, Deputy Attorneys General, for Respondent.




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