Filed 7/24/14 P. v. Diaz CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B248386

                 Plaintiff and Respondent,                           (Los Angeles County
                                                                     Super. Ct. No. BA397666)
           v.

JUAN DIAZ,

                 Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara
R. Johnson, Judge. Reversed.
         Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Brendan
Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.




                        ____________________________________________
       A jury convicted Juan Diaz of burglary. In instructing the jury prior to its
deliberation, the court apparently through inadvertence neglected to instruct that the
defendant is presumed innocent and that he must be proven guilty beyond a reasonable
doubt. On review of the whole record of instructions, we conclude that the court’s failure
to instruct on reasonable doubt requires Diaz’s conviction be reversed.
                         FACTS AND PROCEEDINGS BELOW
       We summarize the facts briefly because, as we explain below, the strength of the
prosecution’s evidence is irrelevant to our decision.
       Based on information obtained from a wiretap, police believed that Diaz and an
accomplice intended to assault Rafael Davila in his auto shop. Police officers observed
Diaz and a companion enter the shop and later run out and drive away. The officers
stopped and detained Diaz and his companion. In a field identification, Davila identified
the two men as the ones who assaulted him and attempted to rob him in his shop.
       The People charged Diaz with robbery and burglary. A jury convicted him of
burglary and acquitted him of robbery. The court sentenced Diaz to the midterm of
two years in prison. Diaz filed a timely notice of appeal.
                                        DISCUSSION
       Penal Code section 1096 provides in relevant part that: “[a] defendant in a
criminal action is presumed to be innocent until the contrary is proved . . . beyond a
reasonable doubt” and defines the term “reasonable doubt.” Evidence Code section 502
states that “[t]he court . . . shall instruct the jury as to which party bears the burden of
proof on each issue and as to whether that burden requires that a party raise a reasonable
doubt concerning the existence or nonexistence of a fact . . .”
       The substance of Penal Code section 1096, quoted above, has been incorporated
into CALCRIM No. 220. (People v. Aranda (2012) 55 Cal.4th 342, 353 (Aranda).)
Here, however, the court read only the first paragraph of CALCRIM No. 220 which
states: “The fact that a criminal charge has been filed against the defendants is not
evidence that the charge is true. You must not be biased against the defendants just

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because [they have] been arrested, charged with a crime, or brought to trial.” The court
skipped the rest of the instruction which declares that the defendant “is presumed to be
innocent” and that this presumption requires that the People prove the defendant is
“guilty beyond a reasonable doubt.” The court also failed to read the instruction’s
definition of “reasonable doubt.”1 The written version of CALCRIM No. 220 that the
court submitted to the jury also contained only the first paragraph. Diaz maintains that
these omissions violated his rights to due process and a fair trial under federal and
California law.
       We agree with Diaz that the court committed reversible error in failing to instruct
the jury prior to its deliberations that in order to find him guilty of a crime it must be
convinced beyond a reasonable doubt as to every element of the crime.
       A.     Failure To Give A Predeliberation Instruction On Proof Beyond A
              Reasonable Doubt Amounted To Federal Constitutional Error.
       In Aranda, supra, our high court stated the rule to be applied when the trial court
fails to give the “standard” reasonable doubt instruction on reasonable doubt, (i.e.
CALCRIM No. 220 or CALJIC No. 2.90). “[T]he omission of the standard reasonable
doubt instruction will amount to a federal due process violation when the instructions that
were given by the court failed to explain that the defendant could not be convicted
‘unless each element of the crimes charged was proved to the jurors’ satisfaction beyond
a reasonable doubt.’ . . .” (Aranda, supra, 55 Cal.4th at p. 358; citation omitted.) It is not

       1
                The missing portion of CALCRIM No. 220 states: “A defendant in a
criminal case is presumed to be innocent. This presumption requires that the People
prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People
must prove something, I mean they must prove it beyond a reasonable doubt [unless I
specifically tell you otherwise]. [¶] Proof beyond a reasonable doubt is proof that leaves
you with an abiding conviction that the charge is true. The evidence need not eliminate
all possible doubt because everything in life is open to some possible or imaginary doubt.
[¶] In deciding whether the People have proved their case beyond a reasonable doubt,
you must impartially compare and consider all the evidence that was received throughout
the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable
doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not
guilty.
                                               3
sufficient that the trial court referred to reasonable doubt in connection with “narrow
evidentiary or procedural determinations.” (Id. at pp. 358-359, citing cases.) The trial
court must connect the reasonable doubt requirement to the elements of the substantive
crime charged. (Id. at pp. 357, 358-359.)
       The Supreme Court, in Aranda, held that the trial court satisfied this test in
instructing on a charge of murder and its lesser included offenses but failed the test with
respect to a charge of participation in a criminal street gang. (Aranda, supra, 55 Cal.4th
at p. 350.) Due process was satisfied as to the murder charge because “the trial court
repeatedly referred to the prosecution’s burden of proving guilt beyond a reasonable
doubt when instructing on the murder charge and its lesser included offenses, clearly and
directly connecting the requisite standard of proof to those offenses.” (Aranda, at p. 361,
italics added.)
       In the case before us the trial court referred to proof beyond a reasonable doubt
in its instructions on eyewitness identification, circumstantial evidence, the defendant’s
right not to testify, and aiding and abetting. None of these isolated applications of the
reasonable doubt standard, however, explained that Diaz could not be convicted of
robbery or burglary “‘unless each element of the crimes charged was proved to the jurors’
satisfaction beyond a reasonable doubt.’ . . .” (Aranda, supra, 55 Cal.4th at p. 358;
citation omitted.) Nor did any of these instructions define the term “reasonable doubt.”
In People v. Flores (2007) 147 Cal.App.4th 199, 215-216 (Flores), for example, the court
held that due process was not satisfied by reference to proof beyond a reasonable doubt in
the trial court’s instructions on circumstantial evidence and the defendant’s right not to
testify. The trial court’s predeliberation instructions in this case did not satisfy federal
constitutional standards as interpreted by our high court in Aranda.
       We recognize that prior to the commencement of jury selection the court
explained some basic rules of law and procedure to the potential jurors by reading
CALCRIM No. 103 which informed them that “[a] defendant in a criminal case is
presumed to be innocent”; that this presumption “requires that the People prove a

