Opinion
B223373
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LASHAUN KING, Defendant and Appellant.
Carey D. Gorden, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; Victoria B. Wilson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA107932-01)
APPEAL from a judgment of the Superior Court of Los Angeles County. Gary E. Daigh, Judge. Reversed.
Carey D. Gorden, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; Victoria B. Wilson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Michael King was charged with possession of cocaine base for sale. (See Health & Saf. Code, § 11351.5.) At trial, the court failed to instruct the jury on the reasonable doubt standard of proof. The jury convicted King, who was sentenced to 10 years in prison.
On appeal, King argues that his conviction must be reversed because of the trial court's instructional failure. We agree and reverse his judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Criminal Offense
At approximately 6:00 p.m. on August 13, 2009, Los Angeles County Deputy Sheriff Yoon Nam responded to a complaint alleging that people were selling gas out of a house located at 2175 North Grandee Avenue. When Deputy Nam arrived at the location, she saw Defendant Michael King and another man standing behind a silver pickup truck, which was parked in front of a driveway. Deputy Nam interviewed the occupant of the 2175 North Grandee residence at the front door. While conducting the interview, Nam saw King take something from the other man's hand, and put it in his shirt pocket.
Deputy Nam approached King and his companion "to see if they knew anything about the . . . gas . . . and to see what they were doing." After King declined to provide his driver's license, name or date of birth, Deputy Nam felt King wasn't being cooperative and requested police backup. As King turned away from Nam, she noticed a small bulge in King's waistband, and tried to grab King's wrist. King then began running down the street at "full stride." Deputy Nam immediately "put out an emergency broadcast . . . saying [she] was in a foot pursuit . . . and notified . . . responding units what Mr. King looked like."
Los Angeles County Deputy Sheriff Levi Belville responded to Nam's broadcast and saw King enter the backyard of a nearby residence. After ordering King to stop, Belville saw King "toss[] a clear plastic baggie containing a white substance." King then laid down and put his hands behind his back. Belville placed King in handcuffs and recovered the discarded baggie, which contained several "pea-sized shapes of a white, . . . rock-looking substance resembling rock cocaine."
Deputy Nam joined Belville and confirmed that King was the same man who had fled from her. The deputies searched King, but did not find a lighter or any other evidence of drug paraphernalia.
B. King's Trial
1. Information and trial testimony
On September 23, 2009, the district attorney filed an information charging King with possession of cocaine base for the purpose of sale. (See Health & Saf. Code, § 11351.5.) The information also alleged that King had three prior felony convictions, two of which qualified as serious or violent felonies. (See Pen. Code, §§ 667.5 & 1170.12.)
At trial, the prosecution called Deputies Nam and Belville, who testified that King had fled from Nam and then tossed a plastic baggie containing what appeared to be rock cocaine. In addition, Edmund Ting, a criminalist in the Los Angeles police department, testified that the substance recovered from the baggie was 3.39 grams of "cocaine in the base form." Deputy Sherriff David Kramer, a drug expert, testified that the amount of drugs found in the baggie, combined with the fact that King did not possess a lighter or drug paraphernalia at the time of his arrest, suggested that he possessed the drugs for the purpose of sale, rather than personal consumption.
The defense elected not to call any witnesses or present any evidence during trial.
2. Trial court instructions to the jury
Prior to closing arguments, the trial court read the jury a series of instructions. At the outset, the court explained that "[y]ou must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions you must follow my instructions."
The court did not instruct the jury regarding the reasonable doubt standard, nor did it instruct the jury that it could convict King only if it found that the prosecutor had proven every element of the charged offense beyond a reasonable doubt. Although the court specifically instructed the jury on each element of "possession for sale of cocaine base," and the lesser included offense of "possession of cocaine base," those instructions did not explain that each element had to be proved beyond a reasonable doubt.
Several jury instructions did, however, reference "reasonable doubt." First, in explaining the use of circumstantial evidence, the court instructed the jury:
Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
Second, in explaining King's "right not to testify," the court instructed that "[a defendant] may rely on the state of the evidence and argue that the people have failed to prove the charges beyond a reasonable doubt." Third, in instructing the jury on lesser included offenses, the court stated "[i]f all of you find that the defendant is not guilty of the greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime . . . for the same conduct."
Finally, the court referenced "reasonable doubt" when instructing the jury on how to fill out the verdict form, stating: "If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of the greater crime, complete and sign the verdict form for guilty of that crime."
