PEOPLE v. ARANDAAppellant's Opening Brief on the MeritsCal.August 19, 2011IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent,) No. S188204 . ' SUPREME COURT FILED ANTHONY ARANDA,JR., ) . ) AUG 19 20'! Defendant and Appellant.) ) Frederick «. Oninch Clerk Deputy On Appeal from a Judgment of the Superior Court of the State of California in and for the County ofRiverside The Honorable Albert J. Wojcik Judge Presiding APPELLANT’S OPENING BRIEF ON THE MERITS William J. Capriola Attorney at Law Post Office Box 1536 Sebastopol, California 95473-1536 , (707) 829-9490 State Bar No. 135889 Counsel for Appellant by Appointment of the Supreme Court. TOPICAL INDEX Page TABLE OF AUTHORITIES .........0 00000000000 cece eee e en enee iil STATEMENT OF ISSUES ... 2.0.0.0... 0c ccc ce cece eee e nee eneeeeenes 1 STATEMENT OF APPEALABILITY .........00 0.0000 0c c cece cece eee nes 2 STATEMENT OF THE CASE .....0...00.0 000.00 cece cece ee eeeveeeeveee 2 STATEMENT OF FACTS .......ellebbb4 ARGUMENT2200cece nc nen enn eet neneneenenues 11 I. THE TRIAL COURT’S FAILURE TO GIVE A STANDARD REASONABLE DOUBT INSTRUCTION (CALJIC NO. 2.90) WAS A STRUCTURAL DEFECT THAT REQUIRES AUTOMATIC REVERSAL ................0-. 11 A. BACKGROUND .......0..000 000 cc ccc ccc eee eee n ees 14 1. JURY SELECTION 2.02.2... cece ccc eee tenn eeee 14 2. PRETRIAL JURY INSTRUCTIONS 2.0.0.2... ccc cc cceeceee. 15 3. PREDELIBERATION JURY INSTRUCTIONS ..............00-. 16 4. CLOSING ARGUMENTS .......Lecce cece ee eee eee 20 B. APPLICABLE LEGAL PRINCIPLES ...........0....0... 21. C. THE TRIAL ERROR/STRUCTURAL DEFECT DICHOTOMY ....... 00.00.00 cc cece cece eee eee naes 24 D. PRE-SULLIVAN CALIFORNIA CASES ...........0...2.0005 28 E. POST-SULLIVAN CALIFORNIA CASES .... beet eee eens 33 F. THE OMISSION OF AN INSTRUCTION ON THE REASONABLE DOUBT STANDARD IS PER SE REVERSIBLE ERROR UNDER SULLIVAN .......+0++04 055 43 G. BECAUSE THE GIVEN INSTRUCTIONS, TAKEN AS A WHOLE, FELL SHORT OF CONVEYING THE CONCEPT OF REASONABLE DOUBTTO THE JURY, REVERSAL IN THIS CASE IS AUTOMATIC ........ 0.0220. e ee ee eee 46 If. ASSUMINGTHE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY WITH CALJIC NO. 2.90 IS SUBJECT TO HARMLESS ERROR REVIEW, THEN CHAPMANIS THE APPROPRIATE PREJUDICE STANDARD ..........---- 02-0005) 57 A. THE WATSON STANDARD APPLIES TO CONSTITUTIONAL AS WELL AS NONCONSTITUTIONAL ERRORS, BUT BOWSTO CHAPMANWHEN A FEDERAL CONSTITUTIONAL RIGHT IS INVOLVED ............ 002s cee ee tee eee eee 58 B. HARMLESS ERROR ANALYSISIN THIS CASEIS GOVERNED BY FEDERAL LAW BECAUSETHE TRIAL COURT’S FAILURE TO DELIVER A GENERALLY APPLICABLE INSTRUCTION ON THE PROSECUTION’S BURDEN OF PROVING GUILT BEYOND A REASONABLE DOUBT AND THE PRESUMPTION OF INNOCENCE CONSTITUTES FEDERAL CONSTITUTIONAL ERROR.. 2... 0.6 0eeees 60 C. THE TRIAL COURT’S FAILURE TO DELIVER A STANDARD REASONABLE DOUBT INSTRUCTION WAS NOT HARMLESS BEYOND A REASONABLE DOUBT ....... 0. eeeccteeter ete e nee 63 CONCLUSION ...........cee cece tence eee een ene ete n eet eenes 68 WORD COUNT CERTIFICATE ....... 00000 c cece ence eee eet eee 69 -ii- - TABLE OF AUTHORITIES Cases | Page(s) Arizona v. Fulminante (1991) 499 U.S.279 0.0. cccc cence eens 24, 25, 32 Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450....... eee eens 39 Brecht v. Abrahamson (1993) 507 U.S. 619 [113 S.Ct. 1710, 123 L.Ed.2d 353] ...... 23 Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] ..... passim Coffin v. United States (1895) 156 U.S. 432 [15 S.Ct. 394, 39 LEd.481] ....... .... 56 Cooperv. California (1967) 386 U.S. 58 [87 S.Ct. 788, 17 L.Ed.2d 730] ........... 59 Estelle v. Williams (1976) 425 U.S. 501 [96 S.Ct. 1691, [48 L-Ed.2d 126] .......... 22 Ex Parte Gillentine (Ala. 2007) 980 So.2d 966 . cence e eee teen eee e eens 45 Falconer v. Lane (7th Cir. 1990) 905 F.2d 1129 0.0... ceeee eee eee 52 In re Marriage ofCornejo (1996) 13 Cal.4th 381 .......0 000000000. eee eee eee 30 In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368] ........... passim Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] .......... 44 Kentucky v. Whorton (1979) 441 U.S. 786 [99 S.Ct. 2088, 60 L.Ed.2d 640] ... 23, 38, 56 Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997 1.0.00... 6000 c cece cece cence 64 Middleton v. McNeil (2004) 541 U.S. 433 [124 S.Ct. 1830, 158 L.Ed.2d 701] .... 21,23 Montgomery v. State (1981) 292 Md. 84 [437 A.2d 654] .........0..00.. beeen eee 45 Nederv. United States (1999) 527 U.S. 1 [119 S.Ct. 1827, 144 L-Ed.2d 35] ...... 23, 26 People v. Aranda (2010) 188 Cal.App.Ath 1490 . 20.0... cc ccccce cece ee eee. 3, 12,37 - ili - People v. Brigham (1979) 25 Cal.3d 28.0.0... 22. c cece eect e eee eee eee nee 63 People v. Cahill (1993) 5 Cal.4th 478 0.0...eeeee aes 58, 59 People v. Crawford (1997) 58 Cal.App.4th 815 2.2.6... eee eee ee passim People v. Cribas (1991) 231 Cal.App.3d 596 oo eee ee eeecove eevee ees 66 People v. Elguera (1992) 8 Cal.App.4th 1214.0... 0.0. 0ccccccceeeeeee ee ees passim People v. Fields (1996) 13 Cal.4th 289 0.0.0. 00cccccee eeecb oveceveseveees 53 Peoplev. Flood (1998) 18 Cal.4th 470 ..............Leen eens Le eeaee 26, 58, 63 People » Flores (2007) 147 Cal.App.4th 199 2.0... ceceeee passim People v. Gayle (1980) 76 A.D.2d 587 [431 N.Y.S.2d 18] .........--.eee eee eee 64 People v. Hearon (1999) 72 Cal.App.4th 1285 Loceee eee eens 64 People v. Jennings (2010) 50 Cal.4th 616.02...eens 44 People v. Maurer (1995) 32 Cal.App.4th 1121 .............--400--oovveeeees 52 People v. Mayo (2006) 140 Cal.App.4th 535 ..........oo oeeeceeee, 42, 43, 60, 61 People v. Mower(2002) 28 Cal.4th 457 ............eeeLecce 57 People v. Musselwhite (1998) 17 Cal.4th 1216 ...... voeceeueeees iceeeeeeeeees 45 People v. Phillips (1997) 59 Cal.App.4th 952 .. 0... 22.2.0 ee eee eee 13, 33, 36, 37, 60 People v. Sengpadychith (2001) 26 Cal.4th 316 ....... vc eueueeeeeunenena . 44 People v. Soldavini (1941) 45 Cal.App.2d 460 .. 0.0... eee eee ceeee 11 People v. Stewart (2004) 33 Cal.4th 425 2.0...ceceeee tne 25 People v. Thomas (2007) 150 Cal.App.4th AOLoceee cette eee 11 -iv- People v. Vann (1974) 12 Cal.3d 220 2.00.00.0ccece cece ee passim People v. Watson (1956) 46 Cal.2d 818 0...ccc cece ce ceee 1, 43, 59 People v. Woodard (1979) 23 Cal.3d 329 0.00. ccc cece cece cece eee. 65 Puckett v. UnitedStates (2009) 556 U.S. 129 [129 S.Ct. 1423, 173 L.Ed.2d 266] ..... 25 Rose v. Clark (1986) 478 U.S. 570 [106 S.Ct. 3101, 92 L.Ed.2d 460] ........... 23, 24 Stone v. Superior Court (1982) 31 Cal.3d 503 0.0... cece eee cece cnc eee 53 Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct..2078, 124 L.Ed.2d 182]... passim Taylor v. Kentucky (1978) 436 U.S. 478 [98 S.Ct. 1930, 56 L.Ed.2d 468] ........ 22, 23 United States v. Curbelo (4th Cir. 2003) 343 F.3d 273 2.2.0.0... ccc ce cee ee. 26 United States v. Gaudin (1995) 515 U.S. 506 [115 S.Ct. 2310, 132 L.Ed.2d 444] ..... 21 United States v. Gonzalez (2006) 548 U.S. 140 [126 S.Ct. 2557, 165 L.Ed.2d 409] ... 25 Victor v. Nebraska (1994) 511 U.S. 1 [114 S.Ct. 1239, 127 L.Ed.2d 583] ....... passim Statutes Pen. Code, § 186.22 2...eee eeebebe eee c eee eeveeereveeenrenes 2 8 l1 I3 § 1096 2.ccccece cece eben eee ennneteeennens 64 I 2 SI 2097a 2 § 12022.53ccccece cnet nnn ne teen nues 2,3 § 12025 2.cence ee eeeeeuas Lee cee nee eeeaen 2 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent.) ) Vv. ) ) ANTHONY ARANDA,JR., ) ) Defendant and Appellant.) ) STATEMENTOF ISSUES Asspecified in the Court’s January 26, 2011 order granting review, the issue to be briefed and arguedin this case is as follows: “Is thetrial court’s failure to give a standard reasonable doubtinstruction (CALJIC No. 2.90) reversible per se or is such failure subject to harmless error review? If so, should harmless error be assessed under People v. Watson (1956) 46 Cal.2d 818, or Chapmanv. California (1967) 386 U.S. 18?” STATEMENT OF APPEALABILITY This appeal is from an order which finally disposesof all issues between the parties and is authorized by Penal Codesection 1237.' STATEMENTOF THE CASE An amendedinformation filed November1, 2006, charged appellant with murder (§ 187, subd. (a)) (count 1), carrying a concealed firearm (§ 12025, subd. (b)(3)) (count 2), and active participation in a criminalstreet gang (§ 186.22, subd. (a)) (count 3). In connection with the murder charge, it was further alleged that appellant personally used a firearm (§ 12022.5, subd. (a)) and personally and intentionally discharged a firearm proximately causing death (§ 12022.53, subd. (d)), and that he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Finally, it was also alleged that appellant had served three prior prison terms (§ 667.5, subd. (b)). (2 Clerk’s Transcript [CT] 327-329.) A jury was sworn to try the cause on January 8, 2009, and evidence opened on January 12, 2009. (2 CT 453, 456-457.) On January 22, 2009, count 2 was dismissed at the request ofthe People. (4 CT 774; 3 Reporter’s Transcript [RT] 705.) ' Subsequent unspecified statutory references are to the Penal Code. -2- Jury deliberations commencedat 1:55 p-m. on January 22, 2009. (4 CT 775, 854-855.) At 10:40 a.m. on January 26, 2009, the third day of deliberations, the jury notified the court it had reached a verdict. (4 CT 859.) The jury found appellant not ouilty of murder (count 1), but convicted him ofthe lesser included offense of voluntary manslaughter (§ 192, subd. (a)), and found the firearm enhancements true and the gang enhancementnot true.” (4 CT 860, 873-874, 876-878.) The jury also convicted appellant of count 3. (4 CT 860, 875.) Appellant subsequently admitted the three prison priors. (2 CT 389; 4 RT 771-775.) On February 27, 2009,the trial court sentenced appellanttoa state prison term of 24 years and 8 months. (4 RT 795-796.) Appellant filed a timely notice of appeal on March 13, 2009. (4 CT 922.) | In a published opinion filed October 6, 2010, the Court of Appeal reversed count 3, but otherwise affirmed the judgment. (People v. Aranda (2010) formerly pub. at 188 Cal.App.4th 1490.) On January 26, 2011, this Court granted appellant’s petition for review. * Thetrial court struck the jury’s finding on the section 12022.53, subdivision (d) allegation,as it is inapplicable to the crime ofvoluntary manslaughter. (4 CT 860; 4 RT 763-764.) -3- STATEMENTOF FACTS OnFriday evening, September 10, 2004, appellant went to a party at Amber Bergine’s house in Hemet with his friends Sean Tisdale and Leo Lopez in Tisdale’s van. (1 RT 64-65; 2 RT 399-400; 3 RT 597.) Appellant . was a member of the Hemet Trecestreet gang. (2 RT 307-308, 383, 387; 3 RT 594.) Several of the peopleat the party were members of the Southside Criminals (SSC)street gang. (1 RT 67-70, 154-155; 2 RT 379-383, 396, 419-420, 429, 443.) Members of SSC and Hemet Trece were knownto get along with one another. (2 RT 422, 446.) Tisdale and Lopez were not gang members. (2 RT 399-400; 3 RT 600.) The eventual victim, Luis Gonzalez (Luis), his girlfriend, Angela Gonzalez (Angela), and Angela’s older brother, Adam Gonzalez (Adam), also attended the party that night. (1 RT 64-65, 153.) Adam wasonparole at the time and had just gotten out of prison a month ortwo earlier. (1 RT 64, 148-149, 151.) Adam had beenin and out ofprison about five times and had a history of violent assault, including felony convictions for assault with force likely to produce great bodily injury in 1996 and 2001, and felony assault on an inmate in 2003. (1 RT 147-148; 2 RT 220.) Luis was a memberofthe 18th Street gang. (1 RT 60-61, 150-151; 3 RT 463-467.) Angela and Adamtestified that Luis was no longer an active gang member . -4- at the time of the incident (1 RT 60-61, 150-151); however, Luis had gang- related tattoos, and at the party Luis made it known he wasfrom 18th Street. (1 RT 62; 2 RT 186, 402-404.) A gang expert testified that only more committed gang members have gangtattoos and that 18th Street, and, in particular, the Columbia Little Cycos, the subgroup to which Luis belonged,wasreputedly one ofthe most violent gangsin the nation. (3 RT 465-467.) Luis, Angela, and Adam were drinking alcohol and smoking marijuana, as were others at the party. (1 RT 70, 116, 118, 125, 154, 156; 2 RT 244-246.) Theyleft the party after about two or three hours. (1 RT 70- 71.) Someoneat the party (not appellant) had given Adam $30 to buy methamphetamine. (1 RT 75-76, 157; 2 RT 232, 386-387, 389.) Luis and Angela refused to take Adam to purchase drugs, and instead wentdirectly | home. (1 RT 113-114, 158.) After arriving home, Adam received a telephonecall from Bergine. a RT 72-73, 159.) Bergine told Adam that peopleat the party were mad and that if he did not return the money, they would comeand getit. (1 RT 159; 2 RT 236; 389, 425.) Adam could hear people in the background making threatening statements and saying they knew wherehe lived. (1 RT 159.) Adam wasloud and “hyped up”aboutthe call and felt he was being disrespected. (1 RT 115, 124, 160, 162.) Luis and Angela agreed. to take Adam back to the party to return the money. (1 RT 74-77,160-161; 2 RT 236, 251-252.) Whenthey arrived at Bergine’s house, Adam wentinto the backyard andstarted yelling things like, “Why are you calling my house?” or “Who’s disrespecting my house?” (1 RT 78-80, 163; 2 RT 224-225.) Adam approached appellant, whom he knew casually.? (1 RT 164.) Fearing he was about to be jumped from behind, Adam pushed his way forward through appellant, grabbing appellantby the shirt as he did so. (I RT 166; 2 RT 224-226.) Adam and appellantstarted fighting, and that fight precipitated a larger brawlinvolving others, including Luis. (1 RT 81, 166- 168; 2 RT 428.) Although he wasbeinghit by several different people, Adam kept his attention on appellant throughout the fight. (2 RT203.) Adam took out a utility knife equipped with a razor. (1 RT 167-168; 2 RT 202-204, 217- 218, 227-229, 392, 425.) Adam wason top of appellant. (1 RT 168; 2 RT 228.) Adam was notsureifhe succeeded in cutting appellant with the knife, but testified that he was probablytrying to do so. (2 RT 218.) 