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People v. Galdemez

California Court of Appeals, Second District, Seventh Division
Jul 21, 2008
No. B199060 (Cal. Ct. App. Jul. 21, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. VA094735, William J. Birney, Judge.

Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.


ZELON, J.

William Galdemez appeals from the judgment entered after a jury convicted him of aggravated assault for which he was sentenced to 13 years in state prison. Galdemez challenges the judgment, arguing the jury did not receive constitutionally adequate instructions on the reasonable doubt standard. We agree with Galdemez and reverse the judgment.

We therefore need not reach Galdemez’s second contention there was sentencing error.

FACTUAL AND PROCEDURAL BACKGROUND

1. Charges and Summary of Trial and Retrial Proceedings

Galdemez was charged by amended information with attempted murder (Pen. Code, §§ 187, 664) (count 1) and assault with a deadly weapon (§ 245, subd. (a)(1)) (count 2). As to both counts, it was alleged Galdemez personally used a deadly weapon (a knife) (§ 12022, subd. (b)(1); and he inflicted great bodily injury on victim Ramon Figueroa (§ 12022.7, subd. (a)). It was further alleged Galdemez had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and section 667, subdivision (a); and he had served one prior prison term for a felony (§ 667.5, subd. (b)).

Undesignated statutory references are to the Penal Code.

Galdemez was tried by jury and acquitted of count 1. The jury was unable to reach a verdict on count 2, aggravated assault; and the trial court declared a mistrial as to that count. A defense motion to dismiss count 2 in furtherance of justice (§ 1385) was denied. The prosecution elected to retry Galdemez on the aggravated assault count.

The evidence presented at retrial was that Figueroa was leaning over his bicycle when he was approached from behind and punched in the head. Figueroa stood up and was repeatedly stabbed with a knife. The seven-inch long blade caused wounds to Figueroa’s chest and upper arm that required stitches. At the hospital, Figueroa identified Galdemez, a neighbor as his attacker, to police. Figueroa later selected Galdemez’s picture from a police-prepared photographic lineup. In his retrial testimony, Figueroa recanted his earlier statements to police naming Galdemez as his attacker. Figueroa also testified he had mistakenly identified Galdemez as the person who stabbed him to his wife and to police. Figueroa testified he did not see the face of the attacker, could not determine the attacker’s gender, and Galdemez had no motive to stab him.

Apparently, Figueroa similarly recanted his police interview statements at the original trial.

Galdemez neither testified nor introduced other evidence in his defense at retrial.

2. Retrial Verdict and Sentencing

The jury found Galdemez guilty of assault with a deadly weapon and found true the deadly weapon and great bodily injury enhancements. After waiving his right to jury trial, Galdemez admitted the prior conviction enhancements.

The trial court sentenced Galdemez to an aggregated state prison term of 13 years, consisting of four years (the lower term of two years doubled under the Three Strikes law) for the aggravated assault; three years for the great bodily injury enhancement, one year for the deadly weapon enhancement, and five years for the prior serious felony enhancement. The court dismissed the one-year prior prison term enhancement on the People’s motion.

3. Retrial Instruction on Reasonable Doubt Standard

Before commencing voir dire examination at retrial, the trial court summarized for the panel of prospective jurors the reasonable doubt standard, consisting of a paraphrased version of CALJIC No. 2.90’s explanation of the presumption of innocence and definition of reasonable doubt. After the parties rested, and before counsels’ closing arguments, the trial court gave its predeliberation instructions to the jury. Notwithstanding the court’s previously stated intention to instruct further on the reasonable doubt standard as part of the deliberation charge to the impaneled jury, the court failed to include Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 220 in the written or oral instructions. The court instructed with CALJIC No. 1.00 that the jurors must follow the law as the court states it and if arguments of counsel “conflict with my instructions on the law, you follow my instructions.” The court instructed with CALCRIM No. 222 that jurors had to “decide what the facts are . . . in this case;” and to “use only the evidence that was presented in this courtroom. Evidence is the sworn statement of witnesses, the admitted exhibits into evidence and anything else I may have told you to consider.” The court further instructed with CALCRIM No. 223, defining both direct and circumstantial evidence, and advising the jury that neither type of evidence “is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all of the evidence.”

