Filed 8/27/12




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                               S188204
           v.                        )
                                     )                        Ct.App. 4/1 D055701
ANTHONY ARANDA, JR.,                 )
                                     )                         Riverside County
           Defendant and Appellant.  )                     Super. Ct. No. SWF010404
____________________________________)


      It is a fundamental precept of our criminal justice system that before a jury
may convict a defendant of a criminal offense, it must find that the prosecution has
proved all elements of the offense beyond a reasonable doubt. State law and the
federal Constitution require the trial court to instruct with regard to this
fundamental principle when it advises the jurors of the applicable rules of law that
govern their deliberation and decision. In California, a trial court ordinarily
satisfies this obligation by instructing the jury under one of two ―pattern‖ or
―standard‖ reasonable doubt instructions. (See CALCRIM No. 220, CALJIC
No. 2.90, hereafter sometimes referred to as the standard reasonable doubt
instruction.)
      In the present case, defendant was charged with two separate crimes, murder
and participation in a criminal street gang (hereafter sometimes referred to as the
gang offense). After the conclusion of the presentation of evidence and closing
arguments, when the trial court instructed the jurors on the applicable legal



                                           1
principles immediately prior to their deliberations, the court inadvertently failed to
include the standard reasonable doubt instruction. With regard to the murder
charge, however, the trial court‘s instructions did inform the jury that in order to
find defendant guilty of that crime, or any lesser offense included in that crime, it
must find that the prosecution had proved each of the required elements of the
offense beyond a reasonable doubt. By contrast, the court‘s instructions relating to
the gang offense did not indicate that every element of that charge must be proved
beyond a reasonable doubt. The jury returned verdicts acquitting defendant of
murder and finding him guilty of the lesser offense of voluntary manslaughter. It
also found defendant guilty of the gang offense.
     The question before us is whether the court‘s failure to include the standard
reasonable doubt instruction in its predeliberation instructions in this case
constituted error with regard to either the voluntary manslaughter conviction or the
gang offense conviction and, if so, whether the error can and should be found
harmless. In resolving those questions, we must consider both California and
federal law because the inquiry is different depending upon whether the error
arises from state law or from the federal Constitution.
     For the reasons discussed below, we conclude that, in light of the instructions
that were given with respect to the murder charge in this case, the trial court‘s
omission of the standard reasonable doubt instruction did not constitute federal
constitutional error as to the voluntary manslaughter conviction. Although the
omission amounted to state law error as to that conviction because the court‘s
other instructions did not include a definition of the term ―reasonable doubt‖ as
required by state law, we conclude that the state law error was harmless because
there is no reasonable probability that the outcome would have been more
favorable to defendant had the trial court‘s instructions at trial included a
definition of ―reasonable doubt.‖

                                           2
     With respect to the separate gang offense, the trial court‘s predeliberation
instructions to jurors failed to explain that defendant could not be convicted unless
the prosecution proved the elements of that crime beyond a reasonable doubt. We
conclude that this omission constituted error under both state law and the federal
Constitution. Furthermore, we conclude that the error, like most instructional
errors of federal constitutional dimension, is amenable to harmless error analysis
under Chapman v. California (1967) 386 U.S. 18 (Chapman), and is not reversible
per se. Our conclusion in this regard resolves a disagreement among the Courts of
Appeal.
     Applying the Chapman harmless error standard to assess the error‘s effect
upon the jury‘s verdict on the gang offense, we conclude beyond a reasonable
doubt that in light of the particular circumstances of this case as revealed by the
record, there is no reasonable possibility that the jury did not apply the reasonable
doubt standard of proof when it found defendant guilty of the gang offense.
Accordingly, unlike the Court of Appeal, we conclude that this instructional error
does not require reversal of defendant‘s conviction of the gang offense.
                   I. FACTS AND PROCEDURAL BACKGROUND
     Evidence introduced at trial showed that on a Friday night in September
2004, defendant attended a house party in Hemet where many of the partygoers,
including defendant and the victim, Luis Gonzalez, were members of criminal
street gangs. A failed drug transaction that had been initiated at the party
ultimately led to a large backyard brawl. In the aftermath of the fight, defendant
and others argued with Gonzalez, demanding that he leave the party. Defendant
fatally shot Gonzalez when, according to defendant, Gonzalez rushed toward him
waving a rock.




                                          3
     Defendant was charged with the crimes of murder and actively participating
in a criminal street gang.1 (Pen. Code, §§ 187, subd. (a), 186.22, subd. (a).)2 In
connection with the murder count, it was alleged that defendant committed that
crime to benefit a criminal street gang (§ 186.22, subd. (b)), and by means of
personally and intentionally discharging a firearm (§§ 12022.5, subd. (a),
12022.53, subd. (d)). It was further alleged for sentencing purposes that defendant
had served three prior prison terms. (§ 667.5, subd. (b).)
     Nine of the trial court‘s predeliberation instructions specifically referred to
the prosecution‘s burden of proof beyond a reasonable doubt. One such
instruction concerned the sufficiency of circumstantial evidence to prove guilt.
(CALJIC No. 2.01.) Five instructions relating to homicide also referenced the
reasonable doubt standard of proof. These instructions related to the degrees of
murder (CALJIC No. 8.71), the availability of a manslaughter conviction in lieu of
murder (CALJIC No. 8.72), the difference between murder and manslaughter
(CALJIC No. 8.50), the so-called ―acquittal first‖ rule for returning verdicts on the
greater and lesser homicide offenses (CALJIC No. 8.75), and the definition of
justifiable homicide (CALJIC No. 5.15). The court also instructed on the
reasonable doubt standard of proof when describing the elements of the three
sentence enhancement allegations related to the murder count. (See CALJIC
Nos. 17.19, 17.24.2.)



1     At the prosecutor‘s request, the trial court dismissed a third count charging
defendant with unlawfully carrying a concealed weapon. (Pen. Code, former
§ 12025, subd. (b)(3), repealed and reenacted without substantive change as Pen.
Code, § 25400, subd. (c)(3) by Stats. 2010, ch. 711, §§ 4, 6.)
2      All further statutory references are to the Penal Code, unless otherwise
indicated.




                                          4
     The jury acquitted defendant of murder and convicted him of the lesser
offense of voluntary manslaughter (§ 192, subd. (a)). It found not true the gang
enhancement allegation related to the murder charge, but found the firearm
allegations to be true.3 The jury also found defendant guilty of the gang offense.
Defendant later admitted the three prior prison term allegations, and the court
sentenced him to a total prison term of 24 years eight months.4
     On appeal, defendant challenged his convictions on the ground that the trial
court had erroneously failed to instruct the jury with CALJIC No. 2.90, the
standard instruction on the presumption of innocence and the prosecution‘s burden
of proving guilt beyond a reasonable doubt. (See also CALCRIM No. 220.) The
Court of Appeal agreed with defendant that the instructional omission amounted to
federal constitutional error but upheld the voluntary manslaughter conviction,
finding as to that count that the error was harmless beyond a reasonable doubt
under Chapman, supra, 386 U.S. 18, because it was cured by the court‘s other
detailed instructions. The Court of Appeal reversed the gang offense conviction,
however, concluding that there was ―no cure‖ for the trial court‘s error in that
respect and that, therefore, the error could not be considered harmless as to that
count.



3      After the jury had rendered its verdicts, the prosecutor moved to strike the
finding on the section 12022.53, subdivision (d), allegation on the ground that the
enhancement was inapplicable to a voluntary manslaughter conviction. The court
granted the motion.
4      Defendant‘s sentence was comprised of the upper term of 11 years for the
voluntary manslaughter conviction consecutive to the upper term of 10 years for
the section 12022.5, subdivision (a), firearm enhancement, eight months (one-third
the midterm) for the gang offense conviction, and one year each for the three prior
prison terms.




                                          5
     Defendant petitioned for review, arguing that omission of the standard
reasonable doubt instruction constituted structural error requiring automatic
reversal of all convictions without regard to prejudice and that, even if such error
were amenable to harmless error analysis, the Court of Appeal unreasonably
concluded that it was harmless as to the voluntary manslaughter conviction. We
granted defendant‘s petition for review to resolve a conflict in the Courts of
Appeal regarding whether the erroneous failure to give the standard reasonable
doubt instruction is reversible per se or is subject to harmless error review.
                                   II. DISCUSSION

           A. California’s standard reasonable doubt instruction
     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 reasonable doubt. Specifically,
Evidence Code section 502 requires a trial court to instruct the jury concerning
which party bears the burden of proof on each issue, and the applicable standard of
proof.5 The prosecution‘s burden of proof in a criminal case is controlled by
section 1096 of the Penal Code,6 the substance of which has, in turn, been


5      Evidence Code section 502 provides in full, ―The court on all proper
occasions 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 or that he establish the
existence or nonexistence of a fact by a preponderance of the evidence, by clear
and convincing proof, or by proof beyond a reasonable doubt.‖
6       Section 1096 states that ―[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
                                                            (footnote continued on next page)


                                           6
incorporated into the standard reasonable doubt instructions, CALJIC No. 2.90
and CALCRIM No. 220. Tracking the language of section 1096, the standard
instructions describe the presumption of innocence and the requirement of proof
beyond a reasonable doubt, and provide the legislatively approved definition of
reasonable doubt.7 A court satisfies its statutory obligation to instruct on these

(footnote continued from previous page)

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.‘ ‖
7        At the time of defendant‘s trial in 2009, CALJIC No. 2.90 read as follows:
―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.‖
         CALCRIM No. 220, which also was available at the time of defendant‘s
trial, reads as follows: ―The fact that a criminal charge has been filed against the
defendant[s] is not evidence that the charge is true. You must not be biased
against the defendant[s] just because (he/she/they) (has/have) been arrested,
charged with a crime, or brought to trial. [¶] 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.‖ (See Cal. Rules of
                                                           (footnote continued on next page)


                                          7
principles by giving CALJIC No. 2.90 or CALCRIM No. 220. As section 1096a
explains, ―[i]n charging a jury, the court may read to the jury Section 1096, and no
further instruction on the . . . presumption of innocence or defining reasonable
doubt need be given.‖
      With respect to the principles that a defendant is accorded the presumption of
innocence and the prosecution bears the burden of proving guilt beyond a
reasonable doubt, instruction with CALJIC No. 2.90 or CALCRIM No. 220 also
satisfies the long-established rule requiring sua sponte instruction on ―those
principles closely and openly connected with the facts before the court, and . . .
necessary for the jury‘s understanding of the case.‖ (People v. St. Martin (1970) 1
Cal.3d 524, 531.) We applied this rule in People v. Vann (1974) 12 Cal.3d 220
(Vann), to conclude that the trial court was required to give a ―specific instruction
that the defendants were presumed to be innocent and that the prosecution had the
burden of proving their guilt beyond a reasonable doubt.‖ (Id. at p. 225; see
People v. Soldavini (1941) 45 Cal.App.2d 460, 463-464 [a trial court‘s duty to
instruct on the presumption of innocence and standard of proof is met by
instructing in the language of § 1096].)
      However, our decisions also make clear that 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. (People v. Brown (2004) 33 Cal.4th 382, 392 & fn. 2; People v.
Freeman (1994) 8 Cal.4th 450, 503-504; People v. Zepeda (2008) 167


(footnote continued from previous page)

Court, rule 2.1050 [declaring the CALCRIM instructions the ―official
instructions‖ for Cal. criminal courts].)




                                           8
Cal.App.4th 25, 30 [a trial court is not required to instruct the jury in the language
of section 1096]; People v. Castro (1945) 68 Cal.App.2d 491, 498 [same].) We
note furthermore that the 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. (See People v. Soldavini, supra,
45 Cal.App.2d at p. 463; see also Vann, supra, 12 Cal.3d at pp. 226-227.)
     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. (See People v. Mayo (2006) 140
Cal.App.4th 535, 550-551.)
     Before addressing whether the court‘s failure to give the standard reasonable
doubt instruction in its predeliberation instructions amounted to state law error in
this case, we first decide whether the omission of the standard reasonable doubt
instruction constituted federal constitutional error with regard to either the
voluntary manslaughter conviction or the gang offense conviction and, if so,
whether the federal instructional error is subject to the more demanding standard
for federal constitutional harmless error review, or requires automatic reversal.

