PEOPLE v. DIAZ

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Hugo Espinoza DIAZ, Defendant and Appellant.

No. B117350.

Decided: September 14, 1998

Marsha D. Kennedy, under appointment by the Court of Appeal, Port Hueneme, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.

Here we hold, among other things, the failure to instruct on the presumption of innocence in a criminal case is not reversible per se.

Hugo Espinoza Diaz appeals from the judgment entered following a jury trial in which he was convicted of possessing methamphetamine for sale.  (Health & Saf.Code, § 11378.)   The trial court also found true that he had served two prior prison terms.  (Pen.Code, § 667.5, subd. (b).)

Diaz contends his conviction must be reversed because the trial court failed to instruct on the presumption of innocence or to reinstruct on the prosecution's burden of proving his guilt beyond a reasonable doubt immediately prior to the jury's deliberations.   We affirm.

PROCEDURAL FACTS

The trial judge addressed the sworn jurors at the outset of the case as follows:  “Before we begin the actual trial and before we hear opening statements and begin taking of evidence, I am going to give you a few preliminary instructions that may be helpful in order for you to follow what is going on․”   Among other things, he instructed that the burden was on the People to prove their case against defendant beyond a reasonable doubt.

The trial judge also defined reasonable doubt in the manner provided in CALJIC No. 2.90 as follows:  “[It] is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt.  [¶] It's 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.”   He did not add that defendant was presumed innocent until proven guilty.

The trial judge told the jurors that they would receive all the instructions pertaining to the case at the end of the trial.   He also told them:  “The fact that I give you some instructions now and some at the conclusion of the case has no significance as to their relative importance.”   He repeated this admonishment at the end of the trial.   The trial began that morning and concluded by noon the next day.

After presentation of the evidence, but prior to closing arguments, the court gave verbal and written instructions to the jury.   The instructions did not include the standard instructions relating to the presumption of innocence, the prosecution's burden of proving appellant's guilt beyond a reasonable doubt, or the definition of reasonable doubt.   The trial court did, however, give the following instructions which alluded to the prosecution's burden:  CALJIC No. 2.01 1 [relating to the sufficiency of circumstantial evidence];  CALJIC No. 2.61 2 [relating to the defendant's right to rely on the state of the evidence];  and CALJIC No. 17.12 3 [relating to lesser included offenses].

The jury also received CALJIC No. 1.01 which provided in part:  “The order in which the instructions [are] [have been] given has no significance as to their relative importance.”

Thereafter, both counsel alluded to the prosecution's burden in their arguments to the jury.   The prosecutor opened by reviewing the elements that he would have to “prove,” and referred to “my burden” in his closing argument.   He stated:  “Now, is there some possible doubt that someone might dream up?   And I am sure someone will, yes, but you all said when you came into this courtroom that you would follow the law of the state and possible doubt doesn't get you anything unless it's reasonable.”   He later remarked:  “If you do have a reasonable doubt, it has to go his [defendant's] way․”

Defense counsel referred to the state of proof required as follows:  “Now, your honor talked about proof beyond a reasonable doubt.   Mr. Covello said, well, the doubt has to be reasonable.   I submit to you ladies and gentlemen there is reasonable doubt as to what was going on․”   He went on to state:  “Proof beyond a reasonable doubt is not conjecture.   It's not inference.   It is not rumor, innuendo or what might be.   It's not could have, would have.   It's proof, solid proof.   Whether it's circumstantial evidence or hard, direct evidence, it still has to rise to that level of proof so each and every one of the elements of possession for sale is found by you to be true beyond a reasonable doubt.”

Diaz contends the trial court committed reversible error by failing to instruct sua sponte on the presumption of innocence and the prosecution's burden of proving his guilt beyond a reasonable doubt just prior to deliberations.   He claims the trial court's omission violated his right to a jury trial and to due process and requires reversal per se.   He also maintains that these instructions were required to be given in written form.

