People v. Aranda

Filed 8/27/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S188204

v. )

) Ct.App. 4/1 D055701

ANTHONY ARANDA, JR., )

) Riverside County

Defendant and Appellant. ) Super. Ct. No. SWF010404

____________________________________)

It is a fundamental precept of our criminal justice system that before a jury

may convict a defendant of a criminal offense, it must find that the prosecution has

proved all elements of the offense beyond a reasonable doubt. State law and the

federal Constitution require the trial court to instruct with regard to this

fundamental principle when it advises the jurors of the applicable rules of law that

govern their deliberation and decision. In California, a trial court ordinarily

satisfies this obligation by instructing the jury under one of two ―pattern‖ or

―standard‖ reasonable doubt instructions. (See CALCRIM No. 220, CALJIC

No. 2.90, hereafter sometimes referred to as the standard reasonable doubt

instruction.)

In the present case, defendant was charged with two separate crimes, murder

and participation in a criminal street gang (hereafter sometimes referred to as the

gang offense). After the conclusion of the presentation of evidence and closing

arguments, when the trial court instructed the jurors on the applicable legal

1

principles immediately prior to their deliberations, the court inadvertently failed to

include the standard reasonable doubt instruction. With regard to the murder

charge, however, the trial court‘s instructions did inform the jury that in order to

find defendant guilty of that crime, or any lesser offense included in that crime, it

must find that the prosecution had proved each of the required elements of the

offense beyond a reasonable doubt. By contrast, the court‘s instructions relating to

the gang offense did not indicate that every element of that charge must be proved

beyond a reasonable doubt. The jury returned verdicts acquitting defendant of

murder and finding him guilty of the lesser offense of voluntary manslaughter. It

also found defendant guilty of the gang offense.

The question before us is whether the court‘s failure to include the standard

reasonable doubt instruction in its predeliberation instructions in this case

constituted error with regard to either the voluntary manslaughter conviction or the

gang offense conviction and, if so, whether the error can and should be found

harmless. In resolving those questions, we must consider both California and

federal law because the inquiry is different depending upon whether the error

arises from state law or from the federal Constitution.

For the reasons discussed below, we conclude that, in light of the instructions

that were given with respect to the murder charge in this case, the trial court‘s

omission of the standard reasonable doubt instruction did not constitute federal

constitutional error as to the voluntary manslaughter conviction. Although the

omission amounted to state law error as to that conviction because the court‘s

other instructions did not include a definition of the term ―reasonable doubt‖ as

required by state law, we conclude that the state law error was harmless because

there is no reasonable probability that the outcome would have been more

favorable to defendant had the trial court‘s instructions at trial included a

definition of ―reasonable doubt.‖

2

With respect to the separate gang offense, the trial court‘s predeliberation

instructions to jurors failed to explain that defendant could not be convicted unless

the prosecution proved the elements of that crime beyond a reasonable doubt. We

conclude that this omission constituted error under both state law and the federal

Constitution. Furthermore, we conclude that the error, like most instructional

errors of federal constitutional dimension, is amenable to harmless error analysis

under Chapman v. California (1967) 386 U.S. 18 (Chapman), and is not reversible

per se. Our conclusion in this regard resolves a disagreement among the Courts of

Appeal.

Applying the Chapman harmless error standard to assess the error‘s effect

upon the jury‘s verdict on the gang offense, we conclude beyond a reasonable

doubt that in light of the particular circumstances of this case as revealed by the

record, there is no reasonable possibility that the jury did not apply the reasonable

doubt standard of proof when it found defendant guilty of the gang offense.

Accordingly, unlike the Court of Appeal, we conclude that this instructional error

does not require reversal of defendant‘s conviction of the gang offense.

I. FACTS AND PROCEDURAL BACKGROUND

Evidence introduced at trial showed that on a Friday night in September

2004, defendant attended a house party in Hemet where many of the partygoers,

including defendant and the victim, Luis Gonzalez, were members of criminal

street gangs. A failed drug transaction that had been initiated at the party

ultimately led to a large backyard brawl. In the aftermath of the fight, defendant

and others argued with Gonzalez, demanding that he leave the party. Defendant

fatally shot Gonzalez when, according to defendant, Gonzalez rushed toward him

waving a rock.

3

Defendant was charged with the crimes of murder and actively participating

in a criminal street gang.1 (Pen. Code, §§ 187, subd. (a), 186.22, subd. (a).)2 In

connection with the murder count, it was alleged that defendant committed that

crime to benefit a criminal street gang (§ 186.22, subd. (b)), and by means of

personally and intentionally discharging a firearm (§§ 12022.5, subd. (a),

12022.53, subd. (d)). It was further alleged for sentencing purposes that defendant

had served three prior prison terms. (§ 667.5, subd. (b).)

Nine of the trial court‘s predeliberation instructions specifically referred to

the prosecution‘s burden of proof beyond a reasonable doubt. One such

instruction concerned the sufficiency of circumstantial evidence to prove guilt.

(CALJIC No. 2.01.) Five instructions relating to homicide also referenced the

reasonable doubt standard of proof. These instructions related to the degrees of

murder (CALJIC No. 8.71), the availability of a manslaughter conviction in lieu of

murder (CALJIC No. 8.72), the difference between murder and manslaughter

(CALJIC No. 8.50), the so-called ―acquittal first‖ rule for returning verdicts on the

greater and lesser homicide offenses (CALJIC No. 8.75), and the definition of

justifiable homicide (CALJIC No. 5.15). The court also instructed on the

reasonable doubt standard of proof when describing the elements of the three

sentence enhancement allegations related to the murder count. (See CALJIC

Nos. 17.19, 17.24.2.)

1 At the prosecutor‘s request, the trial court dismissed a third count charging

defendant with unlawfully carrying a concealed weapon. (Pen. Code, former

§ 12025, subd. (b)(3), repealed and reenacted without substantive change as Pen.

Code, § 25400, subd. (c)(3) by Stats. 2010, ch. 711, §§ 4, 6.)

2 All further statutory references are to the Penal Code, unless otherwise

indicated.

4

The jury acquitted defendant of murder and convicted him of the lesser

offense of voluntary manslaughter (§ 192, subd. (a)). It found not true the gang

enhancement allegation related to the murder charge, but found the firearm

allegations to be true.3 The jury also found defendant guilty of the gang offense.

Defendant later admitted the three prior prison term allegations, and the court

sentenced him to a total prison term of 24 years eight months.4

On appeal, defendant challenged his convictions on the ground that the trial

court had erroneously failed to instruct the jury with CALJIC No. 2.90, the

standard instruction on the presumption of innocence and the prosecution‘s burden

of proving guilt beyond a reasonable doubt. (See also CALCRIM No. 220.) The

Court of Appeal agreed with defendant that the instructional omission amounted to

federal constitutional error but upheld the voluntary manslaughter conviction,

finding as to that count that the error was harmless beyond a reasonable doubt

under Chapman, supra, 386 U.S. 18, because it was cured by the court‘s other

detailed instructions. The Court of Appeal reversed the gang offense conviction,

however, concluding that there was ―no cure‖ for the trial court‘s error in that

respect and that, therefore, the error could not be considered harmless as to that

count.

3 After the jury had rendered its verdicts, the prosecutor moved to strike the

finding on the section 12022.53, subdivision (d), allegation on the ground that the

enhancement was inapplicable to a voluntary manslaughter conviction. The court

granted the motion.

4 Defendant‘s sentence was comprised of the upper term of 11 years for the

voluntary manslaughter conviction consecutive to the upper term of 10 years for

the section 12022.5, subdivision (a), firearm enhancement, eight months (one-third

the midterm) for the gang offense conviction, and one year each for the three prior

prison terms.

5

Defendant petitioned for review, arguing that omission of the standard

reasonable doubt instruction constituted structural error requiring automatic

reversal of all convictions without regard to prejudice and that, even if such error

were amenable to harmless error analysis, the Court of Appeal unreasonably

concluded that it was harmless as to the voluntary manslaughter conviction. We

granted defendant‘s petition for review to resolve a conflict in the Courts of

Appeal regarding whether the erroneous failure to give the standard reasonable

doubt instruction is reversible per se or is subject to harmless error review.

II. DISCUSSION

A. California’s standard reasonable doubt instruction

California law imposes a duty on the trial court to instruct the jury in a

criminal case on the presumption of innocence in favor of the defendant and the

prosecution‘s burden of proving guilt beyond reasonable doubt. Specifically,

Evidence Code section 502 requires a trial court to instruct the jury concerning

which party bears the burden of proof on each issue, and the applicable standard of

proof.5 The prosecution‘s burden of proof in a criminal case is controlled by

section 1096 of the Penal Code,6 the substance of which has, in turn, been

5 Evidence Code section 502 provides in full, ―The court on all proper

occasions shall instruct the jury as to which party bears the burden of proof on

each issue and as to whether that burden requires that a party raise a reasonable

doubt concerning the existence or nonexistence of a fact or that he establish the

existence or nonexistence of a fact by a preponderance of the evidence, by clear

and convincing proof, or by proof beyond a reasonable doubt.‖

6 Section 1096 states that ―[a] defendant in a criminal action is presumed to

be innocent until the contrary is proved, and in case of a reasonable doubt whether

his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the

effect of this presumption is only to place upon the state the burden of proving him

or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows:

‗It is not a mere possible doubt; because everything relating to human affairs is

(footnote continued on next page)

6

incorporated into the standard reasonable doubt instructions, CALJIC No. 2.90

and CALCRIM No. 220. Tracking the language of section 1096, the standard

instructions describe the presumption of innocence and the requirement of proof

beyond a reasonable doubt, and provide the legislatively approved definition of

reasonable doubt.7 A court satisfies its statutory obligation to instruct on these

(footnote continued from previous page)

open to some possible or imaginary doubt. It is that state of the case, which, after

the entire comparison and consideration of all the evidence, leaves the minds of

jurors in that condition that they cannot say they feel an abiding conviction of the

truth of the charge.‘ ‖

7 At the time of defendant‘s trial in 2009, CALJIC No. 2.90 read as follows:

―A defendant in a criminal action is presumed to be innocent until the contrary is

proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily

shown, [he] [she] is entitled to a verdict of not guilty. This presumption places

upon the People the burden of proving [him] [her] guilty beyond a reasonable

doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible

doubt; because everything relating to human affairs is open to some possible or

imaginary doubt. It is that state of the case which, after the entire comparison and

consideration of all the evidence, leaves the minds of the jurors in that condition

that they cannot say they feel an abiding conviction of the truth of the charge.‖

CALCRIM No. 220, which also was available at the time of defendant‘s

trial, reads as follows: ―The fact that a criminal charge has been filed against the

defendant[s] is not evidence that the charge is true. You must not be biased

against the defendant[s] just because (he/she/they) (has/have) been arrested,

charged with a crime, or brought to trial. [¶] A defendant in a criminal case 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. [¶] 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[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to

an acquittal and you must find (him/her/them) not guilty.‖ (See Cal. Rules of

(footnote continued on next page)

7

principles by giving CALJIC No. 2.90 or CALCRIM No. 220. As section 1096a

explains, ―[i]n charging a jury, the court may read to the jury Section 1096, and no

further instruction on the . . . presumption of innocence or defining reasonable

doubt need be given.‖

With respect to the principles that a defendant is accorded the presumption of

innocence and the prosecution bears the burden of proving guilt beyond a

reasonable doubt, instruction with CALJIC No. 2.90 or CALCRIM No. 220 also

satisfies the long-established rule requiring sua sponte instruction on ―those

principles closely and openly connected with the facts before the court, and . . .

necessary for the jury‘s understanding of the case.‖ (People v. St. Martin (1970) 1

Cal.3d 524, 531.) We applied this rule in People v. Vann (1974) 12 Cal.3d 220

(Vann), to conclude that the trial court was required to give a ―specific instruction

that the defendants were presumed to be innocent and that the prosecution had the

burden of proving their guilt beyond a reasonable doubt.‖ (Id. at p. 225; see

People v. Soldavini (1941) 45 Cal.App.2d 460, 463-464 [a trial court‘s duty to

instruct on the presumption of innocence and standard of proof is met by

instructing in the language of § 1096].)

However, our decisions also make clear that a trial court‘s failure to give the

standard reasonable doubt instruction does not necessarily constitute state law

error. Although use of the standard instruction for such purposes is preferred, it is

not mandatory. (People v. Brown (2004) 33 Cal.4th 382, 392 & fn. 2; People v.

Freeman (1994) 8 Cal.4th 450, 503-504; People v. Zepeda (2008) 167

(footnote continued from previous page)

Court, rule 2.1050 [declaring the CALCRIM instructions the ―official

instructions‖ for Cal. criminal courts].)

8

Cal.App.4th 25, 30 [a trial court is not required to instruct the jury in the language

of section 1096]; People v. Castro (1945) 68 Cal.App.2d 491, 498 [same].) We

note furthermore that the court‘s failure to give the standard reasonable doubt

instruction does not amount to state law error when its substance is covered in

other instructions given by the court. (See People v. Soldavini, supra,

45 Cal.App.2d at p. 463; see also Vann, supra, 12 Cal.3d at pp. 226-227.)

Under those circumstances in which the court‘s failure to include the

standard reasonable doubt instruction in its predeliberation instructions does

constitute state law error, such error is reviewed for prejudice under the standard

set forth in People v. Watson (1956) 46 Cal.2d 818, 837, which inquires whether

there is a ―reasonable probability‖ that a result more favorable to the defendant

would have occurred absent the error. (See People v. Mayo (2006) 140

Cal.App.4th 535, 550-551.)

