PEOPLE v. STANLEY RAYMOND FLORES

Filed 1/31/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

STORY CONTINUED FROM PART I………

II

INSTRUCTIONS ON REASONABLE DOUBT IN FLORES'S CASE

            Flores contends the trial court erred by not instructing with CALJIC No. 2.90 or an alternative instruction on the reasonable doubt standard of proof.  He argues that because the jury was not informed the prosecution had the burden to prove each element of the offense(s) beyond a reasonable doubt, his convictions must be reversed.

A

            On July 8, 2005, during the second day of voir dire, or jury selection, the trial court instructed the jury panel of 36 prospective jurors with CALJIC No. 2.90 on the reasonable doubt standard of proof.^[1]  Apparently only four of those panel members were ultimately selected as jurors for Flores's trial.  On July  11, during the third day of voir dire, or jury selection, the trial court again instructed eight continuing panel members (who were ultimately selected as jurors) and 25 new panel members with CALJIC No. 2.90 on the reasonable doubt standard of proof.^[2]  Although all panel members ultimately selected as jurors apparently were present during that instruction, they had yet to be empanelled or sworn by the court clerk.  On July 12, the jurors selected for the jury were sworn by the clerk and empanelled by the court.  The trial court did not instruct the jurors with CALJIC No. 2.90 at any time after their empanelment.  In the course of giving other instructions before counsels' opening statements, the trial court informed the jurors they would have " all these instructions" in the jury room during their deliberations.

            On July 19, after the close of evidence and before counsels' closing arguments, the trial court gave its predeliberation instructions to the jury, but omitted an instruction with CALJIC No. 2.90 on the reasonable doubt standard of proof.  The court instructed with CALJIC No. 1.00 that the jurors must follow the law as the court states it and if " anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions."   The court also instructed with CALIJC No. 2.01 on circumstantial evidence, stating in part:

" [E]ach fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt.  In other words, .  .  . before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt."   (Italics added.)

The court also instructed with CALJIC No. 2.61 on a defendant's choice not to testify at trial, stating:

" In deciding whether or not to testify, a defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him.  No lack of testimony on the defendant's part will make up for a failure of proof by the People so as to support a finding against him on any essential element."   (Italics added.)

Regarding counts 17 through 19 only, the court instructed in part:

" If you find the defendant guilty beyond a reasonable doubt of any of the counts filed pursuant to Penal Code Section 803(g) (Counts 17 through 19), you must further determine, as to each count in which you find guilt, whether the People have proved the following factual allegations .  .  .  ." ^[3]  (Italics added.)

Finally, regarding the section 667.61, subdivision (b), (c) and (e) allegations as to all counts, the court instructed in part:

" If you find the defendant guilty of [any of counts 1 through 19], you must determine whether the defendant committed the offense against more than one victim, namely [N.C., A.C., and/or Stanley].  This requirement can be satisfied through any combination of victims, but requires a finding of guilt on at least two of the above-named victims.

" The People have the burden of proving the truth of this allegation.  If you have a reasonable doubt that it is true, you must find .  .  . it not to be true.  .  .  ."   (Italics added.)

The trial court did not instruct, either orally or in writing, with CALJIC No. 2.90 on the reasonable doubt standard of proof.

            In closing argument, the prosecutor stated in part:

" I'm going to talk about reasonable doubt.  Reasonable doubt is reasonable doubt.  It's not doubt beyond a shadow of a doubt.  It's reasonable doubt.  That is a doubt based on reasoned analysis, a doubt based on reason, doubt based on logic.  Not doubt based on emotion or sympathy or speculation.  It's a doubt based on reason.

" Now, it says essentially that if you feel an abiding conviction to a moral certainty of the truth of these charges, an abiding conviction of the truth of these charged, you must vote guilty.

" Now, what does abiding conviction mean? .  .  . [If] three years from now you feel that your decision you made was the right decision in terms of his guilt, that's an abiding conviction, something that stays with you.  [¶] So it's nothing complex.  It's nothing inhumanly possible.  It's very [commonsense].  It's an abiding conviction, something that stays with you.

" So there will always be mere possible doubts.  But mere possible doubts do not equate to reasonable doubt.  [¶] For example, some things that are not reasonable doubt if the defendant's mere denial that this happened.  .  .  . [A] defendant's mere denial does not equal reasonable doubt.  And mere conflicts in testimony about minor things [do] not equal reasonable doubt." ^[4]

In closing argument, Flores's counsel did not make any reference to reasonable doubt.