3 About six years earlier, Adam and appellant had lived in the same apartment complex. (1 RT 164-165.) -6- Someonehit Adam in the head, and appellant was able to get out from underneath him and escape. (2 RT 204, 238-239.) A few minutes later, Adam saw appellant standing outin front of the house holding a gun. (2 RT 205-206, 234-235, 239-240.) Appellant pointed the gun at Adam,but did not fire. (2 RT 205-206.) Adam and appellant exchanged words, and appellant turned and walked away. (2RT 206, 235.) Aboutthirty seconds later, a single gunshot was heard. (2.RT 209, 393, 428.) Luis was found lying on his backinthe street. (1 RT 90-91; 2 RT 211-212.) Angela and Adam took Luis to the hospital, where helater died. (1 RT 92-94; 2 RT 212-213.) The cause of death wasinternal bleeding. (2 RT 180-181.) The bullet struck Luis in the hip and perforated avein. (2 RT 179-180.) The gun was fired from a distanceof at least three feet away. (2 RT 327-328.) On the street near where Luis’ shirt was found, the police collected a blood-stained rock. (2 RT 266, 272.) After the shooting, appellant toldhis friend Angela Flores: “I didn’t mean to do that, I wasn’t expecting to do that, Lord, I didn’t mean to.” (2 RT 399, 405.) Appellant told another friend, Regina Nartates, something to the effect of, “I had to do it, the guy wouldn’t get off of me.” (2 RT 432- 433.) Appellant also left messages on Nartates’ voicemail making statements like, “I didn’t mean to do this, what happened, I thought it was going to be cool.” (3 RT 471.) Appellant testified and was impeachedwith several prior convictions, including possession of stolen property in 1993, spousal abuse in 1996 and 1998, and giving false identification to a peace officer, a misdemeanor, in 2002. (3 RT 594-595.) According to appellant, Adam and Luis approached him during the party and asked where he was from. (3 RT 600-601.) Appellant answered he was from Hemet. (3 RT 601.) Luis said he was from 18th Street and identified himselfby his gang moniker, “Joker.” (3 RT 465, 601.) Adam and Luisleft the party aboutthirty minuteslater. (3 RT 601-602.) At the time, appellant was unaware of the drug deal Adam had made. (3 RT 601.) Later that night, Adam and Luis came running up to appellant in the backyard asking who was “disrespecting their pad.” (3 RT 602-603.) Adam and Luis were jumping up and down and were “hyped up.” (3 RT 603.) Adam grabbedappellant, they struggled, and Adam threw appellant to the ground. (/bid.) Adam wasstraddled on top of appellant holding the knife. (3 RT 604-605.) Adam’sattention became diverted, and appellant broke free. (3 RT 604-605.) Appellant thought “[t]hey were trying to kill” him and wanted to “get the fuck out of there.” (3 RT 605.) Appellant found his friend Lopez, and they ran to the front ofthe house. (3 RT 605-607.) There, appellant saw Adam arguing with girl. (3 RT 606-607.) Adam andthe girl were blocking appellant’s path to Tisdale’s van. (3 RT 607-608.) The girl appeared to be trying to calm Adam down. (3 RT 607.) Adam wasstill “hyper” and was still holding the knife. (3 RT 608, 637 :) Appellant tried to move past Adam, but Adam saw him. (3 RT 608.) Adamtried to get around the girl to get to appellant. (3 RT 608, 637.) At that point, Tisdale handed appellant a gun. (3 RT 608, 612, 637.) Adam raised the knife up at appellant. (3 RT 612, 638.) Appellant pointed the gun at Adam andtold him to “Back up” and “Just get the fuck out of here, get your homeboy andget the fuck out of here.” (3 RT 612.) Adam backed away. (3 RT 612, 638.) Appellant put the gun in his pocket. (3 RT 638.) To his right, appellant saw Luis in an altercation. (3 RT 612-615.) A group ofpeople were yelling at Luis to “leave now” and “get the fuck out of here.” (3 RT 613.) Luis ran into the group andstarted fighting with one of them. (3 RT 614.) After the scuffle, Luis went around some bushes and endedup in front of a neighboring house, continuing to argue with the group along the way. (3 RT 616-617.) Appellant walked toward Luis and -9. told him to “Get the fuck out of here.” (3 RT 616-617, 643.) Luis replied, “Fuck you” and started waving a rock in this hand. 3RT 617.) Appellant again told Luis to “just get the fuck out of here.” (/bid.) Luis rushed appellant with the rock. (3 RT 617, 642.) Appellant thought Luis was going to smash him in the head with the rock. (3 RT 618, 622, 634.) Appellant pulled out the gun andfired at Luis from a distance of approximately ten to twelve feet away. (3 RT 617-618.) Luis dropped the rock andfell to the ground. (3 RT 618.) After the shooting, appellantleft the scene with Tisdale and Lopez. (3 RT 619.) -10- ARGUMENT I. THE TRIAL COURT’S FAILURE TO GIVE A STANDARD REASONABLE DOUBT INSTRUCTION -(CALJIC NO. 2.90) WAS A STRUCTURAL DEFECT THAT REQUIRES AUTOMATIC REVERSAL. Trial courts have a sua sponte duty to instruct the jury that the accused is presumed innocent andthat the prosecution bears the burden of proving guilt beyond a reasonable doubt. (People v. Vann (1974) 12 Cal.3d 220, 225-226 (Vann); People v. Soldavini (1941)45 Cal.App.2d 460, 463- 464.) Prior to the 2005 adoption of the CALCRIMinstructions, that obligation wasroutinely discharged by delivering CALJIC No.2.90, the omitted instruction at issue in this case.* CALJIC No.2.90states as follows: A defendant in a criminal action is presumedto 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 burdenofproving [him] [her] guilty beyond a reasonable doubt. * Although appellant wastried in 2009,the trial court here relied on CALJIC instructions. (See 3 RT 507-508; accord, People v. Thomas (2007) 150 Cal.App.4th 461, 466 [“Nostatute, rule of court, or case mandates the use of CALCRIMinstructions to the exclusion of other valid instructions.”].) -ll- Reasonable doubtis defined as follows:It is not a mere possible doubt; because everything relating to humanaffairs 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 ofthe jurors in that condition that they cannotsay they feel an abiding conviction ofthe truth of the charge. Here, the trial court read the panel ofprospective jurors a slightly altered version of CALJIC No.2.90 during jury selection, but failed to give a standard reasonable doubt instruction (CALJIC No.2.90 or an equivalent instruction) at anytime after the jury was impaneled. The instructions which the trial court did give, considered individually and as a whole, did not adequately inform the jury that the prosecution bore the burden of proving, beyond a reasonable doubt, each elementofthe offenses of which appellant was convicted. In addition, the given instructions failed to mention the presumption of innocence and did not define reasonable doubtfor the jury. The Court of Appealin this case found that the trial court’s failure to give a standard reasonable doubtinstruction violated the federal Constitution. (People v. Aranda, supra, 188 Cal.App.4th at pp. 1494-1495.) The Court ofAppeal further concluded that the omission of CALJIC No. 2.90 was not per se reversible error, but rather was amenable to harmless error review under the harmless-beyond-a-reasonable-doubt standard articulated in Chapmanv. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman). (People v. Aranda, supra, at p. 1495.) Under -12-. that standard, the Court of Appeal reversed one of appellant’s convictions (street terrorism) and affirmed the other (voluntary manslaughter). (/d. at pp. 1497-1499.) In Vann, this Court analyzedthe failure to give a standard reasonable doubt instruction (CALJIC No. 2.90) under the Chapmanstandard. (Vann, — supra, 12 Cal.3d at p. 228.) However, Vann was decided nearly two decades before the United States Supreme Court’s decision in Sullivanv. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182] (Sullivan), which unanimously held that a constitutionally deficient reasonable doubtinstruction cannot be harmlesserror. (/d. at p. 281.) California courts are divided on whetherthe failure to give a standard reasonable doubt instruction is per se reversible error (see People v. Crawford (1997) 58 Cal.App.4th 815, 821-823 (Crawford) and People v. Phillips (1997) 59 Cal.App.4th 952, 956-958 (Phillips)), or subject to harmless error review (see People v. Flores (2007) 147 Cal.App4th 199, 203-211 (Flores) and People v. Elguera (1992) 8 Cal.App.4th 1214, 1220- 1224 (Elguera)). AS appellant shall explain, Sullivan’s reversal per se standard applies to the omission of an instruction on the reasonable doubt standardofproof. Moreover, because the instructions given at appellant’s trial did not -]3- otherwise properly convey the concept of reasonable doubt to the jury, the omission of CALJIC No. 2.90 requires reversal of both his convictions. A. BACKGROUND. 1. JURY SELECTION. Jury selection in this case occurred over the course ofthree days. On the second day (January 7, 2009), prior to commencing the voir dire | examination,the trial court told the panel ofprospective jurors that “[t]o find one guilty of a crime... you must be convinced of guilt beyond a reasonable doubt” as to each of the elements. (1 Augmented Reporter’s Transcript [ART] 108.) The trial court also told the prospective jurors: “In my opinion, everything revolves aroundthe jury instructions.” (1 ART 107- 108.) Thetrial court explained that “[iJn this voir dire process, I try to providebits and pieces of manyofthe instructions,” but notedthat the actualinstructions that applied to the case would not be given “until after you’ve heard from all the witnesses.” (1 ART 108.) The trial court further explained to the prospective jurors that one of the reasonsit could not give them “the instructions now” was because “[w]e don’t know right now what all the instructions will be . . . So it’s impossible, almost impossible to -14- presentthe instructions aheadoftime. That’s why they’re presented to you afterwards.” (1 ART 109-110.) Throughoutvoir dire, on January 7 and8, the trial court discussed and questioned prospective jurors on the presumption of innocence and the reasonable doubt standard of proof. (1 ART 123, 154, 180-185, 191-196, 214-215, 208: 2 ART 290, 302-305, 348, 352-354, 360-361.) On January 7, the trial court also gave prospective jurors an instruction that was very similar to CALJIC No. 2.90.° 2. PRETRIAL JURY INSTRUCTIONS. Noneofthe pretrial jury instructions that were given after the jury was impaneled and before the first witness was sworn mentioned the > Thetrial court stated: “A defendantin a criminal case is presumed innocent until the contrary is proved. If you have a reasonable doubt, a reasonable doubt — the word that we use probably more often in the law than any other wordis that word, ‘reasonable.’ Ifyou have a reasonable doubt whether the defendant’s guilt is satisfactorily shown,heis entitled to a verdict of not guilty. [§] Reasonable doubtis defined as follows: It is not a mere possible doubt, becauseeverything relating to humanaffairs is open to somepossible or imaginary doubt. It is the state of the case which, after the entire comparison and consideration ofall the evidence, leaves the mindsofthe jurors in a condition that they cannot say they feel an abiding conviction ofthe truth of the charge. If you have a reasonable doubtas to the defendant’s guilt, the defendantis entitled to a verdict of not guilty.” (1 ART 179-180.) -15- prosecution’s burden of proof or the reasonable doubt standard.