Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB047924 Cara D. Hutson, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
Defendant Samuel Kwame Amankrah was convicted by a jury of kidnap for rape, kidnapping, forcible rape, and forcible oral copulation. Eighteen special allegations, dealing with the use of a deadly weapon and/or movement of the victim so as to increase the risk of harm, were found true. Defendant was sentenced to an aggregate prison term of 90 years to life.
On appeal, defendant contends (1) statements made by the prosecutor during closing argument, that the victim’s testimony was the only evidence of what happened in the house, constituted reversible Griffin error, and (2) the trial court’s failure to instruct on the presumption of innocence and to define reasonable doubt at the end of the trial violated defendant’s due process rights and trial by jury and, as such, is reversible per se.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
We find the prosecutor’s statements did constitute Griffin error in that they directed attention to defendant’s failure to testify; however, under the present facts, it is harmless. Further, we find no reversible error in the trial court’s failure to reinstruct the jury on the presumption of innocence and in failing to define reasonable doubt at the end of the trial. After the jury was impaneled, it was instructed on the presumption of innocence and reasonable doubt was defined. In addition, a written copy of the instruction was provided to the jurors for purposes of their deliberation. We therefore affirm.
I. FACTUAL SUMMARY
On January 21, 2005, Jane Doe, then 14 years old, was waiting at a bus stop on a busy street to go to school. Defendant approached Doe and asked her what time the bus would arrive. Doe said it would arrive in a few minutes. Defendant then grabbed her from behind, raised a knife to her throat, and told her to be quiet. He took her around the corner to his car, opened the car door, put the backseat down, and placed Doe in the trunk through the backseat. Doe testified that she did not hear the bus come by while she was in the trunk; earlier, she had told the police that she heard the bus come by. No one, including the bus driver, reported anything resembling an abduction on the busy, open street that morning.
Defendant drove Doe to his house. After parking in his driveway, he took her into the house. He dropped his knife on the kitchen counter and led Doe to a bedroom. Defendant told her to be quiet, and stated that he would not hurt her. He told Doe to take her clothes off; she complied because she was scared. Defendant kissed Doe on her breasts and vaginal area, placing his tongue inside her vagina. Doe unsuccessfully attempted to pull his head up to stop him. Defendant then got on top of Doe and attempted to insert his penis into her vagina, which hurt, causing Doe to cry and say, “Stop.” He ignored Doe’s pleas and continued to try to penetrate Doe’s vagina. Defendant stopped, took Doe to another room, and put Vaseline on his penis. He then took Doe back into the first room and attempted to penetrate her again, causing her to cry from the pain. Defendant continued “for a long time” and then stopped. He retrieved a “tub” of underwear, removed a pair, and told Doe to put the underwear on. Defendant then took photographs of her wearing the underwear.
After being photographed, Doe began to put her clothes back on. While putting her shoes on, she noticed a cut on her hand. Blood from the cut dripped on her shoes and clothing. However, no blood was found in defendant’s house or on his property. Because her shirt had blood on it, defendant put the shirt in the washing machine and gave Doe one of his shirts to wear. They then left the house. Defendant told her he was going to buy her a new shirt.
Doe sat in the front passenger seat of defendant’s car so she would remember where defendant lived. They drove to a Walmart, which was about five to ten minutes away. The two went into the store. Videotape footage showed that defendant kept his hand on Doe’s shoulder. Doe picked out a shirt, which defendant purchased with his credit card. When he signed his name for the purchase, Doe noticed that he wrote the name “Samuel.” While walking back to his car, she observed “4VVY” on the license plate of the car, and later told the police the number.
Later, during an inspection of the trunk, a bloodstain was found on a pillow. There were other bloodstains found on the interior trunk seat support and on the rear deck support. Subsequent DNA analysis on the bloodstains matched Doe’s DNA profile. The sexual assault examination showed that defendant’s DNA was found on Doe’s left breast. However, there was no male DNA found in the underwear sample. The physical examination showed “very recent” bruising and tears to Doe’s hymen consistent with blunt force penetration trauma. Also, in a photographic lineup, Doe identified defendant as the man who kidnapped and had sex with her.
