People v. Hearon

85 Cal.Rptr.2d 424 (1999) 77 Cal.App.4th 1285 The PEOPLE, Plaintiff and Respondent,

v.

Jimmy Ray HEARON, Defendant and Appellant.

No. C028314. Court of Appeal, Third District.

May 28, 1999. Review Denied August 25, 1999. Stephen P. LoPresti, under appointment by the Court of Appeal, Carmichael, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George H. Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Senior Assistant Attorney General, Harry Joseph Colombo and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.

Certified for Partial Publication.[*]

SCOTLAND, P.J.

Before summarizing the case and addressing the other claims of error, we seek to put out of its misery a contention routinely raised in criminal appeals filed in this district, and apparently in every other district of the Court of Appeal.

In a well-worn argument that has become the soup du jour of appellate advocacy in criminal cases, defendant Jimmy Ray Hearon claims the definition of reasonable doubt given to the jury in accordance with Penal Code section 1096 (stats.1995, ch. 46, § 1) and CALJIC No. 2.90 is "defective in that it gave the jury no guidance as to the level of certainty to which it must be persuaded before it could reliably determine that the prosecution had met its burden of proof beyond a reasonable doubt."[1]

The contention has no merit. (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1207-1209, 68 Cal.Rptr.2d 619; Lisenbee v. Henry (9th Cir.1999) 166 F.3d 997, 999-1000; see Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583; People v. Freeman (1994) 8 Cal.4th 450, 504-505, 34 Cal. Rptr.2d 558, 882 P.2d 249.)

Consequently, it consistently has been rejected by every appellate district. (E.g., People v. Aguilar, supra, 58 Cal.App.4th at pp. 1207-1209 [First Appellate District]; People v. Godwin (1996) 50 Cal.App.4th 1562, 1571-1572, 58 Cal.Rptr.2d 545 [Second Appellate District]; People v. Barillas (1996) 49 Cal.App.4th 1012, 1022, 57 Cal.Rptr.2d 166 [Second Appellate District]; People v. Jackson[**] (1999) 71 Cal.App.4th 108, 83 Cal. [425]