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					Filed 11/19/ 10 P. v. Ro mero CA 2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B218764

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA311383)
         v.

ERNESTO ROMERO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
William C. Ryan. Judge. Affirmed.
         Rodger Paul Curnow, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and
Respondent.


                                             ——————————
       Ernesto Romero, appeals from the judgment entered following his conviction, by
jury trial, for murder, attempted second degree robbery (2 counts), carjacking (3 counts),
and possession of a firearm by a felon (1 count). Sentenced to life in state prison without
the possibility of parole, Romero claims there was trial error. He contends that
(1) application to him of the felony-murder special circumstance constitutes cruel and
unusual punishment in violation of the Eighth and Fourteenth Amendments of the United
States Constitution; and (2) the trial court erred by giving CALCRIM No. 220‘s
definition of reasonable doubt, because that instruction prevented the jury from
considering whether a lack of evidence showed there was reasonable doubt as to his guilt.
Neither contention has merit.
                                      BACKGROUND
Procedural history
       An amended information filed in April 2009 charged Romero with one count of
murder (Pen. Code, 1 § 187, subd. (a)) (count 1), two counts of attempted second degree
robbery (§§ 211, 664) (counts 2 and 3 2), three counts of carjacking (§ 215, subd. (a))
(counts 4–6), and one count of possession of a firearm by a felon with two priors
(§ 12021, subd. (a)(1)) (count 7). As to Count 1, it was further alleged that the murder
was committed while Romero was engaged in the commission of a robbery. (§ 1192.7,
subd. (c).) As to count 2, it was also specially alleged that Romero personally and
intentionally discharged a firearm, which proximately caused great bodily injury and
death (§ 12022.53, subd. (d)), and that he personally and intentionally discharged a
firearm (§ 12022.53, subd. (c).) As to counts 2 and 3, the information further alleged that




       1   All undesignated statutory references are to the Penal Code.
       2 Count 3 was amended at trial to change an initial allegation of robbery to an
allegation of attempted second degree robbery.

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Romero personally used a firearm. (§ 12022.53, subd. (b).) 3 The amended information
also alleged that Romero had suffered one prior ―strike‖ conviction, two previous felony
convictions from which he had not remained free from custody for five years and one
prior serious felony conviction. (§§ 667, subd. (a)(1), 1203, subd. (e)(4), 667.5, subd.
(b).) Romero pleaded not guilty and denied all the special allegations.
Factual background
       On the evening of September 4, 2006, Romero, his nephew Rafael Camacho, and
a friend, Fred Pinks, were cruising around in Camacho‘s green Honda Accord. Romero,
who held a shotgun, rode in the front passenger seat and Pinks sat in back. As Camacho
drove, the car began to overheat.
       Mario Valdez and Cesar Reyes stood drinking beer on Maryland Street as
Camacho‘s car pulled up. Valdez saw three people inside. The car was having
mechanical problems—smoke was coming from its radiator and the car was overheating.
Camacho asked Valdez and Reyes to help him fix his car, and they agreed.
       At some point while he, Valdez and Reyes were working, Camacho went back
inside the car. Romero told him ―‗I want to come up,‘‖ which is street parlance for
―[l]et‘s get some money.‖ Camacho told Romero to sit down. Camacho put the shotgun
in the trunk and went back under the hood of his car and continued working. After about
10–15 minutes, Romero got out of the car. He took the shotgun from the trunk, pumped
it and pointed it at Reyes and Valdez, angrily demanding that they give him money.
Camacho told Romero to calm down, and put the gun away. Valdez handed over two
dollar bills. Reyes either did not have any money, or did not want to give it to Romero.
       Camacho saw some money on the ground and heard a shot. A security guard
working nearby saw Romero point the gun at Reyes‘s stomach, and shoot him. Valdez
ran away. Camacho told Romero the keys were in the car, and ran off. Romero returned


