Opinion
B163543.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. PABLO SAMUEL FLORES, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Jason C. Tran, Deputy Attorney General, for Plaintiff and Respondent.
I. introduction
Defendant, Pablo Samuel Flores, appeals after a jury convicted him of three counts of taking a child by a noncustodial parent. (Pen. Code, § 278.) Defendant was sentenced to 3 years on count 1, plus a consecutive 1-year term on count 2, with a concurrent term of 365 days in county jail for count 3. The trial court suspended execution of sentence, placed defendant on formal probation for 5 years, with the condition that he serve 365 days in county jail. Defendant contends, among other things, that the trial court committed structural error by failing to instruct the jury on the prosecutors burden of prove guilt beyond a reasonable doubt. We agree.
All further statutory references are to the Penal Code unless otherwise indicated.
On September 16, 2002, prior to the selection of the jury, the trial court discussed reasonable doubt with the prospective jurors. The trial court stated: "I am sure you have all heard the term proven guilty beyond a reasonable doubt. That is the burden of proof in any criminal trial. The defendant is presumed to be innocent until he is proven guilty beyond a reasonable doubt. [¶] . . . [¶] [Reasonable doubt] is not a mere possible doubt, because everything relating to human affairs and depending upon moral evidence 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. [¶] Again, I will read the definition to you at the end, and again, you will receive it in written form." The trial court did not so instruct the jury nor was a copy of the CALJIC No. 2.90 provided to the jury. The jury was not otherwise instructed that the prosecution had the burden of proving guilt beyond a reasonable doubt.
CALJIC No. 2.90 provides: "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. [¶] 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."
Defendant contends and the People concede that the failure to so instruct the jury is reversible error. The trial court has a sua sponte duty to instruct the jury the defendant is entitled to a verdict of not guilty unless the prosecution has met the burden of proving guilt beyond a reasonable doubt. (§ 1096 ; People v. Vann (1974) 12 Cal.3d 220, 225-227.) The failure to so instruct the jury is a structural error which requires reversal. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279-281; People v. Phillips (1997) 59 Cal.App.4th 952, 957-958; People v. Crawford (1997) 58 Cal.App.4th 815, 821-822.) We need not address defendants remaining contentions.
Section 1096 provides: "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 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."
The judgment is reversed. Pursuant to the parties stipulation, the remittitur is to issue forthwith.
We concur: ARMSTRONG, J. and MOSK, J.