The verdict form instructions contained several additional references to the "reasonable doubt" standard, stating, for example, "If all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime and you also agree that the People have proved beyond a reasonable doubt that he is guilty of the lesser crime, complete and sign the verdict form for not guilty of the greater crime and the verdict form for guilty of the lesser crime."
3. Closing arguments
Immediately after instructing the jury, the court informed the jurors that the attorneys would be presenting closing arguments. The court explained that the attorneys' statements would "probably argue . . . the law. If they happen to misstate the law, rely on the law that I gave you just now."
During closing argument, both counselors referred to the reasonable doubt standard. The prosecution began by informing the jury, "I'm going to argue as to why I believe the evidence has proved each element beyond a reasonable doubt." The prosecutor also provided a definition of the term, explaining "[p]roof beyond a reasonable doubt is one that leaves you with an abiding conviction that the charge is true. It need not eliminate all doubt because everything in life is open to some possible or imaginary doubt."
At the close of his argument, the prosecutor reiterated that each element had been proved "beyond a reasonable doubt":
[A]s jurors [, you] don't have to leave your common sense at the door. You can look at the circumstances, look at what the evidence is and you can determine beyond a reasonable doubt that this individual was not possessing this for use or possessing it for sales. Each element has been proven beyond a reasonable doubt.
King's counsel also began her closing argument by referencing reasonable doubt:
Mr. King is innocent until you find that the People have shown proof beyond a reasonable doubt of each element of the offense before you can convict him. The People have the burden of proof beyond a reasonable doubt and the judge's instruction tells you what beyond a reasonable doubt means.
The defense has no burden of proof. He can rely on the state of the evidence. In other words, the People have to show proof beyond a reasonable doubt. He doesn't have to say anything.
Later in her argument, defense counsel again referenced the standard in relation to the element of possession:
Possession is an essential element in both the greater charge, possession for sale, and in the element of simple possession. So if you can't find proof beyond a reasonable doubt that Mr. King possessed that object, you can't find either one proof beyond a reasonable doubt [sic]and you would have to find the defendant not guilty.
4. Verdict and sentencing
The jury found King guilty of possession with cocaine for the purpose of sale in violation of Health and Safety Code section 11351.5. After the verdict was entered, King admitted to a prior conviction "for the purposes of Penal Code section 1170.12 (a) through (d)," and two additional priors "for the purpose of Penal Code section 667.5(b)." In exchange for these admissions, the People agreed to dismiss a prior conviction that would have qualified as a strike under section 1170.12 and an additional "one-year prior." The court thereafter sentenced King to 10 years in prison.
King filed a timely appeal, arguing that his conviction must be reversed because the trial court failed to instruct the jury on the reasonable doubt standard.
DISCUSSION
A. Standard of Review
In every criminal trial, the court has a duty to "inform the jury that the prosecution had the burden to prove each element of the charged offense[] beyond a reasonable doubt." (People v. Flores (2007) 147 Cal.App.4th 199, 214-215 (Flores); see also People v. Vann (1974) 12 Cal.3d 220, 225-226 (Vann) [trial court must "appris[e] the jurors that defendants were entitled to acquittal unless each element of the crimes charged was proved to the jurors' satisfaction beyond a reasonable doubt"]; People v. Phillips (1997) 59 Cal.App.4th 952, 953-954 (Phillips); People v. Crawford (1997) 58 Cal.App.4th 815, 817 (Crawford); People v. Elguera (1992) 8 Cal.App.4th 1214, 1219 (Elguera).)Generally, this duty is discharged by instructing the jury in accordance with either CALCRIM No. 220 or CALJIC No. 2.90, which describe the presumption of evidence and the prosecution's burden of proof. (See People v. Ramos (2008) 163 Cal.App.4th 1082, 1087-1090 & fn.7.) In this case, the trial court failed to provide any such instruction.
In People v. Mayo (2006) 140 Cal.App.4th 535, we concluded that, in addition to providing CALCRIM 220 or CALJIC 2.90, this duty may be discharged by providing instructions on the elements of the charged offense that expressly state the People must prove each element beyond a reasonable doubt. In Mayo, the court ruled that there was no instructional error where the instructions on the elements of homicide, and the lesser included offenses of second-degree murder and manslaughter, "fully and repeatedly informed the jurors [that the defendant] was entitled to an acquittal unless each element of the crime charged was proved beyond a reasonable doubt." (Id. at p. 545.) The Attorney General does not argue that Mayo applies where, as here, the instructions on the elements of the offense contained no discussion of the reasonable doubt standard. Indeed, the Attorney General concedes that the trial court committed instructional error. Mayo is therefore inapplicable.