           B. The presumption of innocence accorded to a criminal defendant
     As previously mentioned, the standard reasonable doubt instruction, CALJIC
No. 2.90 or CALCRIM No. 220, embodies two interrelated principles, namely, the
defendant‘s presumption of innocence and the prosecution‘s burden of proving
guilt beyond a reasonable doubt. The first of these principles, the presumption of
innocence, ―is a basic component of a fair trial under our system of criminal



                                           9
justice.‖ (Estelle v. Williams (1976) 425 U.S. 501, 503.) Instruction on the
presumption of innocence underscores both (1) that the prosecution bears the
burden of proving the defendant‘s guilt and the defendant does not have the
burden of proving his or her innocence, and (2) that the defendant has the
fundamental right ―to have his [or her] guilt or innocence determined solely on the
basis of the evidence introduced at trial, and not on grounds of official suspicion,
indictment, continued custody, or other circumstances not adduced as proof at
trial.‖ (Taylor v. Kentucky (1978) 436 U.S. 478, 485; see People v. Hawthorne
(1992) 4 Cal.4th 43, 72.)8
     Regarding the presumption of innocence, the United States Supreme Court
has declared that the federal due process clause does not require a trial court to use
any particular phrase or form of words when instructing on this principle. (Taylor
v. Kentucky, supra, 436 U.S. at p. 485.) We followed Taylor in People v.
Hawthorne, supra, 4 Cal.4th 43 (Hawthorne), to conclude that so long as the
court‘s instructions to the jury express the substance of the presumption of
innocence, it will satisfy the dictates of due process. (Id. at p. 72.)
     In Hawthorne, supra, 4 Cal.4th 43, the defendant claimed that he was
deprived of his due process right to the presumption of innocence by the court‘s
failure to instruct with the complete text of CALJIC No. 1.00. The omitted
portion of that instruction would have admonished the jurors in relevant part not to
be biased against defendant because he ― ‗has been arrested for this offense, or
because he has been charged with a crime, or because he has been brought to


8     To the extent that the standard instruction‘s reference to the presumption of
innocence also conveys the requirement of proof beyond a reasonable doubt, its
omission from the predeliberation instructions in this case is discussed post, in part
II.C.



                                           10
trial‘ ‖ and that ― ‗[n]one of these circumstances is evidence of his guilt.‘ ‖
(Hawthorne, supra, at p. 71, fn. 18.) We rejected the defendant‘s claim of a
federal constitutional deprivation, concluding instead that the portion of CALJIC
No. 1.00 that was given by the court and the ―full panoply of instructions‖
(Hawthorne, supra, at p. 73) on the presumption of innocence, the reasonable
doubt standard, and the prosecution‘s burden of proof embodied in CALJIC
No. 2.90 and CALJIC No. 2.91, fully expressed to the jury its responsibility to
decide the defendant‘s guilt based upon the evidence adduced at trial.
(Hawthorne, supra, at pp. 71-73.)
     Although in this case the trial court did not give the standard reasonable
doubt instruction, unlike in Hawthorne, the court did instruct the jury with the
complete text of CALJIC No. 1.00, which informed 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. Given this
instruction, and its expression of 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 did not amount to federal
constitutional error.9


9      The United State Supreme Court has explained that omitting instruction on
the presumption of innocence altogether ―does not in and of itself violate the
Constitution‖ (Kentucky v. Whorton (1979) 441 U.S. 786, 789), and that the
constitutional inquiry for failure to instruct on this principle is to evaluate the
omission ―in light of the totality of the circumstances — including all the
instructions to 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.‖ (Ibid.) We need not undertake
such an inquiry here, however, because the court did not fail to instruct on the
principle of the presumption of innocence.




                                          11
           C. The prosecution’s burden of proving a defendant’s guilt beyond a
              reasonable doubt
     Under the due process clauses of the Fifth and Fourteenth Amendments, the
prosecution must prove a defendant‘s guilt of a criminal offense beyond a
reasonable doubt, and a trial court must so inform the jury. (Victor v. Nebraska
(1994) 511 U.S. 1, 5 (Victor); In re Winship (1970) 397 U.S. 358, 364.) As
previously mentioned, this court concluded in Vann, supra, 12 Cal.3d 220, that the
trial court‘s state law duty to instruct the jurors on the principles of law that
govern their deliberation and decision included the obligation to instruct that a
defendant is presumed to be innocent and that the prosecution had the burden of
proving his or her guilt beyond a reasonable doubt. (Id. at p. 225.) Vann also
recognized the federal constitutional implications of that rule, observing that ―[t]he
reasonable-doubt standard of proof in criminal proceedings is . . . rooted in the
federal Constitution.‖ (Id. at p. 227.)
     In Vann, like here, the trial court inadvertently failed to include in its
predeliberation instructions to the jury the standard reasonable doubt instruction.
(Vann, supra, 12 Cal.3d at pp. 225-226.) Concluding that the omission amounted
to federal constitutional error, Vann rejected the respondent‘s contention that
because the court‘s instructions otherwise covered the subject, there was no error.
(Id. at pp. 226-227.) In that case, two of the trial judge‘s predeliberation
instructions had referenced the reasonable doubt standard. The Vann decision
found, however, that those isolated references to the reasonable doubt standard fell
―far short‖ of conveying the requirement that the defendants were entitled to
acquittal unless the prosecution proved beyond a reasonable doubt each element of
the charged crimes. (Vann, supra, at p. 227.) Specifically, although the jury was
informed that it must not return a verdict based on circumstantial evidence unless
― ‗each fact which is essential to complete a set of circumstances necessary to



                                           12
establish a defendant‘s guilt has been proved beyond a reasonable doubt‘ ‖ (Vann,
supra, at p. 226; see CALJIC No. 2.01), that instruction failed to make clear that
guilt based on direct evidence also must be proved beyond a reasonable doubt.
(Vann, supra, at p. 226.) Likewise, the instruction advising that evidence of
― ‗good character may be sufficient to raise a reasonable doubt whether a
defendant is guilty,‘ ‖ did not connect the reasonable doubt standard to any issues
other than character, or explain that a reasonable doubt would require a verdict of
not guilty. (Vann, supra, at p. 227; see CALJIC No. 2.40.) Vann also noted that
neither the court‘s remarks during jury selection regarding the requisite burden of
proof nor the attorneys‘ statements on that subject during closing argument
―cured‖ the court‘s failure to instruct that the prosecution was required to prove
the defendants‘ guilt of each charged crime beyond a reasonable doubt. (Vann,
supra, at p. 227, fn. 6.)
     The United States Supreme Court has never directly addressed the
constitutional consequences of a trial court‘s failure to instruct on the requirement
of proof beyond a reasonable doubt. But nothing in the high court‘s
pronouncements subsequent to this court‘s decision in Vann calls into question
Vann‘s conclusion that the omission of the standard reasonable doubt instruction
amounted to a federal due process violation because the instructions that were
given by the court failed to explain that the defendants could not be convicted
―unless each element of the crimes charged was proved to the jurors‘ satisfaction
beyond a reasonable doubt.‖ (Vann, supra, 12 Cal.3d at p. 227.) For example, in
Victor, supra, 511 U.S. 1, the court addressed whether the standard instructions
defining the reasonable doubt standard of proof that were given in two state
criminal trials correctly conveyed the constitutional requirement that the
prosecution prove the elements of each charged offense beyond a reasonable
doubt. Although Vann predated the decision in Victor, its reasoning is consistent

                                         13
with the high court‘s explanation in Victor that ―so long as the court instructs the
jury on the necessity that the defendant‘s guilt be proved beyond a reasonable
doubt, [citation], the Constitution does not require that any particular form of
words be used in advising the jury of the government‘s burden of proof.‖ (Victor,
supra, at p. 5.)
     We conclude that Vann states the proper inquiry with regard to determining
the federal constitutional implications of the trial court‘s failure to include the
standard reasonable doubt instruction in its predeliberation instructions to the jury,
and we follow that approach in resolving the question presented in this case.
Specifically, the 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 defendants could not be convicted ―unless each
element of the crimes charged was proved to the jurors‘ satisfaction beyond a
reasonable doubt.‖ (Vann, supra, 12 Cal.3d at p. 227.) 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.

                   1. The omission of CALJIC No. 2.90 or CALCRIM No. 220 from
                       the predeliberation instructions did not constitute federal
                       constitutional error as to the voluntary manslaughter
                       conviction
       Although the court failed to include the standard reasonable doubt
instruction in its predeliberation instructions to the jury, a number of the given
instructions referred to the prosecution‘s burden of proving defendant‘s guilt
beyond a reasonable doubt. One of these instructions concerned the evaluation of
circumstantial evidence. The remainder of the references to the reasonable doubt
standard of proof appeared in instructions relating to the murder charge, its lesser
included offenses, and the sentence enhancement allegations associated with that

                                           14
count. As we explain, because the court‘s instructions covered the requirement
that the prosecutor bore the burden of proving defendant‘s guilt of the murder
charge and its lesser included offenses (including voluntary manslaughter) beyond
a reasonable doubt, the omission of the standard reasonable doubt instruction did
not violate federal due process principles as to defendant‘s conviction of voluntary
manslaughter.
       Vann, supra, 12 Cal.3d 220, and the Court of Appeal decisions applying its
reasoning have held that a trial court‘s predeliberation instructions connecting the
reasonable doubt standard to only lesser included offenses and narrow evidentiary
or procedural determinations are insufficient to satisfy the court‘s constitutional
duty to instruct on the prosecution‘s burden of proving each charged offense
beyond a reasonable doubt. In People v. Elguera (1992) 8 Cal.App.4th 1214,
1218 (Elguera), the trial court referred to the reasonable doubt standard in its
predeliberation instructions only when explaining the use of circumstantial
evidence to prove guilt. (CALJIC No. 2.01.) The trial court‘s predeliberation
instructions in People v. Crawford (1997) 58 Cal.App.4th 815, 820 (Crawford),
mentioned reasonable doubt only in instructions on circumstantial evidence, lesser
offenses, and deadly weapon use. (CALJIC Nos. 2.01, 17.16.) Similarly, in
People v. Phillips (1997) 59 Cal.App.4th 952, 957 (Phillips), the trial court‘s
predeliberation instructions referenced the prosecution‘s burden of proof only in
connection with circumstantial evidence, a defendant‘s choice not to testify at
trial, and lesser included offenses. (CALJIC Nos. 2.01, 2.61, 17.10.) Finally, in
People v. Flores (2007) 147 Cal.App.4th 199, 212-213 (Flores), the trial court
mentioned the reasonable doubt standard only as it applied to circumstantial
evidence and a defendant‘s choice not to testify (CALJIC Nos. 2.01, 2.61), and in
connection with special findings on the statute of limitations as to three of the 19
sexual offense charges and the section 667.61 sentence enhancement allegations

                                         15
associated with all charged counts. In each of these cases, the trial court‘s various
instructions highlighted specific applications of the proof beyond a reasonable
doubt requirement, but they did not indicate that that standard of proof must be
met as to each crime of which the defendant actually was convicted. As the Court
of Appeal observed in Flores, supra, at page 216, it cannot be presumed ―that 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 on the charged offenses.‖
       However, in this case, unlike in Vann, the trial court referred to the
reasonable doubt standard not only in its instructions on circumstantial evidence
but, much more significantly, in its detailed instructions regarding the jury‘s
obligation with respect to the elements of murder and to the elements of all of its
lesser included offenses, including voluntary manslaughter. For example, the
proof beyond a reasonable doubt standard was articulated in the general
instructions on determining the degree of murder and deciding between murder
and manslaughter.10 (CALJIC Nos. 8.71, 8.72.) The jurors were then specifically
instructed that ―[i]f you are not satisfied beyond a reasonable doubt that the
defendant is guilty of the crime of first degree murder as charged in Count 1 and

10     CALJIC No. 8.71 informed the jurors that ―[i]f you are convinced beyond a
reasonable doubt and unanimously agree that the crime of murder has been
committed by a defendant, but you unanimously agree that you have a reasonable
doubt whether the murder was of the first or of the second degree, you must give
defendant the benefit of that doubt and return a verdict fixing the murder as of the
second degree [as well as a verdict of not guilty of murder in the first degree].‖
       CALJIC No. 8.72 stated: ―If you are convinced beyond a reasonable doubt
and unanimously agree that 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 defendant the benefit of that doubt and find it to be
manslaughter rather than murder.‖




                                          16
you unanimously so find, you may convict him of any lesser crime provided you
are satisfied beyond a reasonable doubt that he is guilty of the lesser crime.‖
(CALJIC No. 8.75, italics added.) Defendant argues that this instruction was
inadequate because it failed to assign the burden of proof to the prosecution. We
observe, however, that in a similarly explicit instruction, the jury was told that
―[t]o establish that a killing is murder and not manslaughter, the burden is on the
People to prove beyond a reasonable doubt each of the elements of murder and
that the act which caused the death was not done in the heat of passion or upon a
sudden quarrel or in the actual, even though unreasonable, belief in the necessity
to defend against imminent peril to life or great bodily injury.‖ (CALJIC
No. 8.50.) Furthermore, in connection with defendant‘s claim of self-defense, the
court instructed the jury that ―[t]he burden is on the prosecution to prove beyond a
reasonable doubt that the homicide was unlawful, that is, not justifiable [or]
excusable.‖ (CALJIC No. 5.15.)
       We note that the jurors in the present case received many of the same
instructions given in People v. Mayo, supra, 140 Cal.App.4th 535, in which the
Court of Appeal concluded that omission of the standard reasonable doubt
instruction did not constitute federal constitutional error because, taken together,
the instructions adequately conveyed the requisite standard of proof. The
defendant in Mayo was charged with, and convicted of, a single count of murder.
(Id. at p. 539.) As in Vann and the Court of Appeal cases discussed ante, the trial
court failed to give the standard reasonable doubt instruction in its predeliberation
instructions to the jury. (Mayo, supra, at pp. 538-539.) In Mayo, however, the
trial court repeatedly and accurately described the prosecution‘s burden of proving
guilt beyond a reasonable doubt when instructing specifically on the charge of
murder and its lesser included offenses. For instance, the court discussed the
reasonable doubt standard when explaining the distinction between murder and

                                          17
manslaughter. (CALJIC No. 8.50; see Mayo, supra, at p. 545.) The court‘s
instructions on determining the degree of murder and choosing between murder
and the lesser included offense of manslaughter also referred to the requisite
standard of proof. (See CALJIC Nos. 8.71, 8.72, 8.75; Mayo, supra, at p. 545.)
Distinguishing the predeliberation instructions in that case from the inadequate
instructions given in Vann and its progeny, the Mayo court reasoned that the
various references to the standard of proof ―related to the murder charge itself and
directly informed the jury that, to convict Mayo of murder, it had to find each and
every element of that charge beyond a reasonable doubt.‖ (Mayo, supra, at
p. 547.)
       In this case, like in Mayo, 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. We conclude that in
light of these other instructions the omission of the standard instruction on the
prosecutor‘s burden of proving guilt beyond a reasonable doubt did not amount to
federal constitutional error with regard to defendant‘s conviction of voluntary
manslaughter.

