Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC598216
Premo, J.
Defendant Emilio Martinez was charged by information with one count of sodomy by force, violence, duress or menace (Pen. Code, § 286, subd. (c)(2)) and one count of sexual battery (§ 243.4, subd. (e)(1)). A jury found defendant guilty of sodomy but could not reach a verdict on the sexual battery count. On appeal, defendant contends that the trial court misled the jury when responding to the jury’s request for clarification of the instruction pertaining to reasonable doubt. We agree that the court’s response was reasonably likely to have misled the jury into applying a lesser standard of proof and, therefore, we reverse the judgment.
Hereafter, all unspecified code references are to the Penal Code.
I. Factual and Procedural Background
A. Summary of the Evidence
The victim, Stacy Doe, testified that she and defendant worked at Good Samaritan Hospital together and had become friends. On one occasion between Christmas 2004 and March 1, 2005, defendant took Doe into an empty room and began stroking her breasts and touching her vagina over her clothing. Doe protested but defendant continued to touch her. After Doe began to cry, defendant apologized and they left the room together. Doe did not report the incident.
Sometime between 3:00 and 4:00 a.m. on March 6, 2005, defendant again took Doe into an unoccupied room, grabbed her, rolled her on to her stomach, and sodomized her. A sexual assault examination of Doe on March 8 revealed “linear tears at twelve o’clock and six o’clock around the anus.” A stain on Doe’s underwear was found to contain seminal fluid matching defendant’s DNA type.
Defendant testified, claiming that the two encounters were initially consensual and that as soon as Doe objected, he stopped.
B. Jury Instructions and the Trial Court’s Response to Jury Questions
The trial court instructed the jury in the language of CALCRIM No. 220: “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 each crime . . . beyond a reasonable doubt. [¶] . . . [¶] . . . [P]roof 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 does prove the defendant guilty on the charges beyond a reasonable doubt then he would be entitled to acquittal on the charges that weren’t proven beyond a reasonable doubt and you must find him not guilty.”
The instruction tracks the language of section 1096, which defines reasonable doubt 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 jury commenced deliberations on November 6, 2006, at 4:20 p.m. and was excused at 5:00 p.m. that evening. The following morning, the jury requested, among other things, 12 copies of the reasonable doubt instruction. The next morning, the jury asked for clarification of the reasonable doubt instruction. The trial court reread the pattern instruction and then explained:
“I wish I could break it down for you but that’s the standard that’s been used in criminal cases forever and ever and ever. It’s never changed. Never seen it differently. And it’s really saying basically that there [are] two kinds of doubt. You can have some doubt that you can say maybe this happened and maybe this happened and there is really no evidence to it, and you are kind of speculating, or there is some doubt that is reasonable in the case based on the evidence, based on reason and everything else and that would be reasonable doubt as opposed to some possible doubt or some maybe, well, maybe this happened or some imaginary doubt or something like that.
“And see it’s not scientific. And that’s the best we can do is read the instruction for you.”
Not satisfied with this explanation, the jury’s foreperson initiated the following exchange:
“JUROR NO. 5: We understand that, but to satisfy that definition, we need not eliminate all doubt?
“THE COURT: That’s right.
“JUROR NO. 5: Okay, that’s what it says, but I think everyone would probably appreciate more guidance if you can provide it on--on understanding what that threshold is.
“THE COURT: I think when they talk about it [it] leaves us with an abiding conviction of the truth of the charge. Something that is a lasting, you know, you have to believe the charge is true. I don’t think there is any reasonable doubt. I couldn’t speculate on something else, you know, having occurred or something else that’s not in evidence, but it’s not based on reason or evidence.
“You really can’t go beyond the definition because it’s not scientific. There is no percentage or anything that has ever been qualified that you have to be 80-percent sure or 90-percent sure, anything like that. We know it’s not a hundred percent because you can always find some imaginary or possible doubt or something.
