Filed 7/11/13 P. v. Castanon 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B240764

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA051775)
         v.

MANUEL J. CASTANON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Kathleen Blanchard, Judge. Reversed and remanded.
                                                         ______
         Alex Coolman, 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, Linda C. Johnson and Michael
Katz, Deputy Attorneys General, for Plaintiff and Respondent.
                                                         ______
       An information, filed on April 6, 2011, charged Manuel J. Castanon with one
count of second degree robbery (Pen. Code, § 211)1 and specially alleged that he had
used a firearm while committing the offense (§ 12022.53, subd. (b)). The information
also specially alleged that Castanon (1) had a prior conviction for assault with a firearm
(§ 245, subd. (a)(2)) that qualified as a strike under the “Three Strikes” law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and subjected him to a five-year enhancement
under section 667, subdivision (a)(1); and (2) had served a prior prison term within the
meaning of section 667.5, subdivision (b).
       The jury found Castanon guilty of second degree robbery. It found not true the
special allegation of firearm use. In a bifurcated proceeding, Castanon admitted that he
had a prior conviction for assault with a firearm for purposes of sentencing under the
Three Strikes law, section 667, subdivision (a)(1), and section 667.5, subdivision (b).
The trial court sentenced Castanon to a state prison term of 11 years, consisting of the
middle term of three years for the second degree robbery, doubled under the Three
Strikes law, plus five years for the section 667, subdivision (a)(1), enhancement.
The court stayed execution of a one-year term for the section 667.5, subdivision (b),
prior prison term.
       On appeal, Castanon contends that the trial court’s omission of CALJIC No. 2.90,
the standard reasonable doubt instruction, requires reversal of the judgment.
We conclude that the court’s failure to define reasonable doubt for the jury, which
amounts to state law error, was not harmless under People v. Watson (1956) 46 Cal.2d
818, 836. We thus reverse the judgment.
                                      DISCUSSION
       The trial court, which used CALJIC to instruct the jury, did not include
CALJIC No. 2.90, explaining the presumption of innocence, burden of proof and defining




1
       Statutory references are to the Penal Code unless otherwise noted.

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reasonable doubt, in its predeliberation instructions.2 The failure to give the instruction
appears inadvertent, as Castanon represented that he did not have any instructions to
propose in addition to those listed by the trial court and no discussion occurred regarding
CALJIC No. 2.90. According to Castanon, the failure to give the instruction is reversible
error. We agree based on the court’s failure to define reasonable doubt for the jury.
       Under federal constitutional law, the “due process clause does not require a trial
court to use any particular phrase or form of words when instructing on” the presumption
of innocence. (People v. Aranda (2012) 55 Cal.4th 342, 355.) When the trial court gives
the “complete text of CALJIC No. 1.00, which inform[s] the jurors in relevant part that
they must determine defendant’s guilt based on the evidence received at trial, and not to
consider the fact of his arrest or that he is being brought to trial[,]” and thus “express[es]
the substance of the presumption of innocence, the trial court’s failure to include the
standard reasonable doubt instruction’s admonition on the presumption of innocence
d[oes] not amount to federal constitutional error.” (Id. at p. 356, fn. omitted.) As to
omission of the standard reasonable doubt instruction with respect to the People’s burden
of proof beyond a reasonable doubt, “the omission . . . 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 crime[] charged was
proved to the jurors’ satisfaction beyond a reasonable doubt.’ [Citation.] When the trial
court’s instructions otherwise cover this constitutional principle, the failure to instruct
with the standard reasonable doubt instruction does not constitute federal constitutional
error.” (Id. at p. 358.) Nevertheless, “when the court’s omission of the standard

2
       CALJIC No. 2.90 provides, “A defendant in a criminal action is presumed to 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 burden of proving [him] [her] guilty beyond a
reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible
doubt; because everything relating to human affairs is open to some possible or
imaginary doubt. It is that state of the case which, after the entire comparison and
consideration of all the evidence, leaves the minds of the jurors in that condition that they
cannot say they feel an abiding conviction of the truth of the charge.”

                                               3
reasonable doubt instruction constitutes federal constitutional error because the principle,
although mentioned elsewhere in the instructions, was not specifically linked to the
elements of a charged offense, but the court has not instructed with a definition of
reasonable doubt that effectively lowers the prosecution’s burden of proof, the error is
subject to harmless error review” according to the principles in Chapman v. California
(1967) 386 U.S. 18, 24. (Aranda, at p. 363.)3
       As for state law, “California law imposes a duty on the trial court to instruct the
jury in a criminal case on the presumption of innocence in favor of the defendant and the
prosecution’s burden of proving guilt beyond a reasonable doubt. . . . A court satisfies its
statutory obligation [under section 1096] to instruct on these principles by giving
CALJIC No. 2.90 or CALCRIM No. 220. . . . [¶] . . . [¶] However, . . . a trial court’s
failure to give the standard reasonable doubt instruction does not necessarily constitute
state law error. Although use of the standard instruction for such purposes is preferred, it
is not mandatory. [Citations.] . . . [A] court’s failure to give the standard reasonable
doubt instruction does not amount to state law error when its substance is covered in
other instructions given by the court. [Citations.] [¶] Under those circumstances in which
the court’s failure to include the standard reasonable doubt instruction in its
predeliberation instructions does constitute state law error, such error is reviewed for
prejudice under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 837 . . . ,
which inquires whether there is a ‘reasonable probability’ that a result more favorable
to the defendant would have occurred absent the error. [Citation.]” (Aranda, supra,
55 Cal.4th at pp. 352-354, fns. omitted.) A court’s “failure to define the term ‘reasonable
doubt’ does not amount to federal constitutional error . . . [¶] . . . [but] . . . constitute[s] an
error under state law.” (Id. at p. 374.) An appellate court also reviews such error under
the People v. Watson harmless error analysis. (Id. at p. 375.)