Before addressing whether the court‘s failure to give the standard reasonable

doubt instruction in its predeliberation instructions amounted to state law error in

this case, we first decide whether the omission of the standard reasonable doubt

instruction constituted federal constitutional error with regard to either the

voluntary manslaughter conviction or the gang offense conviction and, if so,

whether the federal instructional error is subject to the more demanding standard

for federal constitutional harmless error review, or requires automatic reversal.

B. The presumption of innocence accorded to a criminal defendant

As previously mentioned, the standard reasonable doubt instruction, CALJIC

No. 2.90 or CALCRIM No. 220, embodies two interrelated principles, namely, the

defendant‘s presumption of innocence and the prosecution‘s burden of proving

guilt beyond a reasonable doubt. The first of these principles, the presumption of

innocence, ―is a basic component of a fair trial under our system of criminal

9

justice.‖ (Estelle v. Williams (1976) 425 U.S. 501, 503.) Instruction on the

presumption of innocence underscores both (1) that the prosecution bears the

burden of proving the defendant‘s guilt and the defendant does not have the

burden of proving his or her innocence, and (2) that the defendant has the

fundamental right ―to have his [or her] guilt or innocence determined solely on the

basis of the evidence introduced at trial, and not on grounds of official suspicion,

indictment, continued custody, or other circumstances not adduced as proof at

trial.‖ (Taylor v. Kentucky (1978) 436 U.S. 478, 485; see People v. Hawthorne

(1992) 4 Cal.4th 43, 72.)8

Regarding the presumption of innocence, the United States Supreme Court

has declared that the federal due process clause does not require a trial court to use

any particular phrase or form of words when instructing on this principle. (Taylor

v. Kentucky, supra, 436 U.S. at p. 485.) We followed Taylor in People v.

Hawthorne, supra, 4 Cal.4th 43 (Hawthorne), to conclude that so long as the

court‘s instructions to the jury express the substance of the presumption of

innocence, it will satisfy the dictates of due process. (Id. at p. 72.)

In Hawthorne, supra, 4 Cal.4th 43, the defendant claimed that he was

deprived of his due process right to the presumption of innocence by the court‘s

failure to instruct with the complete text of CALJIC No. 1.00. The omitted

portion of that instruction would have admonished the jurors in relevant part not to

be biased against defendant because he ― ‗has been arrested for this offense, or

because he has been charged with a crime, or because he has been brought to

8 To the extent that the standard instruction‘s reference to the presumption of

innocence also conveys the requirement of proof beyond a reasonable doubt, its

omission from the predeliberation instructions in this case is discussed post, in part

II.C.

10

trial‘ ‖ and that ― ‗[n]one of these circumstances is evidence of his guilt.‘ ‖

(Hawthorne, supra, at p. 71, fn. 18.) We rejected the defendant‘s claim of a

federal constitutional deprivation, concluding instead that the portion of CALJIC

No. 1.00 that was given by the court and the ―full panoply of instructions‖

(Hawthorne, supra, at p. 73) on the presumption of innocence, the reasonable

doubt standard, and the prosecution‘s burden of proof embodied in CALJIC

No. 2.90 and CALJIC No. 2.91, fully expressed to the jury its responsibility to

decide the defendant‘s guilt based upon the evidence adduced at trial.

(Hawthorne, supra, at pp. 71-73.)

Although in this case the trial court did not give the standard reasonable

doubt instruction, unlike in Hawthorne, the court did instruct the jury with the

complete text of CALJIC No. 1.00, which informed the jurors in relevant part that

they must determine defendant‘s guilt based on the evidence received at trial, and

not to consider the fact of his arrest or that he is being brought to trial. Given this

instruction, and its expression of the substance of the presumption of innocence,

the trial court‘s failure to include the standard reasonable doubt instruction‘s

admonition on the presumption of innocence did not amount to federal

constitutional error.9

9 The United State Supreme Court has explained that omitting instruction on

the presumption of innocence altogether ―does not in and of itself violate the

Constitution‖ (Kentucky v. Whorton (1979) 441 U.S. 786, 789), and that the

constitutional inquiry for failure to instruct on this principle is to evaluate the

omission ―in light of the totality of the circumstances — including all the

instructions to the jury, the arguments of counsel, whether the weight of the

evidence was overwhelming, and other relevant factors — to determine whether

the defendant received a constitutionally fair trial.‖ (Ibid.) We need not undertake

such an inquiry here, however, because the court did not fail to instruct on the

principle of the presumption of innocence.

11

C. The prosecution’s burden of proving a defendant’s guilt beyond a

reasonable doubt

Under the due process clauses of the Fifth and Fourteenth Amendments, the

prosecution must prove a defendant‘s guilt of a criminal offense beyond a

reasonable doubt, and a trial court must so inform the jury. (Victor v. Nebraska

(1994) 511 U.S. 1, 5 (Victor); In re Winship (1970) 397 U.S. 358, 364.) As

previously mentioned, this court concluded in Vann, supra, 12 Cal.3d 220, that the

trial court‘s state law duty to instruct the jurors on the principles of law that

govern their deliberation and decision included the obligation to instruct that a

defendant is presumed to be innocent and that the prosecution had the burden of

proving his or her guilt beyond a reasonable doubt. (Id. at p. 225.) Vann also

recognized the federal constitutional implications of that rule, observing that ―[t]he

reasonable-doubt standard of proof in criminal proceedings is . . . rooted in the

federal Constitution.‖ (Id. at p. 227.)

In Vann, like here, the trial court inadvertently failed to include in its

predeliberation instructions to the jury the standard reasonable doubt instruction.

(Vann, supra, 12 Cal.3d at pp. 225-226.) Concluding that the omission amounted

to federal constitutional error, Vann rejected the respondent‘s contention that

because the court‘s instructions otherwise covered the subject, there was no error.

(Id. at pp. 226-227.) In that case, two of the trial judge‘s predeliberation

instructions had referenced the reasonable doubt standard. The Vann decision

found, however, that those isolated references to the reasonable doubt standard fell

―far short‖ of conveying the requirement that the defendants were entitled to

acquittal unless the prosecution proved beyond a reasonable doubt each element of

the charged crimes. (Vann, supra, at p. 227.) Specifically, although the jury was

informed that it must not return a verdict based on circumstantial evidence unless

― ‗each fact which is essential to complete a set of circumstances necessary to

12

establish a defendant‘s guilt has been proved beyond a reasonable doubt‘ ‖ (Vann,

supra, at p. 226; see CALJIC No. 2.01), that instruction failed to make clear that

guilt based on direct evidence also must be proved beyond a reasonable doubt.

(Vann, supra, at p. 226.) Likewise, the instruction advising that evidence of

― ‗good character may be sufficient to raise a reasonable doubt whether a

defendant is guilty,‘ ‖ did not connect the reasonable doubt standard to any issues

other than character, or explain that a reasonable doubt would require a verdict of

not guilty. (Vann, supra, at p. 227; see CALJIC No. 2.40.) Vann also noted that

neither the court‘s remarks during jury selection regarding the requisite burden of

proof nor the attorneys‘ statements on that subject during closing argument

―cured‖ the court‘s failure to instruct that the prosecution was required to prove

the defendants‘ guilt of each charged crime beyond a reasonable doubt. (Vann,

supra, at p. 227, fn. 6.)

The United States Supreme Court has never directly addressed the

constitutional consequences of a trial court‘s failure to instruct on the requirement

of proof beyond a reasonable doubt. But nothing in the high court‘s

pronouncements subsequent to this court‘s decision in Vann calls into question

Vann‘s conclusion that the omission of the standard reasonable doubt instruction

amounted to a federal due process violation because the instructions that were

given by the court failed to explain that the defendants could not be convicted

―unless each element of the crimes charged was proved to the jurors‘ satisfaction

beyond a reasonable doubt.‖ (Vann, supra, 12 Cal.3d at p. 227.) For example, in

Victor, supra, 511 U.S. 1, the court addressed whether the standard instructions

defining the reasonable doubt standard of proof that were given in two state

criminal trials correctly conveyed the constitutional requirement that the

prosecution prove the elements of each charged offense beyond a reasonable

doubt. Although Vann predated the decision in Victor, its reasoning is consistent

13

with the high court‘s explanation in Victor that ―so long as the court instructs the

jury on the necessity that the defendant‘s guilt be proved beyond a reasonable

doubt, [citation], the Constitution does not require that any particular form of

words be used in advising the jury of the government‘s burden of proof.‖ (Victor,

supra, at p. 5.)

We conclude that Vann states the proper inquiry with regard to determining

the federal constitutional implications of the trial court‘s failure to include the

standard reasonable doubt instruction in its predeliberation instructions to the jury,

and we follow that approach in resolving the question presented in this case.

Specifically, the omission of the standard reasonable doubt instruction will amount

to a federal due process violation when the instructions that were given by the

court failed to explain that the defendants could not be convicted ―unless each

element of the crimes charged was proved to the jurors‘ satisfaction beyond a

reasonable doubt.‖ (Vann, supra, 12 Cal.3d at p. 227.) When the trial court‘s

instructions otherwise cover this constitutional principle, the failure to instruct

with the standard reasonable doubt instruction does not constitute federal

constitutional error.

1. The omission of CALJIC No. 2.90 or CALCRIM No. 220 from

the predeliberation instructions did not constitute federal

constitutional error as to the voluntary manslaughter

conviction

Although the court failed to include the standard reasonable doubt

instruction in its predeliberation instructions to the jury, a number of the given

instructions referred to the prosecution‘s burden of proving defendant‘s guilt

beyond a reasonable doubt. One of these instructions concerned the evaluation of

circumstantial evidence. The remainder of the references to the reasonable doubt

standard of proof appeared in instructions relating to the murder charge, its lesser

included offenses, and the sentence enhancement allegations associated with that

14

count. As we explain, because the court‘s instructions covered the requirement

that the prosecutor bore the burden of proving defendant‘s guilt of the murder

charge and its lesser included offenses (including voluntary manslaughter) beyond

a reasonable doubt, the omission of the standard reasonable doubt instruction did

not violate federal due process principles as to defendant‘s conviction of voluntary

manslaughter.

Vann, supra, 12 Cal.3d 220, and the Court of Appeal decisions applying its

reasoning have held that a trial court‘s predeliberation instructions connecting the

reasonable doubt standard to only lesser included offenses and narrow evidentiary

or procedural determinations are insufficient to satisfy the court‘s constitutional

duty to instruct on the prosecution‘s burden of proving each charged offense

beyond a reasonable doubt. In People v. Elguera (1992) 8 Cal.App.4th 1214,

1218 (Elguera), the trial court referred to the reasonable doubt standard in its

predeliberation instructions only when explaining the use of circumstantial

evidence to prove guilt. (CALJIC No. 2.01.) The trial court‘s predeliberation

instructions in People v. Crawford (1997) 58 Cal.App.4th 815, 820 (Crawford),

mentioned reasonable doubt only in instructions on circumstantial evidence, lesser

offenses, and deadly weapon use. (CALJIC Nos. 2.01, 17.16.) Similarly, in

People v. Phillips (1997) 59 Cal.App.4th 952, 957 (Phillips), the trial court‘s

predeliberation instructions referenced the prosecution‘s burden of proof only in

connection with circumstantial evidence, a defendant‘s choice not to testify at

trial, and lesser included offenses. (CALJIC Nos. 2.01, 2.61, 17.10.) Finally, in

People v. Flores (2007) 147 Cal.App.4th 199, 212-213 (Flores), the trial court

mentioned the reasonable doubt standard only as it applied to circumstantial

evidence and a defendant‘s choice not to testify (CALJIC Nos. 2.01, 2.61), and in

connection with special findings on the statute of limitations as to three of the 19

sexual offense charges and the section 667.61 sentence enhancement allegations

15

associated with all charged counts. In each of these cases, the trial court‘s various

instructions highlighted specific applications of the proof beyond a reasonable

doubt requirement, but they did not indicate that that standard of proof must be

met as to each crime of which the defendant actually was convicted. As the Court

of Appeal observed in Flores, supra, at page 216, it cannot be presumed ―that a

reasonable doubt instruction given in a specific context . . . will necessarily be

understood by all of the jurors to apply generally to their determination of the

defendant‘s guilt on the charged offenses.‖

However, in this case, unlike in Vann, the trial court referred to the

reasonable doubt standard not only in its instructions on circumstantial evidence

but, much more significantly, in its detailed instructions regarding the jury‘s

obligation with respect to the elements of murder and to the elements of all of its

lesser included offenses, including voluntary manslaughter. For example, the

proof beyond a reasonable doubt standard was articulated in the general

instructions on determining the degree of murder and deciding between murder

and manslaughter.10 (CALJIC Nos. 8.71, 8.72.) The jurors were then specifically

instructed that ―[i]f you are not satisfied beyond a reasonable doubt that the

defendant is guilty of the crime of first degree murder as charged in Count 1 and

10 CALJIC No. 8.71 informed the jurors that ―[i]f you are convinced beyond a

reasonable doubt and unanimously agree that the crime of murder has been

committed by a defendant, but you unanimously agree that you have a reasonable

doubt whether the murder was of the first or of the second degree, you must give

defendant the benefit of that doubt and return a verdict fixing the murder as of the

second degree [as well as a verdict of not guilty of murder in the first degree].‖

CALJIC No. 8.72 stated: ―If you are convinced beyond a reasonable doubt

and unanimously agree that the killing was unlawful, but you unanimously agree

that you have a reasonable doubt whether the crime is murder or manslaughter,

you must give the defendant the benefit of that doubt and find it to be

manslaughter rather than murder.‖

16

you unanimously so find, you may convict him of any lesser crime provided you

are satisfied beyond a reasonable doubt that he is guilty of the lesser crime.‖

(CALJIC No. 8.75, italics added.) Defendant argues that this instruction was

inadequate because it failed to assign the burden of proof to the prosecution. We

observe, however, that in a similarly explicit instruction, the jury was told that

―[t]o establish that a killing is murder and not manslaughter, the burden is on the

People to prove beyond a reasonable doubt each of the elements of murder and

that the act which caused the death was not done in the heat of passion or upon a

sudden quarrel or in the actual, even though unreasonable, belief in the necessity

to defend against imminent peril to life or great bodily injury.‖ (CALJIC

No. 8.50.) Furthermore, in connection with defendant‘s claim of self-defense, the

court instructed the jury that ―[t]he burden is on the prosecution to prove beyond a

reasonable doubt that the homicide was unlawful, that is, not justifiable [or]

excusable.‖ (CALJIC No. 5.15.)

