P. v. Bryson

Filed 11/20/07 P. v. Bryson CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

A number of appellate decisions have cautioned trial judges against tinkering with the statutory definition of reasonable doubt. An amplification of the reasonable doubt standard, no matter how well intentioned, can create confusion and lead to reversal on appeal. (See People v. Johnson (2004) 119 Cal.App.4th 976, 985-986.) This is such a case. We agree with appellant Thompson Lee Bryson, Jr., that the trial courts efforts during voir dire to clarify the meaning of reasonable doubt effectively lowered the prosecutions burden of proof. Accordingly, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

John Waite parked his Ford pickup truck at his business in Concord, California. The ignition was in good working order and the door locks functioned properly. When Waite returned the following afternoon, the truck was gone, although Waite had the only set of keys. A few nights later, a Contra Costa County sheriffs deputy noticed appellant standing near Waites truck in a church parking lot near Highway 4 in Bay Point. Appellant appeared to be working on the truck. The deputy ran a check on the license plate number and discovered that the truck had been reported stolen. Appellant was arrested after backup arrived.

The truck had been damaged since it was last seen by Waite. The steering column housing was broken, wires were hanging from the ignition, and the ignition was gummed up with epoxy-type glue and could not be operated using the key. The wing window of the passenger side was damaged and its latch mechanism was bent. There were pry marks on the passenger door near the lock. Appellant had two screwdrivers in his pocket when he was arrested, but he was not holding any automobile keys. Keys discovered on the ground in front of the pickup did not fit the ignition or door locks.

Appellant was convicted of a single count of receiving stolen property after a trial before a jury. (Pen. Code,  496d.)[1] The trial court sentenced him to six years in prison after he admitted allegations that he had been previously convicted of grand theft auto ( 666.5) and had served three prior prison terms ( 667.5, subd. (b)).

DISCUSSION

The jury in this case was properly instructed with CALJIC No. 2.90,[2] which defines the presumption of innocence and proof beyond a reasonable doubt in language mirroring that contained in section 1096. The problem in this case arises from the courts explication of this standard during voir dire. Appellant argues that the court misstated the burden of proof in a number of ways that include: (1) informing jurors that they must be able to articulate a reason for any doubt as to guilt; (2) stating that proof beyond a reasonable doubt did not require certainty or near certainty, but could be satisfied by a standard of human certainty; and (3) equating abiding conviction to comfort with the decision to convict. We quote from the voir dire proceedings at some length, with the problematic sections emphasized.

I. Courts Statements During Voir Dire

The court began voir dire by describing the jury selection process in general. It advised prospective jurors of the presumption of innocence and standard of proof beyond a reasonable doubt: Next rule in a criminal case, a fundamental rule in a criminal case, is a defendant, whether it be the theft of a ballpoint pen from a drugstore or a capital murder--this involves neither--the defendant is presumed to be innocent until the contrary is proved. []  The only person who has to prove something in the courtroom is the district attorney. Hes called The People. What the [P]eople to [sic] have to prove is the guilt of the defendant beyond a reasonable doubt. []  The defendant is presumed innocent. The People have the burden of proof of proving him guilty beyond a reasonable doubt, and the verdict has to be unanimous.

The court then used the standard version of CALJIC No. 2.90 to elaborate on these concepts: A defendant in [a] criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, . . . [] [w]hether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. []  Thats the first paragraph of the instruction. Ill read it to you again at the end of the case. [] I suggest to you, thats a hundred percent consistent with what I have just told you a moment ago. [] Theres the second paragraph: In other words, what is reasonable doubt? Reasonable doubt is defin[ed] as follows: Now its tricky, because it starts with a negative. []  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. []  Now, were going to come back and talk about that. []  Simply, suffice it to say that its not any doubt. It has to be a reasonable doubt. Therefore, it defines itself. []  You dont pick something out of the air. You should be able to articulate what the reason is for your reasonable doubt. Ill come back to that. (Italics added.)

The following day, while questioning individual jurors, the court returned to the subject of reasonable doubt. After eliciting from prospective jurors 3 and 6 their belief that beyond a reasonable doubt was synonymous with absolute proof, the court asked prospective juror 8:

Q: . . . [W]hat does reasonable doubt mean to you?

A: It means that I dont have any doubt, other than my own imagination. I dont have any doubt except my own imagination.

Q: Thats even a higher level. (Italics added.)

The court continued in this vein when questioning juror 7:

Q: You work at a law school. Im really curious, what does reasonable doubt mean to you?

A: Absolute proof, in my mind.

