Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVA901240, Arthur Harrison, Judge. Affirmed.
Vicki Marolt Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P.J.
A jury found defendant and appellant Ian Toralba Cube guilty of receiving stolen property (Pen. Code, § 496, subd. (a), count 1) and found true the allegations that he suffered one prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to six years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues that his rights to due process and a fair trial were violated when the trial court failed to orally instruct the jury on the presumption of innocence and the prosecution’s burden of proof (CALCRIM No. 220) in its predeliberation charge. We affirm.
FACTUAL BACKGROUND
On or around June 25, 2009, the victim discovered that someone had broken into her car. Her two debit cards, which had been inside her purse in her car, were missing.
On the morning of July 24, 2009, Officer Kraut initiated a traffic stop on a truck for failing to stop at a stop sign and because its front license plate was not clearly visible. Defendant was the driver of the truck, and he gave Officer Kraut permission to search the truck. Officer Kraut found two credit cards sitting on the center console, as well as a glass methamphetamine pipe. The credit cards had the victim’s name on them. Officer Kraut read defendant his Miranda rights. Defendant waived his rights and told Officer Kraut that the cards were given to him by someone named “Tony.” Officer Kraut asked if they were stolen, and defendant said they probably were. Defendant admitted the methamphetamine pipe belonged to him.
Miranda v. Arizona (1966) 384 U.S. 436.
ANALYSIS
Any Error in the Trial Court’s Failure to Instruct on the Presumption of Innocence and Reasonable Doubt During Its Predeliberation Charge Was Harmless
Defendant contends that the trial court violated his rights to due process and a fair trial by failing to orally instruct the jury with CALCRIM No. 220, on the presumption of innocence and reasonable doubt, in its predeliberation charge. He acknowledges that the trial court read instructions to the jury at the beginning of trial, including CALCRIM No. 103 on reasonable doubt, and that the jury was provided with the written version of CALCRIM No. 220. Nonetheless, he argues that the trial court’s failure to read CALCRIM No. 220 in its predeliberation charge was structural error requiring reversal. We conclude that the trial court did not err in failing to instruct the jury on reasonable doubt prior to deliberations. To the extent it may be error, the trial court’s failure to read CALCRIM No. 220 did not amount to a violation of defendant’s rights to due process or fair trial and was harmless.
CALCRIM No. 220 states in full: “The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) 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 a defendant guilty beyond a reasonable doubt. 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]. [¶] Proof 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 proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty.”
A. Background
During voir dire on October 19, 2009, the trial court instructed the prospective jurors on the presumption of innocence and reasonable doubt as follows: “In a criminal case, we use the higher burden of proof, beyond a reasonable doubt. And it’s the highest burden that we use in our courts.... [¶] Part of the burden of proof tells us that the prosecution has the burden of proving guilt. The presumption is that we are presumed innocent unless and until the prosecution proves us guilty beyond a reasonable doubt. So it puts the burden of proof squarely upon the prosecution’s shoulders and nowhere else.”
On October 20, 2009, after the jury was impaneled, the trial court instructed the jury on the presumption of innocence and reasonable doubt again, this time with CALCRIM No. 103, which contains the exact wording of CALCRIM No. 220: “‘I’ll now explain the presumption of innocence and the People’s or the prosecution’s burden of proof. The defendant has pled not guilty to the charge. 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 a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof 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 proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.’” The trial court further instructed the jury that before it could rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty had been proved, it had to be convinced that the People had proved each fact essential to that conclusion beyond a reasonable doubt.
During opening arguments, defense counsel stated that the district attorney’s burden was “to prove the linkage of [defendant] to those cards and the admission beyond a reasonable doubt and with an abiding conviction.” In his closing argument, defense counsel stated, “the case has to be proven beyond a reasonable doubt.” Later in his argument, he reminded the jury that “the burden is beyond a reasonable doubt.” At one point, the prosecution objected, asserting that the defense was “trying to quantify reasonable doubt.” The trial court responded: “There is certainly a difference between the burden of proof in a civil case, and we’ve gone over that. The preponderance of the evidence, the burden of proof in a criminal case is a much higher burden of proof, beyond a reasonable doubt. That’s the one to apply here.”
Following the close of evidence and before closing arguments, the trial court stated to counsel its intention to instruct the jury on reasonable doubt with CALCRIM No. 220. However, when the trial court orally instructed the jury prior to the jury retiring to deliberate, it read other instructions, but did not read CALCRIM No. 220 (or No. 103). In other instructions read and given to the jury, “reasonable doubt” was mentioned repeatedly. The jury was instructed that it may not convict defendant unless the People had proved his guilt beyond a reasonable doubt. In regard to circumstantial evidence, the jury was told that each fact essential to finding defendant guilty had to be proved beyond a reasonable doubt. Within the instruction concerning defendant’s right not to testify, the jury was informed that defendant could rely on the state of the evidence and argue that the People had failed to prove the charges beyond a reasonable doubt. Within the context of the corpus delicti instruction, the jury was informed that it could not convict defendant unless the People proved his guilt beyond a reasonable doubt. Written copies of CALCRIM Nos. 103 and 220 were provided to the jury.