We note that the jurors in the present case received many of the same

instructions given in People v. Mayo, supra, 140 Cal.App.4th 535, in which the

Court of Appeal concluded that omission of the standard reasonable doubt

instruction did not constitute federal constitutional error because, taken together,

the instructions adequately conveyed the requisite standard of proof. The

defendant in Mayo was charged with, and convicted of, a single count of murder.

(Id. at p. 539.) As in Vann and the Court of Appeal cases discussed ante, the trial

court failed to give the standard reasonable doubt instruction in its predeliberation

instructions to the jury. (Mayo, supra, at pp. 538-539.) In Mayo, however, the

trial court repeatedly and accurately described the prosecution‘s burden of proving

guilt beyond a reasonable doubt when instructing specifically on the charge of

murder and its lesser included offenses. For instance, the court discussed the

reasonable doubt standard when explaining the distinction between murder and

17

manslaughter. (CALJIC No. 8.50; see Mayo, supra, at p. 545.) The court‘s

instructions on determining the degree of murder and choosing between murder

and the lesser included offense of manslaughter also referred to the requisite

standard of proof. (See CALJIC Nos. 8.71, 8.72, 8.75; Mayo, supra, at p. 545.)

Distinguishing the predeliberation instructions in that case from the inadequate

instructions given in Vann and its progeny, the Mayo court reasoned that the

various references to the standard of proof ―related to the murder charge itself and

directly informed the jury that, to convict Mayo of murder, it had to find each and

every element of that charge beyond a reasonable doubt.‖ (Mayo, supra, at

p. 547.)

In this case, like in Mayo, the trial court repeatedly referred to the

prosecution‘s burden of proving guilt beyond a reasonable doubt when instructing

on the murder charge and its lesser included offenses, clearly and directly

connecting the requisite standard of proof to those offenses. We conclude that in

light of these other instructions the omission of the standard instruction on the

prosecutor‘s burden of proving guilt beyond a reasonable doubt did not amount to

federal constitutional error with regard to defendant‘s conviction of voluntary

manslaughter.

2. The omission of CALJIC No. 2.90 or CALCRIM No. 220 from

the predeliberation instructions amounted to federal

constitutional error as to the gang offense conviction

As we have explained, the trial court‘s omission of the standard reasonable

doubt instruction did not constitute an error of federal constitutional dimension

with regard to the voluntary manslaughter conviction because the court‘s

instructions on murder and its lesser included offenses clearly connected the

reasonable doubt standard to the voluntary manslaughter offense. The same

cannot be said concerning the count charging defendant with active participation

18

in a criminal street gang in violation of section 186.22, subdivision (a), however,

because neither the instruction on the elements of that offense nor any other

instruction given by the court connected the reasonable doubt standard of proof to

that charge. The court read CALJIC No. 6.50, which addressed the requisite

elements of the gang offense, but that instruction did not explain that the

prosecution must prove each of those elements beyond a reasonable doubt.

We note that the court did refer to the reasonable doubt standard when it

instructed on the elements of the section 186.22, subdivision (b), sentencing

allegation that defendant committed the murder for the benefit of a criminal street

gang. (CALJIC No. 17.24.2.) Specifically, the jurors were informed that ―[t]he

People have the burden of proving the truth of this allegation. If you have a

reasonable doubt that it is true, you must find it to be not true.‖ But the instruction

on this sentencing allegation neither addressed nor illuminated the standard of

proof as to the substantive crime of active participation in a gang. In Flores,

supra, 147 Cal.App.4th at page 217, the Court of Appeal similarly found that a

reference to the reasonable doubt standard in an instruction concerning the one-

strike sentence enhancement allegations under section 667.61 would not

necessarily be understood by the jury to also apply to its determination of

defendant‘s guilt of the sexual offenses to which the enhancements were linked.

That the gang allegation instruction connected the requisite standard of proof to

the gang offense is even more dubious here. This is so because the reference to

the reasonable doubt standard was contained in an instruction concerning a

sentencing allegation associated with the murder charge, an entirely different

count.

As already noted, in the present case, like in Vann, the trial court gave the

standard instruction on circumstantial evidence, which states in relevant part that

―each fact which is essential to complete a set of circumstances necessary to

19

establish the defendant‘s guilt must be proved beyond a reasonable doubt.‖

(CALJIC No. 2.01; see CALCRIM Nos. 224, 225.) The court in Vann viewed the

circumstantial evidence instruction as inadequate to satisfy the court‘s duty to

instruct that the defendants were entitled to acquittal unless each of the crimes

charged were proved beyond a reasonable doubt. In Vann, the prosecution‘s case

depended largely on direct evidence. (Vann, supra, 12 Cal.3d at p. 226.)

Similarly here, the prosecution‘s gang offense case was based largely on direct

evidence, including defendant‘s testimony admitting that he was a member of the

Hemet Trece gang at the time of the shooting. The circumstantial evidence

instruction did not adequately cover the principle that defendant could be

convicted of the gang offense only if the prosecution proved his guilt of the gang

offense beyond a reasonable doubt.

We conclude that with regard to the gang offense conviction the court‘s

omission of the standard reasonable doubt instruction deprived defendant of his

federal constitutional right to due process because the court‘s instructions did not

otherwise cover the requirement that the prosecution prove defendant‘s guilt of the

gang offense beyond a reasonable doubt.11

11 During jury selection, the trial court did read CALJIC No. 2.90 to the entire

pool of prospective jurors. Vann noted that instructions during jury selection did

not ―cure‖ the court‘s failure to instruct the jury on the requirement that the

prosecutor prove the defendant‘s guilt of each charged offense beyond a

reasonable doubt. (See Vann, supra, 12 Cal.3d at p. 227, fn. 6.) Indeed, no

decision has viewed instructions and remarks at this stage of the proceedings as an

adequate substitute for the court‘s duty to instruct the jurors prior to deliberation

on the principle of proof beyond a reasonable doubt. (See Flores, supra,

147 Cal.App.4th at p. 215 (Flores) [finding it generally ―unreasonable to expect

prospective jurors . . . to give the necessary attention and weight to instructions

given by a trial court during jury selection‖].) Although a trial court‘s instructions

or remarks during jury selection cannot relieve the court of its obligation to

properly instruct the jury during trial regarding the prosecution‘s burden of

(footnote continued on next page)

20

i. The omission of a standard reasonable doubt instruction in

violation of federal constitutional principles is subject to

harmless error review

Having determined that the trial court‘s omission of the standard reasonable

doubt instruction amounted to federal constitutional error as to the gang offense,

we next must decide whether the error is amenable to harmless error analysis or

requires automatic reversal without regard to prejudice.

As previously discussed, Vann concluded that the trial court‘s failure in that

case to satisfy its obligation to instruct on the prosecution‘s burden of proving the

defendants‘ guilt beyond a reasonable doubt violated federal due process

principles. (Vann, supra, 12 Cal.3d at pp. 227-228.) Because the error implicated

the federal Constitution, Vann assessed the effect of the error by applying the

harmless error analysis for federal constitutional errors that was established in

Chapman, supra, 386 U.S. 18. (Vann, supra, at p. 228.) We observe, however,

that Vann predated a significant line of decisions by the United States Supreme

Court illustrating the types of errors qualifying as structural defects that are not

amenable to harmless error analysis and instead are inherently prejudicial, and the

types of errors that properly can be assessed for harmlessness. Accordingly, we

must address anew the question whether the error in this case can be found

harmless. In so doing, we resolve a conflict on this point that has arisen in a

number of Court of Appeal opinions decided after this court‘s decision in Vann.

(footnote continued from previous page)

proving defendant‘s guilt beyond a reasonable doubt, this does not mean that

statements made by the court during jury selection to each of the jurors who

actually served on the jury may not be considered along with any other potentially

relevant factors in determining whether, in light of all the circumstances of a

particular case, the court‘s error should properly be found harmless. (See post,

pp. 33-35.)

21

As explained below, we conclude that when the court‘s omission of the standard

reasonable doubt instruction constitutes federal constitutional error because the

principle, although mentioned elsewhere in the instructions, was not specifically

linked to the elements of a charged offense, but the court has not instructed with a

definition of reasonable doubt that effectively lowers the prosecution‘s burden of

proof, the error is subject to harmless error review.

Chapman, supra, 386 U.S. 18, established that federal constitutional errors

are properly subject to review for harmlessness. In the nearly 50 years since

Chapman was decided, the high court repeatedly has emphasized that most errors

implicating a federal constitutional right, including most instructional errors, are

amenable to harmless error analysis and that only a ―very limited class of cases‖

are subject to per se reversal. (Johnson v. United States (1997) 520 U.S. 461, 468;

see Hedgpeth v. Pulido (2008) 555 U.S. 57, 61; Neder v. United States (1999) 527

U.S. 1, 8 (Neder); Rose v. Clark (1986) 478 U.S. 570, 578 [errors requiring

automatic reversal ―are the exception and not the rule‖].) In Arizona v.

Fulminante (1991) 499 U.S. 279, the high court categorized constitutional errors

into two groups. Most errors, the court explained, are ― ‗trial error[s],‘ ‖ occurring

―during the presentation of the case to the jury.‖ (Id. at p. 307.) They are

amenable to harmless error review because they can be ―quantitatively assessed in

the context of other evidence presented in order to determine whether [their]

admission was harmless beyond a reasonable doubt.‖ (Id. at p. 308.) ―Structural

defects,‖ on the other hand, ―defy analysis by ‗harmless-error‘ standards‖ (id. at

p. 309) because they are not ―simply an error in the trial process,‖ but rather an

error ―affecting the framework within which the trial proceeds.‖ (Id. at p. 310; see

Brecht v. Abrahamson (1993) 507 U.S. 619, 630 [structural errors require

automatic reversal because ―they infect the entire trial process‖].)

22

The high court has identified as structural error constitutional violations

such as the denial of counsel or of self-representation, racial discrimination in jury

selection, and trial before a biased judge. (See United States v. Gonzalez-Lopez

(2006) 548 U.S. 140, 149 [listing structural errors]; Neder, supra, 527 U.S. at p. 8

[same].) The court also has provided further guidance on categorizing errors as

structural. For example, it explained in Neder that structural errors ―deprive

defendants of ‗basic protections‘ ‖ (Neder, supra, at p. 8) and ―necessarily render a

criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or

innocence.‖ (Id. at p. 9, italics omitted; see Washington v. Recuenco (2006) 548

U.S. 212, 218-219; Rose v. Clark, supra, 478 U.S. at p. 577.) In other

pronouncements on the subject of structural error, however, the court has focused,

not on the effect of the constitutional violation at trial, but on ―the difficulty of

assessing the effect of the error‖ or the ―irrelevance of harmlessness.‖ (United

States v. Gonzalez-Lopez, supra, at p. 149, fn. 4.)

The court‘s reasoning in United States v. Gonzalez-Lopez, supra, 548 U.S.

140, illustrates the view that the touchstone for determining the appropriateness of

harmless error review is the ability to ascertain the effect of the constitutional

violation. Gonzalez-Lopez involved the deprivation of the right to retained

counsel of one‘s choice. In holding that the constitutional violation was

―structural,‖ the court emphasized that the consequences of that error were

― ‗necessarily unquantifiable and indeterminate.‘ ‖ (Id. at p. 150.) Noting the

myriad ways that representation might have proceeded had the trial court not

erroneously disqualified the defendant‘s chosen attorney, the court observed that

conducting a harmless error analysis of that error ―would be a speculative inquiry

into what might have occurred in an alternate universe.‖ (Ibid.)

The high court had relied on similar reasoning in Sullivan v. Louisiana

(1993) 508 U.S. 275 (Sullivan), to hold that the trial judge‘s misleading

23

description of the reasonable doubt standard given in that case was structural error

and required automatic reversal. The trial judge in Sullivan had read to the jury an

instruction similar to the one given in Cage v. Louisiana (1990) 498 U.S. 39,

which defined the reasonable doubt standard by referring to ― ‗grave uncertainty‘ ‖

and ― ‗substantial doubt,‘ ‖ terms that effectively and improperly lowered the

prosecution‘s burden of proof. (Id. at p. 40,italics omitted; see Sullivan, supra, at

p. 277.) Sullivan concluded that the deprivation of the right to a jury verdict of

guilt beyond a reasonable doubt resulting from the defective instruction met the

definition of structural error because its consequences were ―necessarily

unquantifiable and indeterminate.‖ (Sullivan, supra, at p. 282.) Harmless error

analysis was not possible, Sullivan also explained, because the misdescription of

the prosecution‘s burden of proof ―vitiate[d] all the jury‘s findings.‖ (Id. at p. 281,

original italics.) In describing the illogic of conducting a harmless error review of

the error in that case, Sullivan observed that the ―proper role‖ (id. at p. 280) of the

appellate court is to look to ―the basis on which ‗the jury actually rested its

verdict.‘ [Citation.]‖ (Id. at p. 279.) The premise of Chapman was ―simply

absent‖ in that case, Sullivan explained, because there was ―no jury verdict of

guilty-beyond-a-reasonable doubt . . . upon which harmless-error scrutiny [could]

operate.‖ (Sullivan, supra, at p. 280.)