       3   The information was later amended to add a ―use of firearm‖ allegation to counts
1–5.

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to the car and drove off. Reyes‘s cousin, Leonidas Osorio, who was at Reyes‘s nearby
apartment, and had seen the car arrive with the passenger holding a shotgun, saw the car
speed off. The cousin identified Camacho‘s car as the one involved in the shooting, and
Romero as the person who held the shotgun.
       Camacho ran for a few minutes until he saw a man with whom he pleaded
tearfully for help; the man let Camacho use his phone to call his parents. When he called
home, Camacho told his father his car had been stolen.
       Camacho‘s mother, Maria, was home when Romero drove up in Camacho‘s car. 4
When Maria asked Romero where her son was, Romero told her he did not want to talk
about it, because he needed to leave for Mexico. He also said, ―‗I‘m not going to do time
because this is my third strike, and I killed someone, and I‘m not going to do time.‘‖
Romero went into the house and changed clothes, then he and Pinks drove off.
       When Camacho‘s parents picked him up, he acted as though he was terrified. He
told them something terrible had happened and someone had died. Camacho said
Romero asked a person for money and, after the man threw the money down, Romero
shot him. Camacho was afraid to go home, so his parents left him at a cousin‘s house for
a day or so.
       After reporting his car stolen, Camacho shared his account of events with police
officers during the course of several interviews.
       About a month after the shooting, Camacho‘s girlfriend (who lived with
Camacho‘s family) received a letter from Romero that was eventually given to Maria. In
the letter, which was intended for Camacho, Romero said he had been interviewed by
police about the incident, and warned Camacho, ―Don‘t say shit.‖ Romero also said that
either Camacho or Pinks was ―fucking up because no one [was] supposed to know the
shit except for three people . . . .,‖ and advised Camacho to lie.



       4   Romero and Camacho‘s family lived together.

                                              4
       A criminalist who examined the firearm evidence, opined that two 12-guage
shotgun shells recovered at the scene had been fired from the same weapon. The deputy
medical examiner who conducted the autopsy testified Reyes died of shotgun wounds to
the abdomen. Because the shotgun pellets entered the body as a single bullet, the medical
examiner opined that the shooter was close to the target when he fired the gun. The
medical examiner also opined that Reyes‘s death was a homicide.
       Just before 10:00 p.m. on September 4, 2006, Peter Hernandez, Johanna Rivera
and Johanna‘s sister were in Hernandez‘s car exiting the 60 Freeway at Azusa Avenue.
They saw a man whom Hernandez and Johanna later identified as Romero, standing with
a boy near a stalled green Honda on the street. Romero was holding a shotgun. He began
walking toward Hernandez‘s car, cocked the shotgun and told everyone to get out of the
car. They did. Romero and the boy got in and Romero drove off. The victims called
911. Romero was subsequently arrested for suspicion of attempted vehicle theft.
       In the defense portion of the case, Romero presented evidence that, when Valdez
was interviewed by a detective at the scene of the shooting, he said the shooter got out of
the car with the shotgun in his hands. Valdez told the shooter he had no money, and that
he had only one dollar. Romero also presented evidence that Osorio had been unable to
identify Romero in a photographic six-pack lineup, and that DNA collected from a beer
can at the crime scene did not match DNA samples from either Romero or Reyes.
       A jury found Romero guilty on all counts, and found all the special allegations to
be true. In a bifurcated proceeding, Romero admitted the prior conviction allegations.
       The court denied probation. Romero was sentenced to state prison for a n
indeterminate term of life without possibility of parole on count 1, enhanced by an
indeterminate term of 25 years to life for the firearm enhancement under section
12022.53, subdivision (d). The court imposed an aggregate determinate term of 26 years,
to be served prior to the term for the sentence on Count 1.




                                             5
                                      DISCUSSION
1.     No sentencing error
       Romero maintains his life sentence without possibility of parole violates the Eight
and Fourteenth Amendments of the United States Constitution in that the special
circumstance was unconstitutionally applied here because his first degree murder
conviction was premised on the same facts as the robbery, special circumstance. On that
scenario, Romero contends there is ―no meaningful basis to distinguish the factual
findings necessary to return a verdict of guilty of first degree murder on a felony-murder
theory from those necessary to return a true finding on the felony-murder special
circumstance.‖ As Romero acknowledges, however, this argument has been rejected by
the California Supreme Court.
       In Lowenfield v. Phelps (1988) 484 U.S. 231, 246 [108 S.Ct. 546, 98 L.Ed.2d
568], the United States Supreme Court held that the same factual detail of a crime may be
used to confer eligibility for death and as an aggravating factor in the penalty phase under
Louisiana law. Romero argues the California Supreme Court has misread the decision in
Lowenfield. Lowenfield did not resolve the specific issue here, as it was a multiple-
murder case, not a felony-murder case, and concerned use of the same fact to narrow the
class of death eligible murderers and as an aggravator for the death penalty. Nonetheless,
based on Lowenfield, the California Supreme Court has consistently rejected
constitutional attacks on the felony-murder special circumstance. (See People v. Wilson
(2005) 36 Cal.4th 309, 361–362; People v. Vieira (2005) 35 Cal.4th 264, 294; People v.
Catlin (2001) 26 Cal.4th 81, 158 [―first degree murder liability and special circumstance
findings may be based upon common elements without offending the Eighth
Amendment‖]; People v. Marshall (1990) 50 Cal.3d 907, 945–947; People v. Edelbacher
(1989) 47 Cal.3d 983, 1023, fn. 12; see also People v. Rodriguez (1998) 66 Cal.App.4th
157, 164.)
       Romero was convicted on count 1 of first degree murder with a special
circumstance finding that the murder was committed during the commission of an