Defendant told law enforcement that Doe flagged him down; she told him that she was 18 years old and wanted to have sex. Defendant admitted that he tried to have sex with her, but stated that it never got further than rubbing his penis outside her vagina. He told law enforcement there was no penetration. He also stated that the reason Doe had a cut on her hand was from stripping a speaker wire with a knife at his house.
II. ANALYSIS
A. Although the Prosecutor Committed Griffin Error, It Was Harmless
During closing argument, the prosecutor stated: “The only evidence you have that tells us what happened at that house came from Jane Doe on that stand.... Remember, all we can consider in this case is what was presented on that witness stand. That’s the evidence.” Later, the prosecutor said: “Now, again, why should we believe Ms. Doe in her testimony? Well, we should believe Ms. Doe in her testimony because there’s no evidence of anything contradicting what she said. Her version on that stand is the only version we heard. It’s the only thing that we heard that happened in that house. And there’s nothing about her testimony that would make you not want to believe her.”
On appeal, defendant contends the prosecutor’s closing remarks emphasized the fact that defendant failed to testify, thus constituting Griffin error. While for the most part the prosecutor’s comments were totally proper, we do find two portions of the closing argument, wherein counsel stated that the only testimony of what happened in the house came from Doe, were improper comments on defendant’s failure to testify.
Initially, the People contend defendant has forfeited his claim on appeal by failing to timely object. We disagree. “To preserve a claim of prosecutorial misconduct [Griffin error] for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury. [Citation.]... ‘The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties thus avoiding the necessity of a retrial....’ [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 553, citing People v. Hill (1998) 17 Cal.4th 800, 820.) Here, the prosecutor made the statements immediately before the lunch break; upon returning from lunch and before the jury was brought back into the courtroom, defendant, who represented himself, objected to the specific comments of the prosecutor and indicated that the comments violated his “constitutional right not to testify.” He thereafter moved to have the charges dismissed. In denying the motion, the court cautioned the prosecutor that he was “kind of walking the line.” While the objection was not posed immediately after the prosecutor’s comments, it was close enough in time that the court, if it had seen fit, could have timely admonished the jury to disregard the comments and instructed the prosecutor to stay away from similar argument. Thus, defendant did not forfeit his right to appeal for Griffin error.
As noted in People v. Hardy (1992) 2 Cal.4th 86, 153 and 154, citing Griffin, supra, 380 U.S. 609: “It is a bedrock principle in our jurisprudence that one accused of a crime cannot be compelled to testify against oneself. [Citations.] In order that an accused not be penalized for his invocation of this fundamental right, the prosecutor may neither comment on a defendant’s failure to testify nor urge the jury to infer guilt from such silence.” In determining whether the prosecutor’s comments constitute Griffin error, we look to whether there is a “reasonable likelihood that any of the comments could have been understood, within [their] context, to refer to defendant’s failure to testify.” (People v. Clair (1992) 2 Cal.4th 629, 663.) We independently consider the record. (Ibid.)
While we recognize that a prosecutor may comment on a defendant’s failure to introduce expected evidence, and may generally comment that certain evidence was unrefuted or uncontradicted, he or she may not do so when the comment solely implicates defendant’s failure to testify.
Through the testimony of Detective Bobby Tanner, the jury learned of defendant’s pretrial statement in which he said that he was home alone on the morning of the incident; while driving on Baseline Road he was flagged down by Doe, who told him she was 18 years old and wanted to have sex; they returned to his house and went into the bedroom; there, he attempted to have sex with her and eventually rubbed his penis on the outside of her vagina twice.
While similar in limited respects to the testimony of Doe, it is Doe who testified with specificity as to the criminal nature of defendant’s conduct while in the house. As a result of Doe’s testimony and defendant’s out-of-court statement, it was clear to the jury at the conclusion of the evidence that only two people were in the house during the relevant time period—defendant and Doe.