The trial court stated to prospective jurors: “[A] defendant in a criminal trial is presumed to be innocent and 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. It’s a legal presumption. The defendant is presumed innocent until the contrary is proved.” [¶] This places upon the district attorney presenting information to the jury, it’s required that the district attorney assumes the responsibility of providing information to the jury to prove the defendant guilty beyond a reasonable doubt. Simply a legal concept. [¶] It means that whether or not [ ] Galdemez here is guilty of the offense charged, he must at this juncture be presumed, legally presumed by the jury, to be innocent, and you have got to hold to that presumption and require the prosecution to overcome it. [¶] See, the fact that he sits here charged with a crime that he has been arrested for is not evidence of guilt. You should keep that in mind. [¶] So what is this business of proof beyond a reasonable doubt? Was [sic] does it mean? Well, a level of proof is required. I describe it I think most easily by telling you what it is not. Proof beyond a reasonable doubt. It’s not, and I will be telling you more about this later, it’s not a mere possible doubt. [¶] Would you agree with me, anything relating to human affairs is open to some possible or imaginary doubt. Few things in this world of ours that we know with absolute certainty. So what is this proof beyond a reasonable doubt? [¶] It’s the type of proof which after you, the final jury, compares and considers all the evidence, which is what the witnesses have presented to you, you just end up saying that you cannot feel an enduring or an abiding, strong belief of the truth of the charges. Quite simply that.”

The jury was also provided with several instructions alluding to the reasonable doubt standard. The court instructed with CALCRIM No. 224 on circumstantial evidence, stating in part that before relying “on circumstantial evidence to include that a fact necessary to find a defendant guilty has been proved,” the jury “must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.” The court instructed with CALCRIM No. 315 on eyewitness identification testimony, stating in part that “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 the defendant not guilty.” The court instructed with CALCRIM No. 355 that “[a] defendant has an absolute constitutional right not to testify,” and “may rely on the state of the evidence and argue that the People failed to prove the charges beyond a reasonable doubt.” The court additionally instructed the jury on the elements of the aggravated assault offense (CALCRIM No. 875) and the great bodily injury enhancement (CALCRIM No. 3160); neither instruction refers to the reasonable doubt standard.

DISCUSSION

Galdemez contends reversal per se is required because the omission of CALCRIM No. 220 or another comparable instruction deprived him of the constitutionally mandated reasonable doubt standard in criminal cases. Alternatively, Galdemez contends even if the trial court’s failure to instruct on the reasonable doubt standard was not structural error, it was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman).)

The People maintain, relying primarily on our decision in People v. Mayo (2006) 140 Cal.App.4th 535 (Mayo) that if the omission of CALCRIM No. 220 were error, it was not federal constitutional error based on the instructions taken as a whole. The People also assert, to the extent the trial court otherwise committed error under state law (see People v. Vann (1974) 12 Cal.3d 220, 226 (Vann) [trial court has sua sponte obligation to instruct on general principles of presumption of innocence and reasonable doubt]), the error was nonetheless harmless within the meaning of both Chapman and People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)

As the People acknowledge, having found no federal constitutional error in Mayo, we applied the standard of prejudice articulated in Watson to conclude if these were instructional error, it was harmless under state law. (Mayo, supra, 140 Cal.App.4th at pp. 550-552, see People v. Mower (2002) 28 Cal.4th 457, 484 [I]f a trial court’s instructional error violates only California law, the standard is that stated in . . . Watson . . ., which permits the People to avoid reversal unless “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Citation.)”].)

A number of cases have held a trial court’s failure to instruct on the reasonable doubt standard is federal constitutional error even where the standard of proof is discussed at some other point during the proceedings. (People v. Vann, supra, 12 Cal.3d 220 [burden of proof explained during jury selection and at closing argument]; People v. Flores (2007) 147 Cal.App.4th 199 [reasonable doubt defined during jury selection and mentioned during prosecutor’s closing argument; burden of proof stated in instructions on elements of crimes]; People v. Phillips (1997) 59 Cal.App.4th 952 [burden of proof mentioned during jury selection and contained in elements of crime, and counsel gave partial definitions of reasonable doubt in closing argument]; People v. Crawford (1997) 58 Cal.App.4th 815 [reasonable doubt defined during jury selection; burden of proof referred to in other instructions]; People v. Elguera (1992) 8 Cal.App.4th 1214 [reasonable doubt defined during jury selection; burden of proof referred to in closing arguments].)

These cases concerned the omission of CALJIC No. 2.90, which states, “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.”