® (See 1 RT 35-39, 54-56.) 3. PREDELIBERATION JURY INSTRUCTIONS. On January 22, after the close of evidence and before counsels’ closing arguments,thetrial court deliveredits final instructions to the jury. (4 CT 774, 776-853; 3 RT 667-706.) The jury was given a copy ofthe instructions for use in deliberating. (3 RT 667.) Pursuant to CALJIC No.1.00, the trial court told the jury that it would “now . .. instruct you on the law that applies to this case” and that “yjou must accept and follow the law asI state it to you.” (4 CT 779.) For reasons not disclosed on the record, the trial court neglected to instruct the jury, either orally or in writing, with CALJIC No.2.90, nor did the court give a comparable instruction,like CALCRIM No. 220. Other instructions referred to reasonable doubt in specific contexts. Instruction Relating to Circumstantial Evidence Pursuant to CALJIC No.2.01, the trial court instructed the jury on the use of circumstantial evidence in pertinent part: ° In contrast toCALIIC, CALCRIMcontainsa special pretrial reasonable doubtinstruction. (Compare CALJIC No. 0.50 with CALCRIM No.103.) -16- [E]ach fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. (4 CT 786; 3 RT 674.) Instructions Relating to Count 1 Thetrial court defined first and second degree murder pursuant to. CALJIC Nos. 8.10, 8.11, 8.20, and 8.30. (CT 808-811; 3 RT 682-685.) In addition, pursuant to CALJIC No. 8.71, the trial court instructed the jury: If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by Defendant, but you unanimously agree that you have a reasonable doubt whether the murder wasofthe first or second degree, you must give Defendantthe benefit of that doubt and return a verdict fixing the murder as of the second degree, as well as a verdictofnot guilty on murderin the first degree. (4 CT 813; 3. RT 685.) The jury was instructed that a killing in self-defenseis justifiable and not unlawful in accordance with CALJIC Nos. 5.12 and 5.13. (4 CT 828-829; 3 RT 696.) Pursuant to CALJIC No. 5.15, the jury was further instructed: Upona trial of a charge of murder,a killing is lawfulif it was justifiable or excusable. The burden is on the prosecution to prove beyonda reasonable doubtthat the homicide was unlawful, that is not justifiable or excusable. Ifyou have a reasonable doubt that the homicide was unlawful, you mustfind the defendantnot guilty. -17- (4 CT 830; 3 RT 695-696.) Thetrial court also gave manslaughter instructions. Manslaughter was defined pursuant to CALJIC No.8.37 as follows: The crime of manslaughteris the unlawful killing of a human being without malice aforethought. It is not divided into degrees but is oftwo kinds, namely, voluntary manslaughter and involuntary manslaughter. (4 CT 817; 3 RT 686.) Voluntary manslaughter was defined in accordance with CALJIC No. 8.40. Theinstruction enumerated the elements of that crime andtold the jury “[t]here is no malice aforethoughtif the killing occurred upon a sudden quarrel or heat of passion, or in the actual but unreasonable belief in the necessity to defend oneself against imminentperil to life or great bodily harm,” however, it did not mention the burden ofproof/reasonable doubt standard. (4 CT 818; 3 RT 686.) In addition, pursuant to CALJIC No.8.72, the trial court instructed the jury: If you are convinced beyond a reasonable doubt and unanimously agreethat the killing was unlawful, but you unanimously agree that you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendantthe benefit of that doubt and find it to be manslaughter rather than murder. (4 CT 814; 3 RT 685.) - 18 - Pursuant to CALJIC No.8.50, the trial court instructed the jury in pertinentpart: To establish that the killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder andthat the act which caused the death _ wasnot donein the heat ofpassion or upon a sudden quarrel or in the actual, even though unreasonable, belief in the necessity to defend against imminentperil to life or great bodily injury. (4 CT 823; 3 RT 689.) - Pursuant to CALJIC No. 8.75 (Jury May Return Partial Verdict - Homicide), the trial court instructed the jury in pertinentpart: Ifyou are not satisfied beyond a reasonable doubtthat the defendantis guilty of the crime offirst degree murder as chargedin Count | and you unanimously so find, you may convict him of any lesser crime provided youare satisfied beyond a reasonable doubt that he is guilty of a lesser crime. [{]] .. . Murderin the second degree is a lesser crime to that of murder in the first degree. Voluntary manslaughteris lesser to that of murder in the second degree. (4 CT 824; 3 RT 689-690.) The jury acquitted appellant of murder, but convicted him of voluntary manslaughter. (4 CT 873-874.) Instruction Relating to Count 3 The jury convicted appellant of the substantive gang crime(street terrorism) as charged in count 3. (4 CT 875.) Theinstructionrelating to this offense, CALJIC No. 6.50, did not refer to the prosecution’s burden of proofor reasonable doubt. (4 CT 839-840; 3 RT 699-701.) -19- Instruction Relating to the Gang Enhancement In contrast to the instruction defining the substantive gang offense, the instruction defining the gang enhancement on count 1, CALJIC No. 17.24.2, specifically told the jury: “The People have the burden ofproving the truth of this allegation. If you have a reasonable doubtthatit is true, you mustfind it not to be true.” (4 CT 825; 3 RT 693.) The jury found this allegation to be not true. (4 CT 876.) Instructions Relating to the Firearm Enhancements In both the instructions defining the two firearm enhancements, the trial court instructed the jury: “The People have the burden of proving the truth of this allegation. Ifyou have a reasonable doubtthatit is true, you must find it not to be true.” (4 CT 826-827; 3 RT 694-695.) The jury found these allegations to be true. (4 CT 877-878.) 4. CLOSING ARGUMENTS. During closing argument, neither the prosecutor nor defense counsel ever mentioned the reasonable doubt standard or the prosecution’s burden of proof. (3 RT 706-745.) -20 - B. APPLICABLE LEGAL PRINCIPLES. The Due Process Clause of the Fourteenth Amendment“protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which heis charged.” Un re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368}.) The Sixth Amendmentrequires “as its most important element, the right to have the jury, rather than the judge, reach the requisite finding ofguilty.” (Sullivan, supra, 508 U.S. at p. 277.) Together, these rights mean that a criminal conviction must “rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” (United States v. Gaudin (1995) 515 U.S. 506, 510 [115 | S.Ct. 2310, 132 L.Ed.2d 444].) As a result of these constitutional imperatives, courts must “instruct[] the jury on the necessity that the defendant’s guilt be proved beyond a ~ reasonable doubt.” (Victorv. Nebraska(1994) 511 US. 1,5 [114 S.Ct. 1239, 127 L.Ed.2d 583] (Victor); see also Middleton v. McNeil (2004) 541 USS. 433, 437 [124 S.Ct. 1830, 158 L.Ed.2d 701] [“In a criminaltrial, the State must prove every elementofthe offense, and a jury instruction violates due processif it fails to give effect to that requirement.”].) While the federal Constitution does not dictate the precise words that must be used -21 - to advise the jury of the People’s burden ofproof, and does not require courts to define reasonable doubt, “taken as a whole, the instructions [must] correctly convey the concept of reasonable doubtto the jury.’” (Victor, supra, at p. 5 [citation omitted].) The reasonable doubt concept “provides concrete substance for the presumption of innocence — that bedrock axiomatic and elementary principle whose enforcementlies at the foundation of the administration of our criminal law.” (In re Winship, supra, 397 U.S.at p. 363.) The “presumption of innocence,although not articulated in the Constitution,is a basic component ofa fairtrial under our system of criminal justice.” — (Estelle v. Williams (1976) 425 U.S. 501, 503 [96 S.Ct. 1691, 48 L.Ed.2d | 126].) While the presumption of innocence and the People’s burden of proofare “logically similar,” courts recognize that “the ordinary citizen well may drawsignificant additional guidance from an instruction on the presumption ofinnocence,” by cautioning jurors “‘to put away from their mindsall the suspicion that arises from the arrest, the indictment, and the arraignment, and to reachtheir conclusionsolely from the legal evidence adduced.’” (Taylor v. Kentucky (1978) 436 U.S. 478, 484 [98 S.Ct. 1930, 56 L.Ed.2d 468] [citation omitted].) In Taylor, the Supreme Court foundthatthe trial court’s refusal to give a requestedinstruction on the presumption of innocence violated the | -22- defendant’s due processrightto a fair trial, notwithstanding that the jury wasinstructed on the prosecution’s burden ofproof beyond a reasonable doubt. (/d. at pp. 488-490.) However, the Supreme Court has also explained that “the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution.” (Kentucky v. Whorton (1979) 441 U.S. 786, 789 [99 S.Ct. 2088, 60 L-Ed.2d 640] .) Rather, “such a failure must be evaluated in light ofthe totality of the circumstances — includingall the instructionsto the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial.” (bid.) C. THE TRIAL ERROR/STRUCTURAL DEFECT DICHOTOMY. In Chapman, the Supreme Court “recognized that some constitutional errors require reversal without regard to the evidencein the particular case.” (Rose v. Clark (1986) 478 U.S. 570, 577 [106 S.Ct. 3101, 92 L.Ed.2d 460], overruled on other grounds in Brecht v. Abrahamson (1993) 507 U.S. 619, 637 [113 S.Ct. 1710, 123 LBd.2d 353], citing Chapman, supra, 386 U.S.at p. 23, fn. 8.) “Such errors infect the entire | trial process, and necessarily rendera trial fundamentally unfair.” (Neder v. -23- United States (1999) 527 U.S. 1, 8 [119 S.Ct. 1827, 144 L.Ed.2d 35] (Neder) [internal quotation marksandcitations omitted].) Most constitutional errors, however, do not rise to that level and, instead, do not require reversalif “the court [is] able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24.) In Arizona v. Fulminante (1991) 499 U.S. 279 [111 S.Ct.1246, 113 L.Ed.2d 302] (Fulminante), the Supreme Court articulated standards for determining whethera constitutional error should be considered reversible per se or not. The court distinguished between “trial error,” which is subject to harmless error review, and “structural defects,” which are not. (id. at pp. 307-310.) Trial error occurs “during the presentation of the case to the jury, and . . . may therefore be quantitatively assessedin the context of other evidence presented in order to determine whetherits admission was harmless beyond a reasonable doubt.” (/d. at pp. 307-308.) A structural defect, on the other hand, affects “the framework within whichthetrial proceeds, rather than [being] simplyan error inthetrial processitself.” Ud. at p. 310.) Without certain basic or “structural”protections, “a criminal trial cannot reliably serve its function as a vehicle for determination ofguilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” (Rose v. Clark, supra, 478 U.S.at pp. 577-578.) “Structural defects identified in Arizona v. Fulminante include: (i) ‘total 24 - deprivation of the right to counselattrial’; (ii) trial by a ‘judge who wasnot impartial’; (iii) ‘unlawful exclusion of membersofthe defendant’s race from the grand jury’; (iv) denial ofthe right to self-representationattrial; and (v) denialofthe right to a publictrial.” (People v. Stewart (2004) 33 Cal.4th 425, 462, quoting Fulminante, supra, at pp. 309-310.) Structural defects “defy” analysis by normal harmless error standards (Fulminante, supra, 499 U.S. at p. 309), because their consequences “are necessarily unquantifiable and indeterminate.” (Sullivan, supra, 508 U.S. at p. 282.) Thus, in United States v. Gonzalez-Lopez (2006) 548 U.S. 140 [126 S.Ct. 2557, 165 L.Ed.2d 409], the Supreme Court found that the erroneous deprivation of a defendant’s Sixth Amendmentright to counsel of choice qualified as a structural defect based upon the “difficulty of assessing the effect of the error.” (/d. at p. 149, fn. 4.) The Supreme Court | has not relied upon a “‘single, inflexible criterion,” such as “fundamental unfairness,” as the “sole criterion of structural error.” Ubid.; cf. Puckett v. United States (2009) 556 U.S. 129, [129 S.Ct. 1423, 1432, 173 L.Ed.2d -25- 266, 278] [plea breach “shares no common features with errors we have held structural”].)’ The United States Supreme Court has “often applied harmless-error analysis to cases involving improperinstructions on a single element of the _ offense.” (Neder, supra, 527 U.S.at p. 9 [listing cases].) In Neder, for instance, the court found that a failure to instruct thejury on an element of the offense was subject to harmlesserror analysis. (/d. at pp. 8-10.) However,in Sullivan, the court “madeclear that at least one type of instructional error may amountto a structural defect in the trial mechanism that requires reversal regardless ofthe strength of the evidence ofthe defendant’s guilt.” (People v. Flood (1998) 18 Cal.4th 470, 494.) In Sullivan, the defendant was convicted of first degree murder and sentenced to death. In the jury instructions, the trial court gave a definition 7 For purposesofthis brief, appellant assumes structural defects involve errors implicating federal constitutional rights. However, the question whether non-constitutional errors can ever be “structural” has been the source of disagreementin the courts. (E.g., compare United Statesv. Curbelo (4" Cir. 2003) 343 F.3d 273, 280,fn. 6 [Despite occasionally suggesting in dicta that structural errors must implicate constitutional rights, the Supreme Court hasclearly held that structural errors need not be of constitutional dimension.”]; with id. at p. 289 (Wilkins, C.J., dissenting) {“The Supreme Court and this court have repeatedly madeclear that structural errors necessarily must affect a defendant’s constitutional rights.”’].) - 26 - of reasonable doubtthat had previously been found unconstitutional.’ (Sullivan, supra, at p.277.) The Supreme Court unanimously foundthat the error was structural defect not amenable to harmless error review. As explained in Sullivan,“[h]armless-error review looks . . . to the basis on which ‘the jury actually restedits verdict.’ [Citation.] The inquiry . . . is not whether, in a trial that occurred withoutthe error, a guilty verdict would surely have been rendered, but whetherthe guilty verdict actually rendered in this trial was surely unattributable to the error.” (/d. at p. 279 [original emphasis].) The court reasoned that “where the instructional error consists of a misdescription of the burden ofproof, whichvitiates a// the jury’s findings,” no jury verdict exists upon which to base a harmless error analysis. (/d. at p. 281 [original emphasis].) Sullivan further explained: 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 absentthe constitutional error is utterly meaningless. There is no object, so to speak, upon which harmlesserror scrutiny can operate. The most an appellate court can concludeis that a jury would surely have foundpetitioner guilty beyond a reasonable doubt — not that that jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absentthe constitutional error. That is not enough. [Citation.] The Sixth Amendmentrequires more than appellate speculation about a hypothetical jury’s action, or else directed * Thetrial judge in Sullivan “gavea definition of ‘reasonable doubt’ that was . . . essentially identical to the one held unconstitutionalin Cagev. Louisiana {(1990)] 498 U.S. 39.” (Sullivan, supra, 508 U.S.at p. 277.) -27- verdicts for the State would be sustainable on appeal; it requires an actual finding of guilty. (Ud. at p. 280 [original emphasis].) The Sullivan court held that the same conclusionwas required under the trial error/structural defect framework established in F’ulminante. The court foundthatthe right to a jury verdict of guilt beyond a reasonable doubt wasa “‘basic protection’ . . . without which a criminal trial cannot reliably serve its function,” and concludedthat “deprivationofthat right, with consequencesthat are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.”” (Sullivan, supra, 508 U.S.at pp. 281-282.) D. PRE-SULLIVANCALIFORNIA CASES. In Vann, supra, 12 Cal.3d 220, this Court reversed the defendants’ convictions based onthetrial court’s inadvertent failure to instruct the jury with CALJIC No. 2.90. (Id. at pp. 225-228.) There, the trial court had G6Einformed prospective jurors of the People’sobligation ““to prove the allegations as to each defendant, and to prove them beyond a reasonable doubt, to a moral certainty, before[the jury] would beentitled to return a guilty verdict.’” (d. at p. 227, fn. 6.) Immediately thereafter, the trial court told the jury panelthat, at the conclusionofthe evidence, the court would _-28- give instructions on the law. However, final instructions were not given to the jury until 16 days later, at which time the court did not refer back to the preliminary remarks made before the jurors were selected, and the instructions did not inform the jury of the presumption of innocenceor of the prosecution’s burden to prove guilt beyond a reasonable doubt. (/d. at pp. 225, 227, fn. 6.) During final instructions, the trial court gave a circumstantial evidence instruction which,in pertinent part, told the jurors that they could not find defendants guilty based on circumstantial evidence unless “‘each fact which is essential to complete a set of circumstances necessary to establish a defendant’s guilt has been proved beyond a reasonable doubt.’” (Vann, supra, 12 Cal.3d at p. 226.) Vann concludedthat this instruction wasinsufficient to inform the jury of the standard of proof, noting that the prosecution dependedin large part on direct evidence, and that the jury might reasonably have interpreted the instruction as indicating that a lesser degree ofproofwas needed where the evidence wasdirect, and thus of higher quality than circumstantial evidence. (/d. at pp. 226-227.) An instruction telling the jury that evidence of good character might raise a reasonable doubt about the defendant’s guilt was also foundto be insufficient to cure the trial court’s omission. (/d. at p. 227.) Vann concluded: “The foregoing references to reasonable doubtin isolated - 29 - applications ofthat standard ofprooffall far short of apprising the jurors that defendants were entitled to acquittal unless each element of the crimes charged wasprovedto the jurors’ satisfaction beyond a reasonable doubt buttressed by additional instructions on the meaning of that phrase.” (Jbid. [fn. omitted].) Regarding the applicable standard of prejudice, Vann noted that the reasonable doubt standard was “now recognized as rooted in the federal Constitution.” (Vann, supra, 12 Cal.3d at-p. 227 [citing Winship].) Without further elaboration, Vann assessed the error under the Chapmanstandard and foundit could not conclude “the omissionofthe vital instruction was harmless beyond a reasonable doubt.” (Id. at p. 228.) Significantly, Vann did not consider whetherthetrial court’s failure to instruct the jury with CALJIC No.2.90 was perse reversible error, andit is “axiomatic that cases are not authority for propositions not considered.’” (See In re Marriage ofCornejo (1996) 13 Cal.4th 381, 388 [citation omitted].) Eleuera, supra, 8 Cal.App-4th 1214 [First App. Dist., Div. Three] was decided before Sullivan but after Fulminante. In Elguera, the entire trial, including jury selection and deliberations, occurred in a single day, and,prior to starting the voir dire process, the trial court read the prospective jurors CALJIC No.2.90. (id. at pp. 1217-1218.) Furthermore, during voir dire, the trial court asked each prospective juror whether he or - 30 - she understood the requirement ofproof beyond a reasonable doubt, and all of them said they did. (/d. at p. 1218.) Thetrial court did not repeat CALJIC No. 2.90 in its predeliberation charge to the jury. (/bid.) As in Vann, the trial court instructed the jury that circumstantial evidence used to establish the defendant’s guilt must be proved beyond a reasonable doubt. (Ud. at p. 1218.) However, unlike in Vann, “the prosecution’s evidence on the crucial disputed issue was entirely circumstantial.” (/d. at p. 1221.) Moreover, unlike in Vann, just before counsels’ closing arguments,thetrial court reminded the jury that the prosecutor had the burden of proof. (/bid.) Finally, during closing arguments, the two attorneys referred to the | prosecutor’s burden ofproof beyond a reasonable doubtat least eight times. (bid.) | The appellate court, in an opinion by Justice Werdegar, found that the trial court’s failure to instruct on the presumption of innocence and proof beyonda reasonable doubt “duringtrial rather than during jury selection” was error. (Elguera, supra, 8 Cal.App.4th at p. 1219.) As in Vann, the court applied Chapmanreview to the error and found it was not harmless beyond a reasonable doubt. (/d. at pp. 1220-1224.) However, unlike Vann, the Elguera court considered the argumentthat the error was prejudicial perse. Elguera found that Vann had “answered”this question “and indicate[d] Chapmanis the appropriate standard.” (Elguera, supra, at -31- pp. 1219-1220 [citation omitted].) E/guera further noted that it was not faced with a case involving “a complete failure to acquaint the jury with the presumptionof innocence and the standard of proof, or an instruction that misinformed the jury as to the correct standard of proof” — which the court suggested “would qualify as ‘structural defects ... which defy analysis by “harmless-error” standards’”— but rather “with a failure to repeatin the final charge an instruction that had beenreadto the jury beforetrial.” (/d. at p. 1220, quoting Fulminante, supra, 499 U.S.at p. 309.) The Elguera court acknowledgedthat “[o]ne can confidently conclude, in the circumstancesof this case, that the jurors were notleft ignorant ofthe basic principles that the defendant in a criminalcase is presumed innocent and the prosecutor must prove his guilt beyond a reasonable doubt,” but concluded the error was prejudicial for three reasons. (Elguera, supra, 8 Cal.App.4th at p. 1222.) First, the court noted that the reasonable doubt instruction read during jury selection wasnot givento actualjurors, but to prospective jurors, “who at the time did not know whether they would ultimately serve in the.case,” and, as a result, “may not have given the instruction “the same focused attention they would have had they been impaneled and sworn,” (Ibid.) Second, “because the court made noreference to the presumption of innocence and the general reasonable doubt standard”in its predeliberation charge to thejury, “any -32- intellectual awareness the jurors had that the reasonable doubt standard applied may not have been accompaniedbythesenseof centrality and importance the instruction should carry.” (bid.) Third, the court noted that the jury was not provided any definition of reasonable doubt in the oral or written charge and was “unlikely to rememberthe exact definition readto them five and one-half hours earlier, and neither the instruction on circumstantial evidence nor the arguments of counsel, both of which employed the phrase, explained the meaning of‘reasonable doubt.’” (Id.at p. 1223.) Thus, the court concluded that even assuming the jurors applied a reasonable doubt standard, it was impossible to tell whether the “effective lack of a definition of thestandardaffected their application ofit.” (Ibid.) E. POST-SULLIVANCALIFORNIA CASES. Based on Sullivan, the appellate courts in Crawford, supra, 58 Cal.App.4th 815 [First App. Dist., Div. Two], and Phillips, supra, 59 Cal.App.4th 952 (Second App.Dist., Div. Six], concludedthat 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 decisionis straightforward and uncompromising. The court held that a constitutionally deficient reasonable doubtinstruction cannot be harmless error.” (Crawford, supra, at p. 821.) In Crawford,thetrial was conducted over a -33- two day period. (/d. at p. 819.) Thetrial court informed the audience of prospective jurors of the rules embodied in CALJIC No. 2.90,butfailed to include the instruction in its predeliberation charge. (/d. at p. 820.) In addition, the impaneled jury heard reasonable doubt referenced in other instructions. | (1bid.) Crawford concludedthat, under Sullivan, “the trial court . . . erred in failing to instruct, after presentation of the evidence, on the requirement ofproof beyond a reasonable doubtand in failing to assign the burden of proofto the prosecution,in effect denying to appellant the most elementary and fundamental right provided by our system ofjustice, a jury verdict of guilty beyond a reasonable doubt.” (/d. at pp. 822-823.) The Crawford court also noted that in a concurring opinion in Sullivan, Chief Justice Rehnquist had “expressed concern that the [Sudlivan] majority may havepainted with too broad a brush. He noted theinstances where the court had applied harmlesserror analysis to instructional error and he suggestedthat the deficiency in Sullivan in many respects bore the hallmark of an error that is amenable to harmless-error analysis. The Chief Justice added: ‘In this regard, a trial in which a deficient reasonable-doubt instruction is given seems to me to be quite different from one in which no reasonable-doubtinstructionis given atall.’ [Citation.] Nevertheless, the Chief Justice accepted the majority’s conclusion that a constitutionally deficient reasonable doubt instruction ‘is a breed apart from the many other -34- instructionalerrors that we have held are amenable to harmless-error analysis.’ [Citation.]” (Crawford, supra, 58 Cal.App.4th at p. 822 [emphasis added in Crawford].) The Crawford court rejected “outright” the Attorney General’s position that the trial court’s failure to reiterate the reasonable doubt instruction at the conclusionoftrial did not violate the federal Constitution, but instead merely violated state procedural rules. (Crawford, supra, 58 Cal.App.4th atp. 823.) Thecourt further concluded that, even if the error wasnot per se reversible, it would reverse the judgment based on a harmlesserror analysis. (Ibid.) Significantly, the court noted: “There can belittle question that instruction on the presumption of innocence and the reasonable doubtstandard ofproof after the presentation of evidence places the concepts at center stage for consideration during deliberations. As Elguera noted, ‘If any phrase shouldbe ringing in the jurors’ ears as they leave the courtroom to begin deliberations,it is “proof beyond a reasonable - doubt.” [Citation.] [{] We must be ever diligent to guard against dilution of the principle that guilt is to be established by probative evidence and | beyonda reasonable doubt. [Citation.] Instructions given after the evidence has been received and before deliberations commenceis one way ofprotecting an accused’s constitutional right to be judged solely on the basis of proof adduced attrial.” (/d. at pp. 825-826.) -35- In Phillips, supra, 59 Cal.App.4th 952,the trial court mentioned the presumption of innocence and the People’s burden ofproof during jury selection, but failed to instruct the impaneled jury on these concepts. (Ud.at - pp..953, 956.) The prosecutor referred to the burden ofproof during opening statements, both attorneys referred to the reasonable doubt standard during closing arguments, andthe trial court gave the jury other instructions that referred to reasonable doubt. (Jd. at pp. 957-958.) Those instructions included CALJIC No.2.61, which stated that in deciding whetherto testify, the defendant could choose to rely on the state of the evidence and the failure of the People to prove beyond a reasonable doubt every essential element of the charges; CALJIC No. 17.10, which informedthe jury thatif it was notsatisfied beyond a reasonable doubt that the defendant was guilty of the crime charged, it could convict him of a lesser crime of which it was convinced he was guilty beyond a reasonable doubt; and CALJIC No.2.01, informing the jury that circumstantial evidence used to establish guilt must be proved beyond a reasonable doubt. (Ud. at pp. 955-956.) However, Phillips found that the attorneys’ arguments and the instructions given did not curethe failure ofthetrial court to instruct on the meaning and applicability of the reasonable doubt standard. (d. at pp. 957-958.) The Attorney General in Phillips urged the court to apply a harmless error analysis “becausethetrial court did not give a constitutionally - 36 - defective instruction. It gave noinstruction.” (Phillips, supra, 59 Cal.App.4th at p. 957.) However, the Phillips court rejected this argument: “In our view,the trial court’s error suffered no less a constitutional defect than did the trial court in Sullivan. Thereversal per se rule of Sullivan does not allow for exceptions where counselrefer to the reasonable doubt instruction in argument. The structural infirmity present in Sullivan is present here as well.” (/d. at pp. 957-958.) By contrast, in Flores, supra, 147 Cal.App.4th 199 [Fourth App. Dist., Div. One], the majority declined to follow the decisions in Crawford and Phillips, and instead found that Vann required application of Chapman review to the trial court’s omission of CALJIC No. 2.90.’ During jury selection in Flores, the trial court fully instructed all of the ultimate jurors at least once (and some twice) with CALJIC No. 2.90; however,the trial court failed to repeat the instruction after the jury was impaneled.'° (/bid.) The predeliberation charge contained various other references to the reasonable doubt standard, including: CALJIC No. 2.01 on circumstantial evidence; ” In the instant case, the Court ofAppealexpressly relied on Floresin holding that the omission of a standard reasonable doubtinstruction is not perse reversible error. (People v. Aranda, supra, 188 Cal.App.4th at p. 1495.) Incidentally, both opinions were authored by Justice Huffman. ° Thetrial court deliveredits final instructions to the jury eight days after reading the jurors CALJIC No. 2.90 during voir dire. (Flores, supra, at p. 212.) -37- CALJIC No. 2.61 on defendant’s choice notto testify; a special findings : instruction limited to three of the nineteen counts (Ifyou find the defendant guilty beyond areasonable doubtof any ofthe counts filed pursuant to Penal Code Section 803(g).. ..”); and an instruction relating to special allegations pursuant section 667.61 (“The People have the burden of proving thetruth ofthis allegation. If you have a reasonable doubtthatit is true, you must find .. . it not to be true.”). (7d. at pp. 212-213.) Furthermore, during closing argument, the prosecutor discussed the reasonable doubt standard with the jury, but defense counsel did not. (d.at pp. 213-214.) The first issue addressed in Flores was whether the omission of CALJIC No.2.90 qualified as a structural defect requiring automatic reversal. The Flores majority criticized the analyses in Crawford and Phillips for (1) failing to consider the Elguera court’s specific rejection of the per se reversal standard, including“thestare decisis considerations expressed in Elguera’” (Flores, supra, 147 Cal.App.4th at p. 210); and (2) failing to acknowledge the Supreme Court’s decision in Kentucky v. Whorton, supra, 441 U.S. 786, indicating that a failure to instruct on the presumption of innocence “‘must be evaluated in light of the totality of the circumstances . . . to determine whether the defendant received a constitutionally fair trial.”” (Flores, supra, at pp. 210-211.) - 38 - Flores distinguished Sullivan because, in Sullivan, the jurors were misinformedasto the proper standard ofproof, whereasthe jurorsin its own case were not. The court stated: “[{T]his case in our view is markedly different from the one in whichthe jurors are misinformedas to the proper standard of proof.” (Flores, supra, 147 Cal.App.4th at p. 211.) In reaching this conclusion, the majority noted that (1) reasonable doubt wasproperly defined during jury selection; (2) several of the instructions in the trial court’s predeliberation charge remindedthe jury that the elements ofthe offenses had to be proved beyond a reasonable doubt, and (3) “both counsel”"' told the jury that the prosecutor bore the burden of proving its case beyonda reasonable doubt. (/d. atp. 21 1.) Flores also noted that, under the Supreme Court’s decision in Victor, supra, 511 U.S. 1, the federal constitution does not require courts to define “reasonable doubt,” provided the jury is correctly informedas to the standard of proof. (Flores, supra, at p. 211.) Finally, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, the majority concludedthat application of the Chapman standard was required by Vann:. '' This seemsto be a misstatement,aslater in the opinion the majority highlights the fact that “[i]n closing argument, Flores’s counsel did not makeany reference to reasonable doubt.” (/d. at p. 214 [original emphasis].) -39- Weconcludethat at least in a case where the jurors have been told the prosecution must prove its case beyond a reasonable doubt and there has not been an erroneous definition of that burden of proof, the harmless-error standard applied by our Supreme Court in Vann remainsthe controlling law. Weare satisfied that there has not been an intervening authority from the United States Supreme Court which underminesthat precedent. Accordingly, we are bound to follow the decision of our Supreme Court. (Flores, supra, 147 Cal.App.4th at p. 211 [citations omitted].) Althoughit rejected per se reversal, Flores nevertheless reversed the defendant’s convictions, finding the trial court had “committed federal constitutional error, which was not harmless beyond a reasonable doubt.” (Flores, supra, 147 Cal.App.4th at p. 215.) Flores found the circumstances in the case to be “closely analogous”to those of Vann and Elguera and stated that. “the trial court’s instructions, considered individually and as a whole, did not inform the jury that the prosecution had the burden to prove each elementofthe charged offense(s) beyond a reasonable doubt.”"* (Id. at pp. 214-215 [original emphasis].) A concurring and dissenting opinion by Justice McDonald endorsed the holdings in Phillips and Crawford and concludedthat Sullivan required per se reversal of the defendant’s convictions: “A federal constitutional '2 As previously noted, one ofthe reasonsthe majority gavefor rejecting the per se reversal standard was because “[s]everal of the instructions given at the conclusion of the case reminded the jurors that the elements of the offenses had to be proved beyond a reasonable doubt.” (Ud. at p. 211.) The two statements seem inconsistent. - 40 - error in omitting an instruction that the prosecution has the burden to prove each element of a charged offense beyond a reasonable doubtis structural error under Sullivan, and is not subject to the harmless error analysis under Chapman.” (Flores, supra, 147 Cal.App.4th at p. 220 [citation omitted: original emphasis].) Justice McDonald explainedhis position this way: Whetherthe instructionalerroris a “misdescription” of the burden of proof, as in Sullivan,or a “nondescription”(i.e., no description of or instruction on) the burden of proof, the same analysis applies. With either a misdescription or an absence ofa description of that burden of proof, the jury hasnot found the defendant guilty based on the constitutionally required standard of proof beyond a reasonable doubt. As Sullivan noted, were the appellate court to apply the Chapmanstandard ofprejudicial error, the wrongentity (i.e., a judge,rather than a jury) would be determining the defendant's guilt. [Citation.] Furthermore, Sullivan concluded the harmless-error analysis could not apply in its case becausethe instructional error involved a “structural defect.” [Citation.] The court stated: “In Fulminante, we distinguished between, on the one hand,‘structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards,’ [citation], and, on the other hand,trial errors which occur ‘during the presentation of the case to the jury, and which maytherefore be quantitatively assessed in the context of other evidence presented,’ [citation]. Denialofthe rightto ajury verdictofguilt beyond a reasonable doubtis certainly an error oftheformersort [i.e., a structural defect], thejury guarantee being a ‘basic protectio[n]’ whose precise effects are unmeasurable, but without which a criminaltrial cannot reliably serve its function [citation].” Sullivan concluded: “The deprivation ofthat right {i.e., constitutionalright to a jury verdict of guilty beyond a reasonable doubt], with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’” [Citation.] . . . That holding applies to not only “misdescriptions” of the burden ofproof, but also to “nondescriptions”(or lack of descriptions) of the burdenofproof. -4] - (Id. at p. 22 1 {emphasis added in Flores'*].) Justice McDonald further “expressly” found that Sullivan “has overruled Vann to the extent it held the Chapman standard of harmless error appliesto structural defects in violation of the United States Constitution (i.e., omission ofan instruction on the reasonable doubt standard of proof).” (Flores, supra, 147 Cal.App.4th at p. 222.) Finally. in People v. Mayo (2006) 140 Cal.App.4th 535 [Second App.Dist., Div. Seven] (Mayo), the court did not reach the question of whetherthe failure to give a standard reasonable doubtinstruction (CALJIC