PEOPLE v. STANLEY RAYMOND FLORES

Filed 1/31/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge.  Reversed.

            Marianne Harguindeguy Cox, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert P. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

            Stanley Raymond Flores appeals a judgment following his jury convictions on 16 counts of lewd acts on a child (Pen. Code, §  288, subd. (a))^[1] and three counts of aggravated sexual assault on a child (§  269).  On appeal, Flores contends the trial court erred by:  (1) not instructing with CALJIC No. 2.90 on the reasonable doubt standard of proof; and (2) omitting four counts from its instructions with CALJIC Nos. 2.02 and 3.31.  Because the jury in this case was not instructed Flores could not be found guilty unless all of the elements of the charged offense(s) were proved by the prosecutor beyond a reasonable doubt, Flores was denied his federal constitutional right to a jury verdict of guilty beyond a reasonable doubt and therefore his convictions must be reversed.

FACTUAL AND PROCEDURAL BACKGROUND

            John C. and Irma C. lived in a home with their three children, N.C. (born in 1995), A.C. (born in 1999), and J.C. (born in 2000).  Flores is Irma's father and the grandfather of her three children.  From late 2001 through June 2004, Flores intermittently lived in a detached game room between John and Irma's home and their garage.^[2]  In June 2004, Flores permanently moved out of the game room and into a residence in Mexico.

            On July 8, 2004, N.C. was crying and informed her parents she had done bad things with Flores.  Because N.C. was having difficulty expressing herself, John gave her a piece of paper and a pen and asked her to write down what bad things had occurred.  On that paper (later admitted in evidence at trial), N.C. described how Flores orally copulated her and made her orally copulate him.  She also described how Flores told her to lick her brother's privates, which she did.  The next morning, John called the sheriff's department.

            On July 10, A.C. told her mother that Flores had also touched her.  On July 20, both girls were interviewed at Children's Hospital and N.C. was physically examined.  Each of them described many instances of being molested by Flores.

            Shortly after July 8, Irma called her brother Stanley to inform him of what had occurred.  Stanley told her he also had been molested by Flores as a child.  On September  10, detectives had Stanley wear a tape recorder while questioning Flores about those past incidents.  For the most part, Flores claimed he could not remember those incidents.  Stanley also told Flores what N.C. said he (Flores) had done to her.  Flores denied doing anything " to the girls."

            An information charged Flores with 16 counts of lewd acts on a child (counts 1-9 and 13-19) and three counts of aggravated sexual assault on a child (counts 10-12).  Counts 1 through 12 were alleged to have been committed against N.C. between May 31, 2002 and August 31, 2004.  Counts 13 through 16 were alleged to have been committed against A.C. between February 23, 2003 and August 31, 2004.  Counts 17 through 19 were alleged to have been committed against Stanley between January 1, 1988, and December 19, 1990.  As to each of the 19 counts, the information alleged Flores had substantial sexual contact with the victims (§  1203.66, subd. (a)(8)).  As to each of counts 1 through 16, the information also alleged Flores committed the offense against more than one victim within the meaning of section 667.61, subdivisions (b), (c), and (e).

            At trial, the alleged victims (e.g., N.C., A.C., and Stanley) testified regarding the acts Flores allegedly committed against them.  The jury found Flores guilty on all counts and found true all of the allegations.  The trial court sentenced Flores to an indeterminate term of 240 years to life plus a determinate term of 12 years.

            Flores timely filed a notice of appeal.

DISCUSSION

I

JURY INSTRUCTIONS ON REASONABLE DOUBT GENERALLY

            The first issue we must address is whether to treat the court's failure to include an instruction on reasonable doubt in its charge to the jury as structural error or whether it should be reviewed under the standard in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).  We conclude the Chapman standard should be applied in this case. 

            To place the circumstances in this case in proper perspective, a detailed discussion of the progression of case law regarding instructions on reasonable doubt and the applicable standard of reversible error is warranted.

            In In re Winship (1970) 397 U.S. 358 at page 364, the United States Supreme Court held:  " [T]he Due Process Clause [of the Fifth Amendment of the United States Constitution] protects the accused against conviction except upon proof beyond a reasonable doubt."   (Italics added.)

