Filed 8/26/13 P. v. Vera CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047014

                   v.                                                  (Super. Ct. No. 10WF2527)

ANASTACIO VERA,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Richard
W. Stanford, Jr. and James Edward Rogan, Judges. Reversed and remanded.
                   Ron Boyer, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, Lynne
McGinnis, Felicity Senoski and Julianne Reizen Deputy Attorneys General, for Plaintiff
and Respondent.
                                          *                  *                  *
              Defendant Anastacio Vera was convicted of three counts of lewd acts upon
a child under age 14 (Pen. Code, § 288, subd. (a)), one count of forcible lewd acts upon a
child under age 14 (Pen. Code, § 288, subd. (b)(1)), and one count of sodomy with a
minor under age 14 (Pen. Code, § 286, subd. (c)(1)). On appeal, he argues that his due
process rights were violated when the court repeatedly made comments to the jury that
diminished the presumption of innocence and suggested the burden of proof was
something other than proof beyond a reasonable doubt. We agree and reverse the
judgment.
                                             I
                                         FACTS
Testimony of Victim’s Mother
              The mother of the 12-year-old victim, came home from the store to see the
shadows of two people in the kitchen struggling, the defendant and her son. Defendant
appeared to be nervous. She had a feeling something was not right. She asked her son
what happened in the kitchen and he wouldn‟t tell her. The next day, she took him to the
hospital to be checked by a doctor, and hospital personnel contacted the police.


Testimony of Victim
              The victim testified he was doing his homework and defendant approached
him and started touching him. When he was asked where defendant touched him, he
responded, “in my butt,” and said it was over his clothes. The victim pushed defendant‟s
hand and went back to his homework.
              A week later, the victim was once again doing his homework in the living
room, and went to the kitchen for some water, when defendant did the same thing. Then
defendant pulled the victim‟s hand toward defendant‟s bedroom. Defendant pulled him
to the bed by the victim‟s shoulders and told him to pull his pants down. The victim
testified: “I said „no‟ and I was trying to get away, but he wouldn‟t let me go away.”

                                            2
Defendant pulled the boy‟s pants down and “then he put his down and then he started to
put his front part in my back.” At first, defendant touched the victim‟s buttocks and his
penis.
              The following questions and answers took place between the prosecutor
and the victim:
              “Q: His front part being his penis?
              “A: Yes.
              [¶] . . . [¶]
              “Q: Did it go in all the way or a little bit?
              [¶] . . . [¶]
              “A: All the way.
              “Q: So it went inside?
              “A: Yes.
              “Q: Did it hurt?
              “A: Yes.
              “Q: And did you tell him to stop?
              “A: Yeah.
              “Q: Did he stop?
              “A: No.”
              Defendant was inside the victim for approximately 30 seconds when the
victim managed to push him away. The prosecutor asked what happened when he
pushed him away, and the victim answered: “I just — when I pushed him away he tried
to stop me, but I — I just went back to the living room doing my homework.”
              The victim described the third occasion: “I was watching TV then I went to
go — go get a drink of water. And then he just came up to me and he was touching me,
but then he stopped because he heard my mom come in the door.” The touching was on



                                              3
his “butt” again. The victim also said that defendant was pulling the victim‟s hand
toward defendant‟s penis, which the victim touched for about five seconds.


Court’s Remarks to Jury1
                 During jury selection, the court stated:
    — “And then you decide whether the charges are proven sufficiently for you; if so,
      you vote guilty on the particular charge. If you believe that the charges were not
      sufficiently proven to you and you remain unconvinced, then your duty according
      to the instructions, is to vote not guilty.”
    — “And so that‟s why we come down, after months and months of appearances in
      court and so forth, to a day like today where we actually have to have trial jurors
      listen to the evidence and decide whether the charges are true or not . . . .”
    — “And, again, that‟s why we need jurors to listen to some testimony in evidence
      and decide if the evidence is sufficient to convince you that the charges are true or
      not.”
    — “[T]here‟s one jury instruction that‟s in that packet that I‟m required to read and
      it‟s an instruction on presumption of innocence, burden of proof. And it goes
      something like this: Basically it tells you that in every criminal case, including this
      criminal case, the defendant is presumed to be innocent unless and until his guilt is
      actually shown by evidence during the course of the trial. And in a case where his
      guilt is not satisfactorily shown, he‟s entitled to an acquittal or a verdict of not
      guilty.”
    — “It goes on to state that this presumption then places on the prosecutor, . . . here,
      the burden of proving to you his guilt beyond a reasonable doubt. And it even
      defines what is a reasonable doubt, not very helpfully unfortunately, but it defines it