                                               4
defendant guilty beyond a reasonable doubt”; and defined the term “reasonable doubt.”
In Aranda, however, the court noted that “no decision has viewed instructions and
remarks at this stage of the proceedings as an adequate substitute for the court’s duty
to instruct the jurors prior to deliberation on the principle of proof beyond a reasonable
doubt.” (Aranda, supra, 55 Cal.4th at p. 362, fn. 11, see discussion of harmless error,
post.)
         B.     The Error Was Not Harmless Beyond a Reasonable Doubt.
         We turn now to the question whether, in light of all the instructions given, the
court’s error in not giving a predeliberation instruction on reasonable doubt may properly
be found harmless beyond a reasonable doubt. (Aranda, supra, 55 Cal.4th at p. 367.)
         Again, we look to Aranda for guidance.
         In assessing harmless error in Aranda our Supreme Court began by rejecting the
usual “Chapman” analysis2 which relies heavily on the strength of the prosecution’s
case. (Aranda, supra, 55 Cal.4th at p. 368; see e.g. People v. Houston (2012) 54 Cal.4th
1186, 1222.) The court explained that if a reviewing court found that the failure to
instruct on reasonable doubt was harmless based on the overwhelming weight of the
prosecution’s case the court would be “expressing its own idea ‘of what a reasonable jury
would have done.’” When a court does that, “‘“ the wrong entity judge[s] the defendant
guilty.”’” (Ibid., citations omitted.) Therefore, “[n]o matter how overwhelming a court
may view the strength of the evidence of the defendant’s guilt, that factor is not a proper
consideration on which to conclude that the erroneous omission of the standard
reasonable doubt instruction was harmless under Chapman.” (Ibid.) Instead of relying
on the strength of the prosecution’s evidence, the appellate court “should evaluate the
record as a whole” to assess how the trial court’s error in failing to instruct on reasonable
doubt affected the jury’s determination of guilt. (Ibid.) “If it can be said beyond a
reasonable doubt that the jury must have found the defendant’s guilt beyond a reasonable


         2
                Chapman v. California (1967) 386 U.S. 18, 24.
                                               5
doubt, the error is harmless. If the reviewing court cannot draw this conclusion, reversal
is required.” (Ibid.)
       After reviewing the record of the trial court’s instructions, we cannot declare a
belief that omitting an instruction on reasonable doubt from the predeliberation
instructions was harmless beyond a reasonable doubt.
       In Aranda the court found that the failure to give a predeliberation instruction on
reasonable doubt as to the gang charge was harmless error because (1) the trial court gave
that instruction with respect to the murder charge and it was not reasonably possible
that the jury would have thought a different standard applied to the gang charge (Aranda,
supra, 55 Cal.4th at p. 369); (2) the trial court read the CALJIC reasonable doubt
instruction to the prospective jurors and throughout the next two days of jury selection
continued to reference and clarify the reasonable doubt standard (id. at pp. 371-372);
(3) the trial court, in its introductory remarks, explained the connection between the
standard of reasonable doubt and the elements of the charged crimes (id. at p. 372); and
(4) the trial court’s pretrial instructions did not conflict with its predeliberation
instructions and the court instructed the jury that all of its instructions, whether given
before, during or after the taking of testimony “‘are of equal importance’” (id. at p. 373).
       This case is distinguishable from Aranda in all of the preceding aspects. Unlike
Aranda, the trial court in this case did not give the reasonable doubt instruction with
respect to one of the charged crimes but not the other. And, although the court read an
instruction on reasonable doubt to the jury venire, unlike Aranda, the record does not
show that the court repeated and expounded on that standard during jury selection.
(Cf. Aranda, supra, 55 Cal.4th at p. 371.) Furthermore, seven days elapsed between
the court’s explanation of the reasonable doubt requirement to the crowd of prospective
jurors and the court’s predeliberation instructions to the twelve jurors who would decide
the case. (Cf. People v. Elguera (1992) 8 Cal.App.4th 1214, 1223 [jurors “unlikely to
remember [reasonable doubt instruction] read to them five and one-half hours earlier”].)
As pointed out in Flores, supra, 147 Cal.App.4th at p. 215 “it is unreasonable to expect

                                               6
prospective jurors, who have yet to be empanelled and sworn as actual jurors in the trial,
to give the necessary attention and weight to instructions given by a trial court during
jury selection as the federal constitution requires.”
       In sum, we cannot say that the trial court’s error was harmless beyond a
reasonable doubt. Accordingly, we reverse the judgment.3
                                        DISPOSITION
       The judgment is reversed.
       NOT TO BE PUBLISHED.




                                                         ROTHSCHILD, P. J.
We concur:



                     JOHNSON, J.



                     MILLER, J.




       3
              Given this holding we need not address Diaz’s other claims of error.

        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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