No. 2.90) wasa structural defect, or amenable to the harmless error review under the Chapmanstandard. (Id. at p. 548, fn. 13.) Rather, the court concludedthat the trial court’s omission of CALJIC No. 2.90 was not federal constitutional error becauseit found thatthe jury had been fully apprised of the reasonable doubt standard through other instructions. (/d.at pp. 545-549.) Mayo generally agreed that the omission of a standard reasonable doubtinstruction is federal constitutional error “when the instructions given to the jury, taken as a whole, fail to otherwise adequately 3 Tn a footnote, Justice McDonald criticized the majority for omitting the italicized language from its recitation of Sullivan, adding: “That language shows the United States Supreme Court believes the denial of a defendant’s right to a jury trial, including an instruction on the applicable reasonable doubt standard of proof, is structural error and not subject to harmless error analysis: (/d. at p. 221, fn. 1 [original emphasis].) -42- convey the concept of reasonable doubt”(id. at p. 542), but determinedthat the instructions in that case specifically advised the jury that the defendant wasentitled to acquittal unless each elementofthe charged offense (murder) was proved beyonda reasonable doubt. Finding no federal constitutional error, Mayo applied the standard of prejudice articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), and concluded that any error in omitting CALJIC No. 2.90 was harmless understate law. (Mayo, supra, at pp. 550-552.) F. THE OMISSION OF AN INSTRUCTION ON THE REASONABLE DOUBT STANDARD IS PER SE REVERSIBLE ERROR UNDER SULLIVAN. Failing to instruct jurors on the proper standard ofproofis not “markedly different” from misinforming jurors on the proper standard of proof. (Flores, supra, 147 Cal.App.4th at p. 211.) Like an error in an instruction defining reasonable doubt, a verdict rendered by a jury that is not instructed “on the necessity that the defendant’s guilt be proved beyond a reasonable doubt”(Victor, supra, 511 U.S.at p. 5), is an error that defies harmlesserror analysis. In either case, there is “no jury verdict of guilty-beyond-a-reasonable-doubt,” and thus “no object .. . upon which harmlesserror scrutiny can operate.” (Sullivan, supra, 508 U.S. at p. 280 {italics omitted].) The failure to properly inform the jury of the reasonable -43- doubt standard, whetherby deficientinstruction, or no instructionatall, deprives a defendantof a “‘basic protection” with consequences that are ““nmeasurable.” (Jd. at p. 281.) In the latter case, as in the former, “the essential connection to a ‘beyond a reasonable doubt’ factual finding cannot be made,” and areviewing court can only speculateas to “what a reasonable jury would have done.” (/bid.) This Court’s decision in Vann, decided long before Sullivan and Fulminante, did not consider whetherthe trial court’s omission of a general reasonable doubtinstruction wasper se reversible error. (Vann, supra, 12 Cal.3d at pp. 227-228; see generally People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326 [intervening United States Supreme Court authority interpreting federal Constitution supersedes contrary prior authority on issue by this Court].) Accordingly, contrary to the views expressed in Elguera and Flores, the fact Vann applied harmlesserror analysis has no . precedential value underthe doctrine of stare decisis. (See, e.g., People v. Jennings (2010) 50 Cal.4th 616, 684 [“‘It is axiomatic that cases are not authority for propositions not considered.’”’] [citation omitted].) Omission of an instruction on the reasonable doubt standard of proofis structural error under Sullivan. (See also Jackson v. Virginia (1979) 443 U.S. 307, 320, fn. 14 [99 S.Ct. 2781, 61 L.Ed.2d 560] [Our cases have indicatedthat failureto instruct a jury onthe necessity of proof of guilt beyond a - 44 - reasonable doubt can never be harmlesserror.”]; Ex Parte Gillentine (Ala. 2007) 980 So.2d 966, 971 [“there is no question that the trial court’s failure to give a reasonable-doubt instruction constitutes a structural error”); Montgomery v. State (1981) 292 Md. 84, 93 [437 A.2d 654, 658] [stating that inclusion of a reasonable doubtinstruction “is so indispensable that the Supreme Court has indicated that failure to instruct the jury of the requirement of the reasonable doubt standard is never harmless error’’].) The omission of a standard reasonable doubt instruction, however, might not alwaysresult in the “[dJenial of the right to a jury verdict of guilt beyond a reasonable doubt.” (Sullivan, supra, 508 U.S.at p. 281.) Other instruction(s) could conceivably cover the sameterritory as the missing instruction. That is essentially what the Mayo court found, and what the courts in Vann, Elguera, Crawford, Phillips, and Flores did not. This notion is consistent with Victor’s observation that, while the federal Constitution “does not require that any particular form of words be used in advising the jury of the government’s burden ofproof. . . ‘taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to 999the jury.”” (Victor, supra, 511 U.S.at p. 5 [citation omitted]; see also People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 [“correctness ofjury instructionsis to be determined from theentire charge ofthe court, not from: a consideration of parts of an instruction or from a particular instruction” 245- [internal quotation marks and citations omitted].) Here, however, the other instructions, viewed collectively, were not sufficient to satisfy federal constitutional requirements. G. BECAUSE THE GIVEN INSTRUCTIONS, TAKEN AS A WHOLE, FELL SHORT OF CONVEYING THE CONCEPT OF REASONABLE DOUBT TO THE JURY, REVERSALIN THIS CASE IS AUTOMATIC. The jurors here wereled to believe that the law that applied to the case waslimited to the information containedin the trial court’s final instructions. At the beginningofits final charge, the trial court told the soon to be deliberating jurors that it would “now . . . instruct you on the law that applies to this case,”and that “[y]ou must accept and follow the law as - I state it to you.” (3 RT 670 [italics added].) In a similar vein, at the other end ofthetrial process, the court repeatedly told the jurors during jury selection that the actual instructions they would apply to the case would not be revealed to them until “after” allthe witnesses hadtestified. (1 ART 108; 109, 110, 118.) Thus, as Vann noted in nearly identical circumstances, “In net effect the jurors were given to understand that they had received a self-contained, complete statement of the law they were to follow.” (Vann, supra, 12 Cal.3d at p. 227, fn. 6; see also Flores, supra, 147 Cal.App.4th at p. 215 [pursuant to the directions in CALJIC No.1.00 “the jurors - 46 - presumably (and reasonably) inferred that all of the instructions on the law that they wereto apply to the facts in this case were given them during the court’s predeliberation instructions”].) Consequently, although the trial court referenced the presumption of innocence and reasonable doubt standard during voir dire, and even read the panel ofprospective jurors a modified version of CALJIC No.2.90,this “did not cure the error of the court’s omission”as to the impaneled jury. (Vann, supra, at p. 227, fn. 6.) Furthermore,thetrial court’s pretrial remarks on the reasonable doubt requirement were given to prospective jurors “who at the time did not know whether they would ultimately serve in the case.” (Elguera, supra, 8 Cal.App.4th at p. 1222.) As explained in Flores, “it is unreasonable to expect prospective jurors, who have yet to be empanelled and sworn as actual jurorsin thetrial, to give the necessary attention and weight to instructions given bya trial court during jury selection as the federal constitution requires.” (Flores, supra, 147 Cal.App.4th at p. 215.) The passageoftime further diluted any possibility that information the jurors heard during jury selection on the burden ofproof/reasonable _ doubt concepts found its way into the deliberating room. (See Elguera, supra, 8 Cal.App.4th at p. 1223.) The CALJIC No. 2.90 based instruction read during voir dire, for instance, occurred 15 days beforefinal instructions were given. (Cf. Vann, supra, 12 Cal.3d at p. 227, fn. 6 [final -47 - jury instructions given 16 days after court spoke to prospective jurors about the burden of proof during jury selection]; Flores, supra, 147 Cal.App.4th at p. 215 [court gavefinal jury instructions 8 days after reading prospective | jurors CALJIC No.2.90]; Elguera, supra, at p. 1223 [jurors “unlikely to remember” reasonable doubt definition read 5 4 hours earlier during jury - selection].) In sum,the events ofjury selection did not blunt the constitutional significance of the omission of CALJIC No. 2.90 from thetrial court’s predeliberation charge. (See Vann, supra, 12 Cal.3d at p. 227,fn. 6.) The circumstantial evidenceinstruction, CALJIC No.2.01", also contributedlittle to the jury’s understanding of the reasonable doubt concept, and might even have made matters worse. Cases involving the giving of similar instructions have concludedthat such instructions are insufficient to comport with federal constitutional requirements, especially where,as in this case, the challenged convictions are basedin part on direct evidence. (Vann, supra, 12 Cal.3d at pp. 226-227; Flores, supra, 147 Cal.App.4th at pp. 215-216; Crawford, supra, 58 Cal.App.4th at pp. 824- 825; Elguera, supra, 8 Cal.App.4th at p. 1218.) CALJIC No. 2.01 only reaches circumstantial evidence;“it fails to tell the jurors that a “ 4 CT 786; 3 RT 674. - 48 - determination of guilt resting on direct testimony must also be resolved beyond a reasonable doubt.” (Vann, supra, at p. 226.) Here, the prosecutionrelied “in large part on direct evidence”(ibid.), namely, the testimony and statementsofthe people whoattended the party where the incident occurred. In these circumstances, as this Court has noted, CALJIC No. 2.01 might actually lead jurors to apply a Jower burden ofproof than the constitution requires: “An instruction which requires proof beyond a reasonable doubt only as to circumstantial evidence, rather than importing a need for the same degree ofproof where the crime is sought to be established by direct evidence, might with equal logic have been interpreted by the jurors as importing the need of a lesser degree ofproof where the evidenceis direct and thus of a higher quality.” (/d. at pp. 226-227.) Thus, “the trial court’s instruction with CALJIC No. 2.01 in this case did not effectively inform the jury” of the prosecution’s general burden of proof of proof beyond a reasonable doubt. (Flores, supra, at p. 216 [original emphasis].) The trial court’s instructions on the count 1 enhancementallegations — firearm’ and gang" — referred to the reasonable doubt standard; however, 'S 4 CT 826-827; 3 RT 694-695. '© 4 CT 825; 3 RT 693. - 49. “indirect reference[s]” such as these are “insufficient to satisfy federal constitutional requirements.” (Flores, supra, 147 Cal.App.4th at p. 217.) It would be unreasonable to “presumethat a reasonable doubt instruction given in a specific context (e.g., regarding special findings to be madein connection with certain charge(s)) will necessarily be understood byall of the jurors to apply generally to their determination of the defendant’s guilt on ail of the charged offenses (or even to the specific charges to which that special instruction applies).” (/bid. [original emphasis].) Thetrial court’s instructions on the substantive crimes were also insufficientto fill the hole left by the omission of CALJIC No. 2.90. The only offense where the jurywas expressly told the prosecution bore the burden of proving each element beyond a reasonable doubt was with respect to murder, and appellant was acquitted of that crime. Pursuant to CALJIC No.8.50, entitled “Murder and Manslaughter Distinguished,” the jury was instructedin relevantpart: “To establish that a killing was murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each ofthe elements ofmurder ....” (4 CT 823 [emphasis added]; 3 | RT 689.) The fact that the jury was not also expressly instructed that the prosecution bore the burden ofproving each of the elements ofvoluntary manslaughter andstreet terrorism beyond a reasonable doubt is problematic. In these circumstances, the jury might have reasonably concludedthat the - 50 - prosecution’s burden of proof was not as demanding for the lesser offense of voluntary manslaughter and the separate offense ofstreet terrorism asit wasfor murder. (Cf. Vann, supra, 