                2. The omission of CALJIC No. 2.90 or CALCRIM No. 220 from
                    the predeliberation instructions amounted to federal
                    constitutional error as to the gang offense conviction
       As we have explained, the trial court‘s omission of the standard reasonable
doubt instruction did not constitute an error of federal constitutional dimension
with regard to the voluntary manslaughter conviction because the court‘s
instructions on murder and its lesser included offenses clearly connected the
reasonable doubt standard to the voluntary manslaughter offense. The same
cannot be said concerning the count charging defendant with active participation


                                          18
in a criminal street gang in violation of section 186.22, subdivision (a), however,
because neither the instruction on the elements of that offense nor any other
instruction given by the court connected the reasonable doubt standard of proof to
that charge. The court read CALJIC No. 6.50, which addressed the requisite
elements of the gang offense, but that instruction did not explain that the
prosecution must prove each of those elements beyond a reasonable doubt.
         We note that the court did refer to the reasonable doubt standard when it
instructed on the elements of the section 186.22, subdivision (b), sentencing
allegation that defendant committed the murder for the benefit of a criminal street
gang. (CALJIC No. 17.24.2.) Specifically, the jurors were informed that ―[t]he
People have the burden of proving the truth of this allegation. If you have a
reasonable doubt that it is true, you must find it to be not true.‖ But the instruction
on this sentencing allegation neither addressed nor illuminated the standard of
proof as to the substantive crime of active participation in a gang. In Flores,
supra, 147 Cal.App.4th at page 217, the Court of Appeal similarly found that a
reference to the reasonable doubt standard in an instruction concerning the one-
strike sentence enhancement allegations under section 667.61 would not
necessarily be understood by the jury to also apply to its determination of
defendant‘s guilt of the sexual offenses to which the enhancements were linked.
That the gang allegation instruction connected the requisite standard of proof to
the gang offense is even more dubious here. This is so because the reference to
the reasonable doubt standard was contained in an instruction concerning a
sentencing allegation associated with the murder charge, an entirely different
count.
         As already noted, in the present case, like in Vann, the trial court gave the
standard instruction on circumstantial evidence, which states in relevant part that
―each fact which is essential to complete a set of circumstances necessary to

                                           19
establish the defendant‘s guilt must be proved beyond a reasonable doubt.‖
(CALJIC No. 2.01; see CALCRIM Nos. 224, 225.) The court in Vann viewed the
circumstantial evidence instruction as inadequate to satisfy the court‘s duty to
instruct that the defendants were entitled to acquittal unless each of the crimes
charged were proved beyond a reasonable doubt. In Vann, the prosecution‘s case
depended largely on direct evidence. (Vann, supra, 12 Cal.3d at p. 226.)
Similarly here, the prosecution‘s gang offense case was based largely on direct
evidence, including defendant‘s testimony admitting that he was a member of the
Hemet Trece gang at the time of the shooting. The circumstantial evidence
instruction did not adequately cover the principle that defendant could be
convicted of the gang offense only if the prosecution proved his guilt of the gang
offense beyond a reasonable doubt.
       We conclude that with regard to the gang offense conviction the court‘s
omission of the standard reasonable doubt instruction deprived defendant of his
federal constitutional right to due process because the court‘s instructions did not
otherwise cover the requirement that the prosecution prove defendant‘s guilt of the
gang offense beyond a reasonable doubt.11

11     During jury selection, the trial court did read CALJIC No. 2.90 to the entire
pool of prospective jurors. Vann noted that instructions during jury selection did
not ―cure‖ the court‘s failure to instruct the jury on the requirement that the
prosecutor prove the defendant‘s guilt of each charged offense beyond a
reasonable doubt. (See Vann, supra, 12 Cal.3d at p. 227, fn. 6.) Indeed, 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. (See Flores, supra,
147 Cal.App.4th at p. 215 (Flores) [finding it generally ―unreasonable to expect
prospective jurors . . . to give the necessary attention and weight to instructions
given by a trial court during jury selection‖].) Although a trial court‘s instructions
or remarks during jury selection cannot relieve the court of its obligation to
properly instruct the jury during trial regarding the prosecution‘s burden of
                                                           (footnote continued on next page)


                                         20
                        i. The omission of a standard reasonable doubt instruction in
                            violation of federal constitutional principles is subject to
                            harmless error review
        Having determined that the trial court‘s omission of the standard reasonable
doubt instruction amounted to federal constitutional error as to the gang offense,
we next must decide whether the error is amenable to harmless error analysis or
requires automatic reversal without regard to prejudice.
        As previously discussed, Vann concluded that the trial court‘s failure in that
case to satisfy its obligation to instruct on the prosecution‘s burden of proving the
defendants‘ guilt beyond a reasonable doubt violated federal due process
principles. (Vann, supra, 12 Cal.3d at pp. 227-228.) Because the error implicated
the federal Constitution, Vann assessed the effect of the error by applying the
harmless error analysis for federal constitutional errors that was established in
Chapman, supra, 386 U.S. 18. (Vann, supra, at p. 228.) We observe, however,
that Vann predated a significant line of decisions by the United States Supreme
Court illustrating the types of errors qualifying as structural defects that are not
amenable to harmless error analysis and instead are inherently prejudicial, and the
types of errors that properly can be assessed for harmlessness. Accordingly, we
must address anew the question whether the error in this case can be found
harmless. In so doing, we resolve a conflict on this point that has arisen in a
number of Court of Appeal opinions decided after this court‘s decision in Vann.


(footnote continued from previous page)

proving defendant‘s guilt beyond a reasonable doubt, this does not mean that
statements made by the court during jury selection to each of the jurors who
actually served on the jury may not be considered along with any other potentially
relevant factors in determining whether, in light of all the circumstances of a
particular case, the court‘s error should properly be found harmless. (See post,
pp. 33-35.)




                                             21
As explained below, we conclude that when the court‘s omission of the standard
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.
       Chapman, supra, 386 U.S. 18, 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. (Johnson v. United States (1997) 520 U.S. 461, 468;
see Hedgpeth v. Pulido (2008) 555 U.S. 57, 61; Neder v. United States (1999) 527
U.S. 1, 8 (Neder); Rose v. Clark (1986) 478 U.S. 570, 578 [errors requiring
automatic reversal ―are the exception and not the rule‖].) In Arizona v.
Fulminante (1991) 499 U.S. 279, the high court categorized constitutional errors
into two groups. Most errors, the court explained, are ― ‗trial error[s],‘ ‖ occurring
―during the presentation of the case to the jury.‖ (Id. at p. 307.) 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.‖ (Id. at p. 308.) ―Structural
defects,‖ on the other hand, ―defy analysis by ‗harmless-error‘ standards‖ (id. at
p. 309) because they are not ―simply an error in the trial process,‖ but rather an
error ―affecting the framework within which the trial proceeds.‖ (Id. at p. 310; see
Brecht v. Abrahamson (1993) 507 U.S. 619, 630 [structural errors require
automatic reversal because ―they infect the entire trial process‖].)



                                          22
       The high court has identified as structural error constitutional violations
such as the denial of counsel or of self-representation, racial discrimination in jury
selection, and trial before a biased judge. (See United States v. Gonzalez-Lopez
(2006) 548 U.S. 140, 149 [listing structural errors]; Neder, supra, 527 U.S. at p. 8
[same].) The court also has provided further guidance on categorizing errors as
structural. For example, it explained in Neder that structural errors ―deprive
defendants of ‗basic protections‘ ‖ (Neder, supra, at p. 8) and ―necessarily render a
criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or
innocence.‖ (Id. at p. 9, italics omitted; see Washington v. Recuenco (2006) 548
U.S. 212, 218-219; Rose v. Clark, supra, 478 U.S. at p. 577.) In other
pronouncements on the subject of structural error, however, the court has focused,
not on the effect of the constitutional violation at trial, but on ―the difficulty of
assessing the effect of the error‖ or the ―irrelevance of harmlessness.‖ (United
States v. Gonzalez-Lopez, supra, at p. 149, fn. 4.)
       The court‘s reasoning in United States v. Gonzalez-Lopez, supra, 548 U.S.
140, illustrates the view that the touchstone for determining the appropriateness of
harmless error review is the ability to ascertain the effect of the constitutional
violation. Gonzalez-Lopez involved the deprivation of the right to retained
counsel of one‘s choice. In holding that the constitutional violation was
―structural,‖ the court emphasized that the consequences of that error were
― ‗necessarily unquantifiable and indeterminate.‘ ‖ (Id. at p. 150.) Noting the
myriad ways that representation might have proceeded had the trial court not
erroneously disqualified the defendant‘s chosen attorney, the court observed that
conducting a harmless error analysis of that error ―would be a speculative inquiry
into what might have occurred in an alternate universe.‖ (Ibid.)
     The high court had relied on similar reasoning in Sullivan v. Louisiana
(1993) 508 U.S. 275 (Sullivan), to hold that the trial judge‘s misleading

                                           23
description of the reasonable doubt standard given in that case was structural error
and required automatic reversal. The trial judge in Sullivan had read to the jury an
instruction similar to the one given in Cage v. Louisiana (1990) 498 U.S. 39,
which defined the reasonable doubt standard by referring to ― ‗grave uncertainty‘ ‖
and ― ‗substantial doubt,‘ ‖ terms that effectively and improperly lowered the
prosecution‘s burden of proof. (Id. at p. 40,italics omitted; see Sullivan, supra, at
p. 277.) Sullivan concluded that the deprivation of the right to a jury verdict of
guilt beyond a reasonable doubt resulting from the defective instruction met the
definition of structural error because its consequences were ―necessarily
unquantifiable and indeterminate.‖ (Sullivan, supra, at p. 282.) Harmless error
analysis was not possible, Sullivan also explained, because the misdescription of
the prosecution‘s burden of proof ―vitiate[d] all the jury‘s findings.‖ (Id. at p. 281,
original italics.) In describing the illogic of conducting a harmless error review of
the error in that case, Sullivan observed that the ―proper role‖ (id. at p. 280) of the
appellate court is to look to ―the basis on which ‗the jury actually rested its
verdict.‘ [Citation.]‖ (Id. at p. 279.) The premise of Chapman was ―simply
absent‖ in that case, Sullivan explained, because there was ―no jury verdict of
guilty-beyond-a-reasonable doubt . . . upon which harmless-error scrutiny [could]
operate.‖ (Sullivan, supra, at p. 280.)
     An instruction that effectively lowers the prosecution‘s burden of proving
guilt beyond a reasonable doubt is structural error because it ―vitiates all the jury‘s
findings‖ and its effect on the verdict is ―necessarily unquantifiable and
indeterminate.‖ (Sullivan, supra, 508 U.S. at pp. 281, 282; see Hedgpeth v.
Pulido, supra, 555 U.S. at p. 61 [―harmless error analysis applies to instructional
errors so long as the error at issue does not categorically ‗ ―vitiat[e] all the jury‘s
findings‖ ‘ ‖].) We believe, however, that when, as here, the court has not
misdefined the reasonable doubt standard in a manner that improperly lowers the

                                           24
prosecution‘s burden of proof, but nonetheless has failed to satisfy its federal
constitutional obligation to instruct on the requirement that the prosecution prove
the defendant‘s guilt of each charged offense beyond a reasonable doubt, the
effect of the instructional omission, like most errors of constitutional dimension, is
amenable to harmless error review. Under these circumstances, other components
of the trial, such as the instructions relating to other charged crimes, the verdicts
on those counts, and other potentially relevant circumstances (such as the content
of the attorneys‘ closing argument or the nature and extent of a trial court‘s
remarks during jury selection with regard to the reasonable doubt requirement),
may support a determination that the theoretical gap left by the court‘s failure
during predeliberation instructions to link the reasonable doubt standard of proof
to a certain charged offense had in reality been filled by these other components of
trial. In such cases, a reviewing court could determine that there is no reasonable
possibility that the jury did not actually apply the beyond a reasonable doubt
standard in finding the defendant guilty of the offense in question.
     The Courts of Appeal in Flores, supra, 147 Cal.App.4th at pages 203-211,
and Elguera, supra, 8 Cal.App.4th at pages 1219-1220, as well as the Court of
Appeal in this case, correctly concluded that the Chapman standard applies to the
determination whether reversal is required when the trial court fails to give the
standard reasonable doubt instruction in its predeliberation instructions to the jury.
The Court of Appeal in Crawford, supra, 58 Cal.App.4th 815, held to the contrary
that the high court‘s decision in Sullivan ―compel[led]‖ automatic reversal.
Crawford reasoned that such an error denies a defendant ―the most elementary and
fundamental right provided by our system of justice.‖ (Crawford, supra, at
pp. 822, 823.) We agree with Crawford‘s characterization of this instructional
error as affecting an extremely serious and basic constitutional guarantee. But to
declare an error ―structural,‖ it is not enough to say that the error denied the