B. Any Instructional Error Was Harmless
“The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution protect a criminal defendant from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged. [Citations.]” (People v. Mayo (2006) 140 Cal.App.4th 535, 541-542.) The presumption of innocence is inherent in the reasonable doubt standard. (Id. at p. 542.) The trial court has a sua sponte duty to instruct on the presumption of innocence, as well as proof beyond a reasonable doubt. (People v. Elguera (1992) 8 Cal.App.4th 1214, 1219 (Elguera); People v. Vann (1974) 12 Cal.3d 220, 225-226 (Vann).)
Here, at the start of trial, the trial court read CALCRIM No. 103 to the impaneled jury and thereby instructed it on the presumption of innocence and gave the definition of reasonable doubt. The trial court thus fulfilled its sua sponte duty to instruct on these principles. Defendant claims that “the court had a duty to instruct the jury with an instruction similar to CALCRIM No. 220, ” prior to deliberations. However, section 1093, subdivision (f), provides: “The judge may then [i.e., after closing arguments] charge the jury, and shall do so on any points of law pertinent to the issue, if requested by either party.... At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case.” This statute “plainly authorizes the trial court to instruct the jury on principles of law ‘[a]t the beginning of the trial or from time to time during the trial....’ It does not require the rereading of all instructions at the end of trial.” (People v. Chung (1997) 57 Cal.App.4th 755, 759 [Fourth Dist., Div. Two].)
We note that there was no request by either party to reread the reasonable doubt instruction (CALCRIM Nos. 103 or 220) at the end of trial. Moreover, there is nothing in our record to indicate the need to reinstruct on reasonable doubt because the jury was confused as to the prosecutor’s burden of proof. (See People v. Valenzuela (1977) 76 Cal.App.3d 218, 221.)
Furthermore, defendant relies on Sullivan v. Louisiana (1993) 508 U.S. 275, People v. Crawford (1997) 58 Cal.App.4th 815, and People v. Phillips (1997) 59 Cal.App.4th 952 (Phillips) in arguing that the trial court’s failure to instruct the jury on reasonable doubt in its predeliberation charge was structural error requiring reversal per se; however, such reliance is misplaced. The court in Sullivan v. Louisiana held that the denial of the right to a jury verdict of guilt beyond a reasonable doubt qualified as “structural error” after the jury in that case had been given a constitutionally defective definition of reasonable doubt. (Sullivan v. Louisiana, at pp. 276-277, 281-282.) The jurors there “were misdirected or misinformed as to the proper standard of proof.” (People v. Flores (2007) 147 Cal.App.4th 199, 211.) In the instant case, the jury was not misinformed, as it was given a proper definition of reasonable doubt in oral and written form.
In People v. Crawford, supra, 58 Cal.App.4th 815, the court gave a reasonable doubt instruction during jury selection, but did not read the instruction to the impaneled jury and did not include it with the written instructions available to the jury. (Id.at pp. 819-820.) Here, on the other hand, the trial court instructed on reasonable doubt and the presumption of innocence after the jury was impaneled and after trial had begun, and the packet of instructions available to the jury included CALCRIM Nos. 103 and 220. Phillips, supra, 59 Cal.App.4th 952, also does not aid defendant. That case involved the complete failure to instruct on the meaning of reasonable doubt, the failure to instruct on the prosecution’s burden, and the failure to instruct on the presumption of innocence. (Id.at pp. 953-954, 958.) In addition, in Phillips, both counsel gave partial and conflicting definitions of the phrase in closing argument that were “more apt to confuse than to enlighten” the jury. (Id. at p. 958.) Phillips is entirely distinguishable from the instant case.
Defendant also relies on other cases in which the trial court failed to instruct at any time during the trial on the prosecution’s burden to prove the defendant’s guilt beyond a reasonable doubt. (See Vann, supra, 12 Cal.3d at pp. 225, 227 [reversing conviction where trial court failed to instruct jury on reasonable doubt, but only gave “references to reasonable doubt in isolated applications”]; Elguera, supra, 8 Cal.App.4th at pp. 1217-1218, 1223 [reversing conviction where trial court instructed prospective, but not sworn, jurors as to prosecution’s burden of proving defendant’s guilt beyond a reasonable doubt and failed to provide jury any oral or written definition of reasonable doubt].) Such is not the case here.