            In People v. Vann (1974) 12 Cal.3d 220 (Vann), the California Supreme Court concluded the trial court erred by failing to instruct sua sponte on the presumption of innocence and that the prosecution had the burden of proving the defendants' guilt beyond a reasonable doubt (e.g., instruction with CALJIC No. 2.90).^[3]  (Vann, supra, 12 Cal.3d at pp. 225-226.)  Vann rejected the contention that the jury was adequately instructed on reasonable doubt even though it was instructed that circumstantial evidence could constitute sufficient proof if "   'each fact which is essential to complete a set of circumstances necessary to establish a defendant's guilt has been proved beyond a reasonable doubt.'  " ^[4]  (Id. at p. 226.)  Vann stated: " Although [that instruction on circumstantial evidence] 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."   (Ibid.)  Because the prosecution depended in large part on direct, rather than just circumstantial, evidence, the instruction on circumstantial evidence did not " [import] a need for the same degree of proof where the crime is sought to be established by direct evidence" and therefore could be interpreted by jurors as requiring a lesser degree of proof where evidence is direct.  (Id. at pp. 226-227.)  Also, the court rejected the contention that an instruction regarding character evidence was sufficient to inform the jurors of the reasonable doubt standard of proof.^[5]  (Id. at p. 227.)  Vann reasoned: " Although the jury heard both favorable and adverse testimony regarding the character of the defendants, this instruction did not expressly tell them that a reasonable doubt based upon such testimony would necessitate acquittal nor did it assist them in evaluating issues or conflicts other than character."   (Ibid.)  Vann concluded:

" The foregoing 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 buttressed by additional instructions on the meaning of that phrase."   (Vann, supra, at p. 227, fn. omitted.)

Vann noted that the trial court's instruction regarding the reasonable doubt standard of proof that it gave jury panel members during jury selection was insufficient to cure the court's instructional error.^[6]  (Vann, supra, 12 Cal.3d at p. 227, fn. 6.)  Vann further noted that although the closing arguments of defendants' counsel advised the jurors that to find the defendants guilty they had to find the elements of the crimes were proved beyond a reasonable doubt, those closing arguments did not cure the court's instructional error.  (Ibid.)  It reasoned:  " 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 the instructions."   (Ibid.)  Finally, regarding the applicable standard of reversible error, Vann cited In re Winship, supra, 397 U.S. 358 and concluded the " reasonable-doubt standard of proof in criminal proceedings is now recognized as rooted in the federal Constitution."   (Vann, supra, at pp. 227-228.)  Accordingly, Vann applied the standard of reversible error set forth in Chapman, supra, 386 U.S. 18 at page 24, and concluded the trial court's instructional error was prejudicial and required reversal of the appealed orders because the Vann court could not conclude " the omission of the vital instruction was harmless beyond a reasonable doubt."   (Vann, supra, at p. 228.)

            In People v. Elguera (1992) 8 Cal.App.4th 1214 (Elguera), the First District Court of Appeal considered circumstances similar to those in Vann in which the trial court omitted an instruction on the reasonable doubt standard of proof (e.g., CALJIC No. 2.90) in its predeliberation, or final, jury instructions.  (Elguera, supra, at pp. 1216, 1218-1220.)  In Elguera, as in Vann, supra, 12 Cal.3d 220, the trial court instructed the jury panel members during jury selection on the reasonable doubt standard of proof.  (Elguera, supra, at pp. 1217-1218, 1222.)  Also, in Elguera, as in Vann, the trial court gave CALJIC No. 2.01 on circumstantial evidence as part of its final jury instructions.^[7]  (Elguera, supra, at p.  1218.)  Finally, in Elguera, both counsel in closing arguments repeatedly referred to the reasonable doubt standard of proof.  (Id. at pp. 1218-1219.)  However, in Elguera, unlike in Vann, a full instruction on the reasonable doubt standard of proof (i.e., CALJIC No. 2.90) was given during jury selection which occurred on the same day as the trial and jury deliberations.  (Elguera, supra, at pp. 1217, 1221.)  Furthermore, unlike in Vann, the prosecutor's evidence on the crucial disputed issue was entirely circumstantial.  (Elguera, supra, at p. 1221.)  Finally, unlike in Vann, before counsels' closing arguments the trial court reminded the jury that the prosecutor had the burden of proof.  (Elguera, supra, at p. 1221.)  Citing Vann, Elguera stated:

" We think it clear the court had a sua sponte duty to instruct the jury on these fundamental principles [i.e., the presumption of innocence and the reasonable doubt standard of proof], applicable to every criminal case; to do so during the trial rather than during jury selection; and to make the instruction available with other written instructions.  [Citations.]  The court's omission thus was error."   (Elguera, supra, at p. 1219.)