In Mayo, we agreed with Vann and succeeding Courts of Appeal decisions that the inadvertent omission of a constitutionally acceptable instruction on the reasonable doubt standard is federal constitutional error, “when the instructions given to the jury, taken as a whole, fail to otherwise adequately convey the concept of reasonable doubt.” (Mayo, supra, at p. 542.) In Mayo the jury was instructed that each element of the offense needed be proved beyond a reasonable doubt; as to the meaning of the words, the remaining instructions sufficiently informed jurors of the constitutionally mandated standard in accordance with Victor v. Nebraska (1994) 511 U.S. 1, 5 [114 S.Ct. 1239, 127 L.Ed.2d 583] [“[S]o 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. [Citation.] Rather, ‘taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.’ [Citation.]”].) Thus, under the specific facts of Mayo, the omission of CALJIC No. 2.90’s definition of reasonable doubt was not federal constitutional error. (Mayo, supra, at pp. 548-549.)

According to the People, Mayo is controlling here, in that no federal constitutional error occurred because the omission of CALCRIM No. 220 was cured by other instructions sufficiently advising jurors of the reasonable doubt standard. To support their argument, the People point to the court’s early instruction to the entire panel on the reasonable doubt standard as being “consistent with omitted CALCRIM [No.] 220” [and] “a correct statement of the law.” The People urge this early instruction was later “confirmed” by the court’s use of CALJIC No. 1.00’s admonition to follow the law as instructed, and of CALCRIM Nos. 224 (circumstantial evidence), 315 (eyewitness testimony), and 355 (defendant’s right not to testify), “requir[ing] the jury to apply the appropriate standard of proof.”

The circumstances we encountered in Mayo, prompting us to conclude there was no federal constitutional error, are not present here. As we noted in Mayo, while the trial court’s reading of CALJIC No. 2.90 to the panel of prospective jurors, by itself, did not supplant the need for the impaneled jury to be adequately instructed on the reasonable doubt standard, the trial court also repeatedly explained the principles of presumption of innocence and reasonable doubt throughout voir dire examination. (Mayo, supra, 140 Cal.App.4th at pp. 541, fn. 5, 552.) Of greater significance in Mayo, was the fact the jury was fully apprised of the reasonable doubt standard through other instructions. These instructions, given predeliberation, specifically advised the jury that the defendant was entitled to acquittal unless each element of the charged offense (murder) was proved beyond a reasonable doubt. “Taken together, those instructions informing the jury it had to acquit Mayo of murder unless each and every element of murder (including first degree murder) was proved beyond a reasonable doubt plainly distinguishes this case not only from Vann, supra, 12 Cal.3d 220, but also from those appellate court decisions relying on Vann to hold the omission of CALJIC No. 2.90 was federal constitutional error. [Citations.] In each of those cases, the instructions 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.” (Mayo, supra, 140 Cal.App.4th at p. 546.)

The jury in Mayo “was properly instructed as to the elements of murder in accordance with CALJIC Nos. 8.10 and 8.11 and told, in accordance with CALJIC No. 8.50, ‘To establish that a killing was murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder . . . .’ The jury was then instructed with CALJIC No. 8.71, “If 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 the second degree, you must give the 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.” The jury was also instructed as to voluntary manslaughter (CALJIC No. 8.43) and informed, in accordance with CALJIC Nos. 8.72 and 8.75, that, if it had reasonable doubt as to whether the crime was murder or the lesser-included offense of manslaughter, it had to resolve that doubt by finding the crime to be manslaughter rather than murder, provided it was ‘satisfied beyond a reasonable doubt that [Mayo was] guilty of the lesser crime.’ (CALJIC No. 8.75).”

In contrast to the instructions in Mayo, the instructions in the present case, viewed collectively, fell far short of fully informing the jury of this burden of proof component of the reasonable doubt standard. With one exception, none of the instructions advised the jury that the People’s burden of proof was beyond a reasonable doubt and applied to each element of the charged offense and alleged enhancements. The references to reasonable doubt in CALCRIM Nos. 315 and 355 sufficiently described the burden of proof, but did not explain the burden extended to proving each element. (CALCRIM No. 315: “the crime;” CALCRIM No. 355: “the charges.”) On the other hand, CALCRIM No. 223 was deficient for failing to state what burden of proof should be applied in deciding “whether a fact in issue has been proved.” Finally, unlike the instructions on the substantive offenses in Mayo, missing from the instructions on both the aggravated assault offense (CALCRIM No. 875) and the great bodily injury enhancement (CALCRIM No. 3160) was any mention of the People’s burden to prove each of the enumerated elements beyond a reasonable doubt.