1                All italics in court‟s quoted remarks are added.

                                                4
      as it‟s not a mere possible doubt, because, of course, everything in life is open to
      possible or imaginary doubt. But instead it‟s the kind of a case where after you
      heard all of the evidence it‟s left your mind in the kind of condition where you
      can‟t say you feel an abiding conviction of the truth of the charge. Whatever that
      means.”
   — “Now, that could mean a lot of different things to different people. But there‟s a
      couple of things that I want to explain that I believe it means and find out if
      anybody needs to talk about it or thinks that that‟s a problem for you. [¶] First of
      all, that presumption of innocence is what we call a procedural presumption, not a
      substantive presumption. I’m not telling you that the defendant is innocent. I’m
      telling you that that’s the starting point of the trial. He’s presumed innocent and
      remains so unless and until his guilt is shown by actual evidence.”
   — “Another thing about that is the definition of reasonable doubt could mean
      different things to different people, but in that sense it has been left up to you.”
   — “In other words, if the prosecutor presents evidence and witnesses that convince
      you, the jury instructions, rightfully so, tell you are supposed to vote guilty. But
      those same instructions tell you if the prosecutor doesn’t convince you, doesn‟t
      bring in sufficient evidence to convince you, your duty is to vote not guilty.”
   — “[I]f you believe it happened, then you are supposed to vote guilty.”
   — “The issue is can you commit to following the instruction if you are not convinced
      that you have to vote not guilty.”
   — “If you are convinced, you have to vote guilty; if not, you are required to vote not
      guilty.”
                 After the close of evidence, the court stated:
                 “I‟ll warn you, again, that remember when I started reading you the
instructions at the beginning of the case? Those were the basic items and a lot of that is
covered in the first portion of what I‟ll be reading to you.”

                                                5
Court’s Formal Concluding Instructions
              The court instructed the jury with CALCRIM Nos. 200 and 220.
CALCRIM No. 200, as given in writing, provides in pertinent part as follows: “You
must follow the law as I explain it to you, even if you disagree with it. . . .” “Some words
or phrases used during this trial have legal meanings that are different from their
meanings in everyday use. These words and phrases will be specifically defined in these
instructions. Please be sure to listen carefully and follow the definitions that I give
you . . . . [¶] . . . After you have decided what the facts are, follow the instructions that do
apply to the facts as you find them.”
              CALCRIM No. 220, as given in writing, provides in pertinent part as
follows: “A defendant in a criminal case is presumed to be innocent. This presumption
requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I
tell you the People must prove something, I mean they must prove it beyond a reasonable
doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not eliminate all possible doubt
because everything in life is open to some possible or imaginary doubt. [¶] . . . Unless
the evidence proves the defendant guilty beyond a reasonable doubt, he (is) entitled to an
acquittal and you must find him not guilty.”
              In addition to providing these instructions to the jury in written form, the
judge read them to the jury with only minor variations.
                                               II
                                        DISCUSSION
              Defendant does not quibble with the court‟s written or oral instruction
pursuant to CALCRIM Nos. 200 and 220. Rather, he asserts that the court violated his
due process rights by making comments to the jury during voir dire that were confusing
and diminished the burden of proof and presumption of innocence.



