People v. Pierce

Opinion

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.

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 *570misled or otherwise did not have an adequate understanding of the prosecution’s burden of proof, we affirm the judgment.

Discussion

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, *571next 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 farther 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.

*572B. 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 [64 Cal.Rptr.2d 400, 938 P.2d 2] (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; see People v. Ayala (2000) 23 Cal.4th 225, 284 [96 Cal.Rptr.2d 682, 1 P.3d 3].) 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 hour, you know, when you’re deliberating, when you’ve made your decision, that’s when it counts.”

We first observe that this is not a case where the trial court gave instructions on reasonable doubt that were in error. The instructions on reasonable doubt tracked exactly CALCRIM No. 220 and were a correct statement of the law. In fact, in her challenged statements to the jury, the prosecutor herself directed the jurors to this instruction and read it to them.

In instructing with CALCRIM No. 220, the trial court stated in pertinent part: “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 *573possible doubt because everything in life is open to some possible or imaginary doubt.” We have also previously seen how the trial court in effect directed the jury to this reasonable doubt instruction through its comment to defense counsel to “[pjlease restate the law.”

Penal Code section 1096, which furnishes the basis for CALCRIM No. 220, states as relevant here: “Reasonable doubt is defined as follows: ‘It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary 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.’ ” And Penal Code section 1096a says: “In charging a jury, the court may read to the jury Section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.”

The United States Supreme Court and the California Supreme Court, respectively, have described “an abiding conviction” as one that is “settled and fixed” (Hopt v. Utah (1887) 120 U.S. 430, 439 [30 L.Ed. 708, 7 S.Ct. 614]) and one that is “lasting [and] permanent” (People v. Brigham (1979) 25 Cal.3d 283, 290 [157 Cal.Rptr. 905, 599 P.2d 100]). These descriptions of “abiding,” though, are self-evident and an unnecessary elaboration of a readily understood term. The phrase “abiding conviction” does not require definition.1

The prosecutor’s challenged statements concerning “an abiding conviction” were not only brief, but they evoked a certain “permanen[ce]” in that each juror’s conviction that the charge was true had to be “permanent” in that, considering the law and the facts presented, that conviction would “abide,” that is, would not change, through the end of the trial when the jury rendered its verdict in open court. The possibility that after the conclusion of the case one or more jurors might change their minds after learning something new is irrelevant. That speculative possibility does not lessen or otherwise implicate the degree of certainty required for a verdict. This is because such a change of mind is dependent on a different context; a context in which a juror has received something new that influences his or her opinion. We also note that the only question the jury asked during deliberations related to a review of certain evidence; the jury did not ask any questions concerning the instruction on reasonable doubt or the meaning of the concept of an abiding conviction. Thus, there is no reasonable likelihood that the prosecutor’s brief remarks led the jury to think that “an abiding *574conviction” of the truth of the charge was something less than the self-evident nature of “abiding” as “settled and fixed” and “lasting [and] permanent.” The record does not establish a reversible error.

Having found no prejudicial error in considering individually the challenged trial court’s “ruling” or the prosecutor’s statements, we find no prejudicial error in their combination.

Disposition

The judgment is affirmed.

Robie, J., concurred.