Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF101329A.
SCOTLAND, P.J.
A jury convicted defendant Philip Louis Leveton of annoying or molesting a child (Pen. Code, § 647.6, subd. (a)). In a bifurcated trial, the jury found defendant was convicted in 1996 of annoying or molesting a child. He was sentenced to state prison for the middle term of two years.
On appeal, defendant contends, and the People concede, that in the bifurcated trial on the prior conviction allegation, the court erred by failing to reinstruct the jury on the prosecutor’s burden of proof beyond a reasonable doubt, as it had in the initial phase of trial on the new offense. Contrary to defendant’s claim, this failure was not structural error requiring reversal of the jury’s finding that defendant had a prior conviction in 1996 for annoying or molesting a child. Because, at most, it was harmless error, we shall affirm the judgment.
FACTS
On August 13, 2006, defendant sat next to 11-year-old K.S., while K.S. was using defendant’s computer to play computer games. Defendant touched K.S. and asked him whether he was still a virgin and whether he would like to lose his virginity. When K.S. started to run away, defendant tried to grab his arm, saying: “I guess you don’t want to lose your virginity.” K.S. told his mother, who then reported the crime.
In 1996, defendant was convicted of annoying or molesting a nine-year-old girl. She was called as a witness in this case (Evid. Code, § 1108) and testified that when she had gone to defendant’s apartment to use his telephone, he put his hand on her buttocks and on the inside of her thigh over her clothes. She ran away to a friend’s apartment.
DISCUSSION
The failure to instruct, or misinstruction, on the burden of proof beyond a reasonable doubt is a structural defect requiring reversal of the judgment. (Sullivan v. Louisiana (1993) 508 U.S. 275, 276-282 [124 L.Ed.2d 182, 187-191] (hereafter Sullivan).)
Here, during voir dire, the court instructed the prospective jurors on the presumption of innocence, the prosecution’s burden of proof beyond a reasonable doubt, and the definition of reasonable doubt.
After the jury was empanelled, the court instructed the jurors on the presumption of innocence, the prosecution’s burden of proof beyond a reasonable doubt, and the definition of reasonable doubt.
After presentation of evidence and summation by the parties in the initial phase of trial, the court again instructed the jurors on the applicable rules of law they had to apply, including the presumption of innocence, the prosecution’s burden of proof beyond a reasonable doubt, and the definition of reasonable doubt.
Each time, the court instructed that “[w]henever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.”
After the jury returned a verdict finding defendant guilty of annoying or molesting K.S., the jurors were advised that defendant was charged with having a conviction for annoying or molesting the girl who had earlier testified about the incident in 1996. In an opening statement on that charge, the prosecutor told the jurors that the only evidence to be introduced would be “a certified copy of the court’s docket that says -- that has the paperwork of the defendant’s conviction . . . .” After the defense waived an opening statement, the prosecutor moved into evidence, without objection, certified court records showing a complaint, filed on September 25, 1996, charged defendant with two counts of annoying or molesting a child, a misdemeanor (§ 647.6); he pled not guilty when arraigned; he then pled no contest to count 1 on October 21, 1996, and count 2 was dismissed; and the court suspended imposition of sentence and granted probation for a term of three years. The defense offered no evidence, and both parties waived closing arguments.
The court then instructed the jurors as follows: “Ladies and gentlemen, the People have alleged that the defendant was previously convicted of another crime. It has already been determined that the defendant is the person named in Exhibit 7. You must decide whether the evidence proves that the defendant was convicted of the alleged crime. [¶] The People allege that the defendant has been convicted of a violation of Penal Code [section] 647.6 on October [2]1, 1996, in the Superior Court of California, County of San Joaquin, on the case number which I just read, case number SM191222. [¶] In deciding whether the People have proved the allegations, consider only the evidence presented in this proceeding. Do not consider your verdict or any evidence from the earlier part of the trial. You may not return a finding that the alleged conviction has or has not been proved unless all twelve of you agree on that finding. I’ll ask you now to go in and deliberate. We are going to prepare a verdict form here for you real quick and we’ll send it in to you.”
After briefly deliberating, the jury found the prior conviction allegation to be true.
Defendant does not challenge the proof beyond a reasonable doubt instructions given to the jurors during the initial phase of trial. Nevertheless, he contends the failure to give those correct instructions in the bifurcated proceeding was error that was not “cured” by the fact the jurors had already been properly instructed on reasonable doubt on three separate occasions.
The cases defendant cites as support for his position are distinguishable.
People v. Vann (1974) 12 Cal.3d 220 (hereafter Vann) addressed the failure to instruct on reasonable doubt at the end of trial. Vann held the failure was not cured by the trial court’s references to reasonable doubt in the instruction on circumstantial evidence, particularly since most of the evidence against the defendant was direct. (Id. at pp. 226-227.) Nor was it cured by references to reasonable doubt in the closing argument of defense counsel. (Id. at p. 227, fn. 6.) And while the court had made references to reasonable doubt during jury selection, they did not cure the failure to instruct on reasonable doubt at the close of the case which occurred 16 days later. (Ibid.)
