Skip to main content


Reset A A Font size: Print

Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Raul Ortiz MALAVE, Defendant and Appellant.

No. D024963.

Decided: October 08, 1996

Ivy K. Kessel, under appointment by the Court of Appeal, Encino, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Keith I. Motley and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Raul Ortiz Malave of possession for sale and transportation of methamphetamine.   He was also convicted of the misdemeanor offense of being under the influence of a controlled substance.   The jury later found true two prison priors within the meaning of Penal Code 1 section 667.5, subdivision (b), and two serious/violent felony convictions within the meaning of section 667, subdivisions (b)-(i).

Malave was sentenced to an indeterminate term of 25 years to life pursuant to section 667, subdivision (e)(2).

Malave appeals, raising claims of instructional and sentencing error.   We will address only the contention the trial court improperly modified the reasonable doubt instruction (CALJIC No. 2.90).   We will find the trial court's modification improper and reverse the conviction and the findings on the alleged prior convictions.2


 Over the objection of defense counsel, the trial court gave a modified version of CALJIC No. 2.90 in both the guilt phase and the portion of the trial devoted to the alleged prior convictions.   The court instructed 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 the defendant's guilt is satisfactorily shown, the defendant is entitled to a verdict of not guilty.   This presumption places upon the People the burden of proving the defendant 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.   In other words, proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt.   There are few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt.   If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find the defendant guilty.   If, on the other hand, you think that there is a reasonable possibility that the defendant is not guilty, you must give the defendant the benefit of that doubt and find the defendant not guilty.”  (Italics added to indicate that which was added to CALJIC No. 2.90.)

Trial court modifications to the reasonable doubt instruction have been discouraged by the appellate courts for years.  (People v. Garcia (1975) 54 Cal.App.3d 61, 63, 126 Cal.Rptr. 275;  People v. Beardslee (1991) 53 Cal.3d 68, 97, 279 Cal.Rptr. 276, 806 P.2d 1311;  People v. Brigham (1979) 25 Cal.3d 283, 290, 157 Cal.Rptr. 905, 599 P.2d 100;  People v. Freeman (1994) 8 Cal.4th 450, 503, 34 Cal.Rptr.2d 558, 882 P.2d 249.)   The criticism springs in part from departure from that which has been approved by the Supreme Court and the Legislature (see § 1096a).   More fundamentally, however, there is a risk that ad hoc modifications by trial judges risk injecting inappropriate terms into the most important, and perhaps most litigated, of the instructions in a criminal case.   Such is the situation here.

The current jury instruction contained in CALJIC No. 2.90 is the product of considerable debate and refinement.   Its earlier version, based on the language from Commonwealth v. Webster (1850) 59 Mass. (5 Cush.) 295, had come under criticism for inclusion of the phrases “moral evidence” and “moral certainty.”   That version was challenged in the United States Supreme Court where the instruction against a claim of denial of due process was ultimately upheld.  (Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583.) The concurring justices suggested, however, that California might wish to reconsider the older language of the instruction.

Thereafter, the California Supreme Court in People v. Freeman, supra, 8 Cal.4th 450, 34 Cal.Rptr.2d 558, 882 P.2d 249 suggested the modification leading to the current language in CALJIC No. 2.90.   The Legislature amended section 1096a to incorporate the change and the CALJIC Committee made the appropriate modification to the published instruction.

 Given the length and breadth of the debate leading to the new instruction and the sensitivity of the selection of words to define its concepts, we find it surprising that a trial court would not only conclude it was necessary to make the changes as made in this case, but that it would do so over objection.   Such judicial tinkering with difficult and long-discussed concepts risks confusion and the result reached in this case:  reversal and retrial.   The risks far outweigh any possible benefit to such volunteered modification and we strongly discourage it.   It is one thing to attempt to clarify instructions where the jury has a request.   It is quite another to engage in gratuitous modifications as done here.

The principal vice of the trial court's modification is that it injects two concepts into the definition of reasonable doubt which have not been approved by either the Supreme Court or the Legislature.   Specifically, we are concerned with the phrase “[i]n other words, proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt” and “[i]f ․ you think that there is a reasonable possibility that the defendant is not guilty, you must give the defendant the benefit of that doubt.”   It is unclear exactly how strong the proof is to make one “firmly convinced.”   Is that the same as “abiding conviction of the truth of the charge?”   If it is, we fail to see the benefit of its addition.   If it is not, what does it mean?

One possibility is that the phrase is closer to the burden of proof used in some civil proceedings labeled “clear and convincing evidence.”   Like the court in People v. Garcia, supra, 54 Cal.App.3d 61, 126 Cal.Rptr. 275, we think the phrase, besides being unnecessary, is too close to the civil burden to properly be added to CALJIC No. 2.90.

This case differs from Garcia in one respect.   Here, the court was evenhanded.   It not only modified the definition of the level of confidence required, it modified the benefit portion by injecting the phrase “reasonable possibility that the defendant is guilty.”   Again, we wonder what the meaning of that phrase is in the total context of the instruction.   We are particularly concerned since the earlier part of the approved instruction states in part that reasonable doubt “․ is not a mere possible doubt.”   How then does the reasonable possibility the defendant is not guilty square with the earlier term?   For our part, we think it is not compatible and may give rise to confusion.

The Attorney General does not engage in analysis of the instruction, but simply says the modification is minor and any error harmless.   We think the response does not meet the significant concerns created by this modified instruction.   Moreover, we are not inclined to strain to uphold a modification which is at best unnecessary and at worst improper.   In our view, the modified instruction should not have been given, even without objection, and certainly was error on this record.   Therefore, Malave is entitled to have a new trial without the modified burden of proof instruction.


The judgment is reversed.


FN1. All further statutory references are to the Penal Code unless otherwise specified..  FN1. All further statutory references are to the Penal Code unless otherwise specified.

2.   We do not address the remaining contentions because they will depend on the record which will be produced if Malave is retried and convicted.   We are confident the court will properly apply the law in the event of a conviction and do not address any of the sentencing issues.

3.   We also omit the traditional statement of facts.   The issue we address is one of law and does not require examination of the facts of the offense.

HUFFMAN, Acting Presiding Justice.

HALLER and McINTYRE, JJ., concur.

Copied to clipboard