The Attorney General concedes that the trial court's failure to instruct the jury "on both the [reasonable doubt] standard of proof and the presumption of innocence" constitutes "federal constitutional error." (Flores, supra, 147 Cal.App.4th at p. 214; Crawford, supra, 58 Cal.App.4th at p. 817; Phillips, supra, 59 Cal.App.4th at pp. 953954.) The parties disagree, however, "as to what consequences flow from the failure to give the required instructions." (Phillips, supra, 59 Cal.App.4th at p. 956.) King contends that the trial court's error was "structural," and therefore requires automatic reversal. (See generally Sullivan v. Louisiana (1993) 508 U.S. 275 [instructing jury with improper definition of reasonable doubt constitutes "structural" error requiring automatic reversal].) The Attorney General, however, argues that the error is subject to the harmless error review standard enunciated in Chapman v. California (1967) 386 U.S. 18, 24 ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"].)
In this case, we need not resolve that dispute because, even if the court's error is subject to harmless error analysis, the Attorney General has failed "to 'prove beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained.' [Citation.]" (People v. Mower (2002) 28 Cal.4th 457, 484 ["If a trial court's instructional error violates the United States Constitution, the standard stated in [Chapman]. . . requires the People, in order to avoid reversal of the judgment, to 'prove beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained'"].)
Whether a trial court's failure to instruct on the reasonable doubt standard is subject to harmless error review is currently pending before the California Supreme Court. On January 26, 2011, the Court granted review in People v. Aranda, Case No. S188204, on the following issues:
Is the trial court's failure to give a standard reasonable doubt instruction (CALJIC No. 2.90) reversible per se or is such failure subject to harmless error review? If so, should harmless error be assessed under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243, or Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705?(People v. Aranda, review granted January 26, 2011, S118204.) Our appellate courts have divided on the issue. (Compare Crawford, supra, 58 Cal.App.4th at p. 817 ["the failure to instruct on these fundamental principles is constitutional error that requires per se reversal of the judgment"]; Phillips, supra, 59 Cal.App.4th at p. 954 [error "constitutes a structural constitutional defect and compels reversal per se"] with Flores, supra, 147 Cal.App.4th at p. 219 ["in a case where the jurors have been told the prosecution must prove its case beyond a reasonable doubt and there has not been an erroneous definition of that burden of proof, the harmless error standard applie[s]"]; Elguera, supra, 8 Cal.App.4th at p. 1220 [harmless error review applies where trial court references reasonable doubt standard, but fails to specifically instruct jury on that standard].)
B. The Attorney General Has Failed to Demonstrate Harmless Error
The Attorney General argues that the trial court's failure to give a reasonable doubt instruction was "harmless" because: (1) the trial court referenced "reasonable doubt" in several other jury instructions, and (2) during closing argument, the attorneys informed the jury that the prosecution had to prove each element of the crime beyond a reasonable doubt. However, the facts of this case cannot be meaningfully distinguished from numerous prior decisions holding that similar references to "reasonable doubt" were insufficient to satisfy Chapman's harmless error standard.
1. Jury instructions referencing "reasonable doubt"
The Attorney General argues that the trial court's error was harmless because the court specifically referred to the reasonable doubt standard when instructing the jury on three different topics: (1) the use of circumstantial evidence, (2) the defendant's right not to testify, and (3) lesser included offenses.
a. Instruction on use of circumstantial evidence
First, the Attorney General argues that the trial court's failure to instruct on the reasonable doubt standard was harmless because the jury was read CALCRIM 224, which states, in relevant part: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt"
In People v. Vann, supra, 12 Cal.3d 220, the California Supreme Court rejected this argument, ruling that the failure to provide an instruction on the reasonable doubt standard was not "harmless" merely because the phrase "reasonable doubt" appeared in a separate instruction regarding circumstantial evidence:
Although the . . . instruction states . . . that an accused cannot be convicted on circumstantial evidence except where such evidence proves the issue beyond a reasonable doubt, it fails to tell the jurors that a determination of guilt resting on direct testimony must also be resolved beyond a reasonable doubt. [¶] . . . An instruction which requires proof beyond a reasonable doubt only as to circumstantial evidence, rather than importing a need for the same degree of proof where the crime is sought to be established by direct evidence, might with equal logic have been interpreted by the jurors as importing the need of a lesser degree of proof where the evidence is direct and thus of a higher quality.(Id. at pp. 226-227.) Vann further noted that that an instruction on circumstantial evidence was especially problematic in cases where "the prosecution depended . . . in large part on direct evidence." (Id. at p. 226.)