The sole exception was CALCRIM No. 224 advising the jury in the context of relying on circumstantial evidence to convict, that it had to “be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.” However, as in Vann, the evidence in the present case was primarily direct. Indeed the verdict turned on whether the jury believed Figueroa had correctly identified Galdemez as his attacker. In a case where much of the evidence is direct, “the instruction explaining the application of the reasonable doubt standard to circumstantial evidence might have led the jury to believe a lesser standard of proof was to be applied for direct evidence.” (Mayo, supra, 140 Cal.App.4th at p. 544, citing Vann, supra, 12 Cal.3d at pp. 266-227.)

As for the trial court’s early instruction to prospective jurors, it was not at all consistent with CALCRIM No. 220. What it lacked was that essential part of CALCRIM No. 220 in which the court explains to jurors, “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].” Had the court used CALCRIM No. 220 in conjunction with CALCRIM Nos. 223 (definition of direct and circumstantial evidence), 875 (aggravated assault) and 3160 (great bodily injury enhancement), the jury would have been fully instructed on the burden of proof component of the reasonable doubt standard. The clarifying language of CALCRIM No. 220 would have made the jury aware of the People’s burden to prove each of the disputed facts in this case beyond a reasonable doubt. Accordingly, the omission of CALCRIM No. 220 and the absence of other instructions to explain the mandatory scope of the People’s burden of proof amount to federal constitutional error.

The early instruction was also a misstatement of CALJIC No. 2.90’s definition of reasonable doubt. The trial court mistakenly attempted to define “proof beyond a reasonable doubt” rather than “reasonable doubt” and stated, “it’s the type of proof . . . which . . . you just end up saying that you cannot feel an enduring or an abiding, strong belief of the truth of the charges.”

In Mayo, the People conceded the omission of CALJIC No. 2.90 was error under state law. (Mayo, supra, 140 Cal.App.4th at p. 550.) Here, the People make no such concession with respect to the omission of CALCRIM No. 220, although courts have consistently expressed the People’s burden of proof as extending to each element of the charged offense and accompanying endorsement (see People v. Cole (2004) 33 Cal.4th 1158, 1208 (substantive offense); People v. Rodriguez (2004) 122 Cal.App.4th 121, 128 (enhancement)). Additionally, Evidence Code section 502 provides, “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.”

The issue remains whether the federal constitutional error is structural in nature or is subject to harmless error analysis under the Chapman standard. In Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 [113 S.Ct. 2078, 124 L.Ed.2d 182], the United States Supreme Court held instructional error relieving the People of the burden of proving beyond a reasonable doubt each material element of the charged offense and every material issue presented by substantial evidence violates the defendant’s rights under both the United States and California Constitutions. Nonetheless, even assuming the trial court’s error is amenable to the harmless error analysis, we cannot conclude it was harmless beyond a reasonable doubt. As stated in People v. Crawford, supra, 58 Cal.App.4th 815, 826, “instructions given after the evidence has been received and before deliberations commence is one way of protecting an accused’s constitutional right to be judged solely on the basis of proof adduced at trial. Therefore, whether we view the instant case through the prism of the right to trial by jury articulated in the Sullivan case and reverse per se or conclude under Chapman that we cannot find the error harmless beyond a reasonable doubt, we must reverse the judgment.” In so deciding we intend no contraction of the trial court’s broad discretion to present appropriate jury instructions “at the beginning of the trial or from time to time during the trial.” (§ 1093, subd. (f).) We hold only Galdemez’s right to have every element of the aggravated assault and accompanying enhancements proved beyond a reasonable doubt was not adequately safeguarded.

DISPOSITION

The judgment is reversed.

We concur: PERLUSS, P. J., JACKSON, J.


Summaries of

People v. Galdemez

California Court of Appeals, Second District, Seventh Division
Jul 21, 2008
No. B199060 (Cal. Ct. App. Jul. 21, 2008)
Case details for

People v. Galdemez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WILLIAM A. GALDEMEZ, Defendant…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Jul 21, 2008

Citations

No. B199060 (Cal. Ct. App. Jul. 21, 2008)