[Q]: . . . Okay, thats enough. []  If you said absolute proof, or absolute certainty, gong. All wrong answers. So I have to go back to basics. []  Okay, lets go back to [basics]. You have to grasp this concept. []  Reasonable doubt does not mean mathematical certainty. Listen again to what I just said. Reasonable doubt does not mean -- nor does it equate to -- mathematical certainty. []  Everybody that said absolute certainty, or whatever the word was . . . is wrong. Its not mathematical certainty. []  This is not a laboratory. You cant put a scale down and weigh[] it. You dont put a ruler down next to it and measure it. []  I tricked you, [Juror 6]. You cant quantify reasonable doubt.

Okay. Let me read to you again the instruction. Im doing that now because you were only here a short time yesterday. This is important. Ill read from 2.90. Thats the instruction number.

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.

I dont think theres any question about that. Thats the process that I explained yesterday. [] Okay. Now, if you remember from yesterday, I also told you something else. Reasonable does not mean any doubt. It has to be . . . what? It has to be a reasonable doubt. [] So you should be able to express a reason for your doubt. Its not any doubt. Its not your imagination. You cant speculate as to things outside the courtroom. You cant seek out information. []  You have to base your decision on everything that occurs in the courtroom. (Italics added.)

Okay. Now lets go to the second paragraph. I want to read it, and then I want to dissect it. []  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 the[y] feel an abiding conviction of the truth of the charge. [] . . . [] It is not mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt, period. Thats the first sentence. Thats the mathematical thing. [] Reasonable doubt is not ninety-nine percent. It is not a hundred percent. It is not ninety-seven percent. You cannot put a percentage on it. You cannot put a [numerical] value on it. Its something youre going to feel. But you cant weigh[] it, okay.

Let me continue. []  It is that state of the case which, after the entire comparison and consideration of all the evidence -- now, listen to the sentence concerning the comparison and consideration of all the evidence. That means whatever you hear in this courtroom by way of evidence, you can consider that. []  Everything you hear -- not just from the People, but also from the defense. Whatever you hear in this courtroom, you can take all of that into the analysis process. []  And after that, . . . leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. []  The key phrase, the operative phrase in this is: You have to feel an abiding conviction. Abiding conviction. What does that mean? When you use the word abiding, the every-day meaning, its something that will linger there for hours, days, weeks, months. Years later, you will feel you have done the right thing. (Italics added.)

That is what reasonable doubt is. Its not absolute certainty. Its not mathematical certainty. Because everything in this world is subject to some possible or imaginary doubt. []  To put it another way, if you will, were dealing with human certainty. Although, its not certainty. But thats a better way to say it than mathematical and scientific certainty. (Italics added.)

The court then questioned a prospective juror who had some difficulties with the English language about the difference between reasonable doubt and mathematical certainty. It commented, Were not dealing with a mathematical standard in the courtroom; were dealing with what Ive described as human certainty. But we call it reasonable doubt. []  Its not any doubt. You have to be able to articulate the reason for your doubt. (Italics added.)

In response to additional questions about the reasonable doubt standard, prospective juror 16 indicated she would have to be sure of her decision. The following exchange ensued:

Q: Good way to put it. Any problem in doing that?

A: No, sir.

Q: So youre secure in your decision? []  What youre really talking about is that you think, in effect, that if you should talk about this a day, a week, a month, years later, youre going to feel comfortable with your decision. []  Do you accept that?

A: Yes. (Italics added.)

The court returned to the subject of being comfortable with ones decision during its questioning of prospective juror 24:

A: I understand the reasonable doubt issue. []  As long as Im comfortable with the decision years from now, I can live with that.

Q: Lets talk about that, as long as Im comfortable. In your words, explain what you mean. []  When I talk about lingering doubt--and thats the phrase that is used in the instruction--and you say, As long as Im comfortable, that allows for some subjective thought. []  It may cause the standard to go up; it may cause the standard to go down. Im just trying to find out: Will you abide by the rules as I read it, and not get any . . . hi[gher] or any lower[?]

A: Yes.

Finally, the court returned to the subject of absolute certainty when discussing reasonable doubt with prospective juror 32:

Q: But a lot of people require certainty or near certainty. Do you take that into consideration, depending on the circumstances?

A: Im not sure theres -- at home Ill do it, because its not much. But if its a new car, I want to be damn certain.

Q: In following the reasonable doubt standard -- and Im going to assume you can do that with what you just said -- is there any possibility, though, that your way of thinking or constructing that may be that it would cause that burden to be greater than that which the law imposes?

A: Well, I cant relate to what the law imposes.

Q: I like a [philosophical] discussion, but I have to stay with this for awhile. []  The law says a reasonable doubt is -- its not any doubt, because everything is subject to some possible or imaginary doubt. []  Do you agree with that?

