P. v. Osborne

Filed 8/20/07 P. v. Osborne CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge. Reversed.

Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

Gary Joseph Osborne was convicted by a jury of two counts of robbery with the use of a deadly weapon (Pen. Code, 211,[1]12022, subd. (b)(1)), assault with a deadly weapon ( 245, subd. (a)(1)), and petty theft ( 484, subd. (a)). He was sentenced to five years in prison. He appeals, contending that the judgment must be reversed because the jury was not instructed on the definition of reasonable doubt. (CALJIC No. 2.90.) We agree and reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are not in dispute. It will suffice to note that appellant entered a Chevron gas station in Long Beach on December 6, 2005, at approximately 9:00 p.m. He threw beer bottles through the cashiers window, grabbed bags of snacks, and left. Two cashiers identified appellant from photographic lineups. A video surveillance tape of the incident was shown at trial.

Appellant represented himself at trial. He did not present any evidence in his defense. His defense, as stated in argument, was that he was in San Diego at the time of the alleged crimes and that the prosecutions witnesses were not credible.

In opening statements, neither the prosecutor nor appellant mentioned the burden of proof.

In its predeliberation charge to the jury, the court read CALJIC No. 17.10, on the lesser included offense of attempted robbery. It stated, inter alia, [Y]ou could nevertheless convict him of any lesser crime if you are convinced beyond a reasonable doubt he is guilty of a lesser crime. It did not mention the term reasonable doubt in connection with the elements of robbery (counts 1 and 2), assault with a deadly weapon (count 3), or petty theft (count 4). In reading the instructions to the jury, the court did not read CALJIC No. 2.90 or provide a definition of reasonable doubt.

In closing, the prosecutor mentioned that he needed to prove certain elements of the case. He then argued that every element had been met.

In its final instructions to the jury, the court told the jurors that if they disagreed as to the testimony, they were entitled to have it read back. The jury reached a verdict in less than one hour.

DISCUSSION

A number of cases have held that the failure to give an instruction defining reasonable doubt (CALJIC No. 2.90) is reversible error even if the concept is discussed at some other time during the trial. (People v. Vann (1974) 12 Cal.3d 220 [burden of proof explained during jury selection and at closing argument]; People v. Flores (2007) 147 Cal.App.4th 199 [reasonable doubt defined during jury selection and mentioned during prosecutors closing argument; burden of proof discussed in instructions on elements of crimes]; People v. Phillips (1997) 59 Cal.App.4th 952 [burden of proof discussed during jury selection and in elements of crime and counsel gave partial definitions of reasonable doubt in closing argument]; People v. Crawford (1997) 58 Cal.App.4th 815 [reasonable doubt defined during jury selection; burden of proof referred to in other instructions]; People v. Elguera (1992) 8 Cal.App.4th 1214 [reasonable doubt defined during jury selection; burden of proof referred to in closing arguments].)

One published case deemed the failure to give CALJIC No. 2.90 harmless error. In People v. Mayo (2006) 140 Cal.App.4th 535 (Mayo), the trial court failed to read a reasonable doubt instruction to the deliberating jurors. However, the court did read CALJIC No. 2.90 in its entirety to the panel of prospective jurors before the court began the voir dire examination. The principles of the burden of proof and reasonable doubt were repeated several times during the selection process. The jury was also advised of its responsibility to acquit Mayo unless it found every element of the charged offense beyond a reasonable doubt. It was also informed of the constitutional requirement that an accuseds guilt be judged solely on the evidence. In addition, neither counsels arguments invited the jurors to consider facts outside the evidence. The Mayo panel found, under the totality of the circumstances, that the failure to define reasonable doubt did not constitute federal constitutional error because the omission did not deprive the defendant of a fair trial. (Id. at p. 550.) The court further found that in light of the repeated references to the burden of proof and reasonable doubt during voir dire and the strength of the evidence against the defendant, it was not reasonably probable that the trial courts failure to read CALJIC No. 2.90 affected the verdict. (Id. at. p. 552.)

In this case, the court did not give any definition of reasonable doubt during jury selection or during its opening instructions to the jury. Nor was the burden of proof explained or defined to the jurors at any time. The People concede the error cannot be deemed harmless.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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[1] All further undesignated statutory references are to the Penal Code.