An instruction that effectively lowers the prosecution‘s burden of proving

guilt beyond a reasonable doubt is structural error because it ―vitiates all the jury‘s

findings‖ and its effect on the verdict is ―necessarily unquantifiable and

indeterminate.‖ (Sullivan, supra, 508 U.S. at pp. 281, 282; see Hedgpeth v.

Pulido, supra, 555 U.S. at p. 61 [―harmless error analysis applies to instructional

errors so long as the error at issue does not categorically ‗ ―vitiat[e] all the jury‘s

findings‖ ‘ ‖].) We believe, however, that when, as here, the court has not

misdefined the reasonable doubt standard in a manner that improperly lowers the

24

prosecution‘s burden of proof, but nonetheless has failed to satisfy its federal

constitutional obligation to instruct on the requirement that the prosecution prove

the defendant‘s guilt of each charged offense beyond a reasonable doubt, the

effect of the instructional omission, like most errors of constitutional dimension, is

amenable to harmless error review. Under these circumstances, other components

of the trial, such as the instructions relating to other charged crimes, the verdicts

on those counts, and other potentially relevant circumstances (such as the content

of the attorneys‘ closing argument or the nature and extent of a trial court‘s

remarks during jury selection with regard to the reasonable doubt requirement),

may support a determination that the theoretical gap left by the court‘s failure

during predeliberation instructions to link the reasonable doubt standard of proof

to a certain charged offense had in reality been filled by these other components of

trial. In such cases, a reviewing court could determine that there is no reasonable

possibility that the jury did not actually apply the beyond a reasonable doubt

standard in finding the defendant guilty of the offense in question.

The Courts of Appeal in Flores, supra, 147 Cal.App.4th at pages 203-211,

and Elguera, supra, 8 Cal.App.4th at pages 1219-1220, as well as the Court of

Appeal in this case, correctly concluded that the Chapman standard applies to the

determination whether reversal is required when the trial court fails to give the

standard reasonable doubt instruction in its predeliberation instructions to the jury.

The Court of Appeal in Crawford, supra, 58 Cal.App.4th 815, held to the contrary

that the high court‘s decision in Sullivan ―compel[led]‖ automatic reversal.

Crawford reasoned that such an error denies a defendant ―the most elementary and

fundamental right provided by our system of justice.‖ (Crawford, supra, at

pp. 822, 823.) We agree with Crawford‘s characterization of this instructional

error as affecting an extremely serious and basic constitutional guarantee. But to

declare an error ―structural,‖ it is not enough to say that the error denied the

25

defendant a ―most elementary and fundamental right.‖ As the high court‘s

decisions make clear, the deprivation of important constitutional protections can

be subject to harmless error analysis. (See Arizona v. Fulminante, supra, 499 U.S.

at p. 312 [that the erroneous admission of an involuntary confession ―may be

devastating‖ to a defendant ―is not a reason for eschewing the harmless-error test

entirely‖].) To make that determination, we ask whether the error rendered the

trial ―fundamentally unfair or an unreliable vehicle for determining guilt or

innocence‖ (Neder, supra, 527 U.S. at p. 9), or whether the effect of the error is

―necessarily unquantifiable and indeterminate‖ (Sullivan, supra, 508 U.S. at

p. 282). The importance of the constitutional right, standing alone, is not

dispositive of the question whether the error is susceptible to harmlessness review.

Significantly, the appellate court in Crawford conducted a harmless error

review as an alternate basis for its conclusion that the error required reversal of the

judgment. (Crawford, supra, 58 Cal.App.4th at pp. 823, 824-826.) Its alternate

analysis, which took into account the instructions given at trial that correctly

referred to the reasonable doubt standard, the court‘s remarks during jury

selection, and the argument of counsel, is consistent with our conclusion that the

erroneous omission of a standard reasonable doubt instruction can be assessed for

harmlessness.

Phillips, supra, 59 Cal.App.4th 952, likewise held that the omission of the

standard reasonable doubt instruction was structural error and not subject to

harmless error analysis. In the appellate court‘s view, ―the trial court‘s error

suffered no less a constitutional defect than did the trial court in Sullivan.‖ (Id. at

p. 957.) As discussed ante, however, the gravity of the error does not by itself

determine whether such an error is amenable to harmless error analysis. As in

Crawford, the Phillips case did not involve a description of the reasonable doubt

standard that lowered the prosecution‘s burden of proof. Contrary to the appellate

26

court‘s conclusion in Phillips, we conclude that the effect of a trial court‘s failure

to include the standard reasonable doubt instruction can be assessed for

harmlessness.12

ii. Application of the Chapman standard to assess the effect of

the erroneous omission of the standard reasonable doubt

instruction with regard to the gang offense conviction13

Under Chapman, a federal constitutional error is harmless when the

reviewing court determines ―beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained.‖ (Chapman, supra, 386 U.S. at

p. 24.) When there is ― ‗a reasonable possibility‘ ‖ that the error might have

contributed to the verdict, reversal is required. (Ibid.) When, in violation of

federal constitutional commands, the court‘s predeliberation instructions have

failed to cover the principle that the prosecution must prove the defendant‘s guilt

with respect to each of the charged offenses beyond a reasonable doubt, the effect

of such an error is assessed by asking whether there is a reasonable possibility that

the verdict in question was not based upon a finding of guilt beyond a reasonable

doubt. If, after examination of the record, the reviewing court concludes beyond a

reasonable doubt that the jury must have found the defendant‘s guilt beyond a

reasonable doubt, the error is harmless. If, on the other hand, the reviewing court

cannot draw this conclusion, reversal is required.

12 We disapprove Crawford, supra, 58 Cal.App.4th 815, and People v.

Phillips, supra, 59 Cal.App.4th 952, to the extent they hold that the omission of

CALJIC No. 2.90 in violation of the federal Constitution is structural error and

requires automatic reversal.

13 Prior to oral argument, at this court‘s request, the parties filed supplemental

briefs addressing this issue.

27

The reviewing court conducting a harmless error analysis under Chapman

looks to the ―whole record‖ to evaluate the error‘s effect on the jury‘s verdict.

(Rose v. Clark, supra, 478 U.S. at p. 583.) We note in this regard that a Chapman

harmless error analysis for instructional error typically includes review of the

strength of the prosecution‘s case. (See, e.g., Johnson v. United States, supra,

520 U.S. at p. 470 [concluding that the trial court‘s failure to submit the question

of materiality to the jury in a perjury case was harmless in light of the

overwhelming and uncontroverted evidence supporting that element].) Indeed, the

harmless error inquiry for the erroneous omission of instruction on one or more

elements of a crime focuses primarily on the weight of the evidence adduced at

trial. Under Neder, supra, 527 U.S. 1, such an error is deemed harmless when a

reviewing court, after conducting a thorough review of the record, ―concludes

beyond a reasonable doubt that the omitted element was uncontested and

supported by overwhelming evidence.‖ (Id. at p. 17; see People v. Mil (2012)

53 Cal.4th 400, 417-419 [applying the same standard to evaluate the effect of the

erroneous omission of instruction on two elements of an offense].)

The same harmless error analysis, however, is not appropriate in the present

setting. Neder concluded that a reviewing court applying the Chapman harmless

error standard to the erroneous failure to instruct on an element of the offense does

not infringe on a defendant‘s constitutional rights by ― ‗becom[ing] in effect a

second jury to determine whether the defendant is guilty.‘ [Citation.]‖ (Neder,

supra, 527 U.S. at p. 19.) But if a reviewing court were to rely on its view of the

overwhelming weight of the prosecution‘s evidence to declare there was no

reasonable possibility that the jury based its verdict on a standard of proof less

than beyond a reasonable doubt, the court would be in the position of expressing

its own idea ―of what a reasonable jury would have done. And when [a court]

does that, ‗the wrong entity judge[s] the defendant guilty.‘ [Citation.]‖ (Sullivan,

28

supra, 508 U.S. at p. 281.) No matter how overwhelming a court may view the

strength of the evidence of the defendant‘s guilt, that factor is not a proper

consideration on which to conclude that the erroneous omission of the standard

reasonable doubt instruction was harmless under Chapman.

In sum, a reviewing court applying the Chapman standard to determine the

prejudicial effect of the erroneous omission of the standard reasonable doubt

instruction should evaluate the record as a whole — but not rely upon its view of

the overwhelming weight of the evidence supporting the verdict — to assess how

the trial court‘s failure to satisfy its constitutional obligation to instruct on the

prosecution‘s burden of proof beyond a reasonable doubt affected the jury‘s

determination of guilt. If it can be said beyond a reasonable doubt that the jury

must have found the defendant‘s guilt beyond a reasonable doubt, the error is

harmless. If the reviewing court cannot draw this conclusion, reversal is required.

iii. The erroneous omission of the standard reasonable doubt

instruction was harmless beyond a reasonable doubt in this case

The Court of Appeal in the present case was not convinced beyond a

reasonable doubt that the erroneous omission of the standard reasonable doubt

instruction was harmless as to the gang offense count. We reach a different

conclusion. For the reasons discussed post, we conclude that in light of a number

of distinct features revealed by the record in this case, there is no reasonable

possibility that the jury failed to apply the reasonable doubt standard when it

found defendant guilty of the gang offense.

It is not reasonably possible, given the instructions associated with the

murder count, that the jury would have thought that the prosecutor had no burden

of proof with regard to the gang offense charge, or that a standard other than

beyond a reasonable doubt applied. The court gave nine instructions in connection

with the murder count that, taken together, amply conveyed that the prosecutor

29

must prove beyond a reasonable doubt each element of the murder charge or its

lesser included offenses, including the voluntary manslaughter offense of which

defendant was convicted, as well as the elements of the street gang and firearm

sentencing enhancement allegations associated with that count. Significantly,

none of the court‘s instructions at trial referred to a lesser standard of proof such

as preponderance of the evidence or clear and convincing evidence. (Cf. Flores,

supra, 147 Cal.App.4th at p. 213, fn. 13 [finding the erroneous omission of

CALJIC No. 2.90 not harmless in part because the jury was instructed on lesser

standards in connection with the statute of limitations allegations and the

requirement that the victim‘s testimony be corroborated].) We find it unrealistic,

in light of the given instructions, that the jurors would have believed the

prosecution was required to prove defendant‘s guilt of murder or its lesser offenses

beyond a reasonable doubt but that it had no burden, or a burden less than beyond

a reasonable doubt, to prove his guilt of the gang offense.

We drew a similar inference in a different context in People v. Cowan

(2010) 50 Cal.4th 401. In that case, there was some possibility that during penalty

phase deliberations, the jurors may have been led to believe that they could

consider as a factor in aggravation evidence of a murder on which they had failed

to reach a verdict during the guilt phase. (Id. at p. 492.) On appeal, the defendant

claimed that the court committed prejudicial error at the penalty phase by failing

to instruct on reasonable doubt in connection with the murder. (Id. at p. 489.) The

record showed that although the jurors had been instructed pursuant to CALJIC

No. 8.87 that they could consider the defendant‘s commission of three specified

prior criminal acts as an aggravating circumstance if they were convinced beyond

a reasonable doubt that the criminal acts had occurred, the jurors were not

instructed that they could consider evidence of the prior murder as an aggravating

circumstance only if they were convinced beyond a reasonable doubt that the

30

defendant had committed it. (Cowan, supra, at pp. 488-489.) We concluded,

however, that even if instructional error occurred, there was no reasonable

possibility that the error had affected the penalty verdict because, in relevant part,

we found it ―extremely unlikely‖ that any of the jurors would have believed they

could consider the murder as an aggravating circumstance without first having

been convinced beyond a reasonable doubt that the defendant committed it. (Id. at

p. 492.) As we explained, ―the most logical response to the absence of a specific

instruction would have been to conclude that the . . . murder was subject to the

same reasonable doubt standard as the other criminal activity included in the

instruction . . . .‖ (Ibid.) We further observed that nothing in counsel‘s closing

arguments would have misled the jury regarding the applicability of the reasonable

doubt standard because neither party mentioned the murder. (Ibid.)

Likewise here, we find ―the most logical response‖ by the jury to the

absence of instruction specifically linking the reasonable doubt standard to the

gang offense count would have been to conclude that a guilty verdict on that

charge was subject to the same reasonable doubt standard that had been described

in the court‘s instructions on murder, the lesser offenses, and the sentencing

allegations. We further note that neither the prosecutor nor defense counsel

referred to the standard of proof during closing remarks. As in Cowan, nothing in

counsel‘s arguments would have misled the jury to believe it should adjudge

defendant‘s guilt of the gang count under a standard of proof less than beyond a

reasonable doubt.

The instructions given to the jury here, which related the reasonable doubt

standard to the charge of murder and its lesser included offenses, also distinguish

the present case from Vann, supra, 12 Cal.3d 220, and the line of Court of Appeal

decisions that have found the erroneous omission of the standard reasonable doubt

instruction to be prejudicial under Chapman, supra, 386 U.S. 18. In each of those

31

cases, as previously discussed, the court‘s instructions explained specific

applications of the reasonable doubt standard to certain evidentiary and procedural

determinations. In some cases, the instructions connected the reasonable doubt

standard to lesser included offenses of which the defendant was not convicted. In

no case, however, did the court‘s instructions convey that the prosecution bore the

burden of proving guilt of any of the crimes of which the defendant was convicted.

A reviewing court understandably would find it difficult under these

circumstances to conclude beyond a reasonable doubt that the jury understood the

reasonable doubt standard applied more generally to their determination of guilt

on the charged offenses. (See Flores, supra, 147 Cal.App.4th at p. 216.)