                                          25
defendant a ―most elementary and fundamental right.‖ As the high court‘s
decisions make clear, the deprivation of important constitutional protections can
be subject to harmless error analysis. (See Arizona v. Fulminante, supra, 499 U.S.
at p. 312 [that the erroneous admission of an involuntary confession ―may be
devastating‖ to a defendant ―is not a reason for eschewing the harmless-error test
entirely‖].) To make that determination, we ask whether the error rendered the
trial ―fundamentally unfair or an unreliable vehicle for determining guilt or
innocence‖ (Neder, supra, 527 U.S. at p. 9), or whether the effect of the error is
―necessarily unquantifiable and indeterminate‖ (Sullivan, supra, 508 U.S. at
p. 282). The importance of the constitutional right, standing alone, is not
dispositive of the question whether the error is susceptible to harmlessness review.
     Significantly, the appellate court in Crawford conducted a harmless error
review as an alternate basis for its conclusion that the error required reversal of the
judgment. (Crawford, supra, 58 Cal.App.4th at pp. 823, 824-826.) Its alternate
analysis, which took into account the instructions given at trial that correctly
referred to the reasonable doubt standard, the court‘s remarks during jury
selection, and the argument of counsel, is consistent with our conclusion that the
erroneous omission of a standard reasonable doubt instruction can be assessed for
harmlessness.
     Phillips, supra, 59 Cal.App.4th 952, likewise held that the omission of the
standard reasonable doubt instruction was structural error and not subject to
harmless error analysis. In the appellate court‘s view, ―the trial court‘s error
suffered no less a constitutional defect than did the trial court in Sullivan.‖ (Id. at
p. 957.) As discussed ante, however, the gravity of the error does not by itself
determine whether such an error is amenable to harmless error analysis. As in
Crawford, the Phillips case did not involve a description of the reasonable doubt
standard that lowered the prosecution‘s burden of proof. Contrary to the appellate

                                          26
court‘s conclusion in Phillips, we conclude that the effect of a trial court‘s failure
to include the standard reasonable doubt instruction can be assessed for
harmlessness.12

                    ii. Application of the Chapman standard to assess the effect of
                         the erroneous omission of the standard reasonable doubt
                         instruction with regard to the gang offense conviction13
       Under Chapman, a federal constitutional error is harmless when the
reviewing court determines ―beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.‖ (Chapman, supra, 386 U.S. at
p. 24.) When there is ― ‗a reasonable possibility‘ ‖ that the error might have
contributed to the verdict, reversal is required. (Ibid.) When, in violation of
federal constitutional commands, the court‘s predeliberation instructions have
failed to cover the principle that the prosecution must prove the defendant‘s guilt
with respect to each of the charged offenses beyond a reasonable doubt, the effect
of such an error is assessed by asking whether there is a reasonable possibility that
the verdict in question was not based upon a finding of guilt beyond a reasonable
doubt. If, after examination of the record, the reviewing court concludes beyond a
reasonable doubt that the jury must have found the defendant‘s guilt beyond a
reasonable doubt, the error is harmless. If, on the other hand, the reviewing court
cannot draw this conclusion, reversal is required.




12     We disapprove Crawford, supra, 58 Cal.App.4th 815, and People v.
Phillips, supra, 59 Cal.App.4th 952, to the extent they hold that the omission of
CALJIC No. 2.90 in violation of the federal Constitution is structural error and
requires automatic reversal.
13      Prior to oral argument, at this court‘s request, the parties filed supplemental
briefs addressing this issue.




                                          27
       The reviewing court conducting a harmless error analysis under Chapman
looks to the ―whole record‖ to evaluate the error‘s effect on the jury‘s verdict.
(Rose v. Clark, supra, 478 U.S. at p. 583.) We note in this regard that a Chapman
harmless error analysis for instructional error typically includes review of the
strength of the prosecution‘s case. (See, e.g., Johnson v. United States, supra,
520 U.S. at p. 470 [concluding that the trial court‘s failure to submit the question
of materiality to the jury in a perjury case was harmless in light of the
overwhelming and uncontroverted evidence supporting that element].) Indeed, the
harmless error inquiry for the erroneous omission of instruction on one or more
elements of a crime focuses primarily on the weight of the evidence adduced at
trial. Under Neder, supra, 527 U.S. 1, such an error is deemed harmless when a
reviewing court, after conducting a thorough review of the record, ―concludes
beyond a reasonable doubt that the omitted element was uncontested and
supported by overwhelming evidence.‖ (Id. at p. 17; see People v. Mil (2012)
53 Cal.4th 400, 417-419 [applying the same standard to evaluate the effect of the
erroneous omission of instruction on two elements of an offense].)
     The same harmless error analysis, however, is not appropriate in the present
setting. Neder concluded that a reviewing court applying the Chapman harmless
error standard to the erroneous failure to instruct on an element of the offense does
not infringe on a defendant‘s constitutional rights by ― ‗becom[ing] in effect a
second jury to determine whether the defendant is guilty.‘ [Citation.]‖ (Neder,
supra, 527 U.S. at p. 19.) But if a reviewing court were to rely on its view of the
overwhelming weight of the prosecution‘s evidence to declare there was no
reasonable possibility that the jury based its verdict on a standard of proof less
than beyond a reasonable doubt, the court would be in the position of expressing
its own idea ―of what a reasonable jury would have done. And when [a court]
does that, ‗the wrong entity judge[s] the defendant guilty.‘ [Citation.]‖ (Sullivan,

                                          28
supra, 508 U.S. at p. 281.) No 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.
     In sum, a reviewing court applying the Chapman standard to determine the
prejudicial effect of the erroneous omission of the standard reasonable doubt
instruction should evaluate the record as a whole — but not rely upon its view of
the overwhelming weight of the evidence supporting the verdict — to assess how
the trial court‘s failure to satisfy its constitutional obligation to instruct on the
prosecution‘s burden of proof beyond a reasonable doubt affected the jury‘s
determination of guilt. If it can be said beyond a reasonable doubt that the jury
must have found the defendant‘s guilt beyond a reasonable doubt, the error is
harmless. If the reviewing court cannot draw this conclusion, reversal is required.

            iii. The erroneous omission of the standard reasonable doubt
                 instruction was harmless beyond a reasonable doubt in this case
       The Court of Appeal in the present case was not convinced beyond a
reasonable doubt that the erroneous omission of the standard reasonable doubt
instruction was harmless as to the gang offense count. We reach a different
conclusion. For the reasons discussed post, we conclude that in light of a number
of distinct features revealed by the record in this case, there is no reasonable
possibility that the jury failed to apply the reasonable doubt standard when it
found defendant guilty of the gang offense.
       It is not reasonably possible, given the instructions associated with the
murder count, that the jury would have thought that the prosecutor had no burden
of proof with regard to the gang offense charge, or that a standard other than
beyond a reasonable doubt applied. The court gave nine instructions in connection
with the murder count that, taken together, amply conveyed that the prosecutor


                                            29
must prove beyond a reasonable doubt each element of the murder charge or its
lesser included offenses, including the voluntary manslaughter offense of which
defendant was convicted, as well as the elements of the street gang and firearm
sentencing enhancement allegations associated with that count. Significantly,
none of the court‘s instructions at trial referred to a lesser standard of proof such
as preponderance of the evidence or clear and convincing evidence. (Cf. Flores,
supra, 147 Cal.App.4th at p. 213, fn. 13 [finding the erroneous omission of
CALJIC No. 2.90 not harmless in part because the jury was instructed on lesser
standards in connection with the statute of limitations allegations and the
requirement that the victim‘s testimony be corroborated].) We find it unrealistic,
in light of the given instructions, that the jurors would have believed the
prosecution was required to prove defendant‘s guilt of murder or its lesser offenses
beyond a reasonable doubt but that it had no burden, or a burden less than beyond
a reasonable doubt, to prove his guilt of the gang offense.
       We drew a similar inference in a different context in People v. Cowan
(2010) 50 Cal.4th 401. In that case, there was some possibility that during penalty
phase deliberations, the jurors may have been led to believe that they could
consider as a factor in aggravation evidence of a murder on which they had failed
to reach a verdict during the guilt phase. (Id. at p. 492.) On appeal, the defendant
claimed that the court committed prejudicial error at the penalty phase by failing
to instruct on reasonable doubt in connection with the murder. (Id. at p. 489.) The
record showed that although the jurors had been instructed pursuant to CALJIC
No. 8.87 that they could consider the defendant‘s commission of three specified
prior criminal acts as an aggravating circumstance if they were convinced beyond
a reasonable doubt that the criminal acts had occurred, the jurors were not
instructed that they could consider evidence of the prior murder as an aggravating
circumstance only if they were convinced beyond a reasonable doubt that the

                                          30
defendant had committed it. (Cowan, supra, at pp. 488-489.) We concluded,
however, that even if instructional error occurred, there was no reasonable
possibility that the error had affected the penalty verdict because, in relevant part,
we found it ―extremely unlikely‖ that any of the jurors would have believed they
could consider the murder as an aggravating circumstance without first having
been convinced beyond a reasonable doubt that the defendant committed it. (Id. at
p. 492.) As we explained, ―the most logical response to the absence of a specific
instruction would have been to conclude that the . . . murder was subject to the
same reasonable doubt standard as the other criminal activity included in the
instruction . . . .‖ (Ibid.) We further observed that nothing in counsel‘s closing
arguments would have misled the jury regarding the applicability of the reasonable
doubt standard because neither party mentioned the murder. (Ibid.)
       Likewise here, we find ―the most logical response‖ by the jury to the
absence of instruction specifically linking the reasonable doubt standard to the
gang offense count would have been to conclude that a guilty verdict on that
charge was subject to the same reasonable doubt standard that had been described
in the court‘s instructions on murder, the lesser offenses, and the sentencing
allegations. We further note that neither the prosecutor nor defense counsel
referred to the standard of proof during closing remarks. As in Cowan, nothing in
counsel‘s arguments would have misled the jury to believe it should adjudge
defendant‘s guilt of the gang count under a standard of proof less than beyond a
reasonable doubt.
       The instructions given to the jury here, which related the reasonable doubt
standard to the charge of murder and its lesser included offenses, also distinguish
the present case from Vann, supra, 12 Cal.3d 220, and the line of Court of Appeal
decisions that have found the erroneous omission of the standard reasonable doubt
instruction to be prejudicial under Chapman, supra, 386 U.S. 18. In each of those

                                          31
cases, as previously discussed, the court‘s instructions explained specific
applications of the reasonable doubt standard to certain evidentiary and procedural
determinations. In some cases, the instructions connected the reasonable doubt
standard to lesser included offenses of which the defendant was not convicted. In
no case, however, did the court‘s instructions convey that the prosecution bore the
burden of proving guilt of any of the crimes of which the defendant was convicted.
A reviewing court understandably would find it difficult under these
circumstances to conclude beyond a reasonable doubt that the jury understood the
reasonable doubt standard applied more generally to their determination of guilt
on the charged offenses. (See Flores, supra, 147 Cal.App.4th at p. 216.)
       By contrast in this case, the jury was informed through a number of
predeliberation instructions that to convict defendant of the charged murder or any
of its lesser included offenses, it must find him guilty of the offense beyond a
reasonable doubt. We find it unrealistic to conclude that the jury would not have
understood that the prosecution bore the same burden of proving defendant‘s guilt
beyond a reasonable doubt with respect to the gang offense. Further, we find it
unreasonable to say that the jury would have divined a different standard of proof
or ignored one entirely with respect to the gang offense.
     The Court of Appeal below arrived at the opposite conclusion, finding that
the instructions on the murder charge and its lesser offenses and associated
sentencing allegations suggested ―more than a reasonable possibility‖ that the
omission of the standard reasonable doubt instruction contributed to the jury‘s
verdict of guilt on the gang offense charge. The Court of Appeal found it
significant that the jury had been instructed that the prosecution must prove
beyond a reasonable doubt each element of the gang allegation attached to the
murder count, and returned a not true finding on that allegation, but that it had
convicted defendant of the gang offense.