3
       Castanon argues that a violation of federal law as to the omission of the standard
reasonable doubt instruction, even when the trial court does not give an instruction that
lowers the People’s burden of proof, constitutes structural error, not subject to a harmless
error analysis, but recognizes that we are bound by Aranda, supra, 55 Cal.4th at p. 363.
(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

                                                4
       In this case, even assuming the instructions given to the jury covered the
presumption of innocence and the People’s burden of proof beyond a reasonable doubt on
each element of the crime of robbery, the trial court’s failure to define reasonable doubt
constituted error under state law. (Aranda, supra, 55 Cal.4th at p. 374.) Thus, the
question we must answer is whether the error was harmless under People v. Watson,
supra, 46 Cal.2d at p. 836. (See Aranda, at p. 375.)
       In Aranda, the Supreme Court concluded the trial court’s failure to define
reasonable doubt for the jury, either through the standard reasonable doubt instruction or
otherwise, was harmless. There, “the [trial] court gave the definition [of reasonable
doubt] when it read CALJIC No. 2.90 to the entire panel of prospective jurors, and
repeatedly explained the standard instruction’s principles during the three days of jury
selection.” (Aranda, supra, 55 Cal.4th at p. 376.) The Supreme Court noted, “Although
not sufficient in itself to relieve the trial court of its obligation to define reasonable
doubt for the sworn jurors during trial (and thus the court’s omission of the definition
in the predeliberation instructions constituted state law error), the court’s remarks to
prospective jurors can inform the harmless error analysis and further add some support to
our conclusion that there is no reasonable probability that defendant would have obtained
a more favorable outcome had the court included the standard reasonable doubt
instruction or otherwise defined reasonable doubt during its predeliberation instructions
to the jury. [Citations.]” (Ibid.) The Supreme Court thus “infer[red] . . . that the jury
was not left to guess as to the meaning of reasonable doubt . . . .” (Ibid.)
       We cannot make the same inference here. The trial court did not read
CALJIC No. 2.90, or otherwise define reasonable doubt, to prospective jurors. Although
during voir dire the prosecutor attempted to explain the concept of reasonable doubt to
the jurors, he did not use the instruction’s definition. Rather, his explanation in part
stated that proof beyond a reasonable doubt meant that the jury was “convinced by the
state of the evidence, the testimony and exhibits, that you can feel good and have this
abiding conviction that whatever verdict you return was the right verdict”—a concept
that does not fit squarely within the definition of reasonable doubt. Under these

                                                5
circumstances, in which the court did not define reasonable doubt for jurors at any point
in the proceedings, and the jury was provided an explanation that only in part coincided
with the meaning of the standard of proof, we, unlike in Aranda, cannot “infer . . . that
the jury was not left to guess as to the meaning of reasonable doubt . . . .” (Aranda,
supra, 55 Cal.4th at p. 376.) The state law error in failing to define reasonable doubt thus
was not harmless under People v. Watson, supra, 46 Cal.2d at p. 836.4




4
        Castanon also contends that the trial court erred by failing to sua sponte instruct
on the lesser included offense of theft. Although theft is a lesser included offense of
robbery, with robbery also requiring the use of force or fear, (People v. Waidla (2000)
22 Cal.4th 690, 737), the evidence did not merit a theft instruction. The victim testified
that, Castanon, in taking his property, pointed an object at him and hit him on the side of
the head with it. In addition, Castanon, with his cousin beside him, approached the
victim in his vehicle at 11:30 p.m., demanded that the victim “‘give me all you got’” or
“‘give me everything you got,’” searched the victim’s car and then left with the victim’s
wallet, containing credit and debit cards, cellular telephone and eyeglasses. The deputy
sheriff who came to the scene described the victim as “shaken up,” “his voice—he was
visibly shaken. You know, hands were trembling, his voice was very shaky, kind of up
and down in infle[c]tion; scared, essentially.” Castanon’s cousin’s testimony, if believed
by the jury, would have supported the theory that Castanon was not guilty of any offense,
not simply of theft. As a result, no substantial evidence supported the theory that
Castanon took property from the victim with the intent to steal but without the use of
force or fear. (See People v. Breverman (1998) 19 Cal.4th 142, 154 [lesser included
offense instruction required only “‘when the evidence raises a question as to whether all
of the elements of the charged offense were present [citation], but not when there is no
evidence that the offense was less than that charged’”].)
        Castanon complains as well about the instruction under CALJIC No. 3.00.
Although the instruction, to the extent it “describe[s] aiders and abettors and
direct perpetrators as being ‘equally guilty,’ may be misleading under certain
circumstances” (People v. Mejia (2012) 211 Cal.App.4th 586, 624; see People v. Nero
(2010) 181 Cal.App.4th 504, 518), the court did not err by giving it here. The court
also gave CALJIC No. 3.01, which told the jury that, under an aiding and abetting
theory of liability, it had to evaluate Castanon’s responsibility for the offense based on
his own state of mind and acts. (See Mejia, at p. 625.) Castanon’s claim that CALJIC
No. 3.00 might have led to confusion in the jury’s evaluation of his mental state, as
opposed to that of his cousin, in determining whether he was guilty of robbery or theft
does not suggest that giving the instruction was error. As noted, no substantial evidence
existed that the crime committed was the lesser offense of theft, as opposed to robbery.

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                                     DISPOSITION
      The judgment is reversed. The matter is remanded to the trial court for further
proceedings not inconsistent with this opinion.
      NOT TO BE PUBLISHED.




                                                  ROTHSCHILD, J.
We concur:



             MALLANO, P. J.



             CHANEY, J.




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