Following Vann, Elguera applied the Chapman standard of reversible error.  (Elguera, supra, at p.  1220.)  Although Elguera distinguished its circumstances from those in Vann based on the differences discussed ante, the Elguera court nevertheless concluded it was not convinced beyond a reasonable doubt that the error had no effect on the verdict.  (Elguera, supra, at p. 1222.)  Accordingly, it reversed the judgment.  (Id. at p. 1224.)

            In Sullivan v. Louisiana (1993) 508 U.S. 275 (Sullivan), the United States Supreme Court addressed the question of whether a constitutionally deficient definition of the reasonable doubt standard of proof could constitute harmless error.  (Id. at pp. 276-277.)  It noted that the Sixth Amendment includes the right to have a jury, rather than a judge, find a criminal defendant guilty.  (Id. at p. 277.)  It further noted the Fifth Amendment's due process clause, which applies to both state and federal criminal proceedings, imposes on the prosecution the burden to prove each element of an offense beyond a reasonable doubt.  (Id. at pp. 277-278.)  Interpreting those constitutional provisions, Sullivan stated:

" It is self-evident, we think, that the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated.  It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine (as [In re Winship, supra, 397 U.S. 358] requires) whether he is guilty beyond a reasonable doubt.  In other words, the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt."   (Sullivan, supra, at p. 278.)

Because the trial court's definition of reasonable doubt was constitutionally deficient, Sullivan concluded the defendant was denied his Sixth Amendment right to a jury trial.  (Sullivan, supra, at p. 278.)  Sullivan then addressed the standard of reversible error to be applied to that federal constitutional error.  (Id. at pp. 278-282.)  It 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, 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, supra, at p. 280.)  The court stated:

" There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question of 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.]"   (Sullivan, supra, 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."   (Sullivan, supra, at p. 281.)  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, at p.  281.)  Furthermore, Sullivan concluded that the harmless-error analysis could not apply in its case because the instructional error involved a " structural defect."   (Id. at pp. 281-282.)  Sullivan concluded:  " The deprivation of that right [i.e., constitutional right to a jury verdict of guilt beyond a reasonable doubt], with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as 'structural error.'  "   (Id. at pp.  281-282.)  Accordingly, the court reversed the judgment without conducting a Chapman-style analysis of harmless error.  (Id. at p. 282.)  Sullivan effectively 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 guilt beyond a reasonable doubt) requires reversal per se of the judgment.

            In Victor v. Nebraska (1994) 511 U.S. 1 (Victor), the United States Supreme Court, citing In re Winship, supra, 397 U.S. 358, reaffirmed that the " government must prove beyond a reasonable doubt every element of a charged offense." ^[8]  (Victor, supra, 511 U.S. at p. 5.)  However, Victor concluded the United States Constitution " neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.  [Citation.]"   (Ibid.)  Victor stated:  " [S]o long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof.  [Citation.]  Rather, 'taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.'  [Citation.]"   (Ibid., italics added.)

            In People v. Crawford (1997) 58 Cal.App.4th 815 (Crawford), the First District Court of Appeal, citing Sullivan, supra, 508 U.S. 275, concluded the trial court's error in not instructing on the prosecution's burden of proving the defendant's guilt beyond a reasonable doubt (e.g., omission of CALJIC No. 2.90) was reversible per se as structural error.  (Crawford, supra, at pp. 817, 821-823.)  Crawford rejected the contention that the trial court's instruction on reasonable doubt during jury selection, but not during trial, avoided the conclusion there was instructional error or that it was a " structural defect."   (Crawford, supra, 58 Cal.App.4th at p. 823.)  Furthermore, the court rejected the contention that the trial court adequately instructed on reasonable doubt because it instructed with CALJIC No. 2.01 that circumstantial evidence could be sufficient proof if "   '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.'  " ^[9]  (Crawford, supra, at pp. 820, 824-825.) 

            In People v. Phillips (1997) 59 Cal.App.4th 952 (Phillips), the Second District Court of Appeal, also citing Sullivan, supra, 508 U.S. 275, concluded the trial court's error in not instructing on the prosecution's burden of proving the defendant's guilt beyond a reasonable doubt was reversible per se as a structural constitutional defect.  (Phillips, supra, at pp. 954, 956-958.)  It rejected the contention that the Chapman standard of prejudicial error could apply to that instructional error.  (Phillips, supra, at pp. 956-957.)  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 (versus instructing with a deficient definition of reasonable doubt as in Sullivan) or to cases in which counsel refers in closing argument to the reasonable doubt standard of proof.  (Phillips, supra, at pp. 957-958.)

