What is the test for a jury to apply the preponderance of the evidence standard?

Defendant argues these instructions directed the jury to apply the preponderance of the evidence standard because they directed it to weigh the prosecution's evidence against the defendant's evidence and decide the case based on which side's evidence outweighed the other. "In assessing a claim of instructional error, 'we must view a challenged portion "in the context of the instructions as a whole and the trial record" to determine " 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." ' " (People v. Jablonski (2006) 37 Cal.4th 774, 831.) Neither challenged instruction refers to the issues for the jury to decide or the ultimate burden of proof. For that, the jury had other instructions that explained the prosecution's burden of proving guilt beyond a reasonable doubt, such

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as CALCRIM No. 220. " ' "Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case." ' " (People v. Carey (2007) 41 Cal.4th 109, 130.)

Neither CALCRIM No. 302 nor 332 tells "the jury to disregard the prosecution's burden of proof or to decide the case on the basis of disbelief of defense witnesses or presentation of more compelling evidence by the prosecution than by the defense." (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1191 [discussing CALCRIM No. 302].) The jury was instructed under CALCRIM No. 332 to "weigh" the conflicting opinions of expert witnesses but not, as defendant suggests, "to resolve the disagreement by a preponderance of the evidence." The jury was told it was "not required to accept [the opinions] as true or correct. The meaning and importance of any opinion are for you to decide." Likewise, CALCRIM No. 302 leaves it to the jury to "decide what evidence, if any, to believe." (Italics added.) It does not say anything "about choosing between prosecution and defense witnesses." (People v. Anderson (2007) 152 Cal.App.4th 919, 940.) The instructions do not, in short, tell the jury to weigh the sides against each other and decide the case based on which is more convincing. The jury was correctly instructed.

E. Counts 2, 3, and 4 ( 273d)