Filed 8/19/14 P. v. Young CA1/3
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138043
v.
RICKY LARAY MCDADE YOUNG,                                            (Solano County
                                                                     Super. Ct. No. VCR207979 )
         Defendant and Appellant.


         Ricky Laray McDade Young (appellant) appeals from judgment entered after a
jury convicted him of second degree robbery (Pen. Code, § 2111). He contends the
judgment must be reversed because: (1) the district attorney committed prosecutorial
misconduct; and (2) the definition of reasonable doubt in CALCRIM No. 220 violates
due process. We reject the contentions and affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         An information was filed on February 17, 2011, charging appellant with second
degree robbery (§ 211, count 1) and child abuse or endangerment (§ 273a, subd. (a),
count 2). The child abuse charge was later dismissed on appellant’s motion.
         The information was based on an incident that occurred on June 18, 2010. At
about 1:21 p.m. that afternoon, Luanna M. was sitting in her car in a parking lot behind a
hotel, enjoying the last few minutes of her lunch break. An African American male who
“looked like he’d be around 18 [years old]” came up to Luanna’s passenger side window


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             All further statutory references are to the Penal Code.


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and motioned to his watch, as if asking what time it was. He then walked around to the
driver’s side window, pulled out a gun (later determined to be a BB gun), and asked for
her purse. Luanna was scared and asked the man—later identified as L.C., a minor—if
he wanted her wallet or her whole purse. L.C. asked for just her wallet, and she gave it to
him. The wallet contained “a little bit over $100 . . . in cash, debit cards, credit cards,
[her] checkbook, and various other cards.” After taking the wallet, L.C. ran around the
front of her car and “jumped into” an older dark model Ford Mustang that had pulled up
alongside Luanna’s car. The Mustang “took off” “immediately.” Luanna estimated that
about 10 seconds elapsed between L.C. taking her wallet and the Mustang pulling up.
Luanna did not get a good look at the driver as he drove away but saw that he was an
African American male. Luanna tried to follow the Mustang but lost sight of it after “a
couple blocks.” She called 911 and reported the robbery.
       Just two minutes later, Deputy Melvin Yarbor of the Solano County Sheriff’s
Office was patrolling I-80 when he noticed a Mustang weaving and driving slowly in the
fast lane. Unaware of the robbery, but suspecting that the driver might be intoxicated,
Yarbor initiated a traffic stop. It took the driver of the Mustang, who was later identified
as appellant, about a half mile to pull over, and Yarbor noticed the passenger—L.C.—
moving around in the car. After Yarbor talked to appellant and L.C., Yarbor heard a
dispatch report that two men had fled a robbery in a dark Mustang. Thinking he might
have detained the suspects, Yarbor called for backup. Backup officers who arrived
searched the Mustang. They found a BB gun under the passenger seat, and found two of
Luanna’s credit cards between appellant’s seat and the seat cover. They also found
Luanna’s wallet inside “the back trunk area” of the Mustang. Luanna was brought to the
scene, where she identified L.C. as the robber and the Mustang as the getaway car.
Defense counsel argued in closing that appellant did not know L.C. was going to rob
Luanna.
       The jury convicted appellant of second degree robbery. On February 25, 2013, the
trial court sentenced appellant to three years of formal probation.



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                                        DISCUSSION
                               1. Prosecutorial Misconduct
       Appellant contends the prosecutor engaged in prosecutorial misconduct by arguing
in closing that appellant had not presented any evidence to support his asserted defense.
We reject the contention.
                                      a. Background
       The prosecutor argued in closing that there was sufficient circumstantial evidence
to establish that appellant knew L.C. was going to rob Luanna and intentionally aided
him by driving the getaway car. The prosecutor also explained that he had the burden of
proof: “for you as jurors to convict [appellant] as an aider and abettor in this case, I have
to prove certain elements.” Defense counsel argued that the circumstantial evidence was
amenable to other reasonable interpretations, and that the jury must therefore find
appellant not guilty. Defense counsel argued, “one reasonable interpretation is
that . . . [L.C. and appellant] . . . had a preplanned meeting time. Said, hey, at 1:30 come
pick me up. I’m going to be at Starbucks. [Appellant] pulls up, sees [L.C.], [L.C.] gets
in the car.” Defense counsel also emphasized several times that the prosecution had the
burden of proving each element beyond a reasonable doubt.
       In response to appellant’s asserted defense, the prosecutor argued on rebuttal that
“the only person who said that it was [L.C.’s] plan was not a witness in the case. It’s his
attorney. There was no evidence. Evidence is what’s presented by the witness when they
testified. The only person that stated that was [defense counsel], who said [L.C.].”
Defense counsel objected at that point that the prosecutor was “burden shifting,” but after
a bench conference, the trial court overruled the objection. The trial court later explained
its ruling by stating that the prosecutor was simply commenting on the lack of evidence
offered in support of the defense theory, and that he had refrained from making any
further comments on the topic after the objection. The prosecutor concluded his rebuttal
by stating: “All I want to say about that is, what I argue up here is not evidence. What
[defense counsel] argues up here is not evidence. Go back, look at the facts of this case,
look at what was presented, and come back with a verdict of guilty on this case.”