                                         32
       We are not persuaded by the Court of Appeal‘s reasoning because the
record discloses a different explanation for the alleged inconsistency in the jury‘s
verdicts on the gang allegation and the gang offense count. The jury was
instructed that to find the gang allegation true, it had to find defendant committed
―the crime charged‖ for the benefit of a criminal street gang and that ―that crime‖
was committed with the specific intent to promote criminal conduct by gang
members. During closing argument, the prosecutor emphasized to the jury that
―the gang allegation only applies to murder. If you find him guilty of
manslaughter, you don’t worry about the gang allegation.‖ (Italics added.) As
noted, the jury acquitted defendant of murder and found him guilty of voluntary
manslaughter. In accordance with those verdicts and the prosecutor‘s argument,
the jury returned the verdict form finding that defendant, ―in the commission of
the offense charged in count 1 . . . did not commit said crime‖ for the benefit of a
criminal street gang. We conclude that on this record, the jury‘s not true finding
on the gang allegation does not suggest a reasonable possibility that its verdict of
guilt on the gang offense count was based on a standard of proof less than beyond
a reasonable doubt.
       Although of lesser significance than the instructions given at trial and the
jury‘s verdicts in the case, the court‘s remarks and questions to prospective jurors
provide some support for our conclusion that there is no reasonable possibility that
the jury‘s verdict on the gang count was not based on a finding of guilt beyond a
reasonable doubt. In its introductory comments, the court read to the prospective
jurors the standard reasonable doubt instruction (CALJIC No. 2.90), and
throughout the next two days of the jury selection process, the court continued to
reference and clarify the reasonable doubt standard. For example, the court
contrasted the prosecution‘s burden of proof beyond a reasonable doubt with the
lesser standards of proof that applied in other settings. Specifically, the court

                                          33
explained that liability in a civil case is based on a preponderance of the evidence,
where ―you evaluate the evidence and weigh one side against the other. . . . That
is the lowest standard in the law. . . . That‘s not our standard.‖ The court also
mentioned the probable cause standard and the standard of clear and convincing
evidence, but reiterated, ―That‘s not our standard. [¶] Our standard is the highest
standard of them all, beyond a reasonable doubt. [Of] all the levels, all the
standards, that‘s the highest.‖ On the third and final day of jury selection, the
court reiterated the differences between the reasonable doubt standard and the
lesser standards of proof, emphasizing again that the latter did not apply to the
present case.
       The court also repeatedly explained the connection between the charged
crimes and the reasonable doubt standard. In the court‘s introductory remarks, it
informed the prospective jurors that ―each crime has certain ingredients. We call
those elements. To find one guilty of a crime, whatever it may be, could be
shoplifting, could be any crime, but to find him guilty of any crime you must be
convinced beyond a reasonable doubt as to the elements one, two, three, whatever
the number is, as to those elements. Okay?‖ The court later explained to the
prospective jurors that ―we have three alleged crimes, elements to all of them.
You will be getting the proper reading of all the elements in the jury instructions,
and if you are not convinced beyond a reasonable doubt as to any one or more of
those elements, you must vote not guilty.‖ With regard to the gang offense charge
specifically, the court apprised the prospective jurors of the elements of that
charge. It then remarked that ―the fact that you have a group that does things
together does not mean necessarily it is a criminal street gang. . . . [Y]ou are
going to have to be convinced . . . beyond a reasonable doubt [of the] various
elements that we‘ll give to you.‖ The court repeated the point toward the end of
jury selection, asking prospective jurors collectively whether everyone could

                                          34
accept that in order to find defendant guilty of the gang offense, each must be
satisfied beyond a reasonable doubt that all the elements have been proved.
       During questioning of the prospective jurors, which was conducted in front
of the entire venire, the court continued to impress upon them the required burden
of proof. The court asked certain prospective jurors individually whether they
understood and accepted the rule that the burden of proving defendant‘s guilt was
on the People. The court elicited affirmative responses both individually from the
prospective jurors who were being questioned and collectively from the entire
venire. The court also explained to prospective jurors that ―[i]f you are not
convinced . . . beyond a reasonable doubt as to any one element, you must find not
guilty.‖ It then inquired of individual prospective jurors and the group as a whole
whether they ―promised to vote not guilty‖ if not convinced beyond a reasonable
doubt as to any one element. The court later asked prospective jurors, conversely,
whether they could accept that to find guilt they must be convinced beyond a
reasonable doubt ―that all the elements of all the crimes have been met.‖
       Thus, in this case, the court undertook extensive effort during jury selection
to impress upon the prospective jurors the meaning, application, and magnitude of
the beyond-a-reasonable-doubt standard of proof, and it painstakingly elicited
from the prospective jurors their understanding and acceptance of that principle.
The trial court did much more than simply read the standard instruction to the
prospective jurors, or refer in passing to the presumption of innocence and the
standard of proof when questioning a single prospective juror. The circumstances
here are, therefore, distinguishable from those in Flores, supra, 147 Cal.App.4th
199, Crawford, supra, 58 Cal.App.4th 815, and Phillips, supra, 59 Cal.App.4th
952.
       We note furthermore that none of the predeliberation instructions that the
court gave to the jury conflicted with, or prevented the jurors from relying on, the

                                         35
court‘s repeated and detailed explanations during jury selection that the
prosecution must prove every element of each offense — including the gang
offense — beyond a reasonable doubt. At the outset of trial, the trial court
informed the jury that it would give additional instructions on the law at the
conclusion of the case. It further admonished, however, that ―all of the Court‘s
instructions, whether given before, during, or after the taking of testimony, are of
equal importance.‖ In this respect, the present case differs from Vann, supra,
12 Cal.3d 220, in which the trial court ended its predeliberation instructions by
informing the jurors that they ― ‗have been instructed on all the rules of law that
may be necessary for you to reach a verdict.‘ ‖ (Id. at p. 227, fn. 6.) We found in
Vann that the ―net effect‖ of these instructions was to suggest to the jurors that the
predeliberation instructions were ―a self-contained, complete statement of the law
they were to follow.‖ (Ibid.) Here, by contrast, the trial judge instructed the jury
only that it must ―accept and follow the law as I state it to you.‖ (See CALJIC
No. 1.00.) Nothing in this directive would have led the jurors to believe they must
ignore the court‘s explications of the prosecution‘s burden of proof given during
jury selection.
     The trial court‘s failure to instruct the jury on the prosecution‘s burden of
proving guilt beyond a reasonable doubt is a serious error that often may amount
to a federal due process violation. As demonstrated by the prior decisions, in
those instances in which this instructional omission constitutes error of federal
constitutional dimension, the error frequently will not be harmless under the
Chapman harmless error standard of review. In the present matter, however, a
different conclusion is warranted: Given the entire record in this case, and in
particular the predeliberation instructions that expressly and directly connected the
reasonable doubt standard to the charged murder and its lesser included offenses,
including the voluntary manslaughter offense of which defendant was convicted,

                                          36
we conclude that it is not reasonably possible that the jury would have believed
that a guilty verdict on those crimes must be based on a finding of guilt beyond a
reasonable doubt but that some lesser standard of proof, or no standard at all,
applied to the gang offense count. We can say beyond a reasonable doubt on the
record before us that the jury‘s verdict on the gang offense charge must have been
based on a finding of guilt beyond a reasonable doubt. The court‘s erroneous
failure to inform the jury in its predeliberation instructions that the prosecution
bore the burden of proving the gang offense beyond a reasonable doubt therefore
was harmless beyond a reasonable doubt.

           D. Definition of reasonable doubt
     The trial court‘s five predeliberation instructions relating to the murder
charge and its lesser included offenses, coupled with CALJIC No. 1.00, the
standard instruction directing the jury to determine defendant‘s guilt based on the
evidence received at trial, covered the two interrelated principles embodied in the
standard reasonable doubt instruction, that is, the presumption of innocence and
the prosecution‘s burden of proving guilt beyond a reasonable doubt as to that
count. Missing from the predeliberation instructions, however, was a definition of
reasonable doubt.14
     The failure to define the term ―reasonable doubt‖ does not amount to federal
constitutional error. As the high court explained in Victor, ―the Constitution


14     CALJIC No. 2.90 states: ―Reasonable doubt . . . 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.‖ (CALJIC No. 2.90.) CALCRIM No. 220
defines the reasonable doubt standard of proof in positive terms, explaining that
―[p]roof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true.‖




                                          37
neither prohibits trial courts from defining reasonable doubt nor requires them to
do so as a matter of course.‖ (Victor, supra, 511 U.S. at p. 5.)
     The court‘s omission of a definition of reasonable doubt, however, does
constitute an error under state law. By their terms, sections 1096 and 1096a
clearly contemplate that a trial court will provide a definition of the term
―reasonable doubt‖ for the jury. Section 1096a provides in relevant part that when
the court instructs the jury in a criminal case, it ―may read to the jury section 1096
. . . and no further instruction . . . defining reasonable doubt need be given.‖ The
legislative history of sections 1096 and 1096a indicates that their enactment was
prompted by numerous reversals of criminal convictions resulting from trial courts
instructing juries with erroneous definitions of reasonable doubt. (See People v.
Brigham (1979) 25 Cal.3d 283, 293-295 (conc. opn. of Mosk, J.); see also People
v. Garcia (1975) 54 Cal.App.3d 61, 63-66 [section 1096a was intended to
eliminate claims of error based on a trial court‘s departure from the legislatively-
approved definition of reasonable doubt].) A trial court‘s statutory obligation to
instruct the jury on the definition of reasonable doubt has been confirmed by this
court on a number of occasions. (See, e.g., People v. Brigham, supra, at pp. 290-
292; id. at pp. 292-316 (conc. opn. of Mosk, J.) [recognizing that the governing
California statutes require a trial court to define reasonable doubt for the jury but
urging the Legislature to amend the statutes to delete any definition of reasonable
doubt]; People v. Freeman, supra, 8 Cal.4th at p. 504 & fn. 9 [cautioning trial
courts not to modify the standard reasonable doubt instruction, which tracks the
language of section 1096, beyond the changes set forth in the opinion, and
observing that more extensive changes to the standard instruction, ―such as those
discussed in the concurring opinions,‖ ―must be left to others‖]; see also People v.
Freeman, supra, at p. 526 (conc. opn. of Mosk, J.) [expressing the view that, in
light of constitutional due process requirements, trial courts should be prohibited

                                          38
from attempting any instructional definition of proof beyond a reasonable doubt];
People v. Freeman, supra, at pp. 526-531 (conc. opn. of George, J.) [agreeing with
the majority opinion‘s analysis of sections 1096 and 1096a, endorsing its request
that the Legislature address ―numerous concerns regarding the clarity of
California‘s standard reasonable doubt instruction,‖ and recommending ―that the
Legislature amend Penal Code sections 1096 and 1096a to provide a more
comprehensible and helpful instruction to guide California jurors in future
criminal cases‖].) Accordingly, the trial court‘s failure to give CALJIC No. 2.90
or CALCRIM No. 220, or to otherwise define reasonable doubt for the jury in this
case, constituted state law error as to both the murder count and the gang offense
count.
     As previously discussed, such a state law error is subject to harmless error
review under the standard in People v. Watson, supra, 46 Cal.2d 818. (People v.
Mayo, supra, 140 Cal.App.4th at pp. 550-551.) Having reviewed the record in
accordance with that harmless error standard, we conclude that there is no
reasonable probability that the outcome would have been more favorable for
defendant had the court provided in its predeliberation instructions a definition of
the reasonable doubt standard of proof.
     Nothing in the record suggests that the jury may have been confused
regarding the meaning of reasonable doubt. During its deliberations, the jury sent
several notes to the court asking questions and seeking to rehear testimony. But
the jury did not request clarification of the reasonable doubt principle ―as it surely
would have done had it been confused as to the meaning of [that term].‖ (People
v. Holt (1997) 15 Cal.4th 619, 685; cf. People v. Cowan, supra, 50 Cal.4th at
p. 495 [relying on similar grounds to find harmless the trial court‘s erroneous
failure to redefine the reasonable doubt standard at the penalty phase of a capital
trial]; People v. Chatman (2006) 38 Cal.4th 344, 408-409 [same].) Furthermore,

                                          39
because neither the prosecutor nor defense counsel referred to the standard of
proof during their closing remarks, nothing in their arguments invited the jury to
apply a standard of proof less than beyond a reasonable doubt, or no standard at
all. This is not a case like Phillips, supra, 59 Cal.App.4th 952, in which opposing
counsel‘s arguments disagreeing about the definition of reasonable doubt were
―more apt to confuse than to enlighten the jurors,‖ who had not been given the
standard reasonable doubt instruction. (Id. at p. 958 [concluding that the jurors
were likely to be confused ―whether to even apply reasonable doubt as the
People‘s burden of proof‖].) The jury‘s verdicts in this case, acquitting defendant
of murder and convicting him of voluntary manslaughter instead, further suggest
that the jury understood the prosecution‘s heavy burden of proving guilt beyond a
reasonable doubt, conscientiously adjudged the evidence in light of that standard
of proof, and determined that the prosecution had failed to carry its burden of
proof as to the greater offense but not as to the lesser.
     We can infer moreover that the jury was not left to guess as to the meaning of
reasonable doubt because, as already noted, the record shows that the court gave
the definition 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. 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. (See People v. Mayo, supra, 140 Cal.App.4th at p. 552

                                          40
[relying in part on the court‘s remarks during jury selection to find the court‘s
omission of CALJIC No. 2.90 from the predeliberation instructions to be harmless
under Watson]; cf. Elguera, supra, 8 Cal.App.4th at p. 1221 [having heard
CALJIC No. 2.90 during jury selection and indicating individually that they
understood it, the seated jurors were not left ignorant as to the standard reasonable
doubt instruction‘s basic principles].)
     On this record, we conclude that there is no reasonable probability that the
outcome of this trial, in which the jury found defendant guilty of voluntary
manslaughter and the gang offense, would have been more favorable to defendant
had the trial court defined the reasonable doubt standard of proof in its
predeliberation instructions.


