Filed 7/24/14 P. v. Diaz CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey 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 in advertence neglected to instruct that the defendant is presumed innocent and that he must be proven gu ilty beyond a reasonable doubt. On review of the whol e record of instructions, we c onclude that the court’s failure to instruct on reasonable doubt requi res Diaz’s conviction be reversed. FACTS AND PROC EEDINGS BELOW We summarize the facts briefly because, as we explain below, the strength of the prosecution’s evidence is i rrelevant to our decision. Based on information obtained from a wi retap, 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 late r run out and drive away. The officers stopped and detained Diaz and hi s companion. In a field iden tification, Davila identified the two men as the ones who assaulted hi m 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 rele vant part that: “[a] defendant in a criminal action is presumed to be innocent until the contra ry is proved . . . beyond a reasonable doubt” and defines the term “reas onable doubt.” Eviden ce 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 bu rden 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 fi rst 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 just3 because [they have] been arrest ed, charged with a crime, or brought to trial.” The court skipped the rest of the instruction which decl ares 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 cour t also failed to re ad 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 fi rst paragraph. Diaz maintains that these omissions violated his rights to du e 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 fi nd 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 Predeliberatio n 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 doub t instruction on reason able 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 pr ocess violation when the instructions that were given by the court failed to explain th at the defendant could not be convicted ‘unless each element of the crimes charged wa s proved to the jurors’ satisfaction beyond a reasonable doubt.’ . . .” ( Aranda , supra , 55 Cal.4th at p. 358; c itation 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 eviden ce need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have pr oved 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 requir ement 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 less er included offenses but failed the test with respect to a charge of participati on in a criminal street gang. ( Aranda , supra , 55 Cal.4th at p. 350.) Due process was satisfied as to the murder ch arge because “the trial court repeatedly referred to the prosecution’s burden of prov ing guilt beyond a reasonable doubt when instructing on th e murder charge and its lesser included offenses, clearly and directly connecting the requisite st andard of proof to those offenses .” ( Aranda , at p. 361, italics added.) In the case before us the trial court re ferred to proof beyond a reasonable doubt in its instructions on eyewitn ess identification, circumstan tial evidence, the defendant’s right not to testify, and aiding and abetting. None of these isolated applications of the reasonable doubt standard, however, explaine d that Diaz could not be convicted of robbery or burglary “‘unless each element of th e 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 instru ctions 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 refe rence to proof beyond a reasonable doubt in the trial court’s instructions on circumstantia l evidence and the defe ndant’s right not to testify. The trial court’s predeliberation inst ructions in this case did not satisfy federal constitutional standards as inte rpreted by our high court in Aranda

. We recognize that prior to the comme ncement of jury selection the court explained some basic rules of law and procedure to the potential jurors by reading CALCRIM No. 103 which inform ed them that “[a] defendant in a criminal case is presumed to be innocent”; that this pres umption “requires that the People prove a5 defendant guilty beyond a reas onable doubt”; and defined the term “reasonable doubt.”
In Aranda , however, the court noted that “no d ecision 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 beyon d 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 ” analysis 2 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 “expressi ng 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 evid ence 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 instruc tion 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 cour t’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 dr aw 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 reas onable doubt from th e 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 ha rmless 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 clarif y the reasonable doubt standard ( id . at pp. 371-372); (3) the trial court, in its introductory re marks, 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 inst ructed 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 gi ve 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 doub t to the jury venire, unlike Aranda , the record does not show that the court repeated and expounded on that standa rd during jury selection. (Cf. Aranda , supra , 55 Cal.4th at p. 371.) Furthe rmore, seven days elapsed between the court’s explanation of the reasonable doub t requirement to the crowd of prospective jurors and the court’s predeliberation instruc tions 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 instru ction] read to them five an d one-half hours earlier”].) As pointed out in Flores , supra , 147 Cal.App.4th at p. 215 “it is unreasonable to expect7 prospective jurors, who have yet to be empanelle d 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 fe deral constitution requires.” In sum, we cannot say that the tria l 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.