            Recently, in People v. Mayo (2006) 140 Cal.App.4th 535 (Mayo), the Second District Court of Appeal took a different approach to a trial court's omission of a CALJIC No. 2.90 instruction on reasonable doubt.^[10]  The court there found the trial court's mistake was not federal constitutional error if other instructions, taken as a whole, effectively informed the jury that the prosecution had the burden to prove each element of an offense beyond a reasonable doubt.  (Mayo, supra, 140 Cal.App.4th at pp. 538-539, 541, 543-549.)  Mayo generally conceded that " the omission of CALJIC No. 2.90 may amount to federal constitutional error when a jury is not adequately instructed as to .  .  . the constitutional [reasonable doubt] burden of proof .  .  .  ."   (Mayo, supra, at p. 541.)  However, based on its review of all of the instructions given in that case, the Mayo court concluded the jury was, in fact, instructed on the reasonable doubt standard of proof that the prosecution bears and therefore there was no federal constitutional error in omitting CALJIC No. 2.90.  (Mayo, supra, at pp. 539, 543-549.) 

            Mayo stated:  " Here, the references to reasonable doubt related to the murder charge itself and directly informed the jury that, to convict Mayo of murder, it had to find each and every element of that charge beyond a reasonable doubt."   (Mayo, supra, 140 Cal.App.4th at p. 547.)  Therefore, Mayo distinguished its circumstances from those in earlier California appellate court cases involving the omission of CALJIC No. 2.90 or other instructions on the reasonable doubt standard of proof.  (Mayo, supra, at pp. 546-547.)  Mayo further stated:

" In reaching this conclusion we do not intend to suggest the omission of the reasonable doubt instruction contained in CALJIC No. 2.90 or CALCRIM No. 220 will never be federal constitutional error.  Indeed, as Vann, supra, 12 Cal.3d 220, Crawford, supra, 58 Cal.App.4th 815, Elguera, supra, 8 Cal.App.4th 1214, and Phillips, supra, 59 Cal.App.4th 952 attest, the omission of the standard reasonable doubt instruction may well be federal constitutional error absent other instructions adequately informing the jury of the correct standard of proof.  We hold only that under the specific facts of this case, the omission of the definition of reasonable doubt contained in CALJIC No. 2.90 does not constitute federal constitutional error."   (Mayo, supra, at pp. 548-549.)

In so holding, Mayo expressly avoided the question of whether the omission of adequate instructions on the reasonable doubt standard of proof would have constituted Sullivan structural error, thereby requiring reversal per se.  (Mayo, supra, 140 Cal.App.4th at p. 548, fn. 13.)  Because it found no federal constitutional error in the circumstances of its case, Mayo concluded that any error by the trial court in not instructing with CALJIC No. 2.90 was harmless error under People v. Watson (1956) 46 Cal.2d 818, 836.  (Mayo, supra, at pp. 550-552.)

            As we have indicated, we believe the correct standard to apply in this case is the Chapman standard.  In reaching that conclusion, we declined to follow the holdings in Crawford, supra, 58 Cal.App.4th 815 and Phillips, supra, 59 Cal.App.4th 952.  We believe the California Supreme Court's decision in Vann, supra, 12 Cal.3d 220, establishes the correct standard of review and that the decision of the Court of Appeal in Elguera, supra, 8 Cal.App.4th 1214 is correct. 

            First, we note that the decision in Crawford, supra, 58 Cal.App.4th 815 did not fully consider that portion of the decision in Elguera, supra, 8 Cal.App.4th 1214 dealing with the proper standard of review.  The court in Crawford omitted any consideration of Elguera's specific rejection of the structural error analysis.  Nor did the courts in Phillips, supra, 59 Cal.App.4th 952or Crawford discuss the stare decisis considerations expressed in Elguera. 