In People v. Elguera (1992) 8 Cal.App.4th 1214 (hereafter Elguera), prospective jurors were instructed on reasonable doubt and questioned on voir dire about the standard. (Id. at pp. 1216-1218.) However, after the jury was selected and sworn, the court never instructed the jurors on reasonable doubt, nor did it provide them with written instructions on the standard of proof, although it did instruct them on circumstantial evidence, which made references to reasonable doubt and described the instructions as “‘the law that applies to this case.’” (Id. at p. 1218.) Counsel made references to reasonable doubt in closing argument. (Id. at pp. 1218-1219.) The trial lasted one day. (Id. at pp. 1217-1219.) Elguera held the omission of reasonable doubt instructions was reversible error because the “jurors were unlikely to remember the exact definition [of reasonable doubt] read to them five and one-half hours earlier” during voir dire while they were prospective jurors. (Id. at p. 1223.)
Prior to jury deliberations in People v. Crawford (1997) 58 Cal.App.4th 815 (hereafter Crawford), the court planned to instruct the jury on reasonable doubt as requested by the parties but failed to read such an instruction and did not provide it to jurors in written form. (Id. at p. 819.) Citing Sullivan, Vann, and Elguera, the Court of Appeal held that the omission was not cured by the trial court’s explanation of reasonable doubt during jury selection; by references to reasonable doubt in the instruction on circumstantial evidence and in the instruction on the use of a deadly weapon; or by references to reasonable doubt made by both counsel in closing argument to the jury. (Crawford, supra, 58 Cal.App.4that pp. 819-820, 822-823.)
In questioning one prospective juror in People v. Phillips (1997) 59 Cal.App.4th 952 (hereafter Phillips), the trial court referred to the presumption of innocence and the prosecutor’s burden to prove “whatever” is alleged beyond a reasonable doubt. (Id. at p. 954.) But the court never instructed on the presumption of innocence or the prosecutor’s burden to prove guilt beyond a reasonable doubt and never defined reasonable doubt. Although in opening statement, the prosecutor mentioned his burden of proof and both counsel in closing argument referred to the burden of proof and gave partial definitions of reasonable doubt, Phillips reversed the judgment because the jurors were more likely confused about the definition of reasonable doubt, having heard differing viewpoints from counsel in closing argument, and the court did not define it although counsel had stated the court would explain it further. (Id. at pp. 953-955, 956-958.)
During voir dire in People v. Flores (2007) 147 Cal.App.4th 199 (hereafter Flores), the trial court instructed prospective jurors with the reasonable doubt instruction. After the jury was empanelled, the court never again gave the reasonable doubt instruction, although it did give other instructions which made references to reasonable doubt (id. at pp. 212-213) and, in his closing argument, the prosecutor discussed reasonable doubt (id. at pp. 213-214). Finding the situation similar to that in Vann and Elguera, the Court of Appeal held the failure to instruct on reasonable doubt constituted reversible error (Flores, supra, 147 Cal.App.4th pp. 214-215.) The instruction during jury selection was insufficient to meet constitutional requirements, and it was “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 court during jury selection as the federal constitution requires.” (Id. at p. 215.) Other references to reasonable doubt did not cure the error. (Id. at pp. 215-216, 217-218, 219.)
Here, unlike in Vann, Elguera, Crawford, Phillips, and Flores, reasonable doubt instructions were given to the empanelled and sworn jurors. Indeed, jurors heard those instructions on three occasions. Each time, the judge instructed them that “[w]henever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.” Also, unlike Vann, Elguera, Crawford, Phillips, and Flores, this case was one trial simply divided into two parts. When instructing the jurors regarding the prior conviction charge, the judge told them that in deciding whether the People have proved the allegations, they could consider only the evidence presented in the bifurcated proceeding. This triggered the reasonable doubt and innocent until proved guilty instructions because, as we noted, the court thrice had told the jurors, “[w]henever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.”
Thus, this is not a situation of structural error where there were no instructions, or misinstruction, on the burden of proof beyond a reasonable doubt. Having repeatedly been given such instructions, both prior to being sworn in as jurors and after the jury was empanelled (instructions that by their language were not limited to the initial phase of the trial and were not contradicted by the additional instructions given during the bifurcated trial on the prior conviction allegation), the jurors would have understood that the presumption of innocence, the prosecutor’s burden of proof beyond a reasonable doubt, and the definition of reasonable doubt applied to both stages of the trial. (See People v. Chatman (2006) 38 Cal.4th 344, 407-408; People v. Wharton (1991) 53 Cal.3d 522, 600; People v. Mayo (2006) 140 Cal.App.4th 535, 543-550.) Since the evidence of the prior conviction was uncontested, the court’s failure to reinstruct jurors on the aforesaid principles of law was--if error--harmless beyond a reasonable doubt. (People v. Chatman, supra, 38 Cal.4th at p. 408.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., CANTIL-SAKAUYE, J.