By contrast in this case, the jury was informed through a number of

predeliberation instructions that to convict defendant of the charged murder or any

of its lesser included offenses, it must find him guilty of the offense beyond a

reasonable doubt. We find it unrealistic to conclude that the jury would not have

understood that the prosecution bore the same burden of proving defendant‘s guilt

beyond a reasonable doubt with respect to the gang offense. Further, we find it

unreasonable to say that the jury would have divined a different standard of proof

or ignored one entirely with respect to the gang offense.

The Court of Appeal below arrived at the opposite conclusion, finding that

the instructions on the murder charge and its lesser offenses and associated

sentencing allegations suggested ―more than a reasonable possibility‖ that the

omission of the standard reasonable doubt instruction contributed to the jury‘s

verdict of guilt on the gang offense charge. The Court of Appeal found it

significant that the jury had been instructed that the prosecution must prove

beyond a reasonable doubt each element of the gang allegation attached to the

murder count, and returned a not true finding on that allegation, but that it had

convicted defendant of the gang offense.

32

We are not persuaded by the Court of Appeal‘s reasoning because the

record discloses a different explanation for the alleged inconsistency in the jury‘s

verdicts on the gang allegation and the gang offense count. The jury was

instructed that to find the gang allegation true, it had to find defendant committed

―the crime charged‖ for the benefit of a criminal street gang and that ―that crime‖

was committed with the specific intent to promote criminal conduct by gang

members. During closing argument, the prosecutor emphasized to the jury that

―the gang allegation only applies to murder. If you find him guilty of

manslaughter, you don’t worry about the gang allegation.‖ (Italics added.) As

noted, the jury acquitted defendant of murder and found him guilty of voluntary

manslaughter. In accordance with those verdicts and the prosecutor‘s argument,

the jury returned the verdict form finding that defendant, ―in the commission of

the offense charged in count 1 . . . did not commit said crime‖ for the benefit of a

criminal street gang. We conclude that on this record, the jury‘s not true finding

on the gang allegation does not suggest a reasonable possibility that its verdict of

guilt on the gang offense count was based on a standard of proof less than beyond

a reasonable doubt.

Although of lesser significance than the instructions given at trial and the

jury‘s verdicts in the case, the court‘s remarks and questions to prospective jurors

provide some support for our conclusion that there is no reasonable possibility that

the jury‘s verdict on the gang count was not based on a finding of guilt beyond a

reasonable doubt. In its introductory comments, the court read to the prospective

jurors the standard reasonable doubt instruction (CALJIC No. 2.90), and

throughout the next two days of the jury selection process, the court continued to

reference and clarify the reasonable doubt standard. For example, the court

contrasted the prosecution‘s burden of proof beyond a reasonable doubt with the

lesser standards of proof that applied in other settings. Specifically, the court

33

explained that liability in a civil case is based on a preponderance of the evidence,

where ―you evaluate the evidence and weigh one side against the other. . . . That

is the lowest standard in the law. . . . That‘s not our standard.‖ The court also

mentioned the probable cause standard and the standard of clear and convincing

evidence, but reiterated, ―That‘s not our standard. [¶] Our standard is the highest

standard of them all, beyond a reasonable doubt. [Of] all the levels, all the

standards, that‘s the highest.‖ On the third and final day of jury selection, the

court reiterated the differences between the reasonable doubt standard and the

lesser standards of proof, emphasizing again that the latter did not apply to the

present case.

The court also repeatedly explained the connection between the charged

crimes and the reasonable doubt standard. In the court‘s introductory remarks, it

informed the prospective jurors that ―each crime has certain ingredients. We call

those elements. To find one guilty of a crime, whatever it may be, could be

shoplifting, could be any crime, but to find him guilty of any crime you must be

convinced beyond a reasonable doubt as to the elements one, two, three, whatever

the number is, as to those elements. Okay?‖ The court later explained to the

prospective jurors that ―we have three alleged crimes, elements to all of them.

You will be getting the proper reading of all the elements in the jury instructions,

and if you are not convinced beyond a reasonable doubt as to any one or more of

those elements, you must vote not guilty.‖ With regard to the gang offense charge

specifically, the court apprised the prospective jurors of the elements of that

charge. It then remarked that ―the fact that you have a group that does things

together does not mean necessarily it is a criminal street gang. . . . [Y]ou are

going to have to be convinced . . . beyond a reasonable doubt [of the] various

elements that we‘ll give to you.‖ The court repeated the point toward the end of

jury selection, asking prospective jurors collectively whether everyone could

34

accept that in order to find defendant guilty of the gang offense, each must be

satisfied beyond a reasonable doubt that all the elements have been proved.

During questioning of the prospective jurors, which was conducted in front

of the entire venire, the court continued to impress upon them the required burden

of proof. The court asked certain prospective jurors individually whether they

understood and accepted the rule that the burden of proving defendant‘s guilt was

on the People. The court elicited affirmative responses both individually from the

prospective jurors who were being questioned and collectively from the entire

venire. The court also explained to prospective jurors that ―[i]f you are not

convinced . . . beyond a reasonable doubt as to any one element, you must find not

guilty.‖ It then inquired of individual prospective jurors and the group as a whole

whether they ―promised to vote not guilty‖ if not convinced beyond a reasonable

doubt as to any one element. The court later asked prospective jurors, conversely,

whether they could accept that to find guilt they must be convinced beyond a

reasonable doubt ―that all the elements of all the crimes have been met.‖

Thus, in this case, the court undertook extensive effort during jury selection

to impress upon the prospective jurors the meaning, application, and magnitude of

the beyond-a-reasonable-doubt standard of proof, and it painstakingly elicited

from the prospective jurors their understanding and acceptance of that principle.

The trial court did much more than simply read the standard instruction to the

prospective jurors, or refer in passing to the presumption of innocence and the

standard of proof when questioning a single prospective juror. The circumstances

here are, therefore, distinguishable from those in Flores, supra, 147 Cal.App.4th

199, Crawford, supra, 58 Cal.App.4th 815, and Phillips, supra, 59 Cal.App.4th

952.

We note furthermore that none of the predeliberation instructions that the

court gave to the jury conflicted with, or prevented the jurors from relying on, the

35

court‘s repeated and detailed explanations during jury selection that the

prosecution must prove every element of each offense — including the gang

offense — beyond a reasonable doubt. At the outset of trial, the trial court

informed the jury that it would give additional instructions on the law at the

conclusion of the case. It further admonished, however, that ―all of the Court‘s

instructions, whether given before, during, or after the taking of testimony, are of

equal importance.‖ In this respect, the present case differs from Vann, supra,

12 Cal.3d 220, in which the trial court ended its predeliberation instructions by

informing the jurors that they ― ‗have been instructed on all the rules of law that

may be necessary for you to reach a verdict.‘ ‖ (Id. at p. 227, fn. 6.) We found in

Vann that the ―net effect‖ of these instructions was to suggest to the jurors that the

predeliberation instructions were ―a self-contained, complete statement of the law

they were to follow.‖ (Ibid.) Here, by contrast, the trial judge instructed the jury

only that it must ―accept and follow the law as I state it to you.‖ (See CALJIC

No. 1.00.) Nothing in this directive would have led the jurors to believe they must

ignore the court‘s explications of the prosecution‘s burden of proof given during

jury selection.

The trial court‘s failure to instruct the jury on the prosecution‘s burden of

proving guilt beyond a reasonable doubt is a serious error that often may amount

to a federal due process violation. As demonstrated by the prior decisions, in

those instances in which this instructional omission constitutes error of federal

constitutional dimension, the error frequently will not be harmless under the

Chapman harmless error standard of review. In the present matter, however, a

different conclusion is warranted: Given the entire record in this case, and in

particular the predeliberation instructions that expressly and directly connected the

reasonable doubt standard to the charged murder and its lesser included offenses,

including the voluntary manslaughter offense of which defendant was convicted,

36

we conclude that it is not reasonably possible that the jury would have believed

that a guilty verdict on those crimes must be based on a finding of guilt beyond a

reasonable doubt but that some lesser standard of proof, or no standard at all,

applied to the gang offense count. We can say beyond a reasonable doubt on the

record before us that the jury‘s verdict on the gang offense charge must have been

based on a finding of guilt beyond a reasonable doubt. The court‘s erroneous

failure to inform the jury in its predeliberation instructions that the prosecution

bore the burden of proving the gang offense beyond a reasonable doubt therefore

was harmless beyond a reasonable doubt.

D. Definition of reasonable doubt

The trial court‘s five predeliberation instructions relating to the murder

charge and its lesser included offenses, coupled with CALJIC No. 1.00, the

standard instruction directing the jury to determine defendant‘s guilt based on the

evidence received at trial, covered the two interrelated principles embodied in the

standard reasonable doubt instruction, that is, the presumption of innocence and

the prosecution‘s burden of proving guilt beyond a reasonable doubt as to that

count. Missing from the predeliberation instructions, however, was a definition of

reasonable doubt.14

The failure to define the term ―reasonable doubt‖ does not amount to federal

constitutional error. As the high court explained in Victor, ―the Constitution

14 CALJIC No. 2.90 states: ―Reasonable doubt . . . is that state of the case

which, after the entire comparison and consideration of all the evidence, leaves the

minds of the jurors in that condition that they cannot say they feel an abiding

conviction of the truth of the charge.‖ (CALJIC No. 2.90.) CALCRIM No. 220

defines the reasonable doubt standard of proof in positive terms, explaining that

―[p]roof beyond a reasonable doubt is proof that leaves you with an abiding

conviction that the charge is true.‖

37

neither prohibits trial courts from defining reasonable doubt nor requires them to

do so as a matter of course.‖ (Victor, supra, 511 U.S. at p. 5.)

The court‘s omission of a definition of reasonable doubt, however, does

constitute an error under state law. By their terms, sections 1096 and 1096a

clearly contemplate that a trial court will provide a definition of the term

―reasonable doubt‖ for the jury. Section 1096a provides in relevant part that when

the court instructs the jury in a criminal case, it ―may read to the jury section 1096

. . . and no further instruction . . . defining reasonable doubt need be given.‖ The

legislative history of sections 1096 and 1096a indicates that their enactment was

prompted by numerous reversals of criminal convictions resulting from trial courts

instructing juries with erroneous definitions of reasonable doubt. (See People v.

Brigham (1979) 25 Cal.3d 283, 293-295 (conc. opn. of Mosk, J.); see also People

v. Garcia (1975) 54 Cal.App.3d 61, 63-66 [section 1096a was intended to

eliminate claims of error based on a trial court‘s departure from the legislatively-

approved definition of reasonable doubt].) A trial court‘s statutory obligation to

instruct the jury on the definition of reasonable doubt has been confirmed by this

court on a number of occasions. (See, e.g., People v. Brigham, supra, at pp. 290-

292; id. at pp. 292-316 (conc. opn. of Mosk, J.) [recognizing that the governing

California statutes require a trial court to define reasonable doubt for the jury but

urging the Legislature to amend the statutes to delete any definition of reasonable

doubt]; People v. Freeman, supra, 8 Cal.4th at p. 504 & fn. 9 [cautioning trial

courts not to modify the standard reasonable doubt instruction, which tracks the

language of section 1096, beyond the changes set forth in the opinion, and

observing that more extensive changes to the standard instruction, ―such as those

discussed in the concurring opinions,‖ ―must be left to others‖]; see also People v.

Freeman, supra, at p. 526 (conc. opn. of Mosk, J.) [expressing the view that, in

light of constitutional due process requirements, trial courts should be prohibited

38

from attempting any instructional definition of proof beyond a reasonable doubt];

People v. Freeman, supra, at pp. 526-531 (conc. opn. of George, J.) [agreeing with

the majority opinion‘s analysis of sections 1096 and 1096a, endorsing its request

that the Legislature address ―numerous concerns regarding the clarity of

California‘s standard reasonable doubt instruction,‖ and recommending ―that the

Legislature amend Penal Code sections 1096 and 1096a to provide a more

comprehensible and helpful instruction to guide California jurors in future

criminal cases‖].) Accordingly, the trial court‘s failure to give CALJIC No. 2.90

or CALCRIM No. 220, or to otherwise define reasonable doubt for the jury in this

case, constituted state law error as to both the murder count and the gang offense

count.

As previously discussed, such a state law error is subject to harmless error

review under the standard in People v. Watson, supra, 46 Cal.2d 818. (People v.

Mayo, supra, 140 Cal.App.4th at pp. 550-551.) Having reviewed the record in

accordance with that harmless error standard, we conclude that there is no

reasonable probability that the outcome would have been more favorable for

defendant had the court provided in its predeliberation instructions a definition of

the reasonable doubt standard of proof.

Nothing in the record suggests that the jury may have been confused

regarding the meaning of reasonable doubt. During its deliberations, the jury sent

several notes to the court asking questions and seeking to rehear testimony. But

the jury did not request clarification of the reasonable doubt principle ―as it surely

would have done had it been confused as to the meaning of [that term].‖ (People

v. Holt (1997) 15 Cal.4th 619, 685; cf. People v. Cowan, supra, 50 Cal.4th at

p. 495 [relying on similar grounds to find harmless the trial court‘s erroneous

failure to redefine the reasonable doubt standard at the penalty phase of a capital

trial]; People v. Chatman (2006) 38 Cal.4th 344, 408-409 [same].) Furthermore,

39

because neither the prosecutor nor defense counsel referred to the standard of

proof during their closing remarks, nothing in their arguments invited the jury to

apply a standard of proof less than beyond a reasonable doubt, or no standard at

all. This is not a case like Phillips, supra, 59 Cal.App.4th 952, in which opposing

counsel‘s arguments disagreeing about the definition of reasonable doubt were

―more apt to confuse than to enlighten the jurors,‖ who had not been given the

standard reasonable doubt instruction. (Id. at p. 958 [concluding that the jurors

were likely to be confused ―whether to even apply reasonable doubt as the

People‘s burden of proof‖].) The jury‘s verdicts in this case, acquitting defendant

of murder and convicting him of voluntary manslaughter instead, further suggest

that the jury understood the prosecution‘s heavy burden of proving guilt beyond a

reasonable doubt, conscientiously adjudged the evidence in light of that standard

of proof, and determined that the prosecution had failed to carry its burden of

proof as to the greater offense but not as to the lesser.

