Opinion
B159127.
7-30-2003
DIVISION EIGHT THE PEOPLE, Plaintiff and Respondent, v. JORGE LARIOS, Defendant and Appellant.
Anthony Boskovich, 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, Victoria B. Wilson and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jorge Larios appeals from the judgment entered following a jury trial that resulted in his conviction of receiving stolen property. He contends the judgment must be reversed because the trial court failed to instruct the jury on reasonable doubt in accordance with CALJIC No. 2.90 and that the amount of direct victim restitution awarded was not supported by substantial evidence. After review, we reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Sepulveda Park, also known as Kester Park, is located on the corner of Kester and Parthenia, in Panorama City. On December 22, 2001, Armando Hernandez parked his 1989 Chevy Caprice on Kester, near Sepulveda Park. At about 11 a.m. that day, defendant and two other men were observed attempting to break into cars parked in the area. One of the men, but not defendant, was seen entering Hernandezs car and removing a stereo or radio.
Officers Heriberto Salazar and his partner, William Lantz, of the Los Angeles Police Department, were dispatched to the scene in response to a burglary in progress call. When they arrived, Salazar saw defendant standing behind Hernandezs car, holding Hernandezs radio. After the officers identified themselves, defendant ran away. While in pursuit, Salazar saw defendant throw the radio over a fence into a backyard, then jump the fence. Salazar lost track of defendant, but the radio was recovered from the backyard.
Defendant was later found, apparently unconscious, in the bed of a truck parked in the parking structure of a nearby apartment complex. When appellant regained consciousness, after being taken to a hospital, he told officers "he was just trying to get some stuff in order to . . . buy some rock."
Defendant was charged by amended information with burglary of a vehicle (Pen. Code, § 459) and receiving stolen property (Pen. Code, § 496, subd. (a)). It was further alleged appellant had suffered a prior conviction within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b) - (i), 1170.12, subds. (a) - (d)). A jury found defendant not guilty of burglary, but guilty of receiving stolen property. In a bifurcated proceeding, the trial court found true the Three Strikes allegation. Defendant was sentenced to four years in state prison, comprised of the two-year midterm doubled pursuant to the Three Strikes law.
DISCUSSION
Failure to Give CALJIC No. 2.90 Compels Reversal
Defendant contends, and the People do not dispute, that the trial court erred in failing to sua sponte instruct the jury on the concept of reasonable doubt as set forth in CALJIC No. 2.90 . Defendant contends this is constitutional error, compelling reversal per se. The People counter that, under the standard of review articulated in Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (Chapman), any such error was "harmless beyond a reasonable doubt." The People argue that the necessary information was imparted to the jury by the giving of CALJIC Nos. 1.00 (respective duties of judge and jury), 2.01 (sufficiency of circumstantial evidence), 2.11.5 (unjoined perpetrators), 2.61 (defendant may rely on state of evidence), 2.91 (burden of proving identity based solely on eyewitness), 4.21 (relevance of voluntary intoxication to specific intent), 14.65 (definition of receiving stolen property), and by the explanations given by the prosecutor and defense counsel during closing arguments. We disagree.
In People v. Vann (1974) 12 Cal.3d 220, 115 Cal. Rptr. 352, 524 P.2d 824, the trial court inadvertently failed to instruct the jury that the defendant was presumed innocent and that the prosecution had the burden of proving the defendants guilt beyond a reasonable doubt. (See Pen. Code, § 1096; Evid. Code, § 502.) Our Supreme Court held that such error requires reversal unless it is found harmless beyond a reasonable doubt under Chapman. (Id. at p. 228.) That other instructions were given which referred to the matter of "reasonable doubt" was found insufficient to cure the error. (Id. at pp. 226-227; People v. Elguera (1992) 8 Cal.App.4th 1214, 1219 (Elguera) [proper standard of review for failure to give CALJIC No. 2.90 was the Chapman " harmless beyond a reasonable doubt standard"].)
In 1993, the United States Supreme Court decided, in Sullivan v. Louisiana (1993) 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (Sullivan), that the giving of a constitutionally deficient reasonable-doubt instruction is among those constitutional errors that require reversal of a conviction rather than those that are amenable to harmless-error analysis. (Id. at pp. 279-281.) Based on Sullivan, the appellate courts in People v. Crawford (1997) 58 Cal.App.4th 815, 817 (Crawford) and People v. Phillips (1997) 59 Cal.App.4th 952, 954 (Phillips), concluded that the failure to give CALJIC No. 2.90 is constitutional error that requires per se reversal of the judgment.