“And as one of the attorneys said it’s not beyond a shadow of a doubt or all these things you hear on TV, but beyond any reasonable doubt. But it’s not, I think it’s more likely than not. That’s preponderance of evidence standard. It’s higher than that. That’s what you have in civil cases. In civil cases that’s called preponderance of the evidence standard, and it’s actually 50-percent plus where they say, you know, oh yeah, it looks like this person is the one.
“JUROR NO. 5: If we are supposed to be higher than 50-percent plus then approximately in our minds how do we think of that? Are we talking 60, 70, 80, 90?
“THE COURT: It hasn’t been qualified. All I know is the preponderance standard has always been qualified in civil cases and they’re dealing with money and stuff and basically it says, you know what? We find by a preponderance of the evidence that it’s more likely that this person deserves this amount of money and their story is true and that type of stuff. You know, it is 50-percent plus on standard or whatever you want to call it.
“But obviously beyond a reasonable doubt, everyone’s understanding is a higher standard than 50 percent.
“JUROR NO. 5: So would a jury be in error to do 52 percent?
“THE COURT: I can’t answer that question. It’s never been qualified specifically and actually case law doesn’t allow the attorneys to sit there and make up their own numbers either, if they had done that on a chart or something and said, Well, you have to be at 80 percent or 90 percent, it’s beyond a reasonable doubt in people’s mind but not possible doubt or imaginary doubt.
“JUROR NO. 5: Well, I think that answers our questions for now.”
C. The Judgment
After two and one-half days of deliberations, the jury found defendant guilty of sodomy but could not reach a verdict on the sexual assault count. Defendant moved for a new trial, arguing that the trial court’s spontaneous colloquy with the jurors on the concept of reasonable doubt deprived defendant of his right to due process. The trial court denied the motion and sentenced defendant to the mitigated term of three years in state prison. This appeal followed.
II. Discussion
A. Standard of Review
“[U]nder California statutory law, a trial court is required to instruct a deliberating jury on its request ‘on any point of law arising in the case.’ (Pen. Code, § 1138.)” (People v. Waidla (2000) 22 Cal.4th 690, 746.) Under section 1138 “the court must attempt ‘to clear up any instructional confusion expressed by the jury.’ ” (People v. Giardino (2000) 82 Cal.App.4th 454, 465.) The trial court’s duty is to help the jury understand the legal principles it is asked to apply. (People v. Solis (2001) 90 Cal.App.4th 1002, 1015.) Section 1138 does not demand elaboration upon the standard instructions by the trial court when the jury expresses confusion, but rather directs the court to “consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice.” (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
Section 1138 provides in pertinent part, “After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given . . . .”
“An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.” (People v. Waidla, supra,22 Cal.4th at pp. 745-746.) Although the trial court’s decision to instruct is discretionary, when the court chooses to elaborate upon the reasonable doubt instruction, we must examine the court’s instruction to determine whether it might have diluted the standard of proof. An instruction that allows a jury to apply a standard less stringent than the reasonable doubt standard deprives the defendant of due process and the right to a jury verdict of guilty beyond a reasonable doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) “The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error,’ ” which is reversible per se. (Id. at pp. 281-282; see also People v. Johnson (2004) 115 Cal.App.4th 1169, 1172.) Our courts have long cautioned against improvised instructions on reasonable doubt; varying from the standard instruction is a “ ‘perilous exercise.’ ” (People v. Freeman (1994) 8 Cal.4th 450, 504, quoting People v. Yoshimura (1979) 91 Cal.App.3d 609, 632.) On the other hand, where there is “no reasonable likelihood” that the instruction led the jury to believe that it could convict the defendant on a lesser standard of proof, an instruction on reasonable doubt that varied from the prescribed version does not require reversal. (People v. Cash (2002) 28 Cal.4th 703, 741.)
B. Analysis
Defendant claims that the trial court’s response to the jury’s questions implied that reasonable doubt was equivalent to, or a variant of, proof by a preponderance of the evidence. Relying upon People v. Garcia (1975) 54 Cal.App.3d 61 (Garcia), defendant maintains that the trial court’s responses lowered the standard of proof by suggesting that the only difference between reasonable doubt and proof by a preponderance of the evidence is the “quantity” of the evidence. We agree that there is a reasonable likelihood that the trial court’s explanation misled the jury in this way.