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                                       b. Discussion
       Prosecutorial misconduct is reversible error “when it infects the trial with such
unfairness as to make the conviction a denial of due process.” (People v. Morales (2001)
25 Ca1.4th 34, 44.) A prosecutor’s conduct that does not render the trial fundamentally
unfair is misconduct “only if it involves the use of deceptive or reprehensible methods to
attempt to persuade” the trier of fact. (Ibid.) A prosecutor is given “wide latitude during
argument” (People v. Wharton (1991) 53 Cal.3d 522, 567), and appellate courts do not
analyze isolated words or phrases, but instead “must view the statements in the context of
the argument as a whole” (People v. Dennis (1998) 17 Cal.4th 468, 522).
       The prosecution may not make direct or indirect reference to the defendant’s
decision not to testify on his own behalf. (Griffin v. California (1965) 380 U.S. 609, 613
[85 S.Ct. 1229, 14 L.Ed. 2d 106] (Griffin).) Griffin “ ‘does not extend to comments on
the state of the evidence or on the failure of the defense to introduce material evidence or
to call logical witnesses.’ ” (People v. Vargas (1973) 9 Cal.3d 470, 475.) As the
California Supreme Court explained in People v. Bradford (1997) 15 Cal.4th 1229,
1339–1340, “A distinction clearly exists between the permissible comment that a
defendant has not produced any evidence, and on the other hand an improper statement
that a defendant has a duty or burden to produce evidence, or a duty or burden to prove
his or her innocence.” (See People v. Woods (2006) 146 Cal.App.4th 106, 113
[prosecutor may comment on defendant’s failure to offer material evidence but may not
state that defendant is “obligated” to offer such evidence].) Accordingly, the California
Supreme Court has routinely rejected claims of misconduct where the prosecutor merely
commented on the lack of evidence offered by the defense or the defendant’s failure to
call logical witnesses.
       For example, in People. v. Ratliff (1986) 41 Cal.3d 675, 691, the California
Supreme Court concluded the prosecutor had not engaged in misconduct when he stated,
“ ‘Now is there any evidence on the other side? Any evidence at all? None has been
presented to you. Absolutely zero has been presented to you by [the defendant] and his
attorney.’ ” In People v. Johnson (1989) 47 Cal.3d 1194, 1236, there was no error where


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the prosecutor said: “ ‘Ladies and gentlemen, you have now heard the entirety of the
case . . . . Obviously, if there has been some or is some defense to this case, you’d either
have heard it by now or for some reason nobody’s talking about it.’ ” In People v. Morris
(1988) 46 Cal.3d 1, 36, disapproved on other grounds by In re Sassounian (1995)
9 Cal.4th 535, 543, footnote 5, the prosecutor did not engage in misconduct when he
stated there was “ ‘not a shred of evidence to suggest that anybody else did the killing,’ ”
and when he stated, “ ‘put yourself in the position of being a defendant and you can bet
your boots that if you had anything to offer by way of evidence, by way of alibi, that you
would offer it,’ ” and “ ‘You don’t have it.’ ” In each of these cases, the prosecutor made
no reference to the defendant’s decision not to testify, but instead, permissibly
commented on the defendant’s failure to offer any material evidence to support his
asserted defenses. (See People v. Gonzalez (2012) 54 Cal.4th 1234, 1275 [“As for the
prosecutor’s reference to witnesses not called, it is neither unusual nor improper to
comment on the failure to call logical witnesses”].)
       Similarly, here, the prosecutor did not at any time comment on appellant’s
decision not to testify, and did not suggest that appellant had the burden of presenting
evidence to establish his lack of intent or knowledge. Rather, he merely responded to the
asserted defense that appellant did not know L.C. was planning to rob Luanna, by
pointing out that there was no evidence to support that theory. The prosecutor also
correctly pointed out that he had the burden of proof in the case, and that neither his nor
defense counsel’s arguments were evidence.
       In any event, we note that any error in allowing the prosecutor to make the
statements he did was harmless under any standard. First, there was ample evidence to
support the conviction. Appellant pulled up in the Mustang within 10 seconds of the
robbery, L.C. jumped into the car without any conversation or delay, and the Mustang
immediately took off. After Yarbor initiated a traffic stop, appellant continued to drive
for about a half mile before finally pulling over, during which time L.C. was seen moving
around inside the car, presumably hiding the loot, which was found in various parts of the
car. There was no evidence that either appellant or L.C. had done any shopping at the