                                               6
              Penal Code section 1096 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 or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the
effect of this presumption is only to place upon the state the burden of proving him or 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 jurors in that
condition that they cannot say they feel an abiding conviction of the truth of the charge.‟”


Burden of Proof
              “„The reasonable-doubt standard plays a vital role in the American scheme
of criminal procedure. It is a prime instrument for reducing the risk of convictions
resting on factual error. The standard provides concrete substance for the presumption of
innocence—that bedrock “axiomatic and elementary” principle whose “enforcement lies
at the foundation of the administration of our criminal law.” [Citation.]‟ [Citation.] Due
process „protects the accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he [or she] is charged.‟
[Citation.]” (People v. Johnson (2004) 119 Cal.App.4th 976, 978-979.)
              In People v. Johnson, supra, 119 Cal.App.4th 976, “during jury selection
the court amplified at length on the standard reasonable doubt instruction . . . .” (Id. at p.
979.) “The court authorized the prospective jurors to find [the defendant] guilty even if
they were to have „some doubt‟ about his guilt and characterized a juror who render[ed] a
guilty verdict with „no doubt‟ about his guilt as „brain dead‟: „So you‟ve got to be
convinced beyond a reasonable doubt, not beyond all possible doubt. [¶] . . . [I]f any of
you think you can sit in a jury trial in a criminal case and render a guilty verdict and walk
out of this courtroom feeling good about the verdict because there is absolutely no doubt

                                               7
in your mind, it will not happen. Even if you render a guilty verdict, there will be some
doubt in your mind[s]. [¶] If there is no doubt in your mind, then I can tell you you were
brain dead during the trial—you are brain dead. That‟s not going to happen.‟” (Id. at p.
980.) In addition, “[t]he court equated proof beyond a reasonable doubt to everyday
decision-making in a juror‟s life . . . .” (Ibid.) In making his argument to the jury, the
prosecutor emphasized the court‟s instructions, that any “juror who could return a guilty
verdict without „some doubt‟ about [the defendant‟s] guilt [was] „brain dead,‟” and that
proof beyond a reasonable doubt was equivalent to everyday decision-making. (Id. at p.
983.) After the parties rested, the court gave the jury a standard instruction on proof
beyond a reasonable doubt. (Id. at p. 984.)
              Notwithstanding the fact that the trial court gave a standard instruction
before the jury deliberated, the appellate court held: “[The trial] court‟s tinkering with
the statutory definition of reasonable doubt, no matter how well intentioned, lowered the
prosecution‟s burden of proof below the due process requirement of proof beyond a
reasonable doubt. [Citations.] Lamentably, „the essential connection to a “beyond a
reasonable doubt” factual finding cannot be made where the instructional error consists of
a misdescription of the burden of proof, which vitiates all the jury‟s findings.‟ [Citation.]
The error „unquestionably qualifies as “structural error”‟ and compels reversal per se.
[Citations.]” (People v. Johnson, supra, 119 Cal.App.4th at pp. 985-986.)
              In People v. Garcia (1975) 54 Cal.App.3d 61, the appellate court, in
discussing the definition of proof beyond a reasonable doubt, cautioned that “[w]ell
intentioned efforts to „clarify‟ and „explain‟ these criteria have had the result of creating
confusion and uncertainty, and have repeatedly been struck down by the courts of review
of this state.” (Id. at p. 63.) In Garcia, the trial court, at the conclusion of the evidence,
properly instructed the jury on the standard of proof beyond a reasonable doubt as set
forth in Penal Code section 1096. However, it “then amplified that instruction [with] the
following language: „In other words, reasonable doubt means just what the term implies,