We can infer moreover that the jury was not left to guess as to the meaning of

reasonable doubt because, as already noted, the record shows that the court gave

the definition when it read CALJIC No. 2.90 to the entire panel of prospective

jurors, and repeatedly explained the standard instruction‘s principles during the

three days of jury selection. Although not sufficient in itself to relieve the trial

court of its obligation to define reasonable doubt for the sworn jurors during trial

(and thus the court‘s omission of the definition in the predeliberation instructions

constituted state law error), the court‘s remarks to prospective jurors can inform

the harmless error analysis and further add some support to our conclusion that

there is no reasonable probability that defendant would have obtained a more

favorable outcome had the court included the standard reasonable doubt

instruction or otherwise defined reasonable doubt during its predeliberation

instructions to the jury. (See People v. Mayo, supra, 140 Cal.App.4th at p. 552

40

[relying in part on the court‘s remarks during jury selection to find the court‘s

omission of CALJIC No. 2.90 from the predeliberation instructions to be harmless

under Watson]; cf. Elguera, supra, 8 Cal.App.4th at p. 1221 [having heard

CALJIC No. 2.90 during jury selection and indicating individually that they

understood it, the seated jurors were not left ignorant as to the standard reasonable

doubt instruction‘s basic principles].)

On this record, we conclude that there is no reasonable probability that the

outcome of this trial, in which the jury found defendant guilty of voluntary

manslaughter and the gang offense, would have been more favorable to defendant

had the trial court defined the reasonable doubt standard of proof in its

predeliberation instructions.

III. CONCLUSION

For the reasons discussed above, we reverse the judgment of the Court of

Appeal insofar as it reversed defendant‘s conviction of active participation in a

criminal street gang. In all other respects, the judgment is affirmed.

CANTIL-SAKAUYE, C. J.

WE CONCUR:

BAXTER, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

41

CONCURRING AND DISSENTING OPINION BY KENNARD, J.

Defendant was charged with murder (Pen. Code, § 187) and actively

participating in a criminal street gang (Pen. Code, § 186.22, subd. (a) (the gang

offense)). At trial, the court failed to give the jury the standard instruction on the

prosecution‘s burden of proving guilt ―beyond a reasonable doubt.‖ The jury

found defendant guilty of voluntary manslaughter (a lesser offense necessarily

included in the charge of murder), and of the gang offense.

With regard to the voluntary manslaughter conviction, the majority

concludes that the absence of a reasonable doubt instruction did not violate

defendant‘s right to due process under either the Fifth or the Fourteenth

Amendment to the federal Constitution. The majority explains that other

instructions pertaining to the murder charge made it clear that the jury had to apply

the concept of reasonable doubt. I agree.

With respect to the conviction for the gang offense, the majority holds that

the trial court‘s failure to instruct the jury on reasonable doubt violated

defendant‘s federal due process rights because, unlike the murder charge, no other

instructions told the jury to apply the standard of reasonable doubt to the gang

offense. I agree. But I do not share the majority‘s view that the error did not

prejudice defendant.

1

In Chapman v. California (1967) 386 U.S. 18, the United States Supreme

Court held that any violation of a criminal defendant‘s rights under the federal

Constitution is harmless only if the prosecution can ―prove beyond a reasonable

doubt that the error complained of did not contribute to the verdict obtained.‖ (Id.

at p. 24.) According to the majority here, that standard was satisfied. For the

reasons given in Justice Liu‘s concurring and dissenting opinion, however, I am

not convinced beyond a reasonable doubt that the jury here applied the correct

standard of proof in determining defendant‘s guilt of the gang offense. Therefore,

I would affirm the Court of Appeal‘s judgment reversing defendant‘s conviction

for the gang offense.

As to whether failure to instruct on reasonable doubt can ever be harmless

(see conc. & dis. opn. of Liu, J., post, pp. 3, 21), I agree with the majority that

such an error is harmless ―[i]f it can be said beyond a reasonable doubt that the

jury must have found the defendant‘s guilt beyond a reasonable doubt.‖ (Maj.

opn., ante, at p. 29.)

KENNARD, J.

2

CONCURRING AND DISSENTING OPINION BY LIU, J.

A fundamental tenet of our criminal law is that ―the Due Process Clause

protects the accused against conviction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which he is charged.‖ (In re

Winship (1970) 397 U.S. 358, 364.) Accordingly, the jury verdict required under the

Sixth Amendment to convict a person of a criminal offense ―is a jury verdict of guilty

beyond a reasonable doubt.‖ (Sullivan v. Louisiana (1993) 508 U.S. 275, 278

(Sullivan).) The trial court has a constitutional duty to so instruct the jury. (Id. at

p. 281.)

The trial court in this case failed to give a standard reasonable doubt

instruction that would have apprised the jury that ―[a] defendant in a criminal action is

presumed to be innocent until the contrary is proved, and in case of a reasonable

doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.

This presumption places upon the People the burden of proving him guilty beyond a

reasonable doubt.‖ (CALJIC No. 2.90; see also CALCRIM No. 2.20 (2006 rev.).) I

agree with today‘s opinion that despite this omission, the trial court did not commit

federal constitutional error requiring defendant‘s voluntary manslaughter conviction

to be overturned. As the court explains, the trial court repeatedly mentioned the

reasonable doubt standard when instructing the jury on the elements of murder and its

lesser included offenses, including voluntary manslaughter. The jury was clearly

informed that in order to convict defendant of murder or voluntary manslaughter, the

1

prosecutor had to prove all the elements of those offenses beyond a reasonable doubt.

I also agree with the court that the failure to define reasonable doubt in this case does

not require reversal of that conviction.

Furthermore, I agree with today‘s holding that the trial court committed federal

constitutional error in failing to instruct the jury that defendant could not be convicted

of active participation in a criminal street gang in violation of Penal Code section

186.22 (all statutory references are to this code) unless the prosecution had proven his

guilt beyond a reasonable doubt. However, as explained below, I do not agree that the

error was harmless.

Until today, no California case had ever held or even suggested that despite a

trial court‘s failure to instruct the jury with a standard reasonable doubt instruction or

some other instruction connecting the reasonable doubt standard to a charged offense,

an appellate court can still be certain beyond a reasonable doubt that the jury

understood its obligation with respect to that offense. California precedent is

uniformly to the contrary; every case to have found inadequate instruction on the

reasonable doubt standard has found such error to warrant reversal. The uniformity of

this precedent reflects the firm and justified conviction of our courts that ― ‗[n]o

instruction could be more vital‘ ‖ (People v. Vann (1974) 12 Cal.3d 220, 227 (Vann))

than one that assures a defendant ―the most elementary and fundamental right

provided by our system of justice, a jury verdict of guilty beyond a reasonable doubt‖

(People v. Crawford (1997) 58 Cal.App.4th 815, 823 (Crawford)).

Today‘s decision is an unwarranted departure. The court correctly concludes

that the trial court‘s omission of the standard reasonable doubt instruction was federal

constitutional error because none of the given instructions, singly or collectively,

―otherwise cover[ed] the requirement that the prosecution prove defendant‘s guilt of

the gang offense beyond a reasonable doubt.‖ (Maj. opn., ante, at p. 20.) But the

court nevertheless believes ―we can say beyond a reasonable doubt on the record

2

before us that the jury‘s verdict on the gang offense charge must have been based on a

finding of guilt beyond a reasonable doubt.‖ (Id. at p. 37.) This assertion is frankly

mystifying. It is inconsistent with the court‘s own rationale for finding federal

constitutional error. It disregards precedent strongly pointing the other way. And it

fails to recognize that a perfectly reasonable juror could have applied the reasonable

doubt standard only to the murder charge and not to the gang offense exactly as the

trial court instructed. Moreover, the court finds harmless error even though no party

asked us to decide that issue; the Attorney General conceded in her answer brief that

the instructional error on the gang offense required reversal. Even assuming the

possibility of a rare case in which failure to properly instruct on the reasonable doubt

standard does not prejudice a criminal defendant, this is not that case. Because the

court has erroneously and unnecessarily reached out to find the instructional error on

the gang offense harmless, I respectfully dissent from that portion of today‘s opinion.

I.

To put into perspective the novelty of the court‘s finding of harmless error, it is

helpful to begin with some background law. In Sullivan, supra, 508 U.S. 275, the

United States Supreme Court held that a trial court‘s misleading and erroneous

reasonable doubt instruction requires reversal of the conviction. The high court

explained that ―where the instructional error consists of a misdescription of the burden

of proof,‖ the error ―vitiates all the jury‘s findings.‖ (Id. at p. 281.) As a result, ―[a]

reviewing court can only engage in pure speculation — its view of what a reasonable

jury would have done. And when it does that, ‗the wrong entity judge[s] the

defendant guilty.‘ [Citation.]‖ (Ibid.)

In the present case, the trial court did not give an incorrect or misleading

statement of the reasonable doubt instruction. Instead, the trial court failed to give the

standard reasonable doubt instruction. The issue before us is whether this omission

was federal constitutional error and, if so, whether reversal is warranted. Until today,

3

all California courts that have considered the matter have found that where the trial

court has omitted the standard reasonable doubt instruction, and where no other

instructions connect the reasonable doubt standard to the charged offense, the

omission is reversible error. Although some courts have found the error to be

prejudicial under harmless error analysis while others have deemed it structural error,

in reality the reasoning and results have been virtually the same.

In Vann, supra, 12 Cal.3d 220, we held that the trial court‘s omission of the

standard reasonable doubt instruction was prejudicial error. We rejected the

prosecution‘s argument that the reasonable doubt language in the circumstantial

evidence instruction and the good character instruction would necessarily be

understood by a jury to generally establish the reasonable doubt standard of proof.

(Id. at pp. 226–227.) The court also explained that the trial court‘s pre-

empanelment instructions to prospective jurors did not cure the error, noting a 16-

day gap between the reasonable doubt instruction given to prospective jurors and

the end of trial. (Id. at p. 227, fn. 6). Similarly, statements of counsel did not cure

the error because ―the court made it clear that the jurors were to follow the law as

explained by the court, and were not to follow rules of law stated in argument but

omitted from the instructions.‖ (Ibid.) The court thus concluded under Chapman

v. California (1967) 386 U.S. 18 that the error was not harmless beyond a

reasonable doubt. (Vann, at p. 228).

People v. Elguera (1992) 8 Cal.App.4th 1214 (Elguera) similarly involved

an omission of the standard reasonable doubt instruction from the trial court‘s

predeliberation charge to the jury. The trial court had given the standard

instruction to prospective jurors at the start of jury selection; the reasonable doubt

standard was repeated during examination of prospective jurors, and each juror

said he or she understood it; the circumstantial evidence instruction given to the

jury before deliberation referred to the reasonable doubt standard; and the

4

prosecutor and defense counsel mentioned the reasonable doubt standard at least

eight times in argument to the jury. (Id. at p. 1221.) Still, the Court of Appeal

was ―unable to declare [itself] convinced beyond a reasonable doubt the error had

no effect on the verdict.‖ (Id. at p. 1222.) Even though the entire trial, including

jury selection, occurred in a single day, the court explained that ―the instruction

was given not to actual jurors, but to prospective jurors who at the time did not

know whether they would ultimately serve in the case. As a result, the members

of the panel could well have viewed the court‘s remarks as hypothetical and thus

have failed to give the instruction the same focused attention they would have had

they been impaneled and sworn.‖ (Ibid.) ―[B]ecause the [trial] court made no

reference to . . . the general reasonable doubt standard with its charge to the jury

after presentation of the evidence, any intellectual awareness the jurors had that

the reasonable doubt standard applied may not have been accompanied by the

sense of centrality and importance the instruction should carry.‖ (Ibid.)

In People v. Flores (2007) 147 Cal.App.4th 199 (Flores), the trial court did

not give the standard reasonable doubt instruction, but it did mention the

reasonable doubt standard in instructions pertaining to proof by circumstantial

evidence, defendant‘s choice not to testify, special statute of limitations findings,

and allegations that the defendant committed offenses against more than one

victim. (Id. at pp. 216–217.) As to each of those instructions, the court refused to

―presume that a reasonable doubt instruction given in a specific context . . . will

necessarily be understood by all of the jurors to apply generally to their

determination of the defendant‘s guilt on all of the charged offenses.‖ (Id. at

p. 216.) The trial court also mentioned the reasonable doubt standard during jury

selection. But, as in Vann and Elguera, the court found it ―unreasonable to expect

prospective jurors, who have yet to be empanelled and sworn as actual jurors in

the trial, to give the necessary attention and weight to instructions given by a trial

5

court during jury selection.‖ (Id. at p. 215.) In addition, the court explained that

the prosecutor‘s discussion of the reasonable doubt standard during closing

argument did not effectively inform the jury of that standard in light of the trial

court‘s instruction that the jury must follow the law as stated by the court. (Id. at

p. 218.) ―In short,‖ the court concluded, ―we cannot say the trial court‘s error was

harmless beyond a reasonable doubt.‖ (Id. at p. 219.)

In Crawford, supra, 58 Cal.App.4th 815, the Court of Appeal held that the

failure to give a standard reasonable doubt instruction was structural error. (Id. at

pp. 821–823.) But the court went on to explain that even if harmless error analysis

applied, the instructional omission was not harmless. (Id. at pp. 824–825

[references to proof beyond a reasonable doubt in pre-empanelment instructions

and in instructions on specific matters did not cure the failure to give the standard

instruction].) Similarly, in People v. Phillips (1997) 59 Cal.App.4th 952, the court

held that omission of the standard reasonable doubt was structural error, while also

rejecting the prosecution‘s contention that arguments of counsel and other

instructions relating to reasonable doubt rendered the omission harmless. (Id. at

pp. 956–958.)