As set forth above, the prosecutor argued to the jury: “Theonly evidence you have that tells us what happened at that house came from Jane Doe on that stand.... Remember, all we can consider in this case is what was presented on that witness stand. That’s the evidence.” (Italics added.) Later, the prosecutor stated: “Well, we should believe Ms. Doe in her testimony because there’s no evidence of anything contradicting what she said. Her version on that stand is the only version we heard. It’s the only thing that we heard that happened in that house.” (Italics added.) Because only defendant’s testimony could contradict Doe’s testimony as to what happened in the house, the prosecutor was necessarily commenting on defendant’s failure to testify.
Not unlike the present matter is People v. Medina (1974) 41 Cal.App.3d 438. There, two defendants were being prosecuted for murder. The only three other individuals having knowledge of the facts of the murder were granted immunity, and each of them testified. During closing argument, the prosecutor said: “‘[Y]ou realize there were five people up there on this thing and three of them were subjected to cross-examination which is a pretty sharp test of truth, and they subjected themselves to cross-examination....’” (Id. at p. 457.) A few minutes later, the prosecutor said: “‘[T]heir testimony is unrefuted. No one has come forward and said that it is false. No one has come before you to show you it wasn’t that way. You have not heard that.’” (Ibid.) The court found that: “The net effect of these passages in combination was to urge the jury to believe the testimony of the three accomplice witnesses because the defendants, who were the only ones who could have refuted it, did not take the stand and subject themselves to cross-examination and to prosecution for perjury.” (Ibid., italics added.) Thus, the statements did constitute Griffin error. (Id. at p. 460.)
In People v. Vargas (1973) 9 Cal.3d 470, the defendants were charged with robbery. A witness testified that she observed the robbery and that the defendants were the perpetrators. The court found Griffin error when, during closing argument, the prosecutor stated: “‘And ladies and gentlemen, there is no evidence whatsoever to contradict the fact that [the witness] saw [the defendants] over [the victim]. And there is no denial at all that they were there.’” (Id. at p. 474.)
And, in People v. Gioviannini (1968) 260 Cal.App.2d 597, wherein there were no eyewitnesses to a murder, the prosecutor stated: “‘Of the several voices that we could hear in this case, one voice has been forever stilled. We will not hear from her.’” (Id. at p. 605.) And further in argument, counsel stated: “‘Now, as far as how the bottle was broken... there would be two people, possibly, who could answer that, and one of them, of course, is dead.’” (Ibid.) These statements, the court held, were improper. (Id. at pp. 605-606.)
Here, as fleeting as the prosecutor’s comments may have been, when there was only one other possible witness who could testify to what occurred in the house, that being defendant, it is reasonably likely the jury interpreted the prosecutor’s statements as a comment on defendant’s failure to take the stand and testify.
With this said, the overstep by the prosecutor was harmless. “The applicable test for determining whether [Griffin error]... is reversible error is set forth in Chapman v. California [1967] 386 U.S. 18, 24..., wherein the court held that ‘before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ This determination ‘must be based on our own reading of the record and on what seems to us to have been the probable impact of the... [errors] on the minds of an average jury.’ [Citation.] [¶]... [¶]... [I]n determining whether prejudicial Griffin error has occurred, ‘we must focus upon the extent to which the comment itself might have increased the jury’s inclination to treat the defendant’s silence as an indication of his guilt.’” (People v. Vargas, supra, 9 Cal.3d at p. 478.)
We first note that the comments were made with a quick reference and only indirectly implicated Griffin. Contrary to defendant’s argument, the prosecutor did not emphasize the fact that defendant did not testify as to what happened in the house. The two comments were, in essence, one sentence in length and are found four pages apart in the reporter’s transcript. Moreover, defendant’s version of events was in fact placed before the jury by way of Detective Tanner’s testimony. Thus, by way of defendant’s out-of-court statement, he did offer a contrary version of what occurred in the house. Because of these factors, any inclination of the jury to equate defendant’s silence as an indication of his guilt was minimal.