            Citing Vann, Elguera, Crawford, and Phillips, Flores contends the trial court committed federal constitutional error by not instructing the jury on the reasonable doubt standard of proof.  Furthermore, citing Sullivan, Crawford, and Phillips, he contends that federal constitutional error was a structural defect in his trial, requiring reversal per se of all of his convictions.  The People disagree, citing Mayo and arguing the instructions given by the trial court in this case adequately informed the jury of the reasonable doubt standard of proof and therefore the court's omission of an instruction with CALJIC No.  2.90 was not federal constitutional error.  The People further argue that, assuming arguendo there was instructional error, the error was harmless under either the Chapman or Watson standard.

            Based on our analysis of the cases discussed in part I, ante, and comparison of the circumstances in those cases with the circumstances in this case, we conclude this case is closely analogous to Vann, supra, 12 Cal.3d 220and Elguera, supra, 8 Cal.App.4th 1214, and the trial court's instructions, considered individually and as a whole, did not inform the jury that the prosecution had the burden to prove each element of the charged offense(s) beyond a reasonable doubt.  Therefore, the court committed federal constitutional error, which was not harmless beyond a reasonable doubt and therefore requires reversal per se of Flores's convictions.

            First, although the trial court, during jury selection, instructed all of the ultimate jurors at least once (and some twice) with CALIJC No. 2.90 on the reasonable doubt standard of proof, the cases involving that circumstance have concluded reasonable doubt instruction during jury selection is insufficient to comport with federal constitutional requirements.  (Vann, supra, 12 Cal.3d at p. 227, fn. 6; Elguera, supra, 8 Cal.App.4th at pp. 1217-1218, 1222.)  In this case, the trial court gave the jury predeliberation instructions that began with the preface:  " [N]ow it's my duty to instruct you on the law that applies to this case."   Furthermore, the court's predeliberation instructions stated: " You must accept and follow the law as I state it to you .  .  .  ."   (Italics added.)  However, the predeliberation instructions subsequently given by the court did not instruct with CALJIC No. 2.90 (or another instruction) on the reasonable doubt standard of proof and did not refer to or otherwise incorporate any of the instructions the court gave during jury selection (e.g., CALJIC No. 2.90), which were given eight days earlier.  Therefore, the jurors presumably (and reasonably) inferred that all of the instructions on the law that they were to apply to the facts in this case were given them during the court's predeliberation instructions (or otherwise during trial).

            Furthermore, it is unreasonable to expect prospective jurors, who have yet to be empanelled and sworn as actual jurors in the trial, to give the necessary attention and weight to instructions given by a trial court during jury selection as the federal constitution requires.  As Elguera observed: " [T]he [reasonable doubt standard of proof] 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."   (Elguera, supra, 8 Cal.App.4th at p. 1222.)  Therefore, absent extraordinary circumstances (that do not exist in this case), instructions on the reasonable doubt standard of proof given during jury selection are insufficient to satisfy the federal constitutional requirements for the structure of a criminal trial.

            Second, although the trial court instructed with CALJIC No. 2.01 on circumstantial evidence, the cases involving that circumstance have concluded the instruction is insufficient to comport with federal constitutional requirements even though CALJIC No. 2.01 instructs " each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt."   (Vann, supra, 12 Cal.3d at pp. 226-227; Elguera, supra, 8 Cal.App.4th at p. 1218.)  The jurors could have considered CALJIC No. 2.01's reference to the reasonable doubt standard of proof as applicable only to circumstantial evidence and not to the considerable direct evidence presented by the prosecutor in this case, including the testimonies of N.C., A.C., and Stanley regarding their direct observations of the acts Flores allegedly committed against them.  As stated in Vann:

" Although [CALJIC No. 2.01] states, albeit indirectly, 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.

" The prosecution in the instant case depended in large part on direct evidence .  .  .  .  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."   (Vann, supra, 12 Cal.3d at pp. 226-227.)

We conclude the trial court's instruction with CALJIC No. 2.01 in this case 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.

            Third, although the trial court instructed with CALJIC No. 2.61 on a defendant's choice not to testify, we conclude that instruction is insufficient to comport with federal constitutional requirements even though CALJIC No. 2.61 refers to the possible failure of the prosecutor " to prove beyond a reasonable doubt every essential element of the charge against him."   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 with CALJIC No. 2.61 in this case 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.

