People v. James

Opinion

BEACH, J.

A jury found appellant guilty of kidnaping (Pen. Code, § 207), rape (Pen. Code, § 261, subds. 2 and 3), oral copulation (Pen. Code, § 288a) and sodomy (Pen. Code, § 286). The trial court sentenced appellant to state prison. Appellant appeals from the judgment of conviction.

Issues And Holding:

In this case we are asked to determine the following questions:

1. Did the trial court err when during voir dire of the prospective jurors it defined “moral certainty” as “probable certainty”? If so, was the error prejudicial?

2. Were appellant’s prior convictions used improperly to enhance his sentence?

For the reasons discussed below, we conclude, first, that the trial court’s definition of “moral certainty” was not error and, second, that

[731]

appellant’s commitments for assault and murder constituted but one “prior conviction” and that his commitment for possession of a concealable firearm by an ex-felon constituted a separate “prior commitment” for the purpose of the enhancement provisions of Penal Code section 667.5.

Discussion:

1.

Trial court’s equation of “moral certainty” to “probable certainty”

On voir dire, defense counsel told the prospective jurors that the standard of proof in criminal cases was “beyond a reasonable doubt and to a moral certainty.” When counsel explained the latter term as “your own... moral judgments,” the trial court voiced its disagreement, saying: “Absolutely does not mean that.... In this context, moral means probable.”

It appears that defense counsel and the trial court both were referring to the “moral certainty” language of CALJIC No. 2.90, pursuant to which the jury was instructed following the presentation of evidence in the case. That instruction tells the jury that it must find the defendant guilty beyond a reasonable doubt. It then defines reasonable doubt as “that state of the case,” which, after the jury’s consideration of the evidence, “leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.”