Since Vann, several appellate courts have ruled that a standard instruction on circumstantial evidence is insufficient to demonstrate harmless error regardless of whether the prosecution relied on direct or circumstantial evidence. For example, in People v. Elguera, supra, 8 Cal.App.4th 1214, the appellate court ruled that an instruction stating that "inferences from circumstantial evidence had to be proven beyond a reasonable doubt" was not sufficient to establish harmless error even where "the prosecution's evidence . . . was entirely circumstantial." (Id. at p. 1221.)
More recently, in Flores, supra, 147 Cal.App.4th 199, the court ruled that "although the trial court instructed . . . on circumstantial evidence, the cases involving that circumstance have concluded the instruction is insufficient to comport with federal constitutional requirements even though [it references reasonable doubt]." (Id. at pp. 215-216 [applying harmless error review]; see also Crawford, supra, 58 Cal.App.4th at p. 824 [rejecting argument that "the trial court's omission [of a reasonable doubt instruction] was cured by the instruction that inferences from circumstantial evidence must be proved beyond a reasonable doubt"].)
The Attorney General has not explained how this case differs from Vann, Elguera, Flores, or Crawford. Regardless of whether an instruction on circumstantial evidence can ever cure the trial court's failure to instruct on the reasonable doubt standard, Vann makes clear that such an instruction is clearly insufficient where the prosecution's case relies "in large part on direct evidence." (Vann, supra, 12 Cal.3d at p. 226.) In this case, the only evidence linking King to the drugs found near his arrest was direct in nature: Deputy Belville testified that he saw King discard a baggie containing a white substance. Under such circumstances, the circumstantial evidence instruction "did not effectively inform the jury that the prosecution had the burden to prove each element of the charged offense(s) beyond a reasonable doubt." (Flores, supra, 147 Cal.App.4th at p. 216.)
b. Instruction on defendant's right not to testify
The Attorney General also argues that the trial court's error was harmless because its instruction on King's right not to testify informed the jury that "[the defendant] may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt."
This same argument was considered and rejected in Flores, which ruled that a standard instruction on the defendant's right not to testify was insufficient to satisfy Chapman's harmless error standard:
We cannot presume that a reasonable doubt instruction given in a specific context (e.g., a defendant's choice not to testify) will necessarily be understood by all of the jurors to apply generally to their determination of the defendant's guilt on the charged offenses. We conclude the trial court's instruction [on defendant's right not to testify] did not effectively inform the jury that the prosecution had the burden to prove each element of the charged offense(s) beyond a reasonable doubt.(Flores, supra, 147 Cal.App.4th at p. 216; see also Phillips, supra, 59 Cal.App.4th at p. 955, 958 [instruction on defendant's right not to testify "fell 'short of apprising the jurors'" of the reasonable doubt standard].)
Flores applied this same reasoning to several other jury instructions that contained isolated references to "reasonable doubt," which included instructions on circumstantial evidence (CALJIC 2.01), committing the offenses against more than one victim, (see Pen. Code, § 667.61), and the applicable statute of limitations. (Flores, supra, 147 Cal.App.4th at pp. 215-216.) The court explained that because each such instruction was given in a "specific context," it would be improper to "presume" that the jurors understood that the reasonable doubt standard applied to each element of the charged offense. (Id. at p. 216.)
In Vann, the California Supreme Court reached the same conclusion in the context of instructions on circumstantial evidence and good character evidence, both of which referenced reasonable doubt. The Court explained that "references to reasonable doubt in isolated applications of that standard of proof fall far short of apprising the jurors that defendants were entitled to acquittal 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; see also Crawford, supra, 58 Cal.App.4th at p. 825 ["We conclude . . . that the foregoing specific references to reasonable doubt in isolated applications of that standard of proof fell short of apprising the jurors that appellant was entitled to acquittal unless each element of the crimes charged was proved to the jurors' satisfaction beyond a reasonable doubt"].)
The Attorney General has again made no effort to explain why the holdings in Flores, Vann and Crawford do not control here, and we find no ground for distinguishing those cases.
c. Instruction on lesser included offenses
Finally, the Attorney General argues that the trial court's error was harmless because it referenced reasonable doubt when instructing the jury on the lesser included offense of drug possession. Specifically, the court instructed: "[if] you find that the defendant is not guilty of the greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime . . . for the same conduct."