            Fourth, although the trial court referred to the reasonable doubt standard of proof in instructing on the special findings necessary for the jury to find the statute of limitations on counts 17 through 19 (Flores's alleged lewd acts against Stanley) had not expired, that indirect reference was insufficient to satisfy federal constitutional requirements.  We cannot presume that a reasonable doubt instruction given in a specific context (e.g., regarding special findings to be made in connection with certain charge(s)) will necessarily be understood by all of the jurors to apply generally to their determination of the defendant's guilt on all of the charged offenses (or even to the specific charges to which that special instruction applies).  Counts 17 through 19 alleged Flores committed lewd acts against Stanley.  However, the trial court's instruction with CALJIC No. 10.41 on the required elements for a lewd act (in violation of §  288, subd.  (a)) did not include any reference to the reasonable doubt standard of proof.  We conclude the trial court's specific instruction on the requirements for special findings related to counts 17 through 19 did not effectively inform the jury that the prosecution generally had the burden to prove each element of the charged offenses (whether all counts or just counts 17 through 19) beyond a reasonable doubt.

            Fifth, although the trial court referred to the reasonable doubt standard of proof in instructing on the section 667.61 allegations (i.e., committing the offenses against more than one victim), that indirect reference was insufficient to satisfy federal constitutional requirements.  We cannot presume that a reasonable doubt instruction given in a specific context (e.g., regarding the burden of proof required for true findings on special allegations) 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 the section 667.61 allegation in this case 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.

            Finally, although the prosecutor discussed the reasonable doubt standard of proof during her closing argument, the cases involving that circumstance have concluded such closing argument is insufficient to comport with federal constitutional requirements.  (Vann, supra, 12 Cal.3d at p. 227, fn. 6; Elguera, supra, 8 Cal.App.4th at pp. 1221-1222.)  The California Supreme Court stated in Vann: " Although counsel for defendants, in their closing arguments, .  .  . 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 .  .  . did not cure the error of the court's omission [of CALJIC No. 2.90].  [Citation.]  In its final charge the court made it clear that the jurors were to follow the law as explained by the court, and were not to follow rules of law stated in argument but omitted from instructions."   (Vann, supra, at p. 227, fn. 6.)

            Also, the court in this case instructed with CALJIC No. 1.00 that the jurors must follow the law as the court states it and if " anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions."   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 CALJIC No. 2.90 or any other 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 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.

            The circumstances in this case are not similar to those in Mayo, supra, 140 Cal.App.4th 535.  In Mayo, the trial court's instructions on elements of the charged offense and lesser offenses expressly stated:  (1) "   'the burden is on the People to prove beyond a reasonable doubt each of the elements of murder'  " (CALJIC No. 8.50); (2) "   '[i]f you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder was of the first or the second degree, you must give the defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree as well as a verdict of not guilty of murder in the first degree'  " (CALJIC No. 8.71); and (3) " if [the jury] had reasonable doubt as to whether the crime was murder or the lesser-included offense of manslaughter, it had to resolve that doubt by finding the crime to be manslaughter rather than murder, provided it was 'satisfied beyond a reasonable doubt that [Mayo was] guilty of the lesser crime .  .  .' (CALJIC No. 8.75)."   (Mayo, supra, 140 Cal.App.4th at p. 545.)  Based on those express instructions on the reasonable doubt standard of proof, Mayo concluded: " In sharp contrast to Vann the instructions in the instant case fully and repeatedly informed the jurors Mayo was entitled to an acquittal unless each element of the crime charged was proved beyond a reasonable doubt."   (Mayo, supra, at p. 545.)

            In this case, however, the trial court's instructions on the elements of the charged offenses of lewd acts (CALJIC No. 10.41) and aggravated sexual assault of a child (CALJIC No. 10.55) omitted any reference to, much less an adequate description of, the applicable burden of proof (i.e., the prosecutor had the burden to prove each element of the charged offense(s) beyond a reasonable doubt).  Unlike the instructions given in Mayo, the instructions given by the trial court in this case, whether considered individually or together, did not " [inform] the jury it had to acquit [Flores] of [the charged offenses] unless each and every element [of those offenses] was proved beyond a reasonable doubt."   (Mayo, supra, 140 Cal.App.4th at p. 546.)  This case is not similar to Mayo and is, instead, similar to Vann and Elguera.  Therefore, the court committed federal constitutional error by omitting CALJIC No. 2.90 or an alternative instruction on the reasonable doubt standard of proof.  (In re Winship, supra, 397 U.S. at p. 364; Vann, supra, 12 Cal.3d at pp. 227-228; Elguera, supra, 8 Cal.App.4th at p. 1219; Sullivan, supra, 508 U.S. at p. 278; Victor, supra, 511 U.S. at p. 5.)

            In short, we cannot say the trial court's error was harmless beyond a reasonable doubt.  Accordingly, we reverse the judgment.