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mall, or that they had been there for any other purpose but to rob Luanna. Against this
significant evidence of guilt, appellant offered no evidence.
       Moreover, any confusion caused by prosecutor’s comments were cured by the
repeated instructions from the prosecutor, defense counsel, and the court, that the
prosecution had the burden of proving each element of the crime, including appellant’s
knowledge and intent. In light of the ample evidence and the proper instructions, we
conclude that any error was harmless beyond a reasonable doubt.
                       2. CALCRIM No. 220 – Reasonable Doubt
                                      a. Background
       The trial court instructed the jury with CALCRIM No. 220, which states in part:
“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. 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.” Defense counsel did not object to this
instruction.
       In her closing argument, defense counsel explained the “abiding conviction”
language in CALCRIM No. 220: “[W]hat that means is, if you were to go back and ten
years down the line, five years down the line, you have to say I’m comfortable that
they’ve proven each and every element beyond a reasonable doubt, that . . . the only
explanation was for guilt, that there was no other reasonable explanation that could have
occurred. That’s proof beyond a reasonable doubt.”




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                                       b. Discussion
       To preserve the issue and “urge this Court to suggest that our Supreme Court
reexamine it,” appellant contends that the definition of reasonable doubt in CALCRIM
No. 220 violates due process because it “merely tells the jurors that they need to expect to
remain convinced (i.e., have a “conviction”) of the truth of the charge for a prolonged
period (“abiding”), without telling them how convinced they must be.” Appellant
forfeited the claim by failing to raise it below. (People v. Scott (1994) 9 Cal.4th 331, 351
[lack of a timely objection forfeits a claim on appeal].) The claim also fails on the merits.
       In Victor v. Nebraska (1994) 511 U.S. 1, 14–15 [114 S.Ct. 1239, 127 L.Ed.2d 583]
(Victor), the United States Supreme Court upheld modified CALJIC No. 2.90 (a
precursor to CALRIM No. 220), ruling that a reasonable doubt instruction “cast in terms
of an abiding conviction as to guilt, without reference to moral certainty, correctly states
the government’s burden of proof.” The Supreme Court stated that “so long as the court
instructs the jury on the necessity that the defendant’s guilt be proved beyond a
reasonable doubt, the Constitution does not require that any particular form of words be
used in advising the jury of the government’s burden of proof.” (Id. at p. 5 [114 S.Ct. at
p. 1242].) In reliance on Victor’s approval of the instruction as satisfying due process
requirements, the California Supreme Court has repeatedly rejected the contention that
CALCRIM No. 220 violates due process. (E.g., People v. Stone (2008) 160 Cal.App.4th
323, 334 [rejecting claim that “ ‘abiding conviction’ ” is “ ‘a standard for “duration” but
not the “degree of certitude” jurors must have’ ”]; People v. Zepeda (2008) 167
Cal.App.4th 25, 30–32; People v. Garelick (2008) 161 Cal.App.4th 1107, 1117–1118;
People v. Campos (2007) 156 Cal.App.4th 1228, 1238–1239; People v. Guerrero (2007)
155 Cal.App.4th 1264, 1267–1269.) Because decisions of the United States and
California Supreme Courts are binding on this court, and we find the analyses in the court
of appeal decisions cited above to be persuasive, we reject appellant’s constitutional
challenge to the abiding conviction language in CALCRIM No. 220.
                                       DISPOSITION
       The judgment is affirmed.


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                                _________________________
                                McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Siggins, J.




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