DISCUSSION

Reversal is not required here because the trial court instructed on the prosecution's burden and gave the definition of reasonable doubt at the outset of the case.   Diaz relies on cases in which the trial court failed to instruct at any time during the trial on the prosecution's burden to prove the defendant's guilt beyond a reasonable doubt.  (Cf. People v. Vann (1974) 12 Cal.3d 220, 115 Cal.Rptr. 352, 524 P.2d 824 [reversing conviction where trial court failed to instruct jury on reasonable doubt;  instruction requiring proof beyond a reasonable doubt only as to circumstantial evidence held insufficient in direct evidence case];  People v. Elguera (1992) 8 Cal.App.4th 1214, 10 Cal.Rptr.2d 910 [reversing conviction where trial court instructed prospective, but not sworn, jurors as to prosecution's burden of proving defendant's guilt beyond a reasonable doubt];  People v. Phillips (1997) 59 Cal.App.4th 952, 69 Cal.Rptr.2d 532 [reversing conviction where trial court failed to instruct jury on reasonable doubt and both counsel gave partial and conflicting definitions of phrase in closing argument that were more apt to confuse rather than to enlighten the jury].)

Neither is this case one in which the jury was misinformed as to the nature of the prosecutor's burden.  (Cf. Sullivan v. Louisiana (1993) 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 [reversing conviction where trial court gave jury constitutionally deficient reasonable doubt instruction].)

 We must also decide whether the trial court was required to instruct on the presumption of innocence.   In Kentucky v. Whorton (1979) 441 U.S. 786, 789, 99 S.Ct. 2088, 2089, 60 L.Ed.2d 640, 643, the United States Supreme Court held that the failure to give a requested instruction on the presumption of innocence (as distinguished from an instruction on reasonable doubt) does not, in and of itself, violate the Constitution.   Instead, the proper inquiry is whether in light of the totality of the circumstances-including all the instructions to the jury, the arguments of counsel, the weight of the evidence against the defendant, and other relevant factors-the defendant received a constitutionally fair trial.

In Whorton, the court clarified its earlier ruling in Taylor v. Kentucky (1978) 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468.   In Taylor, a criminal defendant's conviction was reversed because the trial court refused to give a requested instruction on the presumption of innocence.  Whorton explained:  “While this Court in Taylor reversed a conviction resulting from a trial in which the judge had refused to give a requested instruction on the presumption of innocence, the Court did not there fashion a new rule of constitutional law requiring that such an instruction be given in every criminal case.   Rather, the Court's opinion focused on the failure to give the instruction as it related to the overall fairness of the trial considered in its entirety.”  (Kentucky v. Whorton, supra, 441 U.S. 786, 788, 99 S.Ct. 2088, 2089, 60 L.Ed.2d 640, 642.)

In Taylor v. Kentucky, supra, 436 U.S. 478, 488, 98 S.Ct. 1930, 1936, 56 L.Ed.2d 468, 476-477, the requested instruction on the presumption of innocence was necessary to secure the defendant's entitlement to a fair trial where (1) the trial court gave “Spartan instructions” on reasonable doubt, and referred to the instruction with the confusing terms “a substantial doubt, a real doubt;” and (2) the prosecutor's remarks during opening and closing argument suggested the jurors should consider the defendant's arrest and indictment and his status as an accused in deciding his guilt in a trial that “essentially was a swearing contest between victim and accused.”

Taylor explained:  “This Court has declared that one accused of a crime is entitled to have his 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.  [Citation.]   And it long has been recognized that an instruction on the presumption is one way of impressing upon the jury the importance of that right.  [Citations.]   While use of the particular phrase ‘presumption of innocence’-or any other form of words-may not be constitutionally mandated, the Due Process Clause of the Fourteenth Amendment must be held to safeguard ‘against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.’  [Citation.]”  (Taylor v. Kentucky, supra, 436 U.S. 478, 485-486, 98 S.Ct. 1930, 1934-1935, 56 L.Ed.2d 468, 474-476 italics added.)