                                               8
doubt based upon reason, doubt that presents itself in the minds of reasonable people who
are weighing the evidence in the scales, one side against the other, in a logical manner in
an effort to determine wherein lies the truth.‟” (Id. at p. 68, fn. omitted.)
               The appellate court in People v. Garcia, supra, 54 Cal.App.3d 61 held that
the trial court erred in giving the supplemental instruction. (Id. at p. 69.) The appellate
court stated: “This supplemental instruction purported to explain the meaning of the
previously given language of section 1096. . . . [¶] This final explanatory instruction is
strikingly comparable to the civil case rule of „“preponderance of evidence” [by which] is
meant such evidence as, when weighed with that opposed to it, has more convincing
force, and from which it results that the greater probability‟. . . of truth lies therein.
[Citations.]” (Id. at pp. 68-69.)
               Here the court properly instructed the jury at the conclusion of the case as
well, but only after reminding the jury not to forget what it said at the beginning. And the
court‟s remarks during voir dire are quite troubling. Over and over the court gave
shorthand versions of the correct statement of law. Compounding the problem was that,
when the court did correctly state the law, it followed up with disparaging remarks such
as stating the instructions were not very helpful. The court also made side comments,
after giving correct statements of the law, such as “whatever that means” and “that could
mean a lot of different things to different people.”


Presumption of Innocence
               “„The principle that there is a presumption of innocence in favor of the
accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the
foundation of the administration of our criminal law.‟ [Citation.]” (Taylor v. Kentucky
(1978) 436 U.S. 478, 483.) The presumption of innocence is preserved “up and until
unanimous agreement is reached.” (People v. Goldberg (1984) 161 Cal.App.3d 170,
190.)

                                                9
              “A jury instruction on the presumption of innocence is not constitutionally
required in every case to satisfy due process, because such an instruction merely offers an
additional safeguard beyond that provided by the constitutionally required instruction on
reasonable doubt.” (Arizona v. Fulminante (1991) 499 U.S. 279, 291.) The United States
Constitution requires that jury instructions convey “that the accused is presumed innocent
until proved guilty.” (People v. Flores (2007) 153 Cal.App.4th 1088, 1093.) “[U]nder
the United States Supreme Court‟s opinion in Taylor v. Kentucky [supra, 436 U.S. 478],
the presumption-of-innocence instruction, which merely provides an additional safeguard
against unjust convictions, is required only where the totality of the circumstances
suggests that the defendant received a less than fair trial.” (People v. Beeson (2002) 99
Cal.App.4th 1393, 1403, fn. omitted.) Ordinarily “a defendant is accorded the
presumption of innocence . . . with . . . CALCRIM 220.” (People v. Aranda (2012) 55
Cal.4th 342, 354.)
              Here the jury was given a variety of instructions regarding the presumption
of innocence in addition to CALCRIM No. 220. The jury was told by the court the
defendant was presumed to be innocent as “the starting point of the trial” until guilt was
shown by “evidence during the course of the trial” and until guilt was “shown by actual
evidence.” Thus, the jury was given several options. It could presume defendant to be
innocent until: 1) he was proved guilty; 2) sometime after the trial starts; 3) his guilt was
shown by evidence during the trial; or, 4) his guilt was shown by actual evidence. The
jury was also told the presumption of innocence is not substantive, an explanation which
could easily lead to a conclusion that the presumption of innocence is neither meaningful
nor important.
              The court here attempted to explain the burden of proof and the
presumption of innocence many times. To a lay jury, the court‟s apparently
extemporaneous statements had to be confusing. At times, the court explained that the
jury was simply to decide whether or not the charges were true, statements which

                                             10
decreased the prosecutor‟s burden to prove defendant guilty beyond a reasonable doubt.
With regards to the court‟s remarks seemingly disparaging the law by stating “whatever
that means” and “that could mean a lot of different things to different people,” at best the
court was inviting the jurors to consider the law to be fluid and open to varying
interpretations. Such statements were also suggestive that each juror was to make
decisions based upon his or her personal predilections.