There is one case in which a court found that omission of the standard

reasonable doubt instruction was not prejudicial error and, indeed, not federal

constitutional error at all. In People v. Mayo (2006) 140 Cal.App.4th 535, the Court

of Appeal held that omission of the standard instruction does not constitute federal

constitutional error if the jury is otherwise instructed on the requirement of proof

beyond a reasonable doubt in connection with the charged offense. (Id. at pp. 548–

549.) In Mayo, a murder case, the trial court failed to give the standard instruction,

but other instructions made clear that as to the murder charge and lesser included

offenses, the prosecution had the burden of proving each element beyond a reasonable

doubt. (Id. at pp. 545–546.) The court distinguished Vann, Crawford, Phillips, and

6

Elguera on the ground that the instructions in those cases ―did ‗fall far short‘ of

informing the jury it had to acquit unless it found each and every element of the

charged offense beyond a reasonable doubt.‖ (Id. at p. 546.) Mayo makes clear that

despite a trial court‘s failure to give a standard reasonable doubt instruction, a

defendant has not been denied ―the right to a jury verdict of guilt beyond a reasonable

doubt‖ (Sullivan, supra, 508 U.S. at p. 281) — and no federal constitutional error has

occurred — when the instructions given by the trial court otherwise informed the jury

of its obligation to apply the reasonable doubt standard to the charged offense.

From this review of the case law, two points emerge. First, California courts

have not been entirely consistent in their doctrinal approach to analyzing the

significance of a trial court‘s omission of the standard reasonable doubt instruction.

Crawford and Phillips said the omission is structural error. Vann, Elguera, and

Flores said the omission itself is federal constitutional error, and those courts then

asked whether the error was prejudicial by examining whether the instructions given

by the trial court or the arguments of counsel adequately informed the jury of the

correct standard of proof for the charged offense. Mayo said that omission of the

standard reasonable doubt instruction is not, in and of itself, federal constitutional

error; it is only error when the instructions given by the trial court do not otherwise

inform the jury that the prosecution must prove each element of the charged offense

beyond a reasonable doubt.

Today‘s opinion clarifies ―the proper inquiry with regard to determining the

federal constitutional implications of the trial court‘s failure to include the standard

reasonable doubt instruction in its predeliberation instructions to the jury.‖ (Maj.

opn., ante, at p. 14.) The court says ―the omission of the standard reasonable doubt

instruction will amount to a federal due process violation when the instructions that

were given by the court failed to explain that the defendants could not be convicted

‗unless each element of the crimes charged was proved to the jurors‘ satisfaction

7

beyond a reasonable doubt.‘ (Vann, supra, 12 Cal.3d at p. 227.) When the trial

court‘s instructions otherwise cover this constitutional principle, the failure to instruct

with the standard reasonable doubt instruction does not constitute federal

constitutional error.‖ (Maj. opn., ante, at p. 14.) Thus, consistent with Mayo, the

court today holds that omission of the standard reasonable doubt instruction does not

itself constitute federal constitutional error. A reviewing court must ask whether ―the

trial court‘s instructions otherwise cover this constitutional principle.‖ (Ibid.) Only

when the trial court‘s instructions do not otherwise connect the reasonable doubt

standard to the charged offense does omission of the standard instruction amount to

federal constitutional error.

In light of today‘s doctrinal clarification, it is readily apparent that most of the

analysis that the cases above had categorized as ―harmless error‖ inquiry — in

particular, whether pre-empanelment or other instructions given by the trial court

compensated for the omission of the standard reasonable doubt instruction — is now

properly understood as an inquiry into whether a federal constitutional error occurred

at all. Under today‘s decision, a proper finding of federal constitutional error

subsumes a finding that other instructions given by the trial court did not adequately

convey to the jury the applicability of the reasonable doubt standard to the charged

offense. Importantly, as discussed more fully below, this means that even if such

error is amenable to harmless error analysis, a finding of error will almost invariably

lead to reversal. That is because there is very little that other components of a trial,

such as the arguments of counsel, can do to compensate for the failure of a trial

court‘s instructions, singly and collectively, to inform the jury on the correct standard

of proof for the charged offense.

A second observation from the prior cases is that despite varying doctrinal

approaches, and despite factual differences from case to case, our courts have been

consistently and highly skeptical of arguments that purport to show why omission of

8

the standard reasonable doubt instruction does not warrant reversal. No court has

found much relevance in statements of counsel, given the obvious authority of the

trial judge in the courtroom. No court has put much stock in pre-empanelment

instructions, even when they repeatedly mention the reasonable doubt standard,

because prospective jurors who do not know whether they will actually serve on a

jury cannot realistically be thought to pay focused attention to the trial court‘s

instructions, and because the lapse of time between jury selection and deliberation

erodes any impact such instructions might have. In addition, no court has found

references to the requirement of proof beyond a reasonable doubt in other

predeliberation instructions to be an adequate substitute for the standard instruction,

unless those instructions expressly connect the reasonable doubt standard to the

charged offense, as in Mayo. In sum, no California case has ever held that a trial

court‘s failure to give the standard reasonable doubt instruction or any other

instruction connecting the requirement of proof beyond a reasonable doubt to the

charged offense constitutes anything but reversible error.

Against this landscape of precedent, it is no wonder that the Attorney

General‘s answer brief on the merits said she ―acknowledges that the instructions did

not adequately convey the concept of reasonable doubt to the jury with regard to the

street terrorism conviction, and is not challenging the reversal of that count.‖ Yet this

court, on its own initiative, has decided to break new ground by finding the

instructional error harmless. This conclusion, as I now explain, is contrary to

precedent, common sense, and other parts of this court‘s own opinion.

II.

At the close of evidence and argument in this case, the trial court first

instructed the jurors with CALJIC No. 1.00, which states in part: ―You have heard

all the evidence . . . and now it is my duty to instruct you on the law that applies to

this case. You will have these instructions in written form in the jury room to

9

refer to during your deliberations.‖ The instruction further stated: ―You must

accept and follow the law as I state it to you, regardless of whether you agree with

it.‖ The trial court‘s predeliberation instructions then included nine instructions

related to the murder count and lesser included offenses and enhancements, each

of which mentioned the requirement of proof beyond a reasonable doubt. The trial

court did not give the jury a reasonable doubt instruction on the gang offense, nor

did the trial court give the standard reasonable doubt instruction.

A.

Applying the proper inquiry for determining whether the trial court‘s omission

of the standard reasonable doubt instruction amounted to federal constitutional error,

the court holds that no error occurred ―with regard to the voluntary manslaughter

conviction because the court‘s instructions on murder and its lesser included offenses

clearly connected the reasonable doubt standard to the voluntary manslaughter

offense.‖ (Maj. opn., ante, at p. 18.) The court then says: ―The same cannot be said

concerning the count charging defendant with active participation in a criminal street

gang in violation of section 186.22, subdivision (a), however, because neither the

instruction on the elements of that offense nor any other instruction given by the court

connected the reasonable doubt standard of proof to that charge.‖ (Id. at pp. 18–19.)

In support of the latter holding, the court observes that the instruction stating

the elements of the gang offense ―did not explain that the prosecution must prove each

of those elements beyond a reasonable doubt.‖ (Maj. opn., ante, at p. 19.) In

addition, ―[t]he circumstantial evidence instruction did not adequately cover the

principle that defendant could be convicted of the gang offense only if the prosecution

proved his guilt of the gang offense beyond a reasonable doubt.‖ (Id. at p. 20.)

Further, although the trial court mentioned the reasonable doubt standard in its

instruction on the gang enhancement allegation, ―the reference to the reasonable doubt

standard was contained in an instruction concerning a sentencing allegation associated

10

with the murder charge, an entirely different count.‖ (Id. at p. 19.) Indeed, none of

the trial court‘s nine predeliberation instructions that specifically referred to the

reasonable doubt standard connected that standard to the gang offense, for the court

concludes that ―the [trial] court‘s instructions did not otherwise cover the requirement

that the prosecution prove defendant‘s guilt of the gang offense beyond a reasonable

doubt.‖ (Id. at p. 20.) Finally, in a footnote, the court adds that the trial court‘s pre-

empanelment instructions to prospective jurors, which repeatedly mentioned the

reasonable doubt standard, were not ―an adequate substitute for the court‘s duty to

instruct the jurors prior to deliberation on the principle of proof beyond a reasonable

doubt.‖ (Id. at p. 20, fn. 11.)

At this point in the analysis, the court has determined that neither the pre-

empanelment instructions nor any other instructions given by the trial court

adequately conveyed to the jury the applicability of the reasonable doubt standard to

the gang offense. That is the basis of the court‘s finding of federal constitutional

error. To the extent this instructional error is subject to harmless error analysis, one

would expect such analysis to focus on whether aspects of the trial other than

instructions given by the trial court effectively compensate for the inadequacy of the

trial court‘s instructions. On the record before us, that inquiry would be short and

simple. As the court acknowledges, the only potentially relevant circumstance is that

―neither the prosecutor nor defense counsel referred to the standard of proof during

closing remarks‖ and ―nothing in counsel‘s arguments would have misled the jury to

believe it should adjudge defendant‘s guilt of the gang count under a standard of proof

less than beyond a reasonable doubt.‖ (Maj. opn., ante, at p. 31.) That is true. But it

is equally true that nothing in counsel‘s arguments would have led the jury to believe

it should adjudge defendant‘s guilt of the gang count under the reasonable doubt

standard. Counsel‘s silence can hardly render the instructional error harmless beyond

a reasonable doubt.

11

The court correctly notes that the issue of reversibility in this context does not

depend on the strength of the case against a defendant. (Maj. opn., ante, at pp. 28–

29.) So what is left for the court to do in its harmless error analysis? Perplexingly,

the court answers this question by focusing its harmless error analysis on a second

look at whether the instructions given by the trial court adequately informed the jury

of the reasonable doubt standard — the same inquiry the court posed earlier to

determine whether the instructional omission amounted to federal constitutional error.

Even more baffling, this ―do-over‖ leads the court to a conclusion contrary to the one

it reached just a few pages earlier.

First, the court says the ―nine instructions in connection with the murder

count‖ left no reasonable possibility that the jury failed to apply the reasonable doubt

standard in finding defendant guilty of the gang offense. (Maj. opn., ante, at p. 29;

see id. at p. 30 [―We find it unrealistic, in light of the given instructions, that the

jurors would have believed the prosecution was required to prove defendant‘s guilt of

murder or its lesser offenses beyond a reasonable doubt but that it had no burden, or a

burden less than beyond a reasonable doubt, to prove his guilt of the gang offense.‖].)

The court says these murder-related instructions ―in particular‖ support a finding of

harmless error. (Id. at p. 36.)

These statements take the reader by surprise in light of the court‘s prior

conclusion that ―the [trial] court‘s instructions did not otherwise cover the

requirement that the prosecution prove defendant‘s guilt of the gang offense beyond a

reasonable doubt.‖ (Id. at p. 20.) How can the court say that the only ―realistic‖ or

―reasonably possible‖ inference from the murder-related instructions was that the

reasonable doubt standard also applied to the gang offense when the court‘s finding of

constitutional error rejects the necessity of that very inference? The court‘s harmless

error analysis flies in the face of its earlier reasoning that the murder-related

instructions were insufficient to convey the applicability of the reasonable doubt

12

standard to the gang offense because ―the murder charge [was] an entirely different

count.‖ (Id. at p. 19.) The court provides no justification for retreating from its own

recognition, supported by ample precedent, that ―it cannot be presumed ‗that a

reasonable doubt instruction given in a specific context . . . will necessarily be

understood by all of the jurors to apply generally to their determination of the

defendant‘s guilt on the charged offenses.‘ ‖ (Id. at p. 16, quoting Flores, supra, 147

Cal.App.4th at p. 216; see also Vann, supra, 12 Cal.3d at pp. 226–227; Crawford,

supra, 58 Cal.App.4th at pp. 824–825; Elguera, supra, 8 Cal.App.4th at p. 1218.)

Second, the court notes that the trial court‘s pre-empanelment instructions to

prospective jurors ―repeatedly explained the connection between the charged crimes

and the reasonable doubt standard.‖ (Maj. opn., ante, at p. 34; see id. at p. 35 [―Thus,

in this case, the court undertook extensive effort during jury selection to impress upon

the prospective jurors the meaning, application, and magnitude of the beyond-a-

reasonable-doubt standard of proof, and it painstakingly elicited from the prospective

jurors their understanding and acceptance of that principle.‖].) But the court is aware

that ―no decision has viewed instructions and remarks at this stage of the proceedings

as an adequate substitute for the court‘s duty to instruct the jurors prior to deliberation

on the principle of proof beyond a reasonable doubt‖ and that substantial precedent

has found it ― ‗unreasonable to expect prospective jurors . . . to give the necessary

attention and weight to instructions given by a trial court during jury selection.‘ ‖ (Id.

at p. 20, fn. 11, quoting Flores, supra, 147 Cal.App.4th at p. 215; see also Vann,

supra, 12 Cal.3d at p. 227, fn. 6; Crawford, supra, 58 Cal.App.4th at p. 824; Elguera,

supra, 8 Cal.App.4th at p. 1217.)

