P. v. Sibley

Filed 9/28/06 P. v. Sibley CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Anita H. Dymant, Judge. Reversed.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

INTRODUCTION

Defendant Derrick Sibley was charged by information with possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)), and possession of 28.5 grams or less of marijuana (id., § 11357, subd. (a)). The jury returned verdicts of guilty on both counts. The defendant admitted his 1992 residential burglary conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Probation was denied and defendant was sentenced to a total term of four years in state prison: the midterm of two years for the base term as to count 1, doubled. As to count 2, the court imposed a $100 fine and suspended payment of the fine. He appeals from the judgment and we reverse.

FACTS

On November 17, 2004, uniformed Los Angeles Police Department officers were patrolling the area near 7th Street and Maple Avenue, in Los Angeles. While the officers were stopped at a red light, one of the officers smelled the odor of marijuana. The officers observed the defendant and a female companion. The officer asked defendant if he was smoking marijuana and defendant responded, “I’m not going to lie, I am smoking some marijuana.” The two officers exited their vehicle and walked toward defendant, who dropped his cigarette. The defendant was searched and an Altoids container was recovered from defendant’s left pant cargo pocket. From defendant’s left jacket pocket, one of the officers recovered a clear plastic bag containing five off-white “solids,” which were later determined to contain .31 grams of cocaine base. A City Attorney disclosure statement, which is required by the City Attorney’s office, was filled out. The woman with the defendant was not listed on the statement. The officer explained that it was an “observation arrest,” meaning a crime was not reported by another party and the officer did not believe that he was required to include the woman on the list.

The defendant’s girlfriend was with him at the time and testified that she did not see defendant in possession of cocaine on the day of his arrest. Defendant testified in his own behalf and denied having any cocaine on him or smoking cocaine on the day he was arrested.

DISCUSSION

The trial court failed to instruct the jury on the defendant’s presumption of innocence and the prosecution’s burden of proof (CALJIC No. 2.90). The trial court’s omission constitutes a structural constitutional defect. The courts are in conflict as to whether failure to instruct on the defendant’s presumption of innocence and the prosecutor’s burden of proof requires automatic reversal, or is subject to a harmless error analysis under Chapman v. California (1967) 386 U.S. 18. (Compare Sullivan v. Louisiana (1993) 508 U.S. 275, 280-282 [defective reasonable doubt instruction amounts to structural error and is not subject to harmless error analysis] and People v. Phillips (1997) 59 Cal.App.4th 952, 957-958 [the reversal per se rule of Sullivan does not allow for exceptions] with People v. Elguera (1992) 8 Cal.App.4th 1214, 1219-1220 [Chapman harmless beyond a reasonable doubt standard applied].) As the Attorney General concedes, under either standard, based upon the facts, the failure to instruct requires reversal.

The trial court briefly mentioned the burden of proof and presumption of innocence to the prospective jury panel prior to the start of the trial. The court did not read CALJIC No. 2.90 in its predeliberation charge to the jury. The jury did not receive any other instruction that might have outlined the burden required to convict the defendant (see, e.g., CALJIC Nos. 2.01 and 2.91). In People v. Elguera, supra, the prosecution’s case rested almost entirely on circumstantial evidence and the jury was instructed on circumstantial evidence and reasonable doubt (CALJIC No. 2.01). The jury was also given CALJIC No. 2.90 during voir dire, but not during the predeliberation instructions. The Court of Appeal was still not convinced beyond a reasonable doubt that the trial court’s failure to give CALJIC No. 2.90 at the conclusion of the case was harmless error beyond a reasonable doubt. (8 Cal.App.4th at pp. 1223-1224.) In People v. Crawford (1997) 58 Cal.App.4th 815, 824, the court similarly found that the pretrial instruction of jurors was insufficient to cure the trial court’s failure to charge the jury on the state’s burden of proof beyond a reasonable doubt.

Here, during closing argument, defense counsel told the jury that it had to be convinced beyond a reasonable doubt of defendant’s guilt and have an abiding conviction that the defendant had cocaine in his pocket. When defense counsel tried to talk about the presumption of innocence, there was an objection by the prosecutor and the court informed the jury that it would be governed by the court’s instructions on the law. The trial court never instructed the jury on the defendant’s presumption of innocence or the People’s burden to prove guilt beyond a reasonable doubt. The case involved the issue of credibility and CALJIC No. 2.90 was essential. It was required after the evidence was presented and before deliberations commenced in order to insure that the defendant’s fundamental rights were protected.[1]

The judgment is reversed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

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[1] Defendant raises other contentions on appeal, including judicial misconduct, judicial bias, prosecutorial misconduct and trial counsel’s conduct. Having determined to reverse the decision of the trial court based on instructional error, we need not discuss any other contentions.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.