12 Cal.3d at pp. 226-227 [because circumstantial evidence instruction failed to state that guilt based on direct - evidence also had to be proved beyond a reasonable doubt, jurors might havelogically interpreted instruction “as importing the need of a lesser degree ofproof where the evidenceis direct and thus of.a higher quality”’].) This concern is particularly troubling because the jury convicted appellant of voluntary manslaughter andstreet terrorism, but acquitted him of murder. The other homicide instructions contained only limited or indirect referencesto the prosecution’sburden ofproof beyond a reasonable doubt. CALJIC No. 8.71 (Doubt WhetherFirst or Second Degree Murder) was limited to murder. As presented to the jury, this instruction provided in relevant part: “Ifyou are convinced beyond a reasonable doubt and unanimously agree that the crime ofmurder has been committed by a defendant ....” (4CT 813[emphasis added]; 3 RT 685.) CALJIC No.5.15 informed the jury that the burden wason “the prosecution to prove beyond a reasonable doubt that the homicide was unlawful.” (4 CT 830; 3 RT 695-696.) This instruction, entitled “Charge ofMurder — Burden of ProofRe Justification or Excuse,” expressly referred to murder, but did not mention manslaughter: “Upona trial of a -5]- charge ofmurder, a killing is lawful if... ..” (4 CT 830 [emphasis added].) Without the guidanceofa standard reasonable doubt instruction, a juror in this case would reasonably have thoughtthis instruction pertained only to _ murder. (See People v. Maurer (1995) 32 Cal.App.4th 1121, 1127 [“[w]e must bear in mindthat the audience for these instructions is not a room of law professors deciphering legal abstractions, but a room of lay jurors”); Falconer v. Lane (7th Cir. 1990) 905 F.2d 1129, 1136-1137 [instructions cannotbe analyzedas if the jury consisted of lawyers]. Furthermore, this instruction only addressed a single element. (See F‘lores, supra, 147 Cal.App.4th at p. 216 [“[w]e cannot presumethat a reasonable doubt | instruction given in a specific context . . . will necessarily be understood by all of the jurors to apply generally to their determination of the defendant’s guilt’’] [original emphasis].) Pursuant to CALJIC No. 8.72 (Doubt Whether Murder or Manslaughter), the jury wasinstructed: “Ifyou are convinced beyond a reasonable doubt andunanimously agree that the killing was unlawful, but you unanimously. agree that you have a reasonable doubt whetherthe crime is murder or manslaughter, you mustgive the defendantthe benefit of that doubt andfind it to be manslaughter rather than murder.” (4 CT 814; 3 RT 685.) However, like the previously discussed instruction, this one too only addressed the standard of proofas to the specific element of -52- “unlawfulness.” (See Flores, supra, 147 Cal.App.4th at p. 216 [improper to “presume” jurors will understand reasonable doubt standard applies “generally to their determination of the defendant’s guilt” from a “reasonable doubt instruction given in a specific context”].) Furthermore, this instruction did not assign the burden of proof to the prosecution. (See Middleton v. McNeil, supra, 541 US.at p. 437 [“the State must prove every elementofthe offense, and a jury instruction violates due processifit fails to give effect to that requirement”].) Finally, the trial court referenced reasonable doubt wheninstructing the jurors on the procedure they should follow for completing the verdict forms. Specifically, pursuant to CALJIC No. 8.75, the “acquittal first”or . Stone’* instruction, the jurors were instructed in relevantpart: “If you are not satisfied beyond a reasonable doubtthat the defendant is guilty of the crime of first degree murder as charged in Count | and you unanimously so find, you may convict him of any lesser crime provided youare satisfied beyond a reasonable doubt that he is guilty of a lesser crime. [{] You have '’ The “acquittal first’” procedure requires“the jury [to] grapple with the question of a defendant’s guilt of the highest crime charged.” (People v. Fields (1996) 13 Cal.4th 289, 304.) '§ Stone v. Superior Court (1982) 31 Cal.3d 503, 519 held that the jury must acquit of the greater offense before returning a verdict on the lesser included offense. -53- been provided with guilty and not guilty forms as to Count1 for the crime of murderin the first degree and lesser crimes thereto. Murderin the second degreeis a lesser crime to that of murderin the first degree. Voluntary manslaughteris lesser to that of murderin the second degree.” G RT 689-690; 4 CT 824.) “t[]ndirect reference”to the reasonable doubt standard in an instruction telling jurors how to fill out the verdict formsis “insufficient to satisfy federal constitutional requirements.” (Flores, supra, 147 Cal.App.4th at p.217.) Furthermore, this instruction failed to assign the burden ofproof to the State. (See Crawford, supra, 58 Cal.App.4th at pp. 822-823 [“Sullivan compels the conclusion that the trial court . . . erred in | failing to instruct . . . on the requirement of proof beyond a reasonable doubt andinfailing to assign the burden ofproofto the prosecution, in effect denying to appellant the most elementary and fundamental right provided by our system ofjustice, a jury verdict of guilty beyond a reasonable doubt”].) In sum, none ofthe foregoing instructions, individually and collectively, correctly expressed the concept of reasonable doubtto the jury. (See Victor, supra, 511 U.S.at p. 5.) Rather, as in Vann, “[t]he foregoing references to reasonable doubt in isolated applications of that standard of prooffall far short of apprising the jurors that [appellant] [was] entitled to acquittal unless each element of the crimes charged was provedto the -54- jurors’ satisfaction beyond a reasonable doubt . . ..”. (Vann, supra, 12 Cal.3d at p. 227.) In Crawford, the trial court instructed the jury on reasonable doubtas to an enhancement allegation which the jury rejected, but did not do so for the underlying offense on which the defendant was convicted. (Crawford, supra, 58 Cal.App.4th at p. 825.) These circumstances prompted the court to note: “One can only speculate as to whatthe jurors would have done had they been admonishedto find guilt only if they were convinced beyond a reasonable doubt”on the underlying crime as well. (Ibid.) The sameis true in this case. Here, unlike the instructions relating to murderand the gangallegation, the instructionsrelating to thecrimes of conviction, voluntary manslaughter andstreet terrorism, did not apprise the jury of “[w]hat the factfinder must determineto return a verdict of guilty,” namely, that “[t]he prosecution bears the burden ofproving all elements of the offense[s] .. . , and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements.” (Sullivan, supra, 508 U.S. at pp. 277-278 [citations omitted].) Infact, the street terrorism instruction in this case did not contain any reference whatsoeverto the prosecution’s burden of proofor the reasonable doubt standard. (3 RT 699-701; 4 CT 839-840.) -55- Thefact that the trial court did not mention the presumption of innocenceto the jury after it was impaneled,is further evidence that the omission of CALJIC No. 2.90 violated the federal Constitution. Although not necessarily of federal constitutional magnitude itself (Kentucky v. Whorton, supra, 441 U.S.at p. 789), the failure to instruct on the presumption of innocence is another indication that the instructions, taken eeeas a whole, did not “‘correctly convey the concept of reasonable doubt to 399the jury.’” (Victor, supra, 511 U.S.at p. 5 [citation omitted; emphasis added]; see also Coffin v. United States (1895) 156 US. 432, 453 [15 S.Ct. 394, 39 L.Ed.481] [presumption of innocence “lies at the foundation of the administration of our criminal law’’].) Absent a standard reasonable doubt instruction, it cannot reasonably be presumed that the jurors in this case understood that the prosecution’s burden of proof beyond a reasonable doubt applied “generally to their determination of the defendant’s guilt on all of the charged offenses . . ..” (Flores, supra, 147 Cal.App.4th at p.217 [original emphasis].) Accordingly, because appellant was denied his federal constitutional right to a jury verdict of guilt beyond a reasonable doubt, his convictions mustbe reversed without a harmless error analysis. (Sullivan, supra, 508 U.S.at pp. 279-282.) - 56 - IL. ASSUMING THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY WITH CALJIC NO. 2.90 IS ° SUBJECT TO HARMLESS ERROR REVIEW, THEN CHAPMANIS THE APPROPRIATE PREJUDICE STANDARD. “If a trial court’s instructional error violates the United States Constitution, the standard stated in Chapman requires the People, in order to avoid reversal of the judgment, to ‘prove beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained.’ Butif a trial court’s instructional error violates only California law, the standardis 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 ofthe error.’” (People v. Mower (2002) 28 Cal.4th 457, 484 [citations omitted].) Should this Court conclude that the trial court’s failure to give a standard reasonable doubtinstruction is subject to harmless error analysis, then the error should be assessed under the Chapmanstandard of review. ASpreviously explained,the trial court’s omission of CALJIC No. 2.90 from its predeliberation charge to the jury violated appellant’s due process and jury trial rights under the Sixth and Fourteenth Amendments. (/n re Winship, supra, 397 U.S.at p. 364; Sullivan, supra, 508 U.S. at pp. 277- -57- 278.) Consequently, if the error here does notrise to the level ofa structural defect, its prejudicial effect must be determined under the federal harmless-beyond-a-reasonable-doubt test. (Chapman, supra, 386 U.S.at p. 24.) | A. THE WATSONSTANDARD APPLIES TO | CONSTITUTIONAL AS WELL AS ~ NONCONSTITUTIONAL ERRORS, BUT BOWS TO CHAPMANWHEN A FEDERAL CONSTITUTIONAL RIGHTIS INVOLVED. “Unlike the United States Constitution, which includes no provision relating to reversible error, the California Constitution contains a specific provision addressedto this subject, article VI, section 13.” (People v. Cahill (1993) 5 Cal.4th 478, 487-488 (Cahill).) “That constitutional provision states, in relevant part: ‘No judgmentshall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury . . . unless, after an examination ofthe entire cause, including the evidence, the court shall be ofthe opinion that the error complained of has resulted in a miscarriage ofjustice.’” (People v. Flood, supra, 18 Cal.4th at p. 487.) ee “Interpreting this provision, Watson concluded that “aa ‘miscarriage of justice’ should be declared only whenthe court ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ thatit is reasonably probable that a result more favorable to the appealing party would have - 58 - been reached in the absenceofthe error.” (Watson, supra, 46 Cal.2d at p. 836; accord, Cooper v. California (1967) 386 U.S. 58, 62 [87 S.Ct. 788, 17 L.Ed.2d 730] [when“state standards alone have been violated, the State is free .. . to apply its own state harmless-errorrule to such errorsofstate law”’}.) “(T]he California constitutional provision governing reversible error ... applies to constitutional as well as to nonconstitutional errors.” (Cahill, supra, 5 Cal.4th at p. 491.) Thus, “for purposes ofCalifornia law,” the prejudicial effect of the error in this case should be determined under “the generally applicable reasonable-probability test embodiedin article VI, section13, of the California Constitution.” (Ud. at pp. 509-510 [original emphasis].) However, “because the Watson standard is less demanding than the harmless-beyond-a- reasonable-doubt standard,” wheneverthe failure to give a standard reasonable doubtinstruction violates a defendant’s rights under the federal Constitution, the prejudicial effect of the error must be assessed under the federal harmless error test of Chapman. (Id. at p. 510; Chapman, supra, 386 U.S.at p. 21 [federal law governs harmless error analysis if error violates federal constitutionalright].) -59- B. HARMLESS ERROR ANALYSISIN THIS CASE IS GOVERNEDBY FEDERAL LAW BECAUSE THE TRIAL COURT’S FAILURE TO DELIVER A | GENERALLY APPLICABLE INSTRUCTION ON THE PROSECUTION’S BURDEN OF PROVING GUILT BEYOND A REASONABLE DOUBT AND THE PRESUMPTION OF INNOCENCE CONSTITUTES FEDERAL CONSTITUTIONAL ERROR. This Court in Vann, and the Courts of Appeal in Flores, Crawford, Phillips, and Elguera,all foundthatthe trial court’s failure to give a standardreasonable doubtinstruction constituted federal constitutional