                                             6
attempted robbery. He was sentenced to life in prison without possibility of parole.
Well-established authority dictates that this sentence does not violate Romero‘s
constitutional rights. We are bound by numerous decisions of our Supreme Court which
have rejected Romero‘s assertion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) We find no violation of the Eighth or the Fourteenth Amendment.
2.     No instructional error
       Romero contends reversal of his conviction is required because the jury received a
constitutionally deficient instruction. Specifically, Romero argues the giving of
CALCRIM No. 220 on reasonable doubt deprived him of due process by allowing the
jury to determine guilt without considering the absence of evidence, and thus,
impermissibly lowering the prosecution‘s burden to prove guilt beyond a reasonable
doubt. 5 We find no constitutional infirmity.
       As given, CALCRIM No. 220 advised the jury in part:
       ―In deciding whether the People have proved their case beyond a reasonable
doubt, you must impartially compare and consider all the evidence that was received
throughout the entire trial. Unless the evidence proves the defendant guilty beyond a
reasonable doubt, he is entitled to an acquittal and you must find him not guilty.‖
       Romero maintains the instruction contains two deficiencies of constitutional
dimension. He argues the language precludes the jury from considering an absence of
evidence, in order to raise a reasonable doubt as to his guilt by requiring the jury to
compare and consider all evidence, impermissibly shifting the burden of proof to him and
allows the jury to find him guilty in the absence of defense evidence. We are not


       5 ―Failure to object to instructional error forfeits the issue on appeal unless the
error affects defendant‘s substantial rights. [Citations.] The question is whether the error
resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818.
[Citation.]‖ (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) The Attorney
General contends Romero has forfeited his constitutional claim by failing to interpose an
objection at trial. We disagree. Whether an instruction on reasonable doubt was
constitutionally infirm implicates a defendant‘s substantive rights.

                                                7
persuaded by this contention.
       First, Romero omits mention of the fact that, in the same instruction with which he
takes issue, the court reminded the jury that a criminal defendant ―is presumed to be
innocent. This presumption requires that the People prove a defendant guilty beyond a
reasonable doubt. Whenever I tell you the People must prove something, I mean they
must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶]
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 possible doubt because everything
in life is open to some possible or imaginary doubt.‖ (Italics added.)
       Second, as observed by the court in People v. Hernandez Rios (2007) 151
Cal.App.4th 1154, the language excerpted from CALCRIM No. 220 is essentially the
same as language in CALJIC No. 2.90, an earlier instruction the United States Supreme
Court upheld against a related challenge. In Rios, the defendant argued, much like
Romero argues here, that the ―language in CALCRIM No. 220 absent from analogous
CALJIC No. 2.90 requiring the jury ‗to compare and consider all the evidence‘
impermissibly shifts the burden of proof to the defense by allowing the jury to hold
against the defense the absence of defense evidence.‖ ( Id. at p. 1156.) The Rios court
disagreed. It explained: ―CALCRIM No. 220 uses verbs requiring the jury to ‗compare
and consider all the evidence that was received throughout the entire trial.‘ CALJIC No.
2.90 uses nouns requiring ‗the entire comparison and consideration of all the evidence‘
by the jury. Ríos fails to persuade us that those grammatical differences are material.
The United States Supreme Court rejected a constitutional challenge to CALJIC No. 2.90
in part on the rationale that ‗the entire comparison and consideration of all the evidence‘
language ‗explicitly told the jurors that their conclusion had to be based on the evidence
in the case.‘ (Victor v. Nebraska (1994) 511 U.S. 1, 16.) The language Rios challenges
in CALCRIM No. 220 did just that.‖ ( Id. at p. 1157, italics omitted.)
       Finally, as Romero acknowledges, reviewing courts have consistently rejected the
contention he asserts here. (See People v. Zavala (2008) 168 Cal.App.4th 772, 780–781;

                                             8
People v. Garelick (2008) 161 Cal.App.4th 1107, 1117–1119; People v. Stone (2008) 160
Cal.App.4th 323, 331 [rejecting the same argument as an ―exercise in semantics‖];
People v. Campos (2007) 156 Cal.App.4th 1228, 1236–1238; People v. Westbrooks
(2007) 151 Cal.App.4th 1500, 1506, 1509.) Romero offers nothing to persuade us to
revisit this settled issue. We find the reasoning of these decisions sound, and we reject
Romero‘s constitutional attack on CALCRIM No. 220.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.


                                                 JOHNSON, J.


We concur:


              ROTHSCHILD, Acting P. J.


              CHANEY, J.




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