Here, in sharp contrast to the facts in Taylor, the trial court properly instructed on the prosecution's burden of proving Diaz' guilt “beyond a reasonable doubt” and also expounded upon the proper meaning of that phrase at the outset of the case.   Argument by counsel at the end of the case further reinforced the burden of proof to be borne by the People, as did several instructions provided to the jurors at the end of the case which referred to the prosecution's burden 4 .

The jurors were not told that they should consider anything but the evidence produced at trial in determining Diaz' guilt or innocence.   The trial judge properly instructed:  “You must base your decision on the facts and the law․  [¶] You must not be influenced by pity for or prejudice against a defendant.   You must not be biased against a defendant because he has been arrested for this offense, charged with a crime, or brought to trial.   None of these circumstances is evidence of guilt and you must not infer or assume from any or all of them that a defendant is more likely to be guilty than not guilty․  [¶] You must decide all questions of fact in this case from the evidence received in the trial and not from any other source.”  (Citing from CALJIC No. 1.00 (6th ed.1996).)   Moreover, the evidence against Diaz was strong.   Diaz was staying in a trailer where police officers found a large quantity of methamphetamine, zip lock baggies, and cash in small denominations.   Diaz also wore a pager and his mail was found in the trailer.

Considering, therefore, the totality of circumstances, Diaz suffered no infringement of his constitutional rights by the trial court's failure to instruct on the presumption of innocence.  (People v. Hawthorne (1992) 4 Cal.4th 43, 72, 14 Cal.Rptr.2d 133, 841 P.2d 118 [declining to “confine instruction on the presumption of innocence to any rigid or narrowly precise terms ․ [a]s long as the court's charge to the jury conveys the substance of the principle․”].)

 Nor was the trial court required to reinstruct on the prosecution's burden of proving appellant's guilt beyond a reasonable doubt just prior to its deliberations where it had already so instructed at the beginning of the case.   We disagree with Diaz' assertion that the trial court's discussion of the prosecution's burden at the outset of the case did not amount to instruction.   The trial court specifically characterized his remarks to the jury as “preliminary instructions.”

 The trial court has discretion to determine at what point during the course of a trial it will instruct on pertinent principles of law.  Penal Code section 1093, subdivision (f) provides in pertinent part:  “At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case․”  Penal Code section 1094 further provides:  “When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the Court, the order prescribed in the last section may be departed from.”  (Italics added;  People v. Webb (1967) 66 Cal.2d 107, 128, 56 Cal.Rptr. 902, 424 P.2d 342 [trial court vested with discretion to provide instruction on circumstantial evidence at the beginning, rather than at the end, of trial].)

 Where pertinent instructions have been given at the beginning of the case, the trial court is not obligated to repeat those instructions at the end of the case prior to jury deliberations, absent intervening circumstances that might lead to juror confusion.  (People v. Chung (1997) 57 Cal.App.4th 755, 757-760, 67 Cal.Rptr.2d 337 [absent evidence of juror confusion, trial court did not abuse its discretion in giving half of the jury instructions at the beginning of trial after opening statements and the remaining instructions at the end of the trial following closing arguments];  People v. Valenzuela (1977) 76 Cal.App.3d 218, 221, 142 Cal.Rptr. 655.)

Here, there is no evidence of juror confusion after the trial court gave the initial instructions concerning the correct burden of proof to be borne by the People.   Although the trial judge first told the jurors they would receive all the instructions at the end of the trial, he then told them that he would give them some instructions now and some later, and stressed that this would have no significance as to their relative importance.   Furthermore, the trial was short.   The lapse of time from start to finish could not have affected any recollection the jurors might have had of the trial court's prior reasonable doubt instruction.   To the contrary, certain of the instructions given to the jury immediately prior to its deliberations (though not sufficient, standing alone, to instruct on the People's burden, see People v. Vann, supra, 12 Cal.3d 220, 226-227, 115 Cal.Rptr. 352, 524 P.2d 824) could only have served to reinforce the trial court's earlier instructions as to the correct burden.   The same is true of counsel's closing arguments.