The court in Crawford explained: "The Sullivan decision is straightforward and uncompromising. The court held that a constitutionally deficient reasonable doubt instruction cannot be harmless error." (Crawford, supra, 58 Cal.App.4th at p. 821.) "The court [in Sullivan] reasoned that, essentially, there had been no jury verdict within the meaning of the Sixth Amendment, the premise for harmless-error analysis. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt-not that the jurys actual finding of guilty beyond a reasonable doubt would surely have been different absent the constitutional error. That is not enough. [Citation.]" (Id. at p. 822, italics original.)
We find the reasoning of the courts in Crawford and Phillips persuasive and adopt it here. Under that reasoning, we find the failure to give CALJIC No. 2.90 was constitutional error that requires per se reversal of the judgment.
The Peoples reliance on Elguera for the proposition that reversal is required "only if there is a reasonable probability the error might have contributed to the conviction," is misplaced. Elguera was decided before Sullivan.
We are not persuaded by the Peoples efforts to distinguish Sullivan from the case at bar on the grounds that "Sullivan was carefully tailored to cases in which an unconstitutional definition of reasonable doubt has been given to the jury, thereby vitiating the beyond-a-reasonable doubt requirement. [Citations.] . . . The failure to instruct on the definition of reasonable doubt could not possibly be a reversible error per se, since the high court has never required federal or state trial courts to define reasonable doubt. " As noted by the People, the federal courts of appeals have been "divided about if, when, and how the concept of reasonable doubt should be defined." (United States v. Reives (4th Cir. 1994) 15 F.3d 42, 44; see, e.g., United States v. Nolasco (9th Cir. 1991) 926 F.2d 869, 872 [an appropriate instruction defining reasonable doubt is permissible but not necessarily required under the federal constitution].) In Victor v. Nebraska (1994) 511 U.S. 1, 127 L. Ed. 2d 583, 114 S. Ct. 1239, the United States Supreme Court stated that, while a trial court must instruct the jury on the necessity that the defendants guilt be proved beyond a reasonable doubt, the constitution does not require a trial court to define "reasonable doubt." (Id. at p. 5.) Taken as a whole, however, the instructions must correctly convey the concept of reasonable doubt to the jury. (Ibid.)
CALJIC No. 2.90 conveys the concept of reasonable doubt, including a definition of that term, as articulated by the Legislature in Penal Code section 1096. This definition has passed constitutional muster with every California appellate court to consider it, as well as with the Ninth Circuit Court of Appeals in Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997, 990-1000. (People v. Hearon (1999) 72 Cal.App.4th 1285, 1286.) As did the court in Phillips, we conclude that, absent CALJIC No. 2.90 or its equivalent, other jury instructions do not correctly or adequately convey the concept of reasonable doubt. Thus, we agree with the court in Phillips that failure to give a reasonable doubt instruction that comports with Penal Code section 1096 constitutes per se reversible error.
Even under the Chapman "harmless beyond a reasonable doubt" standard, we find the error in failing to give CALJIC No. 2.90 in this case requires reversal. As did the courts in Vann and Elguera, the courts in Crawford and Phillips both held that the defect in failing to give CALJIC No. 2.90 was not cured by other instructions given which referred to reasonable doubt, by counsels statements in closing argument defining reasonable doubt and explaining the prosecutors burden of proof, or by an instruction in language similar to CALJIC No. 2.90 given to the panel of prospective jurors. Here, likewise, neither the other instructions given which referred to reasonable doubt, nor the explanation by defense counsel and the prosecutor of reasonable doubt and the prosecutors burden of proof in their closing arguments, were sufficient to cure the failure to give CALJIC No. 2.90 or its equivalent.
Having concluded that the failure to give CALJIC No. 2.90 was reversible error, we need not address defendants other contentions.
DISPOSITION
The judgment is reversed.
We concur: COOPER, P.J., BOLAND, J. --------------- Notes: CALJIC No. 2.90 reads in pertinent part: "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. [P] 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."