People v. Atwood

BROWN (G.), J. Defendant appeals from a judgment of conviction of assault with a deadly weapon with intent to eom[309]mit murder. Defendant admitted the shooting but denied intent. There is no claim that the evidence was insufficient to support the judgment. The only issue on appeal is whether the court erred prejudicially in overruling defendant’s objection to the closing argument of the district attorney in which the district attorney told the jury that the circumstantial evidence rule did not apply to evidence presented by the defense.

Circumstantial evidence may be introduced and relied upon by both prosecution and defense in a criminal case. CALJIC Instruction No. 24 clearly stated that there are two kinds of evidence which may be introduced in court, direct and circumstantial. There is no limitation as to which side, defense or prosecution, may introduce such evidence. This being true, the court erred in overruling defendant’s objection to the prosecutor’s argument that circumstantial evidence did not apply to defendant’s case.

Following the ruling about which defendant complains, the court explained to the jury that it was the sole judge of the facts and that the court was the sole judge of the law; that regardless of what the attorneys might argue respecting the applicable law, the court would tell the jury the law ‘ ‘ and that is the law you are to take, not what counsel says the law is.”

At the conclusion of argument, the court properly instructed the jury respecting circumstantial evidence, repeating the language of CALJIC Instructions Nos. 24, 26, 27, and 28. The error of the court in ruling on the objection to argument was mitigated by the court’s action in telling the jury it would take the law from the court and not from counsel, and at the regular time for legal instructions the court instructed in proper language what the law was regarding circumstantial evidence. It is presumed that the jury followed the court’s instructions. (People v. Green, 13 Cal.2d 37, 45 [87 P.2d 821]; People v. Bigelow, 165 Cal.App.2d 407, 414 [332 P.2d 162].)

We are of the opinion, after an examination of the entire record, including the evidence, that no prejudicial error resulted from the court’s ruling which would indicate that there was a miscarriage of justice, or that it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (Cal. Const., art. VI, § 4½; People v. Watson, 46 Cal.2d 818 [299 P.2d 243].)