Opinion
C083491
04-10-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DIPESA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 13F05280, 14F01984, 15F03287)
Defendant Anthony Dipesa appeals his conviction for first degree burglary. He argues two nonpattern jury instructions lowered the prosecution's burden of proof, thereby creating structural errors in defendant's trial that warrant reversal. We caution against using these instructions in future criminal trials. Here, we conclude any error was harmless and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant burglarized a house in Folsom on October 16, 2014. Defendant and Angelina Melendez were "hang[ing] out" at her house when they saw Melendez's neighbors leave their home for a softball game. Melendez said to defendant, "Let's go rob this house." Defendant replied, "All right." They broke a window in the back of the house and entered. Once inside, defendant took an electronic tablet, then left through the front door and walked "hurriedly" toward a nearby light rail station. The tablet was later found on the side of the street near the victim's house with the charger still attached. Defendant's fingerprints were found on the rear sliding door of the house.
After the presentation of evidence, the prosecutor argued to the jury regarding the prosecution's burden and how it applied to the facts. She stated, "As the People [are] bringing charges, it's our job to prove the case beyond a reasonable doubt. . . . [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. . . . [¶] . . . [T]he evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. . . . [¶] . . . [¶] In this case, it has been proved beyond a reasonable doubt. The evidence in this case all adds up . . . ."
The defense attacked the fingerprint evidence as falling below the reasonable doubt standard. "What [the prosecutor] must try to do but can't: [o]ne, prove that the fingerprints in this case are reliable . . . . [¶] . . . [¶] What is beyond a reasonable doubt? . . . If there is any one reasonable way to look at the truth that points to not guilty, then you must find [defendant] not guilty"
The trial court instructed the jury on the presumption of innocence, the meaning of reasonable doubt, the application of the standard to the evidence, and the prosecution's burden to prove its case beyond a reasonable doubt. The written jury instructions included the standard instruction on reasonable doubt, CALCRIM No. 220.
The trial court also presented the jury with two nonpattern instructions. The first instruction, "Selecting a Foreperson and Jury Deliberations," gave the jurors general suggestions on how to deliberate. The second instruction, "Suggestions for the Foreperson," gave the foreperson suggestions on how to lead the deliberation.
DISCUSSION
Defendant argues the court's nonpattern jury instructions "effectively lowered the prosecution's burden of proof beyond a reasonable doubt," creating structural error that requires automatic reversal. Defendant acknowledges he did not object to the instructions he now challenges as defective. Defendant's failure to object to the instructions at trial forfeits his right to raise the issue on appeal. (People v. O'Malley (2016) 62 Cal.4th 944, 991 [failing to ask the court to clarify instructions during trial forfeited claim of instructional error on appeal]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192 [refusing to consider appellate claim that instruction was "vague, misleading and constitutionally defective" because defendant did not ask for clarification at trial].) That being said, an appellate court may review a claim of instructional error to determine whether it affected a defendant's substantial rights. (Pen. Code, § 1259; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249; People v. Cleveland (2004) 32 Cal.4th 704, 749.) If the claimed error could have affected a defendant's substantial rights, the court may review the merits and reverse if the error was prejudicial. (Andersen, at p. 1249.)
Defendant had a right to correct instructions on the burden of proof; deprivation thereof would affect his substantial rights. (People v. Linder (2006) 139 Cal.App.4th 75, 82 ["defendant had the right to correct instructions on the applicable burden of proof and courts may review instructions for errors that affect 'the substantial rights of the defendant' "].) We may therefore examine the merits of defendant's claim.
We review claims of instructional error de novo. (People v. Jo (2017) 15 Cal.App.5th 1128, 1152.) State law and the federal Constitution require the prosecution to prove defendant's guilt beyond a reasonable doubt, and a trial court must inform the jury of this burden. (People v. Aranda (2012) 55 Cal.4th 342, 353, 356.)