            Crawford, supra, 58 Cal.App.4th 815, based its analysis in part on Taylor v. Kentucky (1978) 436 U.S. 478 for the proposition that the presumption of innocence is basic to a fair trial.  The Crawford court did not, however, mention or consider the decision in Kentucky v. Whorton (1979) 441 U.S. 786, which stated, in part:  " In short, the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution.  Under Taylor, such a failure must be evaluated in light of the totality of the circumstances--including all the instructions to the jury, the arguments of counsel, whether the weight of evidence was overwhelming, and other relevant factors--to determine whether the defendant received a constitutionally fair trial."   (Id. at p. 789; see also, Delo v. Lashley (1993) 507 U.S. 272, 278.)  The court in Phillips, supra, 59 Cal.App.4th 952 also omitted any discussion of the Whorton decision. 

            Sullivan, supra, 508 U.S. 275 of course dealt with an erroneous instruction on reasonable doubt.  In other words, the jurors there were misdirected or misinformed as to the proper standard of proof.  In the case before us, much like the cases in Vann, supra, 12 Cal.3d 220and Mayo, supra, 145 Cal.App.4th 535, the jurors were not misinformed, reasonable doubt was properly defined during the jury selection process.  Several of the instructions given at the conclusion of the case reminded the jurors that the elements of the offenses had to be proved beyond a reasonable doubt.  Both counsel told the jury the prosecution had to prove its case beyond a reasonable doubt.  Thus, this case in our view is markedly different from the one in which the jurors are misinformed as to the proper standard of proof. 

            The year following Sullivan, supra, 508 U.S. 275 the court decided Victor, supra,  511 U.S. 1, 5, in which the court made clear the United States Constitution does not require courts to define reasonable doubt provided the jury is informed of the constitutionally correct standard of proof. 

            We conclude that at least 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 applied by our Supreme Court in Vann, supra, 12 Cal.3d 220remains the controlling law.  We are satisfied that there has not been an intervening authority from the United States Supreme Court which undermines that precedent.  (See People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326.)  Accordingly, we are bound to follow the decision of our Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).

TO BE CONTINUED AS PART II………

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

^[2]           Apparently during this time, Flores would periodically move out and temporarily live in a trailer park before returning to the game room.

^[3]           CALJIC No. 2.90 currently 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."   The Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 220, approved for use as of January 1, 2006, after the trial in this case, provides a substantially similar instruction on the presumption of innocence and reasonable doubt standard of proof.

^[4]           Vann stated: " [T]he People contend, however, that the failure to give the standard instruction is not prejudicial error where the point is otherwise covered and the jury is aware that the People are required to prove the defendants guilty beyond a reasonable doubt.  In support of their proposition the People rely on an instruction on circumstantial evidence by which the jurors were told they could not find defendants guilty 'based on circumstantial evidence unless the proved circumstances are not only consistent with the theory that the defendant is guilty of the crime, but cannot be reconciled with any other rational conclusion and each fact which is essential to complete a set of circumstances necessary to establish a defendant's guilt had been proved beyond a reasonable doubt.'  "   (Vann, supra, 12 Cal.3d at p. 226.)

^[5]           The character evidence instruction stated: "   '[E]vidence of good character may be sufficient to raise a reasonable doubt whether a defendant is guilty, which doubt otherwise would not exist.'  "   (Vann, supra, 12 Cal.3d at p. 227.)

^[6]           Vann noted: " [T]he jury panel was instructed prior to the selection of jurors that it would be 'incumbent .  .  . upon the People to prove the allegations as to each defendant, and to prove them beyond a reasonable doubt, to a moral certainty, before you would be entitled to return a guilty verdict.'  "   (Vann, supra, 12 Cal.3d at p. 227, fn. 6.)  Noting that final jury instructions were not give until 16 days later and included, inter alia, an instruction that the jury " must follow the law as I state it to you," Vann stated: " In net effect the jurors were given to understand that they had received a self-contained, complete statement of the law they were to follow."   (Ibid.)

^[7]           That instruction included the language: "   '[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 upon which such inference necessarily rests must be proved beyond a reasonable doubt.  .  .  . .'  "   (Elguera, supra, 8 Cal.App.4th at p. 1218.)

^[8]           Victor alternatively stated: " The [d]ue [p]rocess [c]lause [of the Fifth Amendment] requires the government to prove a criminal defendant's guilt beyond a reasonable doubt  .  .  .  ."   (Victor, supra, 511 U.S. at p. 22.)

^[9]           The trial court instructed: "   '[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 upon which such inference necessarily rests must be proved beyond a reasonable doubt.'  "   (Crawford, supra, 58 Cal.App.4th at p. 820.)

^[10]         For the exact language of CALJIC No. 2.90, please refer to footnote 3, ante.