In Garcia,the trial court amplified the reasonable doubt instruction with the following language: “ ‘In other words, reasonable doubt means just what the term implies, doubt based upon reason, doubt that presents itself in the minds of reasonable people who are weighing the evidence in the scales, one side against the other, in a logical manner in an effort to determine wherein lies the truth.’ ” (Garcia, supra, 54 Cal.App.3d at p. 68.) The appellate court held that this explanation was comparable to the description of the preponderance of the evidence standard of proof, which demanded only that the evidence, when weighed against the opposing evidence, have “ ‘more convincing force.’ ” (Id. at p. 69.) The weighing process, Garcia explained, “is wholly foreign to the concept of proof beyond a reasonable doubt.” (Ibid.)This distinction between the two standards had long been recognized. “[I]n civil cases a party may have established an essential fact by a preponderance of the evidence, although, in the light of all the evidence pro and con, the jury may not be satisfied to a moral certainty of the existence of the fact, and the whole evidence may not be such as to produce conviction in their minds.” (People v. Miller (1916) 171 Cal. 649, 654.) The duty of establishing a fact beyond reasonable doubt imposes a duty far greater than is required to establish the same fact by a preponderance of the evidence. (Garcia, supra,54 Cal.App.3d at p. 69.) Under the reasonable doubt standard of proof, the jury is tasked with more than merely balancing the evidence. “ ‘ “To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty.” ’ ” (People v. Redmond (1969) 71 Cal.2d 745, 756; People v. Hall (1964) 62 Cal.2d 104, 112.)
Examination of the record demonstrates why impromptu instructions on the reasonable doubt standard are so perilous. It is clear that, in the face of persistent requests for clarification, the trial court tried valiantly to explain what is meant by proof beyond a reasonable doubt. But by introducing the preponderance of the evidence concept and the weighing process it employs, the trial court inadvertently left the impression that the standard of proof beyond a reasonable doubt is merely a variant of the preponderance of the evidence standard.
It is true, as the Attorney General argues, that the trial court repeatedly emphasized that the preponderance standard does not apply in criminal cases. But by mentioning the “50 percent plus one” standard, the trial court seems to have given the jury the impression that the standard in a criminal case is also numerically quantifiable. To be sure, as soon as the trial court mentioned percentages, the jury foreperson latched onto the concept, asking, “If we are supposed to be higher than 50-percent plus then approximately in our minds how do we think of that? Are we talking 60, 70, 80, 90?” This remark shows that the jury, or the foreperson at least, believed that its duty was simply to weigh the evidence and, once the scale reached a specified tipping point, a guilty verdict would be warranted. The trial court’s response did not cure the false impression that the preceding discussion appears to have left. In fact, it prompted the question, “So would a jury be in error to do 52 percent?” And the court’s response to this, “I can’t answer that question,” was no more helpful. Although the Attorney General interprets this response as informing the jury that “no particular percentage could be applied to the reasonable doubt standard,” the trial court’s actual response was more ambiguous than that. By declining to answer the question, and then by adding that the attorneys are not permitted to make up their own numbers, the trial court might have left the impression that it was up to the jury to decide the appropriate “percentage” of proof. Certainly the jury’s attention was deflected from the need to have an “abiding conviction” of the truth of the charges against defendant.
The Attorney General argues, in effect, that the trial court’s comments were an accurate statement of the law. A careful parsing of the trial court’s language might prove this to be so. But the concern is whether the jury understood it as such. Given the ambiguity of the trial court’s remarks and the questions they prompted, we conclude that there is a reasonable likelihood that the jury was misled into applying a lower standard of proof than proof beyond a reasonable doubt.
III. Disposition
The judgment is reversed.
WE CONCUR: Rushing, P.J., Elia, J.