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The People v. Anthony Aranda

August 27, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANTHONY ARANDA, JR., DEFENDANT AND APPELLANT.



Super. Ct. No. SWF010404 Ct.App. 4/1 D055701 Riverside County Judge: Albert J. Wojcik

The opinion of the court was delivered by: Cantil-sakauye, C. J.

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 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."

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.

Defendant was charged with the crimes of murder and actively participating in a criminal street gang.*fn1 (Pen. Code, §§ 187, subd. (a), 186.22, subd. (a).)*fn2 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.)

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.*fn3 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.*fn4

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.

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.*fn5 The prosecution's burden of proof in a criminal case is controlled by section 1096 of the Penal Code,*fn6 the substance of which has, in turn, been 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.*fn7 A court satisfies its statutory obligation to instruct on these 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 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 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.)*fn8

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 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.*fn9

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 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 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 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 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.*fn10 (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 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 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 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 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.*fn11

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. 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' ...


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