There are two problems with the Attorney General's reliance on the lesser included offense instruction. First, because the instruction referenced the reasonable doubt standard in relation to the lesser included offense, but not the charged offense of possession of drugs for the purpose of sale, the jury might have reasonably concluded that the greater offense required a different standard of proof. (C.f. Vann, supra, 12 Cal.3d at pp. 226-227 [circumstantial instruction insufficient to remedy constitutional error because it failed to tell jurors that a determination of guilt resting on direct testimony must also be resolved beyond a reasonable doubt].) This concern is compounded by the fact that the jury convicted King of the greater offense, possession for the purpose of sale, rather than the lesser offense of drug possession.
Second, as explained above, the case law makes clear that isolated references to reasonable doubt appearing within jury instructions on specific matters is not sufficient to establish harmless error. The Attorney General has not explained why a different analysis should apply in the context of an instruction on lesser included offenses.
The record also demonstrates that the trial court repeatedly referenced reasonable doubt when instructing the jury on how to fill out the verdict form. Although the Attorney General references the verdict instruction in its brief, it has offered no argument explaining why or how the instruction rendered the trial court's error harmless and we find no support for such a conclusion.
2. Statements made by counsel during closing argument
The Attorney General also argues that the trial court's failure to instruct the jury on the reasonable doubt standard was harmless because the attorneys' closing arguments informed the jury that it could not convict King unless all elements of the crime had been proven beyond a reasonable doubt and defined the meaning of that term. The Attorney General further notes that the trial court told the jury that if the lawyers made any statement regarding the law that conflicted with the court's instructions, the jury was required to follow the court's instructions. Thus, according to the Attorney General, it is "reasonable to conclude the jury would have relied on counsel's statement on [reasonable doubt]" because those statements did not conflict with any of the court's instructions.
As a preliminary matter, the fact that it might be "reasonable to conclude" that the jury followed the attorneys' statements on reasonable doubt is not sufficient to satisfy Chapman's harmless error standard. Under Chapman, we are required to reverse King's conviction unless "the People . . . 'prove beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained." (Mower, supra, 28 Cal.4th at p. 484 [explaining that Chapman standard applies to "instructional error that violates the United States Constitution"].)
Moreover, several decisions have rejected the notion that attorney statements during closing argument are sufficient to satisfy the Chapman standard where, as here, the trial court has not otherwise instructed the jury that each element of the offense must be proved beyond a reasonable doubt. For example, in Flores, supra, 147 Cal.App.4th 199, the prosecutor discussed at length the reasonable doubt standard, which he defined as "an abiding conviction of the truth of these charges." (Id. at p. 214.) The court thereafter instructed the jurors that they must "follow the law as the court states it and if 'anything concerning the law said by the attorneys in their argument or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.'" (Id. at p. 218.)
The appellate court concluded that the attorneys' comments, even when considered in conjunction with the trial court's instruction, did not cure the court's error:
To the extent the prosecutor discussed or attempted to explain the reasonable doubt standard of proof during closing argument, the jurors could have reasonably ignored those statements of law by the prosecutor as effectively conflicting with the trial court's instructions on the law, which did not include . . . any . . . instruction that the prosecutor had the burden to prove each element of the charge(s) beyond a reasonable doubt. We conclude the prosecutor's closing argument did not effectively inform the jury that the prosecution had the burden to prove each element of the charged offense(s) beyond a reasonable doubt. In any event, we doubt that a prosecutor's statement on the law regarding the reasonable doubt standard(Ibid.)
of proof, by itself (i.e., without an instruction by the trial court) satisfies the federal constitutional requirements for the structure of a criminal trial.
Similarly, in Elguera, supra, 8 Cal.App.4th 1214, "the two attorneys referred to the prosecutor's burden of proof beyond a reasonable doubt at least eight times in argument to the jury." (Id. at p. 1220.) In addition, "the jurors were told . . . that, in the event of a conflict between the [court's] instructions and the [lawyer's] arguments, they should follow the instructions." (Id. at p. 1222.) Although the appellate court noted that "[t]he jurors would not have taken the court's omission of [an instruction on reasonable doubt] . . . as presenting a conflict with counsels' repeated references to reasonable doubt," it ruled that the attorneys' statements still did not render the trial court's error harmless. (Id. at pp. 1222-1223; see also Vann, supra, 12 Cal.3d at p. 227, fn. 6 ["Although counsel for defendants, in their closing arguments, also advised the jurors that in order to bring in guilty verdicts they were required to find the elements of the crimes beyond a reasonable doubt, this likewise did not cure the error of the court's omission"]; Crawford, supra, 58 Cal.App.4th at p. 820 [Attorney General failed to establish harmless error where "[b]oth the prosecutor and defense counsel addressed the requirement that the burden of proof at trial was that of beyond a reasonable doubt"].)
