Filed 7/24/14 P. v. Diaz CA2/1 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JUAN DIAZ, 

 Defendant and Appellant. 

 B248386 

 (Los Angeles County 

 Super. Ct. No. BA397666) 

 APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara 

R. Johnson, Judge. Reversed. 

 Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Brendan 

Sullivan, Deputy Attorneys General, for Plaintiff and Respondent. 

____________________________________________ 
2

 A jury convicted Juan Diaz of burglary. In instructing the jury prior to its 

deliberation, the court apparently through inadvertence neglected to instruct that the 

defendant is presumed innocent and that he must be proven guilty beyond a reasonable 

doubt. On review of the whole record of instructions, we conclude that the court’s failure 

to instruct on reasonable doubt requires Diaz’s conviction be reversed. 

FACTS AND PROCEEDINGS BELOW 

 We summarize the facts briefly because, as we explain below, the strength of the 

prosecution’s evidence is irrelevant to our decision. 

 Based on information obtained from a wiretap, police believed that Diaz and an 

accomplice intended to assault Rafael Davila in his auto shop. Police officers observed 

Diaz and a companion enter the shop and later run out and drive away. The officers 

stopped and detained Diaz and his companion. In a field identification, Davila identified 

the two men as the ones who assaulted him and attempted to rob him in his shop. 

 The People charged Diaz with robbery and burglary. A jury convicted him of 

burglary and acquitted him of robbery. The court sentenced Diaz to the midterm of 

two years in prison. Diaz filed a timely notice of appeal. 

DISCUSSION 

Penal Code section 1096 provides in relevant part that: “[a] defendant in a 

criminal action is presumed to be innocent until the contrary is proved . . . beyond a 

reasonable doubt” and defines the term “reasonable doubt.” Evidence Code section 502 

states that “[t]he court . . . shall instruct the jury as to which party bears the burden of 

proof on each issue and as to whether that burden requires that a party raise a reasonable 

doubt concerning the existence or nonexistence of a fact . . .” 

The substance of Penal Code section 1096, quoted above, has been incorporated 

into CALCRIM No. 220. (People v. Aranda (2012) 55 Cal.4th 342, 353 (Aranda).) 

Here, however, the court read only the first paragraph of CALCRIM No. 220 which 

states: “The fact that a criminal charge has been filed against the defendants is not 

evidence that the charge is true. You must not be biased against the defendants just 
3

because [they have] been arrested, charged with a crime, or brought to trial.” The court 

skipped the rest of the instruction which declares that the defendant “is presumed to be 

innocent” and that this presumption requires that the People prove the defendant is 

“guilty beyond a reasonable doubt.” The court also failed to read the instruction’s 

definition of “reasonable doubt.”1 The written version of CALCRIM No. 220 that the 

court submitted to the jury also contained only the first paragraph. Diaz maintains that 

these omissions violated his rights to due process and a fair trial under federal and 

California law. 

We agree with Diaz that the court committed reversible error in failing to instruct 

the jury prior to its deliberations that in order to find him guilty of a crime it must be 

convinced beyond a reasonable doubt as to every element of the crime. 

A. Failure To Give A Predeliberation Instruction On Proof Beyond A 

Reasonable Doubt Amounted To Federal Constitutional Error. 

In Aranda, supra, our high court stated the rule to be applied when the trial court 

fails to give the “standard” reasonable doubt instruction on reasonable doubt, (i.e. 

CALCRIM No. 220 or CALJIC No. 2.90). “[T]he omission of the standard reasonable 

doubt instruction will amount to a federal due process violation when the instructions that 

were given by the court failed to explain that the defendant could not be convicted 

‘unless each element of the crimes charged was proved to the jurors’ satisfaction beyond 

a reasonable doubt.’ . . .” (Aranda, supra, 55 Cal.4th at p. 358; citation omitted.) It is not 

 

1

 The missing portion of CALCRIM No. 220 states: “A defendant in a 

criminal case is presumed to be innocent. This presumption requires that the People 

prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People 

must prove something, I mean they must prove it beyond a reasonable doubt [unless I 

specifically tell you otherwise]. [¶] Proof beyond a reasonable doubt is proof that leaves 

you with an abiding conviction that the charge is true. The evidence need not eliminate 

all possible doubt because everything in life is open to some possible or imaginary doubt. 

[¶] In deciding whether the People have proved their case beyond a reasonable doubt, 

you must impartially compare and consider all the evidence that was received throughout 

the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable 

doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not 

guilty. 
4

sufficient that the trial court referred to reasonable doubt in connection with “narrow 

evidentiary or procedural determinations.” (Id. at pp. 358-359, citing cases.) The trial 

court must connect the reasonable doubt requirement to the elements of the substantive 

crime charged. (Id. at pp. 357, 358-359.) 

The Supreme Court, in Aranda, held that the trial court satisfied this test in 

instructing on a charge of murder and its lesser included offenses but failed the test with 

respect to a charge of participation in a criminal street gang. (Aranda, supra, 55 Cal.4th 

at p. 350.) Due process was satisfied as to the murder charge because “the trial court 

repeatedly referred to the prosecution’s burden of proving guilt beyond a reasonable 

doubt when instructing on the murder charge and its lesser included offenses, clearly and 

directly connecting the requisite standard of proof to those offenses.” (Aranda, at p. 361, 

italics added.) 

In the case before us the trial court referred to proof beyond a reasonable doubt 

in its instructions on eyewitness identification, circumstantial evidence, the defendant’s 

right not to testify, and aiding and abetting. None of these isolated applications of the 

reasonable doubt standard, however, explained that Diaz could not be convicted of 

robbery or burglary “‘unless each element of the crimes charged was proved to the jurors’ 

satisfaction beyond a reasonable doubt.’ . . .” (Aranda, supra, 55 Cal.4th at p. 358; 

citation omitted.) Nor did any of these instructions define the term “reasonable doubt.” 