Furthermore, in viewing the record as a whole, Doe’s testimony was corroborated in almost all respects. First, defendant himself admitted to Detective Tanner that Doe was at his house and that he did engage in sexual activity with her. Defendant’s DNA was found on her breasts, consistent with her testimony. The Sexual Assault Response Team examination showed “very recent” bruising and tears to Doe’s hymen consistent with blunt force penetration trauma. Doe’s blood was found in defendant’s trunk, tending to corroborate that she was placed in the trunk immediately after defendant grabbed her at the bus stop, as opposed to her cutting herself while stripping a speaker wire. Additionally, the photograph taken by defendant of Doe in only her underwear was submitted into evidence. There was substantial evidence to corroborate Doe’s testimony as to what occurred in the house; when balanced against the effect of the prosecutor’s minimal and subtle comments, we are convinced that the error was harmless.
B. Failure to Instruct on the Presumption of Innocence and Define “Reasonable Doubt” Posttrial Was Harmless
Defendant also contends the court’s failure to instruct on the presumption of innocence and to define “beyond a reasonable doubt” immediately before the jury retired to deliberate constitutes “structural error” and is reversible per se. We agree with defendant that the trial court should have instructed on these principles at the conclusion of the trial. To the extent it may be error, it did not amount to a violation of defendant’s right to due process and was otherwise harmless.
At the beginning of trial and after the jury panel was sworn, the court instructed on the presumption of innocence, as well as defined “reasonable doubt.” In this regard, the jury was specifically instructed with Judicial Council of California Criminal Jury Instructions, CALCRIM No. 103: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has 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 each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. 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 guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” The court further instructed the jury that: “After you have heard all of the evidence and before the attorneys give their final arguments, I will instruct you as to the law that applies to the case.”
Eighteen days passed between these initial instructions and the beginning of jury deliberation. Following the close of evidence and before closing arguments, the court instructed the jury, in part, by saying: “I will now instruct you on the law that applies to this case. I will give you a copy of the instructions to use in the jury room.” (CALCRIM No. 200.) The court did not, however, instruct on the presumption of innocence nor define the concept of beyond a “reasonable doubt.” (CALCRIM No. 220.) A written copy of CALCRIM No. 103 was provided to the jury; CALCRIM No. 220 was not included.
CALCRIM No. 220 is identical in its verbiage to the portion of CALCRIM No. 103 which was read to the jury shortly after it was impaneled.
In other jury instructions read and given to the jury, the jury was told that a fact could be proven by either direct or circumstantial evidence and the jury “must decide whether afact in issue has been proved based on all the evidence.” “Reasonable doubt” was mentioned repeatedly. The jury was told that the People had the burden of proving beyond a reasonable doubt that it was defendant who committed the crime. Within the context of the corpus delicti instruction, it was informed that it could not convict defendant unless the People proved his guilt beyond a reasonable doubt. In regard to circumstantial evidence, it was told that each fact must be proved beyond a reasonable doubt. In each of four separate instructions relative to the substantive crimes, the jury was told of the elements of the crimes and was instructed that the prosecutor must prove a lack of consent by the victim beyond a reasonable doubt.
As earlier indicated, at the end of trial, the court should have reinstructed on the presumption of innocence, as well as define “reasonable doubt” in accordance with CALCRIM No. 220. In People v. Smith (2008) 168 Cal.App.4th 7, the court stressed the importance of postevidence instructions. “[C]ourts in California have generally favored giving burden-of-proof-type instructions at the conclusion of the evidence at trial and before the jury deliberates because it ‘places the concepts at center stage for consideration during deliberations’ and ‘protect[s] an accused’s constitutional right to be judged solely on the basis of proof adduced at trial.’ [Citations.] As one court noted, ‘[i]f any phrase should be ringing in the jurors’ ears as they leave the courtroom to begin deliberations, it is “proof beyond a reasonable doubt.”’ [Citation.]” (Id. at p. 16.) In People v. Vann (1974) 12 Cal.3d 220, 227, our state Supreme Court stated: “‘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.]”
Also, Penal Code section 1093 provides for the order of criminal proceedings. While subdivision (f) allows the court, within its discretion, to instruct the jury on the applicable law at any time during the proceeding, it clearly contemplates that the jury is to be instructed on the law following the conclusion of the evidence. And, as set forth in Penal Code section 1094, the order of the trial may be departed from “[w]hen the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the Court....”