The facts of Flores and Elguera are indistinguishable from the circumstances presented here. As the appellate court explained in Flores, we cannot presume that the jury understood that the reasonable doubt standard applied merely because the attorneys referenced that standard in their closing argument. Rather, the jurors "could have reasonably ignored those statements of law by the prosecutor as effectively conflicting with the trial court's instructions on the law, which did not include . . . any other instruction that the prosecutor had the burden to prove each element of the charge(s) beyond a reasonable doubt." (Flores, supra, 147 Cal.App.4th at p. 218.)
In sum, our courts have repeatedly held that a trial court's failure to "give predeliberation instruction on the presumption of innocence and the allocation and standard of the burden of proof is not rendered harmless merely because "the concept of reasonable doubt had been included in one or more instructions on specific matters" or because "both counsel had argued to the jury about the allocation of the burden and standard of proof." (Crawford, supra, 58 Cal.App.4th at pp. 823-824 [discussing Vann, supra, 12 Cal.3d 220, Elguera, supra, 8 Cal.App.4th 1214]; see also Flores, supra, 147 Cal.App.4th 199.)
In addition, Elguera, Vann, Crawford and Flores each held that the trial court's failure to give a prediliberation reasonable doubt instruction was not harmless despite the fact that the court gave a reasonable doubt instruction during jury selection. For example, in Elguera, supra, 8 Cal.App.4th 1214, prospective jurors "heard virtually the full standard instruction on [reasonable doubt]" during jury selection, and acknowledged that they "understood the requirement of proof beyond a reasonable doubt." (Id. at pp. 1218, 1221.) Although the entire jury selection process and trial were completed the same day, the court concluded that instructions given prior to impaneling the jury were insufficient to establish harmless error: "[T]he instruction was given not to actual jurors, but to prospective jurors who at the time did not know whether they would ultimately serve in the case. As a result, the members of the panel could well have viewed the court's remarks as hypothetical and thus have failed to give the instruction the same focused attention they would have had they been impaneled and sworn." (Id. at p. 1222) Flores, Vann and Crawford similarly concluded that "reasonable doubt instruction during jury selection is insufficient" to establish harmless error. (Flores, supra, 147 Cal.App.4th at p. 215; see also Vann, supra, 12 Cal.3d at p. 227, fn. 6; Crawford, supra, 58 Cal.App.4th at p. 824.) In this case, the record contains no evidence suggesting that the jury was instructed on reasonable doubt during jury selection. As a result, the trial court's subsequent failure to provide such an instruction after impaneling the jury was arguably more prejudicial than the circumstances presented in Elguera, Vann, Crawford or Flores.
These cases acknowledge that "'[t]he reasonable doubt instruction more than any other is central in preventing the conviction of the innocent.' [Citation.] 'It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.' [Citation.) If any phrase should be ringing in the jurors' ears as they leave the courtroom to begin deliberations, it is 'proof beyond a reasonable doubt.'" (Elguera, supra, 8 Cal.App.4th at pp. 1222-1223; see also Vann, supra, 12 Cal.3d at p. 227 ["'No instruction could be more vital . . ., since in every criminal case it directs the jury to put away from their minds (sic) all suspicions arising from arrest, indictment, arraignment, and the appearance of the accused before them in his role as a defendant.' [Citation.]"]; Crawford, supra, 58 Cal.App.4th at p. 826 ["We must be ever diligent to guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt."].)
Under the circumstances presented here, we are "unable to declare ourselves convinced beyond a reasonable doubt the error had no effect on the verdict." (Elguera, supra, 8 Cal.App.4th at p. 1222.) We therefore must reverse King's conviction and remand for further proceedings. (Chapman, supra, 386 U.S. at p. 24 ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"].)
King also requests that we conduct an independent review of the in camera hearing conducted by the trial court under Evidence Code section 1043 and Pitchess v. Superior Court (1974) 11 Cal.3d 531. (See generally People v. Mooc (2001) 26 Cal.4th 1216.) Because we reverse King's conviction, we need not conduct a Pitchess review.
DISPOSITION
The Judgment is reversed.
ZELON, J. We concur:
PERLUSS, P. J.
WOODS, J.