A: Yes, sir.

Q: Its after the consideration of everything, it leaves the mind of the juror in the condition that they dont have this lingering doubt. []  And when you walk out of here, you feel like you h[a]ve done the right thing. Days and weeks later. (Italics added.)

A: Yes.

Q: Is that what you think of it to be?

A: Yes.

Q: Anything greater than that?

A: No. But you want to be sure you did the right thing. When youre dealing with serious situations, you want to be really sure.

Q: What do you mean when you say, When dealing with a [serious] situation . . . Tell me what thoughts are going through your mind.

A: Peoples lives are being impacted here.

Q: Does that mean youre indirectly talking about penalty?

A: No, sir. I just want to be absolutely convinced before.

Q: You [want] to be absolutely convinced. Does that mean that reasonable doubt doesnt mean to you absolutely convinced?

A: But yeah, I want to be damn sure, if youll pardon me.

Q: Thats okay. But does damn sure mean to you absolute certainty?

A: As close as you can get.

Q: Does that seem contrary to you which the law imposes? Because the law does not say absolute certainty.

A: It would be. I dont think I can tell you. It means something different to every single person in this room. (Italics added.)

II. Failure to Object.

Initially, we consider the Attorney Generals contention that appellant forfeited his challenge to the trial courts comments during voir dire by his failure to object in the trial court. Although challenges to noninstructional statements by the trial court must be raised at trial (People v. Anderson (1990) 52 Cal.3d 453, 468), a criminal defendant may seek appellate review of any jury instruction that affects his or her substantial rights ( 1259). The trial courts challenged comments, while not formalized in writing, were tantamount to jury instructions on the standard of proof beyond a reasonable doubt and may be reviewed on appeal absent an objection. (People v. Johnson, supra, 119 Cal.App.4th at p. 984; People v. Johnson (2004) 115 Cal.App.4th 1169, 1172.)

III. Analysis

We agree with appellant that the trial courts questions and comments during voir dire undermined the presumption of innocence and understated the standard of proof beyond a reasonable doubt. We also agree that they require reversal.

The court stated a number of times during voir dire that proof beyond a reasonable doubt did not require absolute or mathematical certainty, and should not be based on speculation, imagination, or conjecture. These are correct statements of the law as far as they go. (See Victor v. Nebraska (1994) 511 U.S. 1, 13 (Victor); People v. Cash (2002) 28 Cal.4th 703, 740-741; People v. Simpson (1954) 43 Cal.2d 553, 566 (Simpson); People v. Claxton (1982) 129 Cal.App.3d 638, 668.) But the court embellished on these ideas by using the alternative definition human certainty, which it then described as not certainty. Human certainty is not found in the standard jury instructions, in section 1096s definition of reasonable doubt, or in California case law. Its use in this case was potentially confusing, especially in light of the caveat that human certainty was not actually certainty. And without additional definition, the term suggests a subjectivity that is potentially inconsistent with evidentiary certainty, a phrase the United States Supreme Court has used in describing the reasonable doubt standard. (Victor, supra, at p. 6; Cage v. Louisiana (1990) 498 U.S. 39, 41, overruled on an unrelated point in Estelle v. McGuire (1991) 502 U.S. 62, 72-73, fn. 4.)[3]

By returning again and again to the idea that reasonable doubt did not require certainty, the court telegraphed its concern that prospective jurors would impose too high a standard when they assessed the persuasiveness of the prosecutions evidence. In so doing, the court undermined the high level of proof required to support a criminal conviction. Equally troubling is the courts technique of intensively questioning individual prospective jurors about their understanding of proof beyond a reasonable doubt. Certainly, it is permissible to take the collective pulse of the panel during voir dire to ascertain whether jurors are grasping a particular legal concept. But the courts exchanges bordered on argumentative at times, and, as discussed in more detail below, suggested that legally correct explanations of the standard were in fact too high. And by focusing so closely on the jurors individual understanding of the reasonable doubt standard, the court diluted its own role as the source of instructions on the law.

The court repeatedly stated that a reasonable doubt was one a juror must be able to express or articulate. This is contrary to the law, because there is no requirement that the trier of fact explain the reasons for its decision. (Harris v. Rivera (1981) 454 U.S. 339, 347; People v. Engelman (2002) 28 Cal.4th 436, 446.) The courts instruction to the contrary undermines the presumption of innocence and shifts the burden of proof toward the defense by suggesting that a vote of not guilty must be based on affirmative evidence giving rise to a reasonable doubt. (Compare People v. Hill (1998) 17 Cal.4th 800, 831-832 [prosecutorial misconduct to tell jury during closing argument that there must be some affirmative evidence on which to base a doubt]; Simpson, supra, 43 Cal.2d at p. 566 [instruction that reason for doubt must arise from the evidence could be confusing because such doubt may grow out of the lack of evidence as well as the evidence adduced].) A reasonable doubt need not arise from affirmative facts that can be explained; it is enough for a juror to determine that the prosecutors evidence of guilt was not sufficiently persuasive. (Hill, supra, at p. 831.)