Penal Code section 1093, subdivision (f) provides: “The judge may then charge the jury, and shall do so on any points of law pertinent to the issue, if requested by either party; and the judge may state the testimony, and he or she may make such comment on the evidence and the testimony and credibility of any witness as in his or her opinion is necessary for the proper determination of the case and he or she may declare the law. At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case. Upon the jury retiring for deliberation, the court shall advise the jury of the availability of a written copy of the jury instructions. The court may, at its discretion, provide the jury with a copy of the written instructions given. However, if the jury requests the court to supply a copy of the written instructions, the court shall supply the jury with a copy.”
We can discern nothing from our record to support a conclusion that there was a good reason for only instructing on these crucial principles at the beginning of the trial, and not also at the end. As stated by the Fifth District, in affirming a conviction where the trial court instructed on the credibility of a witness following opening statements but not at the conclusion of the trial, “the purpose of preinstructing jurors is not to avoid the necessity of instructing at the close of argument; rather, it is to give them some advance understanding of the applicable principles of law so that they will not receive the evidence and arguments in a vacuum.” (People v. Valenzuela (1977) 76 Cal.App.3d 218, 222.)
The trial court should have instructed on the presumption of innocence and defined reasonable doubt at the conclusion of the trial.
We do not believe, however, that the court’s failure to reinstruct violated defendant’s due process rights; nor do we think that the failure to reinstruct was prejudicial. Here: (1) after the jury was impaneled, it was specifically instructed as to the presumption of innocence and the definition of “reasonable doubt”; (2) the jury was told, in its predeliberation instructions, that it could base its verdict only on the evidence as established by the facts; (3) the jury was instructed that the People’s burden of proof in numerous regards was to prove its case “beyond a reasonable doubt”; (4) the jury was given, in written form, CALCRIM No. 130, which included the verbatim rendition of CALCRIM No. 220; and (5) although this was a long trial, there is nothing in the record to hint at jury confusion relative to the applicable burden of proof.
The trial court has a sua sponte duty to instruct on the presumption of innocence as well as proof beyond a reasonable doubt. (People v. Vann, supra, 12 Cal.3d at p. 226.) As to the presumption of innocence, “[d]ue process... requires that guilt be determined only on the evidence presented at trial, not on suspicion, defendant’s status or facts outside the evidence.” (People v. Mayo (2006) 140 Cal.App.4th 535, 543.) “The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution protect a criminal defendant from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged.” (Id. at pp. 541-542.)
“[L]ike other instructional error claims, those challenging the timing of instructions as an abuse of discretion or a violation of due process are determined based on a review of the instructions as a whole in light of the entire record.” (People v. Smith, supra, 168 Cal.App.4th at p. 16.) We review a challenge to the timing of instructions, or in other words the failure to reinstruct, under Chapman. “[T]he test requires reversal if there is a ‘reasonable possibility’ the error might have contributed to the conviction. [Citation.]” (People v. Elguera (1992) 8 Cal.App.4th 1214, 1220-1221; see People v. Vann, supra, 12 Cal.3d at p. 228.)
Chapman v. California (1967) 386 U.S. 18.
Here, in examining the entire record, this impaneled jury was specifically instructed on the presumption of innocence, as well as given the definition of reasonable doubt. (CALCRIM No. 103.) The court fulfilled its sua sponte duty to instruct and there was no request by either party to repeat the instructions at the conclusion of the trial. (See Pen. Code, § 1093, subd. (f).)
Furthermore, at the end of the trial, the jurors were told that their decision must be based only on the facts established by the evidence and that their decision could not be influenced by bias, sympathy, or prejudice, thus reiterating the basic underpinning of the presumption of innocence. (See People v. Mayo, supra, 140 Cal.App.4th at p. 543 [“the presumption-of-innocence instruction ‘simply represents one means of protecting the accused’s constitutional right to be judged solely on the basis of proof adduced at trial.’ [Citations.]”].)