                                 III. CONCLUSION

       For the reasons discussed above, we reverse the judgment of the Court of
Appeal insofar as it reversed defendant‘s conviction of active participation in a
criminal street gang. In all other respects, the judgment is affirmed.

                                                         CANTIL-SAKAUYE, C. J.
WE CONCUR:

BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.




                                          41
      CONCURRING AND DISSENTING OPINION BY KENNARD, J.




       Defendant was charged with murder (Pen. Code, § 187) and actively
participating in a criminal street gang (Pen. Code, § 186.22, subd. (a) (the gang
offense)). At trial, the court failed to give the jury the standard instruction on the
prosecution‘s burden of proving guilt ―beyond a reasonable doubt.‖ The jury
found defendant guilty of voluntary manslaughter (a lesser offense necessarily
included in the charge of murder), and of the gang offense.
       With regard to the voluntary manslaughter conviction, the majority
concludes that the absence of a reasonable doubt instruction did not violate
defendant‘s right to due process under either the Fifth or the Fourteenth
Amendment to the federal Constitution. The majority explains that other
instructions pertaining to the murder charge made it clear that the jury had to apply
the concept of reasonable doubt. I agree.
       With respect to the conviction for the gang offense, the majority holds that
the trial court‘s failure to instruct the jury on reasonable doubt violated
defendant‘s federal due process rights because, unlike the murder charge, no other
instructions told the jury to apply the standard of reasonable doubt to the gang
offense. I agree. But I do not share the majority‘s view that the error did not
prejudice defendant.




                                           1
       In Chapman v. California (1967) 386 U.S. 18, the United States Supreme
Court held that any violation of a criminal defendant‘s rights under the federal
Constitution is harmless only if the prosecution can ―prove beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.‖ (Id.
at p. 24.) According to the majority here, that standard was satisfied. For the
reasons given in Justice Liu‘s concurring and dissenting opinion, however, I am
not convinced beyond a reasonable doubt that the jury here applied the correct
standard of proof in determining defendant‘s guilt of the gang offense. Therefore,
I would affirm the Court of Appeal‘s judgment reversing defendant‘s conviction
for the gang offense.
       As to whether failure to instruct on reasonable doubt can ever be harmless
(see conc. & dis. opn. of Liu, J., post, pp. 3, 21), I agree with the majority that
such an error is harmless ―[i]f it can be said beyond a reasonable doubt that the
jury must have found the defendant‘s guilt beyond a reasonable doubt.‖ (Maj.
opn., ante, at p. 29.)


                                                   KENNARD, J.




                                           2
           CONCURRING AND DISSENTING OPINION BY LIU, J.



       A fundamental tenet of our criminal law is that ―the Due Process Clause
protects the accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged.‖ (In re
Winship (1970) 397 U.S. 358, 364.) Accordingly, the jury verdict required under the
Sixth Amendment to convict a person of a criminal offense ―is a jury verdict of guilty
beyond a reasonable doubt.‖ (Sullivan v. Louisiana (1993) 508 U.S. 275, 278
(Sullivan).) The trial court has a constitutional duty to so instruct the jury. (Id. at
p. 281.)
       The trial court in this case failed to give a standard reasonable doubt
instruction that would have apprised the jury that ―[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 guilt is satisfactorily shown, he is entitled to a verdict of not guilty.
This presumption places upon the People the burden of proving him guilty beyond a
reasonable doubt.‖ (CALJIC No. 2.90; see also CALCRIM No. 2.20 (2006 rev.).) I
agree with today‘s opinion that despite this omission, the trial court did not commit
federal constitutional error requiring defendant‘s voluntary manslaughter conviction
to be overturned. As the court explains, the trial court repeatedly mentioned the
reasonable doubt standard when instructing the jury on the elements of murder and its
lesser included offenses, including voluntary manslaughter. The jury was clearly
informed that in order to convict defendant of murder or voluntary manslaughter, the


                                           1
prosecutor had to prove all the elements of those offenses beyond a reasonable doubt.
I also agree with the court that the failure to define reasonable doubt in this case does
not require reversal of that conviction.
       Furthermore, I agree with today‘s holding that the trial court committed federal
constitutional error in failing to instruct the jury that defendant could not be convicted
of active participation in a criminal street gang in violation of Penal Code section
186.22 (all statutory references are to this code) unless the prosecution had proven his
guilt beyond a reasonable doubt. However, as explained below, I do not agree that the
error was harmless.
       Until today, no California case had ever held or even suggested that despite a
trial court‘s failure to instruct the jury with a standard reasonable doubt instruction or
some other instruction connecting the reasonable doubt standard to a charged offense,
an appellate court can still be certain beyond a reasonable doubt that the jury
understood its obligation with respect to that offense. California precedent is
uniformly to the contrary; every case to have found inadequate instruction on the
reasonable doubt standard has found such error to warrant reversal. The uniformity of
this precedent reflects the firm and justified conviction of our courts that ― ‗[n]o
instruction could be more vital‘ ‖ (People v. Vann (1974) 12 Cal.3d 220, 227 (Vann))
than one that assures a defendant ―the most elementary and fundamental right
provided by our system of justice, a jury verdict of guilty beyond a reasonable doubt‖
(People v. Crawford (1997) 58 Cal.App.4th 815, 823 (Crawford)).
       Today‘s decision is an unwarranted departure. The court correctly concludes
that the trial court‘s omission of the standard reasonable doubt instruction was federal
constitutional error because none of the given instructions, singly or collectively,
―otherwise cover[ed] the requirement that the prosecution prove defendant‘s guilt of
the gang offense beyond a reasonable doubt.‖ (Maj. opn., ante, at p. 20.) But the
court nevertheless believes ―we can say beyond a reasonable doubt on the record

                                           2
before us that the jury‘s verdict on the gang offense charge must have been based on a
finding of guilt beyond a reasonable doubt.‖ (Id. at p. 37.) This assertion is frankly
mystifying. It is inconsistent with the court‘s own rationale for finding federal
constitutional error. It disregards precedent strongly pointing the other way. And it
fails to recognize that a perfectly reasonable juror could have applied the reasonable
doubt standard only to the murder charge and not to the gang offense exactly as the
trial court instructed. Moreover, the court finds harmless error even though no party
asked us to decide that issue; the Attorney General conceded in her answer brief that
the instructional error on the gang offense required reversal. Even assuming the
possibility of a rare case in which failure to properly instruct on the reasonable doubt
standard does not prejudice a criminal defendant, this is not that case. Because the
court has erroneously and unnecessarily reached out to find the instructional error on
the gang offense harmless, I respectfully dissent from that portion of today‘s opinion.
                                                I.
       To put into perspective the novelty of the court‘s finding of harmless error, it is
helpful to begin with some background law. In Sullivan, supra, 508 U.S. 275, the
United States Supreme Court held that a trial court‘s misleading and erroneous
reasonable doubt instruction requires reversal of the conviction. The high court
explained that ―where the instructional error consists of a misdescription of the burden
of proof,‖ the error ―vitiates all the jury‘s findings.‖ (Id. at p. 281.) As a result, ―[a]
reviewing court can only engage in pure speculation — its view of what a reasonable
jury would have done. And when it does that, ‗the wrong entity judge[s] the
defendant guilty.‘ [Citation.]‖ (Ibid.)
       In the present case, the trial court did not give an incorrect or misleading
statement of the reasonable doubt instruction. Instead, the trial court failed to give the
standard reasonable doubt instruction. The issue before us is whether this omission
was federal constitutional error and, if so, whether reversal is warranted. Until today,

                                            3
all California courts that have considered the matter have found that where the trial
court has omitted the standard reasonable doubt instruction, and where no other
instructions connect the reasonable doubt standard to the charged offense, the
omission is reversible error. Although some courts have found the error to be
prejudicial under harmless error analysis while others have deemed it structural error,
in reality the reasoning and results have been virtually the same.
       In Vann, supra, 12 Cal.3d 220, we held that the trial court‘s omission of the
standard reasonable doubt instruction was prejudicial error. We rejected the
prosecution‘s argument that the reasonable doubt language in the circumstantial
evidence instruction and the good character instruction would necessarily be
understood by a jury to generally establish the reasonable doubt standard of proof.
(Id. at pp. 226–227.) The court also explained that the trial court‘s pre-
empanelment instructions to prospective jurors did not cure the error, noting a 16-
day gap between the reasonable doubt instruction given to prospective jurors and
the end of trial. (Id. at p. 227, fn. 6). Similarly, statements of counsel did not cure
the error because ―the court made it clear that the jurors were to follow the law as
explained by the court, and were not to follow rules of law stated in argument but
omitted from the instructions.‖ (Ibid.) The court thus concluded under Chapman
v. California (1967) 386 U.S. 18 that the error was not harmless beyond a
reasonable doubt. (Vann, at p. 228).
       People v. Elguera (1992) 8 Cal.App.4th 1214 (Elguera) similarly involved
an omission of the standard reasonable doubt instruction from the trial court‘s
predeliberation charge to the jury. The trial court had given the standard
instruction to prospective jurors at the start of jury selection; the reasonable doubt
standard was repeated during examination of prospective jurors, and each juror
said he or she understood it; the circumstantial evidence instruction given to the
jury before deliberation referred to the reasonable doubt standard; and the

                                           4
prosecutor and defense counsel mentioned the reasonable doubt standard at least
eight times in argument to the jury. (Id. at p. 1221.) Still, the Court of Appeal
was ―unable to declare [itself] convinced beyond a reasonable doubt the error had
no effect on the verdict.‖ (Id. at p. 1222.) Even though the entire trial, including
jury selection, occurred in a single day, the court explained that ―the instruction
was given not to actual jurors, but to prospective jurors who at the time did not
know whether they would ultimately serve in the case. As a result, the members
of the panel could well have viewed the court‘s remarks as hypothetical and thus
have failed to give the instruction the same focused attention they would have had
they been impaneled and sworn.‖ (Ibid.) ―[B]ecause the [trial] court made no
reference to . . . the general reasonable doubt standard with its charge to the jury
after presentation of the evidence, any intellectual awareness the jurors had that
the reasonable doubt standard applied may not have been accompanied by the
sense of centrality and importance the instruction should carry.‖ (Ibid.)
       In People v. Flores (2007) 147 Cal.App.4th 199 (Flores), the trial court did
not give the standard reasonable doubt instruction, but it did mention the
reasonable doubt standard in instructions pertaining to proof by circumstantial
evidence, defendant‘s choice not to testify, special statute of limitations findings,
and allegations that the defendant committed offenses against more than one
victim. (Id. at pp. 216–217.) As to each of those instructions, the court refused to
―presume that 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 on all of the charged offenses.‖ (Id. at
p. 216.) The trial court also mentioned the reasonable doubt standard during jury
selection. But, as in Vann and Elguera, the court found it ―unreasonable to expect
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

                                           5
court during jury selection.‖ (Id. at p. 215.) In addition, the court explained that
the prosecutor‘s discussion of the reasonable doubt standard during closing
argument did not effectively inform the jury of that standard in light of the trial
court‘s instruction that the jury must follow the law as stated by the court. (Id. at
p. 218.) ―In short,‖ the court concluded, ―we cannot say the trial court‘s error was
harmless beyond a reasonable doubt.‖ (Id. at p. 219.)
       In Crawford, supra, 58 Cal.App.4th 815, the Court of Appeal held that the
failure to give a standard reasonable doubt instruction was structural error. (Id. at
pp. 821–823.) But the court went on to explain that even if harmless error analysis
applied, the instructional omission was not harmless. (Id. at pp. 824–825
[references to proof beyond a reasonable doubt in pre-empanelment instructions
and in instructions on specific matters did not cure the failure to give the standard
instruction].) Similarly, in People v. Phillips (1997) 59 Cal.App.4th 952, the court
held that omission of the standard reasonable doubt was structural error, while also
rejecting the prosecution‘s contention that arguments of counsel and other
instructions relating to reasonable doubt rendered the omission harmless. (Id. at
pp. 956–958.)
       There is one case in which a court found that omission of the standard
reasonable doubt instruction was not prejudicial error and, indeed, not federal
constitutional error at all. In People v. Mayo (2006) 140 Cal.App.4th 535, the Court
of Appeal held that omission of the standard instruction does not constitute federal
constitutional error if the jury is otherwise instructed on the requirement of proof
beyond a reasonable doubt in connection with the charged offense. (Id. at pp. 548–
549.) In Mayo, a murder case, the trial court failed to give the standard instruction,
but other instructions made clear that as to the murder charge and lesser included
offenses, the prosecution had the burden of proving each element beyond a reasonable
doubt. (Id. at pp. 545–546.) The court distinguished Vann, Crawford, Phillips, and

