the lunch hour to consider the plea bargain offer or that he needed to urinate before being tested for gunshot residue. Indeed, he testified he did not make the latter statement.
Because the instruction had a proper evidentiary basis, defendant’s constitutional claims are without merit.
XIX. References to “Innocence” in Instructions
Defendant contends that references to “innocence” in four standard jury instructions unconstitutionally altered the burden of proof by suggesting to the jury that he bore the burden of proving his innocence, rather than the prosecution having to prove guilt beyond a reasonable doubt.19 This court and the Court of Appeal have rejected this claim in prior decisions (People v. Frye, supra, 18 Cal.4th at p. 958; People v. Wade (1995) 39 Cal.App.4th 1487, 1491-1494, 1497), and we do so again here. In light of the numerous instructions directing the jury to convict only on proof beyond a reasonable doubt of guilt,20 no reasonable likelihood the jury would have understood the challenged instructions otherwise
19 CALJIC No. 1.00, as given, cautioned that the fact that defendant had been arrested, charged and brought to trial was not evidence of guilt and did not make him “more likely to be guilty than innocent.” CALJIC No. 2.01, as given, told the jury that of two reasonable interpretations of circumstantial evidence, one pointing to guilt and the other to “innocence,” the jury must adopt the latter. CALJIC No. 2.51, as given, instructed that while motive is not an element of the charged crime, its presence may tend to show guilt and its absence may tend to show “innocence.” CALJIC No. 17.47, on secrecy of balloting, cautioned the jurors not to reveal how they were divided as to “guilt or innocence.”
20 E.g., CALJIC Nos. 2.90 (People’s burden of proof beyond a reasonable doubt), 2.01 (each fact upon which inference of guilt rests must be proven beyond a reasonable doubt), 4.50 (jury to acquit if alibi evidence creates reasonable doubt), 8.71 (murder and degree of murder both to be proven beyond a reasonable doubt), 8.80 (special circumstance to be proven beyond a reasonable doubt), 8.83 (each fact upon which inference of special circumstance’s truth rests must be proved beyond a reasonable doubt).