Westbrooks

I.

INTRODUCTION

A jury found James E. Westbrooks guilty of selling a controlled narcotic substance, cocaine base (Health & Saf. Code, § 11352, subd. (a)) (count 1). The jury also found that Westbrooks sold cocaine base within the meaning of Penal Code section 1203.073, subdivision (b)(7). After the jury returned its verdict, Westbrooks admitted that he had served two prior terms in prison and that he had suffered a prior strike conviction.. The trial court sentenced Westbrooks to eight years in prison, after striking the two prison priors and doubling the middle term of four years based on his strike prior.

On appeal, Westbrooks claims that by insttucting the jury pursuant to Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 220, the trial court violated his due process right to have his guilt determined beyond a reasonable doubt. Westbrooks argues that the instruction improperly informed the jury that it could not consider the lack of physical evidence implicating him in the crime in determining whether the People met their burden of proving him guilty beyond a reasonable doubt. Westbrooks also claims that, the trial court erred in refusing…