                                          6
Elguera on the ground that the instructions in those cases ―did ‗fall far short‘ of
informing the jury it had to acquit unless it found each and every element of the
charged offense beyond a reasonable doubt.‖ (Id. at p. 546.) Mayo makes clear that
despite a trial court‘s failure to give a standard reasonable doubt instruction, a
defendant has not been denied ―the right to a jury verdict of guilt beyond a reasonable
doubt‖ (Sullivan, supra, 508 U.S. at p. 281) — and no federal constitutional error has
occurred — when the instructions given by the trial court otherwise informed the jury
of its obligation to apply the reasonable doubt standard to the charged offense.
       From this review of the case law, two points emerge. First, California courts
have not been entirely consistent in their doctrinal approach to analyzing the
significance of a trial court‘s omission of the standard reasonable doubt instruction.
Crawford and Phillips said the omission is structural error. Vann, Elguera, and
Flores said the omission itself is federal constitutional error, and those courts then
asked whether the error was prejudicial by examining whether the instructions given
by the trial court or the arguments of counsel adequately informed the jury of the
correct standard of proof for the charged offense. Mayo said that omission of the
standard reasonable doubt instruction is not, in and of itself, federal constitutional
error; it is only error when the instructions given by the trial court do not otherwise
inform the jury that the prosecution must prove each element of the charged offense
beyond a reasonable doubt.
       Today‘s opinion clarifies ―the proper inquiry with regard to determining the
federal constitutional implications of the trial court‘s failure to include the standard
reasonable doubt instruction in its predeliberation instructions to the jury.‖ (Maj.
opn., ante, at p. 14.) The court says ―the 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 defendants could not be convicted
‗unless each element of the crimes charged was proved to the jurors‘ satisfaction

                                           7
beyond a reasonable doubt.‘ (Vann, supra, 12 Cal.3d at p. 227.) 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.‖ (Maj. opn., ante, at p. 14.) Thus, consistent with Mayo, the
court today holds that omission of the standard reasonable doubt instruction does not
itself constitute federal constitutional error. A reviewing court must ask whether ―the
trial court‘s instructions otherwise cover this constitutional principle.‖ (Ibid.) Only
when the trial court‘s instructions do not otherwise connect the reasonable doubt
standard to the charged offense does omission of the standard instruction amount to
federal constitutional error.
       In light of today‘s doctrinal clarification, it is readily apparent that most of the
analysis that the cases above had categorized as ―harmless error‖ inquiry — in
particular, whether pre-empanelment or other instructions given by the trial court
compensated for the omission of the standard reasonable doubt instruction — is now
properly understood as an inquiry into whether a federal constitutional error occurred
at all. Under today‘s decision, a proper finding of federal constitutional error
subsumes a finding that other instructions given by the trial court did not adequately
convey to the jury the applicability of the reasonable doubt standard to the charged
offense. Importantly, as discussed more fully below, this means that even if such
error is amenable to harmless error analysis, a finding of error will almost invariably
lead to reversal. That is because there is very little that other components of a trial,
such as the arguments of counsel, can do to compensate for the failure of a trial
court‘s instructions, singly and collectively, to inform the jury on the correct standard
of proof for the charged offense.
       A second observation from the prior cases is that despite varying doctrinal
approaches, and despite factual differences from case to case, our courts have been
consistently and highly skeptical of arguments that purport to show why omission of

                                           8
the standard reasonable doubt instruction does not warrant reversal. No court has
found much relevance in statements of counsel, given the obvious authority of the
trial judge in the courtroom. No court has put much stock in pre-empanelment
instructions, even when they repeatedly mention the reasonable doubt standard,
because prospective jurors who do not know whether they will actually serve on a
jury cannot realistically be thought to pay focused attention to the trial court‘s
instructions, and because the lapse of time between jury selection and deliberation
erodes any impact such instructions might have. In addition, no court has found
references to the requirement of proof beyond a reasonable doubt in other
predeliberation instructions to be an adequate substitute for the standard instruction,
unless those instructions expressly connect the reasonable doubt standard to the
charged offense, as in Mayo. In sum, no California case has ever held that a trial
court‘s failure to give the standard reasonable doubt instruction or any other
instruction connecting the requirement of proof beyond a reasonable doubt to the
charged offense constitutes anything but reversible error.
       Against this landscape of precedent, it is no wonder that the Attorney
General‘s answer brief on the merits said she ―acknowledges that the instructions did
not adequately convey the concept of reasonable doubt to the jury with regard to the
street terrorism conviction, and is not challenging the reversal of that count.‖ Yet this
court, on its own initiative, has decided to break new ground by finding the
instructional error harmless. This conclusion, as I now explain, is contrary to
precedent, common sense, and other parts of this court‘s own opinion.
                                            II.
       At the close of evidence and argument in this case, the trial court first
instructed the jurors with CALJIC No. 1.00, which states in part: ―You have heard
all the evidence . . . and now it is my duty to instruct you on the law that applies to
this case. You will have these instructions in written form in the jury room to

                                           9
refer to during your deliberations.‖ The instruction further stated: ―You must
accept and follow the law as I state it to you, regardless of whether you agree with
it.‖ The trial court‘s predeliberation instructions then included nine instructions
related to the murder count and lesser included offenses and enhancements, each
of which mentioned the requirement of proof beyond a reasonable doubt. The trial
court did not give the jury a reasonable doubt instruction on the gang offense, nor
did the trial court give the standard reasonable doubt instruction.
                                            A.
       Applying the proper inquiry for determining whether the trial court‘s omission
of the standard reasonable doubt instruction amounted to federal constitutional error,
the court holds that no error occurred ―with regard to the voluntary manslaughter
conviction because the court‘s instructions on murder and its lesser included offenses
clearly connected the reasonable doubt standard to the voluntary manslaughter
offense.‖ (Maj. opn., ante, at p. 18.) The court then says: ―The same cannot be said
concerning the count charging defendant with active participation in a criminal street
gang in violation of section 186.22, subdivision (a), however, because neither the
instruction on the elements of that offense nor any other instruction given by the court
connected the reasonable doubt standard of proof to that charge.‖ (Id. at pp. 18–19.)
       In support of the latter holding, the court observes that the instruction stating
the elements of the gang offense ―did not explain that the prosecution must prove each
of those elements beyond a reasonable doubt.‖ (Maj. opn., ante, at p. 19.) In
addition, ―[t]he circumstantial evidence instruction did not adequately cover the
principle that defendant could be convicted of the gang offense only if the prosecution
proved his guilt of the gang offense beyond a reasonable doubt.‖ (Id. at p. 20.)
Further, although the trial court mentioned the reasonable doubt standard in its
instruction on the gang enhancement allegation, ―the reference to the reasonable doubt
standard was contained in an instruction concerning a sentencing allegation associated

                                          10
with the murder charge, an entirely different count.‖ (Id. at p. 19.) Indeed, none of
the trial court‘s nine predeliberation instructions that specifically referred to the
reasonable doubt standard connected that standard to the gang offense, for the court
concludes that ―the [trial] court‘s instructions did not otherwise cover the requirement
that the prosecution prove defendant‘s guilt of the gang offense beyond a reasonable
doubt.‖ (Id. at p. 20.) Finally, in a footnote, the court adds that the trial court‘s pre-
empanelment instructions to prospective jurors, which repeatedly mentioned the
reasonable doubt standard, were not ―an adequate substitute for the court‘s duty to
instruct the jurors prior to deliberation on the principle of proof beyond a reasonable
doubt.‖ (Id. at p. 20, fn. 11.)
       At this point in the analysis, the court has determined that neither the pre-
empanelment instructions nor any other instructions given by the trial court
adequately conveyed to the jury the applicability of the reasonable doubt standard to
the gang offense. That is the basis of the court‘s finding of federal constitutional
error. To the extent this instructional error is subject to harmless error analysis, one
would expect such analysis to focus on whether aspects of the trial other than
instructions given by the trial court effectively compensate for the inadequacy of the
trial court‘s instructions. On the record before us, that inquiry would be short and
simple. As the court acknowledges, the only potentially relevant circumstance is that
―neither the prosecutor nor defense counsel referred to the standard of proof during
closing remarks‖ and ―nothing in counsel‘s arguments would have misled the jury to
believe it should adjudge defendant‘s guilt of the gang count under a standard of proof
less than beyond a reasonable doubt.‖ (Maj. opn., ante, at p. 31.) That is true. But it
is equally true that nothing in counsel‘s arguments would have led the jury to believe
it should adjudge defendant‘s guilt of the gang count under the reasonable doubt
standard. Counsel‘s silence can hardly render the instructional error harmless beyond
a reasonable doubt.

                                           11
       The court correctly notes that the issue of reversibility in this context does not
depend on the strength of the case against a defendant. (Maj. opn., ante, at pp. 28–
29.) So what is left for the court to do in its harmless error analysis? Perplexingly,
the court answers this question by focusing its harmless error analysis on a second
look at whether the instructions given by the trial court adequately informed the jury
of the reasonable doubt standard — the same inquiry the court posed earlier to
determine whether the instructional omission amounted to federal constitutional error.
Even more baffling, this ―do-over‖ leads the court to a conclusion contrary to the one
it reached just a few pages earlier.
       First, the court says the ―nine instructions in connection with the murder
count‖ left no reasonable possibility that the jury failed to apply the reasonable doubt
standard in finding defendant guilty of the gang offense. (Maj. opn., ante, at p. 29;
see id. at p. 30 [―We find it unrealistic, in light of the given instructions, that the
jurors would have believed the prosecution was required to prove defendant‘s guilt of
murder or its lesser offenses beyond a reasonable doubt but that it had no burden, or a
burden less than beyond a reasonable doubt, to prove his guilt of the gang offense.‖].)
The court says these murder-related instructions ―in particular‖ support a finding of
harmless error. (Id. at p. 36.)
       These statements take the reader by surprise in light of the court‘s prior
conclusion that ―the [trial] court‘s instructions did not otherwise cover the
requirement that the prosecution prove defendant‘s guilt of the gang offense beyond a
reasonable doubt.‖ (Id. at p. 20.) How can the court say that the only ―realistic‖ or
―reasonably possible‖ inference from the murder-related instructions was that the
reasonable doubt standard also applied to the gang offense when the court‘s finding of
constitutional error rejects the necessity of that very inference? The court‘s harmless
error analysis flies in the face of its earlier reasoning that the murder-related
instructions were insufficient to convey the applicability of the reasonable doubt

                                           12
standard to the gang offense because ―the murder charge [was] an entirely different
count.‖ (Id. at p. 19.) The court provides no justification for retreating from its own
recognition, supported by ample precedent, that ―it cannot be presumed ‗that 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 on the charged offenses.‘ ‖ (Id. at p. 16, quoting Flores, supra, 147
Cal.App.4th at p. 216; see also Vann, supra, 12 Cal.3d at pp. 226–227; Crawford,
supra, 58 Cal.App.4th at pp. 824–825; Elguera, supra, 8 Cal.App.4th at p. 1218.)
       Second, the court notes that the trial court‘s pre-empanelment instructions to
prospective jurors ―repeatedly explained the connection between the charged crimes
and the reasonable doubt standard.‖ (Maj. opn., ante, at p. 34; see id. at p. 35 [―Thus,
in this case, the court undertook extensive effort during jury selection to impress upon
the prospective jurors the meaning, application, and magnitude of the beyond-a-
reasonable-doubt standard of proof, and it painstakingly elicited from the prospective
jurors their understanding and acceptance of that principle.‖].) But the court is aware
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‖ and that substantial precedent
has found it ― ‗unreasonable to expect prospective jurors . . . to give the necessary
attention and weight to instructions given by a trial court during jury selection.‘ ‖ (Id.
at p. 20, fn. 11, quoting Flores, supra, 147 Cal.App.4th at p. 215; see also Vann,
supra, 12 Cal.3d at p. 227, fn. 6; Crawford, supra, 58 Cal.App.4th at p. 824; Elguera,
supra, 8 Cal.App.4th at p. 1217.)
       In light of this precedent, the court attempts to finesse the relevance of the
pre-empanelment instructions by saying they are ―of lesser significance‖ than
instructions given at trial but nonetheless ―provide some support‖ for the court‘s
finding of harmless error. (Maj. opn., ante, at p. 33.) But having concluded that

