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People v. Stamps2/7/2002
g the prosecutor's burden to prove its case beyond a reasonable doubt.
CALJIC No. 1.00 reads in part as follows:
"You must not be influenced by pity for or prejudice against a defendant. You must not be biased against a defendant because has been arrested for this offense, charged with a crime, or brought to trial. None of these circumstances is evidence of guilt and you must not infer or assume from any or all of them that a defendant is more likely to be guilty than not guilty." (Italics added.)
This instruction is not directed at the burden of proof. It simply tells the jury that they are not to draw impermissible inferences from the mere fact that a defendant has been arrested, charged and tried for an offense. Because this is a correct statement of the law, the instruction is not deficient. (People v. Hawthorne (1992) 4 Cal.4th 43, 72; People v. Wade (1995) 39 Cal.App.4th 1487, 1491; see also People v. Clair (1992) 2 Cal.4th 629, 663.)
People v. Dail (1943) 22 Cal.2d 642, cited by appellant, is not applicable. Dail holds that an instruction which misstates the law cannot be corrected with a cautionary instruction, since the cautionary instruction merely creates a conflict for the jury -- a proposition with which we cannot quarrel. CALJIC No. 1.00, however, is an accurate recapitulation of the law, so it does not create a conflict of the sort faced by the court in Dail. (In accord, People v. Wade, supra, 39 Cal.App.4th at p. 1491.)
D. CALJIC No. 2.90
For the umpteenth time over the past five years, we find no fatal flaw in CALJIC No. 2.90, the reasonable doubt instruction. (See People v. Light (1996) 44 Cal.App.4th 879; see also People v. Miller (1999) 69 Cal.App.4th 190, 213-214; People v. Godwin (1996) 50 Cal.App.4th 1562, 1571-1572; People v. Barillas (1996) 49 Cal.App.4th 1012, 1022; People v. Hurtado (1996) 47 Cal.App.4th 805, 815-816; People v. Tran (1996) 47 Cal.App.4th 253, 262-263; People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1078.) It is well past the time for the defense bar in this state to give up on this dud. (People v. Miller, supra, 69 Cal.App.4th at p. 214.)
IV. Sentencing Issues
A. Vehicle Code section 23182
We agree with appellant and respondent that the second one-year enhancement under Vehicle Code section 23182 appended to count 1 should have been stayed. (§ 654.) The trial court stated it would stay pursuant to section 654 the other Vehicle Code section 23182 enhancement appended to count 1 because punishment would be imposed for the injuries to Kieiko and Alexus under counts III and IV. Since the only factual allegations supporting the two Vehicle Code section 23182 enhancement appended to count 1 were the injuries to these two children, both enhancements should have been stayed. (People v. Miller (1977) 18 Cal.3d 873, 885.)
We disagree, however, with appellant that the enhancement was imposed illegally because repeal of the statute in 1999 must be applied retroactively for her benefit. Vehicle Code section 23182 was in fact repealed effective July 1, 1999, along with a series of other Vehicle Code sections related to punishment for Vehicle Code violations. (See Stats. 1998, c. 118 (S.B. 1186); Stats. 1998, c. 756 (A.B. 762).)
However, a nearly identical provision, Vehicle Code section 23558, was added with the same legislation, an event which appears to have been missed by appellant. This simultaneous republication of the substance of the repealed statute evidences a clear legislative intent that the punishment required by the repealed statute should not be forgone retroactively. (In re Pedro T. (1994) 8 Cal.4th 1041, 1045-1046 [wh
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