error, even though reasonable doubt wasreferred to in other instructions read to the jury. (Vann, supra, 12 Cal.3d at pp. 227-228; Flores, supra, 147 Cal.App.4th at pp. 214-215, 219-220; Crawford, supra, 58 Cal.App.4that p. 817, 822-823, 825; Phillips, supra, 59 Cal.App.4th at pp. 953-954; Elguera, supra, 8 Cal.App.4th at pp. 1219-1220.) Mayois the only publishedcase to find that a trial court’s failure to give such an instruction wasnot a federal constitutional error. (Mayo, supra, 140 Cal.App.4th at pp. 546; 548-549.) Mayo observed that the absence of a standard reasonable doubt instruction does not violate the federal Constitution when “other instructions adequately inform[] the jury of the correct standard of proof.” (/d. at p. 549.) Based onits review of the instructions given in that case, Mayo found that, “In sharp contrast to Vann the instructions in the instant case fully and repeatedly informed the jurors - 60 - ~ that {|defendant] was entitled to an acquittal unless each element of the crimecharged was proved beyond a reasonable doubt.” (/d. at p. 545.) Specifically, the Mayo court concludedthat the murder and manslaughter instructions given in that case sufficiently “inform[ed] the jury it had to acquit [the defendant] of murder unless each and every element of murder (including first degree murder) was proved beyond a reasonable doubt. . ..” (Id. at p. 546.) According to Mayo,this situation “plainly distinguish[ed] [the defendant’s] case not only from Vann, but also from those appellate court decisions relying on Vann to hold the omission of CALJIC No. 2.90 was federal constitutional error.” (bid. [citation omitted].) Many ofthe same homicide instructions given in Mayo werealso given in this case. (See Mayo, supra, 140 Cal.App.4th at p. 545.) Nevertheless, Mayo is easily distinguished. The essential differenceis that the defendant in Mayo was charged and convicted of murder, whereas appellant was charged and acquitted of murder, and was instead convicted . of voluntary manslaughterandstreet terrorism. (Jd. at pp. 539-541.) Therefore, even assumingthe jury instructions in this case can properly be construed as having informedthe jurors that appellant wasentitled to acquittal unless each element of murder was proved beyonda reasonable doubt, this fact provides no basis for finding thatthe trial court’s omission -61- of CALJIC No. 2.90 wasnot a federal constitutional error. In short, Mayo is inapplicable. As appellant explained in ArgumentI, part G, ante, the instructions in this case, whether viewed individually or collectively, did not properly convey the concept of reasonable doubtto the jury. (Victor, supra, 511 U.S. at p. 5.) The impaneled jury wasnot informedit had to acquit appellant of voluntary manslaughter andstreet terrorism unless each and every element of those offenses was proved beyond a reasonable doubt. The impaneledjury was not properly instructed that the People bore the burden ofproofonall of the elements ofall of the offenses and allegations, and that appellant was presumed innocent. (In re Winship, 397 U.S.at pp. 363-364; Flores, supra, 147 Cal.App.4th at p.217.) In these circumstances, the trial court’s failure to instruct the jury with CALJIC No. 2.90 on the reasonable doubt standard ofproof and the presumption of innocence constitutes federal constitutional error under the Sixth and Fourteenth Amendments. (Sullivan, supra, 508 U.S.at pp. 277-278; In re Winship, 397 U.S.at pp. 363-364.) Sincethe error is of federal constitutional dimension, the standard oferror is governed by federal law. (Chapman, supra, 386 U.S.at p. 21.) As such, the state law standard oferror articulated in Watson is not the appropriate standard to use in assessing the prejudicial effect of | the error in this case. -62- C. THE TRIAL COURT’S FAILURE TO DELIVER A STANDARD REASONABLE DOUBT INSTRUCTION WAS NOT HARMLESS BEYOND A REASONABLE DOUBT. A Chapmananalysis asks “whether it appears beyond a reasonable doubtthat the error did not contribute to [the] jury’s verdict. [Citations.]” (People v. Flood, supra, 18 Cal.4th at p. 504.) Underthis standard, thetrial court’s failure to give the impaneled jury a standard reasonable doubt instruction was not harmlessasto either of appellant’s convictions. “T]he reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude on thé facts in issue.’ [Citation.]” (Un re Winship, supra, 397 U.S.at p. 364.) “The reasonable doubt instruction more than any otheris central in preventing the conviction of the innocent.” (People v. Brigham (1979) 25 Cal.3d 283, 290.) ““No instruction could be more vital...” (Vann, supra, 12 Cal.3d at p. 227 {citation omitted].) “There can be little question that instruction on the presumption of innocenceand the reasonable doubt standard of proof after the presentation ofevidence places the concepts at center stage for consideration during deliberations. ... “If any phrase should be ringing in the jurors’ ears as they leave the courtroom to begin deliberations, it is ‘proof beyond a reasonable doubt.’” (Crawford, supra, 58 Cal.App.4th at p. 825 [original emphasis], - 63 - quoting Elguera, supra, 8 Cal.App.4th at pp. 1222-1223; see also People v. Gayle (1980) 431 N.Y.S.2d 18, 21 [76 A.D.2d 587, 590] [“It is not unlikely that some jurors understand that a defendant is presumed innocentat the outset ofthe trial, but do not fully understand that the principle continues during the course of thetrial.”’].) In its final charge to the jury, the trial court here madenoreference to the presumption of innocence, and its references to the reasonable doubt standard of proof pertained to specific contexts or particular allegations. The court also failed to provide the jury with any definition of reasonable doubt.!? (See Vann, supra, 12 Cal.3dat p. 227; Elguera, supra, 8 Cal.App.4th at p. 1223.) Although there is no federal requirementto define reasonable doubt to a jury (Victor, supra, 511 U.S.at p. 5), as Justice Ginsburg observed in her concurrence in Victor, “several studies ofjury behavior have concludedthat ‘jurors are often confused about the meaning of reasonable doubt’ whenthat term is left undefined.” (/d. at p. 26 (Ginsburg, J., conc. in part and conc.in the judgment)[citation omitted].) 19 CALJIC No.2.90 has two paragraphs, the first setting forth the concept of reasonable doubt (including the presumption of innocence andthe prosecution’s burden of proof), and the second defining reasonable doubt as articulated by the Legislature in Penal Code section 1096. As noted in People v. Hearon (1999) 72 Cal.App.4th 1285, 1286, this definition has passed constitutional muster with every California appellate court to considerit, as well as with the Ninth Circuit Court ofAppeals in Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997, 990-1000. - 64- Here, the danger of such confusion was heightened becausethe given instructions contained inconsistent references to the standard of proofwhich could have led jurors to believe “reasonable doubt” applied tosome crimes and allegations, but not others. Appellant’s self-defense claim was plausible and apparently had traction with the jury. The evidenceattrial established that it was the ‘victim’s friend, Adam,that instigated the incident, and it was undisputed that appellant was beaten and attacked with a knife by Adam during the brawl. Just before the shooting, Adam approached appellant again with the knife. Appellant pointed the gun at Adam but did not shoot because Adam backed away. (3 RT 612, 638.) The fact that appellant did not fire at Adam, but did fire at Luis, would have strongly suggested to the jury that appellant wastelling the truth whenhetestified Luis came rushing at him with a rock in his hand. (3 RT 617, 642.) Physical evidence — the blood stained rock the police recovered from the street near where Luis wasshot — further supported appellant’s self-defense claim. (2 RT 266, 272.) The length of the jury deliberations, somewherein the range of six to eight hours over the course of three days, and the numerous juryquestions and requests to rehear testimony,indicatethis was a close case. (4 CT 775, 854-862; see, e.g., People v. Woodard (1979) 23 Cal.3d 329, 341 | [defendant’s guilt “far from open and shut” where jury deliberated nearly -65- six hours]; People v. Cribas (1991) 231 Cal.App.3d 596, 607-608 [reaback request and jury question demonstrated “jury did not view its decision as clear cut”].) The jury rejected the most serious charge, murder, andthis was the one crime wherethe jury wastold it had to acquit unless the People proved each and every element beyond a reasonable doubt. (See Crawford, supra, 58 Cal.App.4th at p. 825 [emphasizing that jurors were instructed on reasonable doubt standard as to enhancement allegation which they rej ected, and. were not instructed on reasonable doubt standard as to underlying offense on which they convicted].) Without a clear, general instruction on the presumption of innocence and the prosecution’s burden ofproving guilt beyonda reasonable doubt, it cannot be concluded that the omission of CALJIC No.2.90 was harmless beyond a reasonable doubt as to appellant’s voluntary manslaughter conviction. The jury instruction relating to the substantive gang crime, count 3, did not include any referenceat all to the prosecution’s burden of proof or reasonable doubt. (4 CT 839-840.) By contrast, the instruction relating to the gang allegation did refer to the constitutionally mandated standard of proof, and the jury rejected this allegation. (4 CT 825.) “One can only speculate as to what the jurors would have done had they been admonished to find guilt only if they were convinced beyond a reasonable doubt”on the gang offense as well. (Crawford, supra, 58 Cal.App.4th at p. 825.) It - 66 - cannot be concluded beyond a reasonable doubtthatthetrial court’s failure to give sucha vital instruction did not contribute the jury’s verdict on count 3. “We must be ever diligent to guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” (Crawford, supra, 58 Cal.App.4th at p. 826.) Here, appellant’s right to have every element of the voluntary manslaughter andstreet terrorism offenses proved beyonda reasonable doubt wasnot adequately safeguarded. Thetrial court’s instructional omission wasnot harmlessas to either conviction. Reversal is required. -67- CONCLUSION Forall the foregoing reasons, appellant respectfully requests this Court find that the omission of CALJIC No. 2.90 from appellant’s trial requires automatic reversal of his convictions. Alternatively, should the Court concludethat the failure to deliver a standard reasonable doubt instruction to the impaneled jury wasnot a structural defect, reversal of appellant’s convictions is required under the Chapmanstandard. Respéctfully submitted, L1 William J. Capriola Counsel for Appellant - 68 - WORD COUNT COMPLIANCE Pursuant to rule 8.520(c) of the California Rule of Court, and in reliance on the word count of the computer program used to preparethis document, I hereby certify that this document contains 15,256 words, excluding the tables, cover information, signature block(s), quotation of issues, andthis certificate. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Sebastopol, California, on August 15, 2011. ZL William J. Capriola - 69 - DECLARATION OF SERVICE Re: People v. Aranda, $188204 1, William J. Capriola, declare that I am over eighteen years of age, and not a party to the within cause; my employmentaddressis Post Office Box 1536, Sebastopol, California 95473-1536. I served a true copy ofthe attached: APPELLANT’S OPENING BRIEF ON THE MERITS on each ofthe following, by placing same in an envelope (or envelopes) addressed (respectively) as follows: Office of the Attorney General Superior Court of California State of California County of Riverside Post Office Box 85266 4100 Main Street San Diego, CA 92186 Riverside, CA 92501 Appellate Defenders,Inc. Office ofthe District Attorney 555 West BeechStreet, Suite 300 Riverside County San Diego, CA 92101 3960 OrangeStreet Riverside, CA 92501 Clerk of the Court of Appeal Fourth Appellate District, Division One Anthony Aranda, G-52174 750 B Street, Suite 300 P.O. Box 3030 San Diego, CA 92101 Susanville, CA 96127 Each envelope was then, on August 16, 2011, sealedand deposited in the United States Postal Service at Sebastopol, California, in the county in which I am employed, with the first class postage thereon fully prepaid. I declare under penalty of perjury that the foregoingis true and correct. Executed at Sebastopol, California, this 16th day of August, 2011. William J. Capriola