To the extent that defendant is challenging the timing of instructions, i.e., the failure to reinstruct, we review such error under Chapman v. California (1967) 386 U.S. 18 (Chapman). (See Elguera, supra, 8 Cal.App.4th at p. 1220.) “The Chapman test is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained’; otherwise phrased, the test requires reversal if there is a ‘reasonable possibility’ the error might have contributed to the conviction. [Citation.]” (Id. at pp. 1220-1221.) “[L]ike other instructional error claims, those challenging the timing of instructions as an abuse of discretion or a violation of due process are determined based on a review of the instructions as a whole in light of the entire record.” (People v. Smith (2008) 168 Cal.App.4th 7, 16; see also Vann, supra, 12 Cal.3d at p. 228.)
We acknowledge that the trial court probably should have given the CALCRIM No. 220 instruction on the presumption of innocence and reasonable doubt as part of its predeliberation instructions. In People v. Smith, supra, 168 Cal.App.4th at page 16, the court stressed the importance of postevidence instructions: “[C]ourts in California have generally favored giving burden-of-proof-type instructions at the conclusion of the evidence at trial and before the jury deliberates because it ‘places the concepts at center stage for consideration during deliberations’ and ‘protect[s] an accused’s constitutional right to be judged solely on the basis of proof adduced at trial.’ [Citations.]”
However, we do not believe that the trial court’s failure to reinstruct on reasonable doubt, with CALCRIM No. 220, prior to deliberations, violated defendant’s due process rights; nor do we think that the failure to reinstruct was prejudicial. During its predeliberation charge, the trial court told the jury that the crime of receiving stolen property charged in this case required “proof of the union, or joint operation, of act and wrongful intent.” Additionally, the jury was told that the People had to prove “not only that the defendant did the acts charged, but also that he acted with a particular intent or mental state.” The jury was further told that intent could be proved by circumstantial evidence, and that before it could rely on circumstantial evidence to conclude that a fact necessary to find defendant guilty had been proved, it had to be “convinced that the People ha[d] proved each fact essential to that conclusion beyond a reasonable doubt.” Finally, the jury was told that defendant had the right not to testify and that he could “rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.” The trial court specifically instructed the jury: “You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.”
Moreover, the jury was told in six different written instructions that the People had the burden of proof beyond a reasonable doubt as to the involved issues. Specifically, the jury was given CALCRIM Nos. 103 and 220 in written form. Both instructions explained that “[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true, ” and that, “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, the defendant is entitled to an acquittal and you must find him not guilty.”
Defendant argues that the fact that the jury had the written version of the instruction available “does not lessen the magnitude of the error of failing to orally instruct the jury on reasonable doubt.” He asserts that it “is impossible to know whether the jury read the instruction and, therefore, whether they were instructed on the law as required in reaching their verdict.” Defendant cites People v. Murillo (1996) 47 Cal.App.4th 1104, in support of his argument. In that case, the court failed to read an instruction it had said it would give. It decided to include the instruction in the written packet sent to the jury, without recalling the jury and reading the instruction aloud. The instruction concerned evaluating witness credibility. (Id. at pp. 1107-1108.) The appellate court stated that it was not possible to determine if the jurors actually read the written copy of the instruction and, thus, “approach[ed] the case as though the instruction was not given at all.” (Id. at p. 1107, italics added.) However, the court still found the trial court’s error harmless, concluding that the jury was given other instructions that “cover[ed] essentially the same ground.” (Id. at pp. 1107-1109.)
Unlike People v. Murillo, supra, 47 Cal.App.4th 1104, the trial court here instructed the jury on the presumption of innocence and the burden of proof beyond a reasonable doubt at the beginning of trial. The trial court gave written copies of CALCRIM Nos. 103 and 220 to the jury during deliberations. The individual jurors could thus refresh their recollection as needed. The fact the trial court did not reread the reasonable doubt instruction during its predeliberation charge “does not devalue the complete written instructions delivered to the jury before they began deliberations.” (People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1075.)
Defendant further asserts “an additional compelling reason for reversal, ” citing an exchange during the prosecution’s closing argument where the prosecutor pointed out that the defense did not subpoena “Tony” (the person who defendant said gave him the credit cards) to “come in here and clear everything up.” Defendant objected, stating that the prosecutor’s argument “misconstrue[d] the burden.” The trial court responded, “The burden of proof is upon the prosecution in this matter to prove guilt beyond a reasonable doubt as I previously instructed.” Defendant now contends that the trial court had not previously instructed the jury on reasonable doubt, so the jury “may have been left with the impression [he] had the burden of proving absence of knowledge the cards were stolen.” However, as outlined ante, the jury was instructed repeatedly that the prosecution had the burden of proof. In view of the instructions as a whole, we conclude that the trial court’s failure to orally instruct the jury on reasonable doubt prior to deliberations did not deprive defendant of due process or a fair trial. It is clear that the jurors were instructed on the principles that the defendant in a criminal case is presumed innocent, and the prosecutor must prove his guilt beyond a reasonable doubt. Thus, any error in failing to reinstruct was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., KING J.