III

OMISSION OF FOUR COUNTS FROM CALJIC NOS. 2.02 AND 3.31

            Because we have disposed of this case based on the reasoning expressed ante, we need not, and do not, address Flores's additional contention that the trial court erred by omitting counts 13 through 16 from its instructions with CALJIC Nos. 2.02 and 3.31.  We presume that the trial court, on any retrial, will appropriately instruct the jury as to the law applicable to any and all counts against Flores.

DISPOSITION

            The judgment is reversed.

CERTIFIED FOR PUBLICATION

HUFFMAN, Acting P. J.

I CONCUR:

                                            IRION, J.

McDONALD, J., concurring and dissenting.

            I concur in the majority opinion to the extent it (1) concludes the trial court committed constitutional error by omitting CALJIC No. 2.90 or an alternative instruction on the reasonable doubt standard of proof and (2) reverses Flores's convictions.  I dissent from the majority opinion to the extent it concludes the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 applies to that federal constitutional error.  As held in People v. Crawford (1997) 58 Cal.App.4th 815 and People v. Phillips (1997) 59 Cal.App.4th 952, the failure of a trial court in a criminal case to instruct the jury that the prosecution must prove each element of a charged offense beyond a reasonable doubt is federal constitutional error in noncompliance with the Fifth and Sixth Amendments of the United States Constitution, and requires reversal per se; the error cannot be considered harmless under Chapman.

            A federal constitutional error in omitting an instruction that the prosecution has the burden to prove each element of a charged offense beyond a reasonable doubt is structural error under Sullivan v. Louisiana (1993)508 U.S. 275 (Sullivan), and is not subject to the harmless error analysis under Chapman.  As the majority opinion notes, Sullivan stated:

" Although most constitutional errors have been held amenable to harmless-error analysis, see Arizona v. Fulminante, 499 U.S. 279, 306-307 (1991) . . . , some will always invalidate the conviction.  [Citations.]  The question in the present case is to which category the present error belongs.  [¶]  . . .  The inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.  That must be so, because to hypothesize a guilty verdict that was never in fact rendered--no matter how inescapable the findings to support that verdict might be--would violate the jury-trial guarantee.  [Citations.]"   (Sullivan, supra, 508 U.S. at pp. 279-280.)

Because of the constitutionally deficient definition of the reasonable doubt standard of proof, Sullivan concluded there had been no jury verdict within the meaning of the Sixth Amendment.  (Sullivan, at p. 280.)  The court stated:

" There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless.  There is no object, so to speak, upon which harmless-error scrutiny can operate. . . .  The Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.  [Citation.]"   (Id. at p. 280.)

Sullivan explained: " [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 jury's findings."   (Id. at p. 281, first italics added.)

            In this case, Sullivan's reasoning and holding apply to the omission of an instruction on the reasonable doubt standard of proof.  Whether the instructional error is a " misdescription" of the burden of proof, as in Sullivan, or a " nondescription" (i.e., no description of or instruction on) the burden of proof, the same analysis applies.  With either a misdescription or an absence of a description of that burden of proof, the jury has not found the defendant guilty based on the constitutionally required standard of proof beyond a reasonable doubt.  As Sullivan noted, were the appellate court to apply the Chapman standard of prejudicial error, the wrong entity (i.e., a judge, rather than a jury) would be determining the defendant's guilt.  (Sullivan, supra, 508 U.S. at p. 281.)  Furthermore, Sullivan concluded the harmless-error analysis could not apply in its case because the instructional error involved a " structural defect."   (Id. at pp. 281-282.)  The court stated:

" In Fulminante, we distinguished between, on the one hand, 'structural defects in the constitution of the trial mechanism, which defy analysis by " harmless-error" standards,' 499 U.S., at [p.] 309, and, on the other hand, trial errors which occur 'during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented,' id., at [pp.] 307-308.  Denial of the right to a jury verdict of guilt beyond a reasonable doubt is certainly an error of the former sort [i.e., a structural defect], the jury guarantee being a 'basic protectio[n]' whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function [citation]."   (Sullivan, at p. 281, italics added.)^[5]

Sullivan concluded: " The deprivation of that right [i.e., constitutional right to a jury verdict of guilty beyond a reasonable doubt], with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as 'structural error.' "   (Id. at pp. 281-282, italics added.)  Accordingly, the court reversed the judgment without conducting a Chapman-style analysis of harmless error.  (Sullivan, supra, 508 U.S. at p.  282.)  Therefore, Sullivan held that a structural error in violation of the United States Constitution (e.g., instructional error depriving a defendant of the right to a jury verdict of guilty beyond a reasonable doubt) requires reversal per se of the judgment.  That holding applies to not only " misdescriptions" of the burden of proof, but also to " nondescriptions" (or lack of descriptions) of the burden of proof.