Structural Error
              Structural errors are constitutional deprivations affecting the framework
within which the trial proceeds. (Arizona v. Fulminante, supra, 499 U.S. at p. 310.)
Whether there has been structural error is determined on a case-by-case basis. (Neder v.
U. S. (1999) 527 U.S. 1, 14.) Structural errors defy analysis by harmless error standards.
(Id. at p. 7.) Such errors warrant reversal without a showing of prejudice. (U. S. v.
Marcus (2010) 560 U.S. 258 [130 S.Ct. 2159, 2162].)
              The Attorney General argues the California Supreme Court recently held in
People v. Aranda, supra, 55 Cal.4th 342, that failure to give a predeliberation reasonable
doubt instruction with regard to one of the charges constituted error under both federal
and state law, but was not reversible per se and was subject to review under Chapman v.
California (1967) 386 U.S. 18.
              The Aranda court explained that Chapman “established that federal
constitutional errors are properly subject to review for harmlessness. In the nearly 50
years since Chapman was decided, the high court repeatedly has emphasized that most
errors implicating a federal constitutional right, including most instructional errors, are
amenable to harmless error analysis and that only a „very limited class of cases‟ are
subject to per se reversal. [Citations.]” (People v. Aranda, supra, 55 Cal.4th at p. 363.)
The Aranda court went on to say that “the high court categorized constitutional errors
into two groups. Most errors, the court explained, are „“trial error[s],”‟ occurring „during

                                             11
the presentation of the case to the jury.‟ [Citation.] They are amenable to harmless error
review because they can be „quantitatively assessed in the context of other evidence
presented in order to determine whether [their] admission was harmless beyond a
reasonable doubt.‟ [Citation.] „Structural defects,‟ on the other hand, „defy analysis by
“harmless-error” standards‟ [citation] because they are not „simply an error in the trial
process,‟ but rather an error „affecting the framework within which the trial proceeds‟
[citations].” (Id. at pp. 363-364.) Structural errors require automatic reversal because
they infect the entire trial process. (Id. at p. 364.)
               Following the holding in Sullivan v. Louisiana (1993) 508 U.S. 275, the
California Supreme Court held that “giving of a constitutionally deficient reasonable
doubt instruction can never be deemed harmless under a Chapman analysis.” (People v.
Harris (1994) 9 Cal.4th 407, 427.)
               The law states that a presumption of innocence instruction merely offers an
additional safeguard beyond the required reasonable doubt instruction. (Arizona v.
Fulminante, supra, 499 U.S. at p. 291.) At the same time, the law also says the
presumption of innocence standard is the bedrock and foundation of the administration of
our criminal law, and due process “protects the accused against conviction except upon
proof beyond a reasonable doubt.” (In re Winship (1970) 397 U.S. 358, 364.) Thus,
satisfactory instructions on the presumption of innocence depend upon satisfactory
instructions on the burden of proof, and vice versa. Unfortunately the court provided
unsatisfactory instructions for both underpinnings of our criminal justice system.
               The court here attempted to explain the burden of proof and the
presumption of innocence many times. To a lay jury, the court‟s apparently
extemporaneous statements had to be confusing. At times, the court explained that the
jury was simply to decide whether or not the charges were true, statements which
decreased the prosecutor‟s burden to prove defendant guilty beyond a reasonable doubt.
With regards to the court‟s remarks seemingly disparaging the law by stating “whatever

                                               12
that means” and “that could mean a lot of different things to different people,” at best the
court was inviting the jurors to consider the law to be fluid and open to varying
interpretations. Such statements were also suggestive that each juror was to make
decisions based upon his or her personal predilections.
              From reading the record, it is obvious the judge here was attempting to
secure a jury ready and willing to follow the law. But in its zeal, the court paraphrased
the law incorrectly and incompletely so often, that we must conclude the errors are
structural and defy analysis by harmless error standards. Perhaps in attempting to make
sure jurors felt comfortable in unfamiliar surroundings, the court spoke lightheartedly
about the law, but while doing so, belittled and ridiculed concepts in our system of justice
that are essential to due process and fairness. Under these circumstances, we must
conclude defendant was denied due process and reverse.
                                             III
                                      DISPOSITION
              The judgment is reversed and the matter is remanded to the trial court.




                                                   MOORE, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



ARONSON, J.




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