In People v. Flores (2007) 147 Cal.App.4th 199, 215-216 (Flores), for example, the court 

held that due process was not satisfied by reference to proof beyond a reasonable doubt in 

the trial court’s instructions on circumstantial evidence and the defendant’s right not to 

testify. The trial court’s predeliberation instructions in this case did not satisfy federal 

constitutional standards as interpreted by our high court in Aranda. 

We recognize that prior to the commencement of jury selection the court 

explained some basic rules of law and procedure to the potential jurors by reading 

CALCRIM No. 103 which informed them that “[a] defendant in a criminal case is 

presumed to be innocent”; that this presumption “requires that the People prove a 
5

defendant guilty beyond a reasonable doubt”; and defined the term “reasonable doubt.” 

In Aranda, however, the court noted that “no decision has viewed instructions and 

remarks at this stage of the proceedings as an adequate substitute for the court’s duty 

to instruct the jurors prior to deliberation on the principle of proof beyond a reasonable 

doubt.” (Aranda, supra, 55 Cal.4th at p. 362, fn. 11, see discussion of harmless error, 

post.) 

B. The Error Was Not Harmless Beyond a Reasonable Doubt. 

We turn now to the question whether, in light of all the instructions given, the 

court’s error in not giving a predeliberation instruction on reasonable doubt may properly 

be found harmless beyond a reasonable doubt. (Aranda, supra, 55 Cal.4th at p. 367.) 

Again, we look to Aranda for guidance. 

In assessing harmless error in Aranda our Supreme Court began by rejecting the 

usual “Chapman” analysis2 which relies heavily on the strength of the prosecution’s 

case. (Aranda, supra, 55 Cal.4th at p. 368; see e.g. People v. Houston (2012) 54 Cal.4th 

1186, 1222.) The court explained that if a reviewing court found that the failure to 

instruct on reasonable doubt was harmless based on the overwhelming weight of the 

prosecution’s case the court would be “expressing its own idea ‘of what a reasonable jury 

would have done.’” When a court does that, “‘“ the wrong entity judge[s] the defendant 

guilty.”’” (Ibid., citations omitted.) Therefore, “[n]o matter how overwhelming a court 

may view the strength of the evidence of the defendant’s guilt, that factor is not a proper 

consideration on which to conclude that the erroneous omission of the standard 

reasonable doubt instruction was harmless under Chapman.” (Ibid.) Instead of relying 

on the strength of the prosecution’s evidence, the appellate court “should evaluate the 

record as a whole” to assess how the trial court’s error in failing to instruct on reasonable 

doubt affected the jury’s determination of guilt. (Ibid.) “If it can be said beyond a 

reasonable doubt that the jury must have found the defendant’s guilt beyond a reasonable 

 

2 Chapman v. California (1967) 386 U.S. 18, 24. 
6

doubt, the error is harmless. If the reviewing court cannot draw this conclusion, reversal 

is required.” (Ibid.) 

After reviewing the record of the trial court’s instructions, we cannot declare a 

belief that omitting an instruction on reasonable doubt from the predeliberation 

instructions was harmless beyond a reasonable doubt. 

 In Aranda the court found that the failure to give a predeliberation instruction on 

reasonable doubt as to the gang charge was harmless error because (1) the trial court gave 

that instruction with respect to the murder charge and it was not reasonably possible 

that the jury would have thought a different standard applied to the gang charge (Aranda, 

supra, 55 Cal.4th at p. 369); (2) the trial court read the CALJIC reasonable doubt 

instruction to the prospective jurors and throughout the next two days of jury selection 

continued to reference and clarify the reasonable doubt standard (id. at pp. 371-372); 

(3) the trial court, in its introductory remarks, explained the connection between the 

standard of reasonable doubt and the elements of the charged crimes (id. at p. 372); and 

(4) the trial court’s pretrial instructions did not conflict with its predeliberation 

instructions and the court instructed the jury that all of its instructions, whether given 

before, during or after the taking of testimony “‘are of equal importance’” (id. at p. 373). 

 This case is distinguishable from Aranda in all of the preceding aspects. Unlike 

Aranda, the trial court in this case did not give the reasonable doubt instruction with 

respect to one of the charged crimes but not the other. And, although the court read an 

instruction on reasonable doubt to the jury venire, unlike Aranda, the record does not 

show that the court repeated and expounded on that standard during jury selection. 

(Cf. Aranda, supra, 55 Cal.4th at p. 371.) Furthermore, seven days elapsed between 

the court’s explanation of the reasonable doubt requirement to the crowd of prospective 

jurors and the court’s predeliberation instructions to the twelve jurors who would decide 

the case. (Cf. People v. Elguera (1992) 8 Cal.App.4th 1214, 1223 [jurors “unlikely to 

remember [reasonable doubt instruction] read to them five and one-half hours earlier”].) 

As pointed out in Flores, supra, 147 Cal.App.4th at p. 215 “it is unreasonable to expect 
7

prospective jurors, who have yet to be empanelled and sworn as actual jurors in the trial, 

to give the necessary attention and weight to instructions given by a trial court during 

jury selection as the federal constitution requires.” 

 In sum, we cannot say that the trial court’s error was harmless beyond a 

reasonable doubt. Accordingly, we reverse the judgment.3

DISPOSITION

 The judgment is reversed. 

 NOT TO BE PUBLISHED. 

 ROTHSCHILD, P. J. 

We concur: 

 JOHNSON, J. 

 MILLER, J.

 

3

 Given this holding we need not address Diaz’s other claims of error. 



 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.