Some of the courts comments focused on the phrase abiding conviction and described that state of mind as a degree of comfort that would exist for some period of time after the trial, either days, weeks, months. Years later, or a day, a week, a month years later. To comport with the Constitution, the jurors belief in the truth of the charge must amount to more than comfort, it must be both long lasting and deeply felt. (Light, supra, 44 Cal.App.4th at p. 885; see also People v. Brigham (1979) 25 Cal.3d 283, 290-291 (Brigham) [approving phrase abiding conviction as one connoting a conviction of a lasting, permanent nature].) The courts use of the term comfort, coupled with its reference to mere weeks and months as the relevant time frame for measuring this state of mind, understated the duration and degree of conviction necessary for proof beyond a reasonable doubt.

We now turn to the courts most direct misstatements of the burden of proof, which occurred when it questioned two prospective jurors regarding the degree of doubt required. When prospective juror 8 stated that reasonable doubt meant, I dont have any doubt, other than my own imagination, she was accurately expressing the definition of reasonable doubt embodied in CALJIC No. 2.90. Yet the court informed her that the standard she described was higher than what was required by law. Prospective juror 32 stated that he did not believe there was such a thing as mathematical certainty, but that before voting guilty, he would want to be damn sure, absolutely convinced, and [a]s close as you can get to absolute certainty of appellants guilt. Like the answer given by prospective juror 8, this was consistent with the degree of certainty required for reasonable doubt, which has been described as near certainty. (Brigham, supra, 25 Cal.3d at p. 291; People v. Hall (1964) 62 Cal.2d 104, 112; see also Jackson v. Virginia (1979) 443 U.S. 307, 315 [subjective state of near certitude].) But rather than accept this response, the court emphasized again that the law did not require absolute certainty and suggested that what the juror was saying seemed contrary to this principle.

Taken together, the courts comments diluted the burden of proof. The error is a structural one that is reversible per se. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278-282; see People v. Johnson, supra, 115 Cal.App.4th at p. 1172.) [T]he essential connection to a beyond a reasonable doubt factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jurys findings. (Sullivan, supra, at p. 281, italics omitted.) Appellants conviction must be reversed and the case remanded for a new trial in which the jury is properly instructed on the burden of proof.

We close by echoing the comments of another appellate court that reversed a criminal conviction based on the trial courts embellishment of the reasonable doubt standard: Over a quarter of a century ago, a thoughtful Court of Appeal opinion collected cases from a number of jurisdictions on the fate of innovative and [w]ell intentioned efforts by trial courts to clarify and explain reasonable doubt that instead created confusion and uncertainty and led to reversals on appeal. [Citation.] A few excerpts from those cases are instructive: [Citation]: . . . [T]he term reasonable doubt best defines itself. All attempts at definition are likely to prove confusing and dangerous. [Citation]: Every attempt to explain [the definition of reasonable doubt] renders an explanation of the explanation necessary. [Citation]: It is in a term which needs no definition, and it is erroneous to give instructions resulting in an elaboration of it. [Citation]: [G]enerally, the attempted definitions of [reasonable doubt] . . . are simply misleading and confusing, and not proper explanations of their meaning at all. [Citation]: As it is difficult, if not impossible, to give a precise and intelligible definition of what a reasonable doubt is, without extending an instruction into almost a treatise upon the subject, . . . the better practice is to follow as nearly as practicable the language of [section 1096], which is certainly as intelligible and as easily comprehended as the definition given in this case. (People v. Johnson, supra, 119 Cal.App.4th at p. 986.)

Given our resolution of this issue, we need not consider appellants remaining claims of instructional error.

DISPOSITION

The judgment is reversed. The case is remanded to the superior court for a new trial.

NEEDHAM, J.

We concur.

JONES, P. J.

GEMELLO, J.

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[1] Further statutory references are to the Penal Code.

[2] CALJIC No. 2.90 provides, A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his/her] guilt is satisfactorily shown, [he/she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him/her] 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.

[3]Although CALJIC No. 2.90 does not include the phrase evidentiary certainty, the instruction as a whole passes constitutional muster. (People v. Light (1996) 44 Cal.App.4th 879, 884-889 (Light).)