In People v. Rodrigues (1994) 8 Cal.4th 1060, 1190, 36 Cal.Rptr.2d 235, 885 P.2d 1, certiorari denied 516 U.S. 851, 116 S.Ct. 147, 133 L.Ed.2d 93, our Supreme Court held that a trial court was not required to reiterate instructions on the presumption of innocence during the penalty phase of a trial at which unadjudicated offenses were presented as aggravating circumstances by the prosecution.   The court concluded that a reasonable jury would assume that instructions given at the guilt phase would continue to apply at the penalty phase absent anything to suggest the contrary.  (Id., at pp. 1190-1191, 36 Cal.Rptr.2d 235, 885 P.2d 1;  People v. Kirkpatrick (1994) 7 Cal.4th 988, 1020, 30 Cal.Rptr.2d 818, 874 P.2d 248, cert. den.  514 U.S. 1015, 115 S.Ct. 1357, 131 L.Ed.2d 215.)   So, too, in this case nothing occurred that would have confused the jurors as to the correct burden of proof which was clearly enunciated at the outset of trial.   Accordingly, the trial court was not required to reinstruct on the prosecution's burden.

 Finally, there is no merit to defendant's contention that the trial court was required to instruct on the prosecution's burden of proving defendant's guilt beyond a reasonable doubt in writing, as opposed to verbally, where the jury received certain other instructions in writing.

Penal Code section 1093, subdivision (f), provides in pertinent part:  “Upon the jury retiring for deliberation, the court shall advise the jury of the availability of a written copy of the jury instructions.   The court may, at its discretion, provide the jury with a copy of the written instructions given.   However if the jury requests the court to supply a copy of the written instructions, the court shall supply the jury with a copy.”  (Italics added.)   In People v. Samayoa (1997) 15 Cal.4th 795, 845, 64 Cal.Rptr.2d 400, 938 P.2d 2, certiorari denied 522 U.S. 1125, 118 S.Ct. 1071, 140 L.Ed.2d 131, the California Supreme Court held that the “provision of written instructions to the jury (although generally beneficial and to be encouraged) is not guaranteed by, and therefore does not implicate, any provision of the state or federal Constitution.”   The judgment is affirmed.

FOOTNOTES

1.   The instruction on circumstantial evidence received by the jury provided in relevant part:  “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.  [¶] Further, 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.   In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.”  (CALJIC No. 2.01 (6th ed.1996) italics added.)

2.   The following instruction related to defendant's right to rely on the state of the evidence:  “In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him.   No lack of testimony on defendant's part will make up for a failure of proof by the People so as to support a finding against him on any such essential element.”  (CALJIC No. 2.61 (6th ed.1996) italics added.)

3.   The instruction on lesser included offenses received by the jury provided in relevant part:  “If you are not satisfied beyond a reasonable doubt that a defendant is guilty of the crime of which he is accused in Count I, 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 that crime.”  (CALJIC No. 17.12 (6th ed.1996) italics added.)

4.   As previously noted, the jury received at least three instructions prior to their deliberations which alluded to the prosecution's burden of proving appellant's guilt beyond a reasonable doubt-CALJIC No. 2.01, CALJIC No. 2.61, and CALJIC No. 17.12.  The jurors' receipt of CALJIC No. 2.01 relating to the sufficiency of circumstantial evidence and providing 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,” was particularly significant given that the prosecution's case against appellant was predicated on circumstantial evidence.  (Cf. People v. Vann, supra, 12 Cal.3d 220, 226, 115 Cal.Rptr. 352, 524 P.2d 824 [instruction on circumstantial evidence which alluded to requirement of proof beyond a reasonable doubt as to circumstantial evidence was not sufficient to instruct on prosecution's burden in direct evidence case].)

GILBERT, Associate Justice.

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