Relative to “proof beyond a reasonable doubt,” the jury was told in seven different instructions that the People maintained the burden of proof beyond a reasonable doubt as to the involved issues. More specifically, the jury was instructed with CALCRIM No. 315: “The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden you must find that the defendant [is] not guilty.” In CALCRIM No. 359, the jury was instructed: “You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.” And, as to each of the substantive crimes, the jury was told that they needed to find the various elements in order to find defendant “guilty.” Lastly, as it relates to each of the special allegations, the jury was instructed: “The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” (CALCRIM Nos. 3145, 3175, & 3179.)
In Victor v. Nebraska (1994) 511 U.S. 1, 7, the Supreme Court stated, in construing Hopt v. Utah (1887) 120 U.S. 430, 440 and 441: “The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. [Citation.] Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, [citations], the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. [Citation.]”
While the jurors were specifically instructed on the presumption of innocence and given the definition of reasonable doubt 18 days before beginning deliberation, they nonetheless did have the written instructions before them, and there is nothing in our record to indicate confusion as to the prosecutor’s burden of proof. (See People v. Valenzuela, supra, 76 Cal.App.3d at p. 221.)
Based on the forgoing, we believe the jury was sufficiently instructed so as to comport with due process. Thus, any error in failing to reinstruct was harmless.
Defendant relies on three cases to support his position. In People v. Vann, supra, 12 Cal.3d 220, the defendant was convicted of receiving stolen property. During jury selection, the prospective members of the jury were simply told that it was “‘incumbent... upon the People to prove the allegations as to each defendant, and to prove them beyond a reasonable doubt, to a moral certainty, before you would be entitled to return a guilty verdict.’” (Id. at p. 227, fn. 6.) There were no further instructions as to the People’s burden of proof or that defendant was presumed innocent. No written instructions were given to the jury defining reasonable doubt or alluding to the presumption of innocence. The jury was instructed, however, that as it relates to circumstantial evidence “‘each fact which is essential to complete a set of circumstances necessary to establish a defendant’s guilt has been proved beyond a reasonable doubt.’” (Id. at p. 226.) In finding this inadequate, the court stressed that a large part of the prosecutor’s case was based on direct evidence rather than circumstantial evidence, thus minimizing the affect of the trial court’s instruction relative to circumstantial evidence.
In People v. Elguera, supra, 8 Cal.App.4th 1214, the defendant was convicted of possessing a sharp instrument while in prison. At the beginning of jury selection the court instructed the jury on the presumption of innocence and the definition of reasonable doubt. The trial lasted one day and no further oral or written instructions were provided on the relevant principles. In reversing the conviction, the court stated: “We think it clear the court had a sua sponte duty to instruct the jury on these fundamental principles, applicable to every criminal case; to do so during the trial rather than during jury selection; and to make the instruction available with other written instructions.” (Id. at p. 1219, italics added.)
Lastly, in People v. Flores (2007) 147 Cal.App.4th 199, the defendant was convicted of various counts of lewd acts on a child and aggravated sexual assault. Again, the jury was instructed on the relevant principles only during jury selection. (Id. at p. 212.) And while the prosecutor did discuss “reasonable doubt” in his closing argument, at no time was the jury instructed that the People had the burden of proving beyond a reasonable doubt the respective elements of the crimes. (Id. at pp. 212-214.)
Each of these cases is inapposite. First, in none of the cases did the trial court instruct on the presumption of innocence and the definition of reasonable doubt, to an impaneled jury. In none of the cases did the jury, for purposes of deliberation, have the written instructions dealing with both principles. Lastly, the jury here was instructed that the People had the burden of proving beyond a reasonable doubt that it was defendant who committed the crime and that if the burden was not met it must find defendant not guilty. The jury was also instructed as to the elements of the respective crimes for purposes of finding defendant “guilty”; and within the confines of an earlier instruction, it was told it could not convict defendant unless the People “proved his guilt beyond a reasonable doubt.”
We therefore conclude that defendant’s due process rights were not violated and any error in not properly instructing the jury at the close of evidence was harmless.
III. DISPOSITION
The judgment is affirmed.
We concur:Hollenhorst Acting P.J., Gaut J