                                          13
the same ―extensive‖ and ―painstaking‖ pre-empanelment instructions, along with
the nine murder-related instructions that specifically mentioned reasonable doubt,
do not show that the trial court‘s instructions ―otherwise cover[ed] the requirement
that the prosecution prove defendant‘s guilt of the gang offense beyond a
reasonable doubt‖ (id. at p. 20 & fn. 11), how can the court now say that the pre-
empanelment instructions ―provide some support for our conclusion that there is
no reasonable possibility that the jury‘s verdict on the gang count was not based
on a finding of guilt beyond a reasonable doubt‖ (id. at p. 33)? I do not see how
these two holdings can be reconciled. If it is ― ‗unreasonable to expect prospective
jurors . . . to give the necessary attention and weight to instructions given by a trial
court during jury selection‘ ‖ (id. at p. 20, fn. 11), and if the unreasonableness of
that expectation supports the court‘s finding of federal constitutional error, then
why should remarks to prospective jurors now be regarded as a relevant factor,
even of ―lesser significance,‖ in harmless error analysis? Given the 14-day gap
between jury selection and deliberations in this case, it is questionable whether the
jurors even recalled those remarks.
                                             B.
       The obvious inconsistency between the court‘s harmless error analysis and its
rationale for finding federal constitutional error reveals how mightily the court must
strain to avoid a far more simple, straightforward, and legally supportable conclusion:
It was reasonably possible that the jury did not apply the reasonable doubt standard in
convicting defendant of the gang offense.
       In light of the trial court‘s instructions and omissions, it is certainly
possible, as the court posits, that a reasonable juror would have inferred that the
reasonable doubt instruction given in connection with murder count also applied to
the gang offense. But it is also possible that a reasonable juror, noting the
discrepancy, would have concluded that the reasonable doubt standard did not

                                           14
apply to the gang offense. Given the regularity with which courts employ the
maxim expressio unius est exclusio alterius, why isn‘t it reasonably possible —
especially because the trial court mentioned the reasonable doubt standard in nine
separate instructions pertaining to murder, but not once in any instruction
pertaining to the gang offense — that the jury would have understood that the
reasonable doubt standard applied only to the murder count and not to the gang
offense?
       Indeed, the possibility that the jury followed the trial court‘s instructions
literally and did not apply the reasonable doubt standard to the gang offense is
consistent with the principle that ―the jury is presumed to follow the trial court‘s
instructions.‖ (People v. Fuiava (2012) 53 Cal.4th 622, 669.) This well-
established presumption is based on the notion that sworn jurors, thrust into an
unfamiliar courtroom environment and charged with the solemn responsibility of
deciding whether a person should be convicted of a crime, will follow the specific
instructions of the person in authority, the trial judge. The possibility that the jury
did not follow the trial court‘s instructions literally and instead drew ―logical‖ or
―realistic‖ inferences from those instructions (maj. opn., ante, at pp. 30–31) is not
consistent with this presumption.
       The fact that ―none of the court‘s instructions at trial referred to a lesser
standard of proof such as preponderance of the evidence or clear and convincing
evidence‖ (maj. opn., ante, at p. 30) provides little reassurance. Even if the jurors
did not consciously infer a standard of proof less than the reasonable doubt
standard, there is another reasonable possibility: The jurors may not have
considered or made any inferences about the standard of proof at all with respect
to the gang offense. We have no reason (and no legal basis) to presume that a
reasonable juror will remedy the absence of any standard of proof instruction by
using inferential reasoning. Just as likely, inadequately instructed jurors may

                                          15
simply pay no attention to the standard of proof, instead substituting whatever
standard seems intuitively right, as I suspect most lay people would do if asked
whether they believed that a particular fact had been adequately proven. There is
no reason to think that a question like ―was the defendant an active participant in a
street gang?‖ will necessarily cause jurors to ponder (much less correctly answer)
the question ―under what standard of proof?‖
       In any event, whether or not the jurors noticed the instructional omission,
whether they thought the omission was intentional, inadvertent, or erroneous, it
would have been perfectly reasonable for the jury to follow the trial court‘s initial
admonition to ―accept and follow the law as I state it to you, regardless of whether
you agree with it.‖ (CALJIC No. 1.00, italics added.) There is nothing
unreasonable about the possibility that the jury did not apply the reasonable doubt
standard in convicting defendant of the gang offense.
                                           C.
       The court‘s remaining arguments to the contrary are not persuasive. The
court relies on People v. Cowan (2010) 50 Cal.4th 401 (Cowan) to argue that
― ‗the most logical response‘ by the jury to the absence of instruction specifically
linking the reasonable doubt standard to the gang offense count would have been
to conclude that a guilty verdict on that charge was subject to the same reasonable
doubt standard that had been described in the court‘s instructions on murder, the
lesser offenses, and the sentencing allegations.‖ (Maj. opn., ante, at p. 31, quoting
Cowan, at p. 492.) But Cowan is easily distinguished.
       In Cowan, a death penalty case, the jury hung as to the Russell murder with
which the defendant was charged, but found the defendant guilty of two other
murders. At the penalty phase, the jury was instructed with the statutory list of
aggravating and mitigating factors, including ― ‗the presence or absence of
criminal activity by the defendant other than the crimes for which the defendant

                                         16
has been tried in the present proceedings, which involved the use or attempted use
of force or violence, or the express or implied threat to use force or violence.‖
(Cowan, supra, 50 Cal.4th at p. 488, quoting § 190.3, factor (b), italics added.)
The jury was further instructed with a modified version of CALJIC No. 8.87,
stating that evidence had been introduced of three other criminal acts (a robbery, a
burglary, and child abuse) and that ― ‗[b]efore a juror may consider any of such
criminal acts as an aggravating circumstance in this case, a juror must first be
satisfied beyond a reasonable doubt that the defendant did, in fact, commit such
criminal acts. A juror may not consider any evidence of any other criminal acts as
an aggravating circumstance.‘ ‖ (Cowan, at p. 488.)
       Based on a portion of testimony the jury asked to be read back during
deliberations, there was some indication that the jury was improperly considering
the Russell murder as a criminal act in aggravation. On appeal, the defendant
argued that the trial court had a sua sponte duty to instruct that the Russell murder
could not be considered unless the jurors were convinced of defendant‘s guilt of
that murder beyond a reasonable doubt.
       In rejecting defendant‘s contention that the failure to so instruct was
prejudicial error, we found it unlikely that the jury was considering the Russell
murder as a crime in aggravation because the jury was instructed that crimes in
aggravation could only include ―criminal activity ‗other than the crimes for which
the defendant has been tried in the present proceedings‘ ‖ and because the Russell
murder was not included in the exclusive list of crimes in aggravation given to the
jury. (Cowan, supra, 50 Cal.4th at p. 491.) We went on to explain that even if the
jurors had improperly considered the Russell murder for that purpose, it was
―extremely unlikely that individual jurors then believed they could consider the
Russell murder as an aggravating factor even if it had not been proved beyond a
reasonable doubt. Rather, the most logical response to the absence of a specific

                                         17
instruction would have been to conclude that the Russell murder was subject to the
same reasonable doubt standard as the other criminal activity included in the
instruction based on CALJIC No. 8.87.‖ (Id. at p. 492.)
       Thus, in Cowan, the only way the jury could have failed to apply the
reasonable doubt standard to the Russell murder was by doubly disobeying the
trial court‘s instructions — first, by improperly considering the Russell murder as
a crime in aggravation, and second, by ignoring the instructions given by the trial
court for considering crimes in aggravation, including the requirement of certainty
beyond a reasonable doubt. Unsurprisingly, we found that scenario ―extremely
unlikely.‖ (Cowan, supra, 50 Cal.4th at p. 492.) Here, by contrast, the jury could
have concluded that the reasonable doubt standard did not apply to the gang
offense, not by ignoring or disobeying the trial court‘s instructions, but by literally
following them. (See ante, at pp. 15–16.)
       Next, the court attempts to distinguish Vann and the line of Court of Appeal
cases finding reversible error by observing that ―[i]n no case . . . did the court‘s
instructions convey that the prosecution bore the burden of proving guilt of any of the
crimes of which the defendant was convicted.‖ (Maj. opn., ante, at p. 32.) ―By
contrast in this case,‖ the court says, the jury convicted defendant of voluntary
manslaughter after being ―informed through a number of predeliberation instructions
that to convict defendant of the charged murder or any of its lesser included offenses,
it must find him guilty of the offense beyond a reasonable doubt.‖ (Ibid.) But this
purported distinction does not make it any more likely that the jury applied the
reasonable doubt standard to the gang offense. As the court says elsewhere, because
the ―murder charge [was] an entirely different count‖ (id. at p. 19), the possibility that
the murder-related instructions ―connected the requisite standard of proof to the gang
offense is even more dubious here‖ (ibid., italics added) than in other cases where ―it
cannot be presumed ‗that a reasonable doubt instruction given in a specific context . . .

                                          18
will necessarily be understood by all of the jurors to apply generally . . . .‘ ‖ (id. at
p. 16, quoting Flores, supra, 147 Cal.App.4th at p. 216).
       Finally, in an effort to buttress its reliance on the trial court‘s pre-
empanelment instructions, the court says ―the present case differs from Vann‖
because there ―the trial court ended its predeliberation instructions by informing
the jurors that they ‗ ―have been instructed on all the rules of law that may be
necessary for you to reach a verdict,‖ ‘ ‖ thereby ―suggest[ing] to the jurors that
the predeliberation instructions were ‗a self-contained, complete statement of the
law they were to follow.‘ ‖ (Maj. opn., ante, at p. 36, quoting Vann, supra, at
p. 227, fn. 6.) ―Here, by contrast, the trial judge instructed the jury only that it
must ‗accept and follow the law as I state it to you.‘ (See CALJIC No. 1.00.)
Nothing in this directive would have led the jurors to believe they must ignore the
court‘s explications of the prosecution‘s burden of proof given during jury
selection.‖ (Maj. opn., ante, at p. 36.) Further, the court notes that the trial court
said ―[a]t the outset of trial‖ that ― ‗all of the Court‘s instructions, whether given
before, during, or after the taking of testimony, are of equal importance.‘ ‖(Ibid.)
       But the trial court‘s introductory admonition at the outset of predeliberation
instructions to ―accept and follow the law as I state it to you‖ (italics added)
contains no less a representation of completeness than the concluding instruction
in Vann. Moreover, as for the trial court‘s statement that ―all of the Court‘s
instructions . . . are of equal importance,‖ here is a more complete quotation of
what the trial court said: ―I shall now instruct you as to your basic functions,
duties and conduct. At the conclusion of the case, I will give you further
instructions on the law. All of the Court‘s instructions, whether given before,
during or after the taking of testimony, are of equal importance.‖ This statement
was made after the jurors had been selected and sworn, and it refers to instructions
given from that point on (―I shall now instruct you . . . .‖), not to prior statements

                                           19
the trial court made to prospective jurors. For reasons already discussed, the trial
court‘s instructions during jury selection have minimal import in curing the
instructional omission at issue here. And the trial court‘s statements after the
jurors had been selected and sworn would have done nothing to focus the attention
of prospective jurors.
                                            III.
       The principle that a person may not convicted of a crime unless proven
guilty beyond a reasonable doubt may be part of the general knowledge that jurors
bring to the deliberation room, whether instilled by civic education or by watching
Law & Order. But this kind of general knowledge is insufficient to ensure that the
jury discharges its obligation properly. Instead, our justice system requires trial
courts to instruct the jury on the reasonable doubt standard ―after the presentation
of evidence‖ so that the burden is placed ―at center stage for consideration during
deliberations.‖ (Crawford, supra, 58 Cal.App.4th at p. 825.) ― ‗No instruction
could be more vital . . . , since in every criminal case it directs the jury to put away
from their minds [sic] all suspicions arising from arrest, indictment, arraignment,
and the appearance of the accused before them in his role as a defendant.‘
[Citation.]‖ (Vann, supra, 12 Cal.3d at p. 227.) As one Court of Appeal put it:
―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.‘ ‖ (Elguera, supra, 8
Cal.App.4th at pp. 1222–1223.)
       In this case, the court properly holds that the trial court‘s omission of the
standard reasonable doubt instruction, along with the absence of any other
instructions that connected the reasonable doubt standard to the gang offense, was
federal constitutional error. But instead of affirming the uncontested reversal of
defendant‘s conviction on that count, today‘s opinion reaches out to decide an
issue that no party asked us to decide. In deciding that issue, the court contravenes

                                          20
precedent, common sense, and its own opinion. Whether or not an instructional
error of this sort is properly subject to harmless error analysis, no harmless error
can be found on the record before us. How can we be certain beyond a reasonable
doubt that the jurors who convicted defendant of the gang offense gave focused
attention to the correct standard of proof when they were not instructed on this
standard either generally or specifically with respect to that offense? Simply put,
we can‘t.
         Consistent with all California cases that have considered whether
inadequate instruction on the requirement of proof beyond a reasonable doubt is
reversible error, I would affirm the Court of Appeal‘s reversal of defendant‘s
conviction on the gang offense. In all other respects, I join the opinion of the
court.


                                                  LIU, J.




                                          21
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Aranda
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 188 Cal.App.4th 1490
Rehearing Granted

__________________________________________________________________________________

Opinion No. S188204
Date Filed: August 27, 2012
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Albert J. Wojcik

__________________________________________________________________________________

Counsel:

William J. Capriola, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Pamela Ratner
Sobeck, Raymond M. DiGuiseppe, Steven T. Oetting and Tami Falkenstein Hennick, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

William J. Capriola
Post Office Box 1536
Sebastopol, CA 95473-1536
(7070) 829-9490

Tami Falkenstein Hennick
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2274