In light of this precedent, the court attempts to finesse the relevance of the

pre-empanelment instructions by saying they are ―of lesser significance‖ than

instructions given at trial but nonetheless ―provide some support‖ for the court‘s

finding of harmless error. (Maj. opn., ante, at p. 33.) But having concluded that

13

the same ―extensive‖ and ―painstaking‖ pre-empanelment instructions, along with

the nine murder-related instructions that specifically mentioned reasonable doubt,

do not show that the trial court‘s instructions ―otherwise cover[ed] the requirement

that the prosecution prove defendant‘s guilt of the gang offense beyond a

reasonable doubt‖ (id. at p. 20 & fn. 11), how can the court now say that the pre-

empanelment instructions ―provide some support for our conclusion that there is

no reasonable possibility that the jury‘s verdict on the gang count was not based

on a finding of guilt beyond a reasonable doubt‖ (id. at p. 33)? I do not see how

these two holdings can be reconciled. If it is ― ‗unreasonable to expect prospective

jurors . . . to give the necessary attention and weight to instructions given by a trial

court during jury selection‘ ‖ (id. at p. 20, fn. 11), and if the unreasonableness of

that expectation supports the court‘s finding of federal constitutional error, then

why should remarks to prospective jurors now be regarded as a relevant factor,

even of ―lesser significance,‖ in harmless error analysis? Given the 14-day gap

between jury selection and deliberations in this case, it is questionable whether the

jurors even recalled those remarks.

B.

The obvious inconsistency between the court‘s harmless error analysis and its

rationale for finding federal constitutional error reveals how mightily the court must

strain to avoid a far more simple, straightforward, and legally supportable conclusion:

It was reasonably possible that the jury did not apply the reasonable doubt standard in

convicting defendant of the gang offense.

In light of the trial court‘s instructions and omissions, it is certainly

possible, as the court posits, that a reasonable juror would have inferred that the

reasonable doubt instruction given in connection with murder count also applied to

the gang offense. But it is also possible that a reasonable juror, noting the

discrepancy, would have concluded that the reasonable doubt standard did not

14

apply to the gang offense. Given the regularity with which courts employ the

maxim expressio unius est exclusio alterius, why isn‘t it reasonably possible —

especially because the trial court mentioned the reasonable doubt standard in nine

separate instructions pertaining to murder, but not once in any instruction

pertaining to the gang offense — that the jury would have understood that the

reasonable doubt standard applied only to the murder count and not to the gang

offense?

Indeed, the possibility that the jury followed the trial court‘s instructions

literally and did not apply the reasonable doubt standard to the gang offense is

consistent with the principle that ―the jury is presumed to follow the trial court‘s

instructions.‖ (People v. Fuiava (2012) 53 Cal.4th 622, 669.) This well-

established presumption is based on the notion that sworn jurors, thrust into an

unfamiliar courtroom environment and charged with the solemn responsibility of

deciding whether a person should be convicted of a crime, will follow the specific

instructions of the person in authority, the trial judge. The possibility that the jury

did not follow the trial court‘s instructions literally and instead drew ―logical‖ or

―realistic‖ inferences from those instructions (maj. opn., ante, at pp. 30–31) is not

consistent with this presumption.

The fact that ―none of the court‘s instructions at trial referred to a lesser

standard of proof such as preponderance of the evidence or clear and convincing

evidence‖ (maj. opn., ante, at p. 30) provides little reassurance. Even if the jurors

did not consciously infer a standard of proof less than the reasonable doubt

standard, there is another reasonable possibility: The jurors may not have

considered or made any inferences about the standard of proof at all with respect

to the gang offense. We have no reason (and no legal basis) to presume that a

reasonable juror will remedy the absence of any standard of proof instruction by

using inferential reasoning. Just as likely, inadequately instructed jurors may

15

simply pay no attention to the standard of proof, instead substituting whatever

standard seems intuitively right, as I suspect most lay people would do if asked

whether they believed that a particular fact had been adequately proven. There is

no reason to think that a question like ―was the defendant an active participant in a

street gang?‖ will necessarily cause jurors to ponder (much less correctly answer)

the question ―under what standard of proof?‖

In any event, whether or not the jurors noticed the instructional omission,

whether they thought the omission was intentional, inadvertent, or erroneous, it

would have been perfectly reasonable for the jury to follow the trial court‘s initial

admonition to ―accept and follow the law as I state it to you, regardless of whether

you agree with it.‖ (CALJIC No. 1.00, italics added.) There is nothing

unreasonable about the possibility that the jury did not apply the reasonable doubt

standard in convicting defendant of the gang offense.

C.

The court‘s remaining arguments to the contrary are not persuasive. The

court relies on People v. Cowan (2010) 50 Cal.4th 401 (Cowan) to argue that

― ‗the most logical response‘ by the jury to the absence of instruction specifically

linking the reasonable doubt standard to the gang offense count would have been

to conclude that a guilty verdict on that charge was subject to the same reasonable

doubt standard that had been described in the court‘s instructions on murder, the

lesser offenses, and the sentencing allegations.‖ (Maj. opn., ante, at p. 31, quoting

Cowan, at p. 492.) But Cowan is easily distinguished.

In Cowan, a death penalty case, the jury hung as to the Russell murder with

which the defendant was charged, but found the defendant guilty of two other

murders. At the penalty phase, the jury was instructed with the statutory list of

aggravating and mitigating factors, including ― ‗the presence or absence of

criminal activity by the defendant other than the crimes for which the defendant

16

has been tried in the present proceedings, which involved the use or attempted use

of force or violence, or the express or implied threat to use force or violence.‖

(Cowan, supra, 50 Cal.4th at p. 488, quoting § 190.3, factor (b), italics added.)

The jury was further instructed with a modified version of CALJIC No. 8.87,

stating that evidence had been introduced of three other criminal acts (a robbery, a

burglary, and child abuse) and that ― ‗[b]efore a juror may consider any of such

criminal acts as an aggravating circumstance in this case, a juror must first be

satisfied beyond a reasonable doubt that the defendant did, in fact, commit such

criminal acts. A juror may not consider any evidence of any other criminal acts as

an aggravating circumstance.‘ ‖ (Cowan, at p. 488.)

Based on a portion of testimony the jury asked to be read back during

deliberations, there was some indication that the jury was improperly considering

the Russell murder as a criminal act in aggravation. On appeal, the defendant

argued that the trial court had a sua sponte duty to instruct that the Russell murder

could not be considered unless the jurors were convinced of defendant‘s guilt of

that murder beyond a reasonable doubt.

In rejecting defendant‘s contention that the failure to so instruct was

prejudicial error, we found it unlikely that the jury was considering the Russell

murder as a crime in aggravation because the jury was instructed that crimes in

aggravation could only include ―criminal activity ‗other than the crimes for which

the defendant has been tried in the present proceedings‘ ‖ and because the Russell

murder was not included in the exclusive list of crimes in aggravation given to the

jury. (Cowan, supra, 50 Cal.4th at p. 491.) We went on to explain that even if the

jurors had improperly considered the Russell murder for that purpose, it was

―extremely unlikely that individual jurors then believed they could consider the

Russell murder as an aggravating factor even if it had not been proved beyond a

reasonable doubt. Rather, the most logical response to the absence of a specific

17

instruction would have been to conclude that the Russell murder was subject to the

same reasonable doubt standard as the other criminal activity included in the

instruction based on CALJIC No. 8.87.‖ (Id. at p. 492.)

Thus, in Cowan, the only way the jury could have failed to apply the

reasonable doubt standard to the Russell murder was by doubly disobeying the

trial court‘s instructions — first, by improperly considering the Russell murder as

a crime in aggravation, and second, by ignoring the instructions given by the trial

court for considering crimes in aggravation, including the requirement of certainty

beyond a reasonable doubt. Unsurprisingly, we found that scenario ―extremely

unlikely.‖ (Cowan, supra, 50 Cal.4th at p. 492.) Here, by contrast, the jury could

have concluded that the reasonable doubt standard did not apply to the gang

offense, not by ignoring or disobeying the trial court‘s instructions, but by literally

following them. (See ante, at pp. 15–16.)

Next, the court attempts to distinguish Vann and the line of Court of Appeal

cases finding reversible error by observing that ―[i]n no case . . . did the court‘s

instructions convey that the prosecution bore the burden of proving guilt of any of the

crimes of which the defendant was convicted.‖ (Maj. opn., ante, at p. 32.) ―By

contrast in this case,‖ the court says, the jury convicted defendant of voluntary

manslaughter after being ―informed through a number of predeliberation instructions

that to convict defendant of the charged murder or any of its lesser included offenses,

it must find him guilty of the offense beyond a reasonable doubt.‖ (Ibid.) But this

purported distinction does not make it any more likely that the jury applied the

reasonable doubt standard to the gang offense. As the court says elsewhere, because

the ―murder charge [was] an entirely different count‖ (id. at p. 19), the possibility that

the murder-related instructions ―connected the requisite standard of proof to the gang

offense is even more dubious here‖ (ibid., italics added) than in other cases where ―it

cannot be presumed ‗that a reasonable doubt instruction given in a specific context . . .

18

will necessarily be understood by all of the jurors to apply generally . . . .‘ ‖ (id. at

p. 16, quoting Flores, supra, 147 Cal.App.4th at p. 216).

Finally, in an effort to buttress its reliance on the trial court‘s pre-

empanelment instructions, the court says ―the present case differs from Vann‖

because there ―the trial court ended its predeliberation instructions by informing

the jurors that they ‗ ―have been instructed on all the rules of law that may be

necessary for you to reach a verdict,‖ ‘ ‖ thereby ―suggest[ing] to the jurors that

the predeliberation instructions were ‗a self-contained, complete statement of the

law they were to follow.‘ ‖ (Maj. opn., ante, at p. 36, quoting Vann, supra, at

p. 227, fn. 6.) ―Here, by contrast, the trial judge instructed the jury only that it

must ‗accept and follow the law as I state it to you.‘ (See CALJIC No. 1.00.)

Nothing in this directive would have led the jurors to believe they must ignore the

court‘s explications of the prosecution‘s burden of proof given during jury

selection.‖ (Maj. opn., ante, at p. 36.) Further, the court notes that the trial court

said ―[a]t the outset of trial‖ that ― ‗all of the Court‘s instructions, whether given

before, during, or after the taking of testimony, are of equal importance.‘ ‖(Ibid.)

But the trial court‘s introductory admonition at the outset of predeliberation

instructions to ―accept and follow the law as I state it to you‖ (italics added)

contains no less a representation of completeness than the concluding instruction

in Vann. Moreover, as for the trial court‘s statement that ―all of the Court‘s

instructions . . . are of equal importance,‖ here is a more complete quotation of

what the trial court said: ―I shall now instruct you as to your basic functions,

duties and conduct. At the conclusion of the case, I will give you further

instructions on the law. All of the Court‘s instructions, whether given before,

during or after the taking of testimony, are of equal importance.‖ This statement

was made after the jurors had been selected and sworn, and it refers to instructions

given from that point on (―I shall now instruct you . . . .‖), not to prior statements

19

the trial court made to prospective jurors. For reasons already discussed, the trial

court‘s instructions during jury selection have minimal import in curing the

instructional omission at issue here. And the trial court‘s statements after the

jurors had been selected and sworn would have done nothing to focus the attention

of prospective jurors.

III.

The principle that a person may not convicted of a crime unless proven

guilty beyond a reasonable doubt may be part of the general knowledge that jurors

bring to the deliberation room, whether instilled by civic education or by watching

Law & Order. But this kind of general knowledge is insufficient to ensure that the

jury discharges its obligation properly. Instead, our justice system requires trial

courts to instruct the jury on the reasonable doubt standard ―after the presentation

of evidence‖ so that the burden is placed ―at center stage for consideration during

deliberations.‖ (Crawford, supra, 58 Cal.App.4th at p. 825.) ― ‗No instruction

could be more vital . . . , since in every criminal case it directs the jury to put away

from their minds [sic] all suspicions arising from arrest, indictment, arraignment,

and the appearance of the accused before them in his role as a defendant.‘

[Citation.]‖ (Vann, supra, 12 Cal.3d at p. 227.) As one Court of Appeal put it:

―If any phrase should be ringing in the jurors‘ ears as they leave the courtroom to

begin deliberations, it is ‗proof beyond a reasonable doubt.‘ ‖ (Elguera, supra, 8

Cal.App.4th at pp. 1222–1223.)

In this case, the court properly holds that the trial court‘s omission of the

standard reasonable doubt instruction, along with the absence of any other

instructions that connected the reasonable doubt standard to the gang offense, was

federal constitutional error. But instead of affirming the uncontested reversal of

defendant‘s conviction on that count, today‘s opinion reaches out to decide an

issue that no party asked us to decide. In deciding that issue, the court contravenes

20

precedent, common sense, and its own opinion. Whether or not an instructional

error of this sort is properly subject to harmless error analysis, no harmless error

can be found on the record before us. How can we be certain beyond a reasonable

doubt that the jurors who convicted defendant of the gang offense gave focused

attention to the correct standard of proof when they were not instructed on this

standard either generally or specifically with respect to that offense? Simply put,

we can‘t.

Consistent with all California cases that have considered whether

inadequate instruction on the requirement of proof beyond a reasonable doubt is

reversible error, I would affirm the Court of Appeal‘s reversal of defendant‘s

conviction on the gang offense. In all other respects, I join the opinion of the

court.

LIU, J.

21

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Aranda

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 188 Cal.App.4th 1490

Rehearing Granted

__________________________________________________________________________________

Opinion No. S188204

Date Filed: August 27, 2012

__________________________________________________________________________________

Court: Superior

County: Riverside

Judge: Albert J. Wojcik

__________________________________________________________________________________

Counsel:

William J. Capriola, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant

Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Pamela Ratner

Sobeck, Raymond M. DiGuiseppe, Steven T. Oetting and Tami Falkenstein Hennick, Deputy Attorneys

General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

William J. Capriola

Post Office Box 1536

Sebastopol, CA 95473-1536

(7070) 829-9490

Tami Falkenstein Hennick

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2274