            Like the courts in Crawford and Phillips, because in this case the trial court, in noncompliance with the Fifth and Sixth Amendments of the United States Constitution, did not instruct the jury that the prosecution had the burden to prove each of the elements of the charged offense(s) beyond a reasonable doubt, Sullivan's holding applies to require reversal per se of Flores's convictions.  (People v. Crawford, supra, 58 Cal.App.4th at pp. 817, 821-823; People v. Phillips, supra, 59 Cal.App.4th at pp. 954, 956-958.)  As Crawford stated: " Denial of the right to trial by jury verdict of guilty beyond a reasonable doubt, Justice Scalia concluded [in Sullivan], was a 'structural defect' in the trial mechanism, requiring reversal per se.  [Citation.]"   (Crawford, at p. 822, italics added.)  Crawford further stated:

" In our view, Sullivan compels the conclusion that the trial court, in the case before us, erred in failing to instruct, after presentation of the evidence, on the requirement of proof beyond a reasonable doubt and in failing to assign the burden of proof to the prosecution, in effect denying to appellant the most elementary and fundamental right provided by our system of justice, a jury verdict of guilty beyond a reasonable doubt."   (Crawford, at pp. 822-823, italics added.)

The reasoning in Crawford is persuasive.  Furthermore, Phillips rejected the contention that Sullivan's reversal per se requirement should not apply to cases in which a trial court wholly omits any instruction on the reasonable doubt standard of proof (in contrast to instructing with a deficient definition of reasonable doubt, as in Sullivan).  (Phillips, supra, 59 Cal.App.4th at pp. 957-958.)

            People v. Vann (1974) 12 Cal.3d 220 (Vann), is no longer controlling precedent to the extent it held the Chapman standard of reversible error applies to the federal constitutional error of failing to instruct on the reasonable doubt standard of proof.  Vann was issued in 1974, almost 20 years before the United States Supreme Court issued Sullivan in 1993.  As both Crawford and Phillips expressly recognized, Sullivan requires that we now apply the reversible per se standard, rather than the Chapman harmless error standard, to such structural defects in violation of the United States Constitution.  In so concluding, both Crawford and Phillips implicitly conclude Sullivan in effect overruled Vann to the extent Vann held the Chapman harmless error standard applies to those errors or defects.  I expressly conclude Sullivan has overruled Vann to the extent it held the Chapman standard of harmless error applies to structural defects in violation of the United States Constitution (e.g., omission of an instruction on the reasonable doubt standard of proof).  Accordingly, this court is not bound by Vann to apply the Chapman standard of harmless error and, instead, must apply to this case the reversible per se standard required by Sullivan.  It is difficult to read the entire opinion of Justice Scalia in Sullivan and yet conclude a criminal defendant can receive his " right to a jury verdict of guilty beyond a reasonable doubt" (Sullivan, supra, 508 U.S. at p. 281) in compliance with the Sixth Amendment of the United States Constitution when his or her jury has not been instructed that the prosecution must prove each element of the charged offense beyond a reasonable doubt.  Because Flores was denied his federal constitutional right to a jury verdict of guilty beyond a reasonable doubt (Sullivan, at p. 278), I agree with the majority that all of Flores's convictions must be reversed, but disagree with the majority that a harmless-error analysis under Chapman applies.

McDONALD, J.

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^[1]           The trial court stated: " 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.  [¶]   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 can not say they feel an abiding conviction of the truth of the charge."

^[2]           That instruction was identical in language to the instruction quoted in footnote 11, ante.

^[3]           However, later in that instruction the court stated: " The People have the burden of proving the truth of the Penal Code section 803(g) allegation by a preponderance of the evidence.  [¶]  Preponderance of the evidence means evidence that has more convincing force than that opposed to it.  [¶]  If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.  [¶] .  .  . [¶]  If you find the People have not proved the truth of the Penal Code section 803(g) allegations by a preponderance of the evidence, you must find the allegations untrue."   (Italics added.)  Also, in that instruction the court defined the " clear and convincing" standard of proof that applies to the independent evidence required to corroborate the victim's (i.e., Stanley's) allegations.

^[4]           The prosecutor's entire closing argument filled about 32 pages of the reporter's transcript.

^[5]           The majority opinion omits the italicized language from Sullivan in concluding the Chapman standard applies to the federal constitutional error in this case.  That language shows the United States Supreme Court believes the denial of a defendant's right to a jury trial, including an instruction on the applicable reasonable doubt standard of proof, is structural error and not subject to harmless error analysis.