Defendant argues portions of the two nonpattern instructions misstated the burden of proof beyond a reasonable doubt. Specifically, he points to paragraph eight of "Selecting a Foreperson and Jury Deliberations," which reads as follows: "Each of you must make you[r] own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict, or rush into a verdict to save time. Both sides of the case deserve your complete attention and thoughtful deliberation." (He also challenges "Suggestions for the Foreperson," which provided, "You may wish to make a chart with two lists. On one side list the evidence and reasoning supporting one position; on the second side list the evidence and arguments supporting the other view. This may be useful, not to see which list is longer, but to help you make a reasoned decision based on the evidence and court's instructions on the law."
When the trial court read this instruction aloud, it said "each side" instead of "both sides." The written version provided to the jury controls. (5 Witkin & Epstein, Cal. Criminal Law (4th Ed. 2012) Criminal Trial, § 694.) --------
While meant as an aid to jurors during deliberations, these instructions were not necessary or particularly helpful to the jury at this stage of the deliberations. We caution against their use in similar circumstances in the future, especially in criminal trials. Assuming the instructions were improper, however, defendant still cannot prevail because the jury was otherwise properly instructed about the meaning of reasonable doubt and there is no question that the jury understood the prosecutor's burden.
Relying on Sullivan v. Louisiana (1993) 508 U.S. 275 , defendant argues the two nonpattern instructions caused structural error because they undermined the prosecution's burden of proof and caused the jury to reach a decision using the wrong standard. In Sullivan, the United States Supreme Court held that an instruction which unconstitutionally defined the reasonable doubt standard caused structural error requiring automatic reversal. (Sullivan, at p. 281 .) The inaccurate definition of proof beyond a reasonable doubt caused the jurors to reach a decision under the wrong standard of proof, which "vitiates all of the jury's findings" and deprives the reviewing court of any basis for finding harmless error. (Ibid.)
This case is distinguishable from Sullivan because the challenged instructions did not purport to define proof beyond a reasonable doubt and instead offered suggestions on how to encourage full deliberation of defendant's case. Thus, unlike Sullivan, the instructions here did not misdirect or misinform the jury with an erroneous definition of reasonable doubt.
Because the trial court otherwise told the jury that the prosecution must prove its case beyond a reasonable doubt and did not give an erroneous definition of that burden of proof, defendant's claim is subject to harmless error review. Because the trial court otherwise told the jury that the prosecution must prove its case beyond a reasonable doubt and did not give an erroneous definition of that burden of proof, defendant's claim is subject to harmless error review. Under state law, instructional error is harmless if it is not " 'reasonably probable that a result more favorable to the appealing party would have been reached in absence of the error.' " (People v. Watson (1956) 46 Cal.2d 818, 837; see People v. Cole (2004) 33 Cal.4th 1158, 1208 [finding harmless error where an instruction omitted an element of a crime].) Under federal law, instructional error affecting the burden of proof is reversible error "unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury's verdict." (People v. Cole, 33 Cal.4th at p. 1208; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) We conclude the error was harmless under either standard.
The jury received many admonitions that it could reach a verdict of "guilty" only after the prosecutor met the burden of proof beyond a reasonable doubt, and we read these two nonpattern instructions in that context. (See People v. O'Malley, supra, 62 Cal.4th at p. 991.) The trial court orally instructed the jury on reasonable doubt after the presentation of evidence by saying, "Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." The printed jury instructions contained CALCRIM No. 220, the standard definition of reasonable doubt. The instructions on burglary also referred to proof beyond a reasonable doubt.
Both the prosecution and the defense explained the standard of proof to the jury. The prosecutor explained the standard in her closing statement by saying, "You have to have all the elements [of burglary] proven beyond a reasonable doubt to be able to find the defendant guilty." Defense counsel addressed the burden of proof and then used it to attack the prosecution's evidence: "What [the prosecutor] must try to do but can't: One, prove that the fingerprints in this case are reliable. . . . [¶] . . . If there is any one reasonable way to look at the truth that points to not guilty, then you must find [defendant] not guilty."
Considering all of the jury instructions in the context of the record, there is simply no possibility the jurors misunderstood the prosecution's burden of proof. The court's and parties' repeated references to the reasonable doubt standard ensured the jury understood the prosecutor had the burden to prove defendant's guilt beyond a reasonable doubt. Accordingly, we find any error in giving the nonpattern instructions harmless under any standard.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Hoch, J.