People v. Mendez CA3 ( 2022 )

Filed 12/12/22 P. v. Mendez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Modoc)
----
THE PEOPLE, C091924
Plaintiff and Respondent, (Super. Ct. No. F19388)
v.
RICHARD DANIEL MENDEZ, JR.,
Defendant and Appellant.
Defendant Richard Daniel Mendez, Jr., appeals from his convictions for domestic
violence. He argues the trial court erroneously failed to instruct the jury on reasonable
doubt and the presumption of innocence prior to jury deliberations. The People concede
the error and agree it was prejudicial, and we will reverse defendant’s convictions.
Given our conclusions, we need not address defendant’s alternate arguments that
(1) he is entitled to resentencing given the recent changes to Penal Code 1 section 1170
1 Undesignated statutory references are to the Penal Code.
1
enacted by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) and
(2) the trial court erred in imposing a consecutive sentence on one of the counts when it
should have been stayed pursuant to section 654.
BACKGROUND
Given defendant’s contentions, we provide a limited summary of the facts.
A. Charges, Jury Verdict, and Sentencing
Defendant and the victim had dated for five years and lived together. During
September 2019, the two got into arguments that turned physical, with defendant
strangling the victim, using a motorized bicycle tire to “cheese grater” her face, and
“scrubbing” the inside of her mouth with a broken wire metal brush.
In January 2020, defendant was charged with two counts of injuring a cohabitant
(§ 273.5, subd. (a); counts one & four), assault with a deadly weapon (§ 245, subd. (a)(1);
count two), and assault likely to cause great bodily injury (§ 245, subd. (a)(4); count
three). As to each count, it was further alleged that defendant personally inflicted great
bodily injury on the victim under circumstances involving domestic violence.
(§ 12022.7.) That same month, a jury found defendant guilty of counts two, three, and
four, and found each of the related great bodily injury enhancements to be true.
In April 2020, the trial court sentenced defendant to prison for an aggregate term
of 11 years four months, as follows: the upper term of four years for count two plus five
years for the enhancement; one year consecutive for count four plus 16 months
consecutive for the enhancement; and one year concurrent for count three plus 16 months
stayed for the enhancement. (§ 654.)
B. Jury Instructions and Closing Arguments
1. Instructions to Prospective Jurors
When the court talked with prospective jurors during the January 2020 trial, it
explained its goal was to have a jury without any “preconceived ideas; the Defendant in
this case is presumed to be innocent until and unless the People are able to prove his guilt
2
of each and every element of each and every offense beyond a reasonable doubt. [¶] So
as he sits here right now, he’s presumed innocent.” It later told the prospective jurors:
“[I]t’s the jurors that are going to decide whether the Defendant has been proved guilty
beyond a reasonable doubt or not, whether the People have done that. [¶] And
remember, the People have the burden of proof here. The Defendant doesn’t need to
prove anything. He doesn’t have to offer any evidence, he doesn’t have to call any
witnesses. He doesn’t have to do anything if he believes that the People are unable to
present sufficient evidence to prove each of the charges beyond a reasonable doubt.”
The court explained how the trial would proceed, noting that the prosecutor would
have the last word during closing arguments “[b]ecause the People have the burden of
proof beyond a reasonable doubt, which is the highest burden in the law.” The court
subsequently told jurors that defendant did not have any “obligation” to present any
evidence because the prosecution was required to prove its case beyond a reasonable
doubt. In addition, “[b]ecause the Defendant is presumed innocent, he does not have to
prove that he’s not guilty.” The court further explained, “The fact that the Defendant was
arrested, charged with a crime, or brought to trial is not evidence of his guilt.” The court
did not instruct the jury on the presumption of innocence or proof beyond a reasonable
doubt in CALCRIM No. 103 before the parties started presenting evidence.
2. Instructions Prior to Closing Arguments
The court provided additional instructions prior to closing argument, including
that the jury “must follow the law as I explain it to you, even if you disagree with it. [¶]
If you believe that the attorneys’ comments on the law conflict with my instructions, you
must follow my instructions.”
Instead of instructing the jury regarding the presumption of innocence or proof
beyond a reasonable doubt pursuant to CALCRIM No. 220, the court advised the jury it
was required to decide the facts based solely on the evidence presented at trial, and it
must not let bias, sympathy, or prejudice influence its decision. The court also mentioned
3
that the prosecution had to prove defendant did the acts charged and acted with the
particular mental state or intent, which could be proved by circumstantial evidence. The
court explained: “Before you may rely on circumstantial evidence to conclude that a fact
necessary to find the Defendant guilty has been proved, you must be convinced that the
People have proved each fact essential to that conclusion beyond a reasonable doubt.”
The court continued: “And also, before you may rely on circumstantial evidence to
conclude that the Defendant had the required intent or mental state, you must be
convinced that the only reasonable conclusion supported by the circumstantial evidence,
is that the Defendant had the required intent or mental state. [¶] If you can draw two or
more reasonable conclusions from circumstantial evidence, and one of those reasonable
conclusions supports a finding that the Defendant did have the required intent or mental
state, and the other reasonable conclusion supports a finding that he did not, you must
conclude the required intent or mental state was not proved by the circumstantial
evidence. [¶] However, when considering circumstantial evidence, you must accept only
reasonable conclusions, and reject any that are unreasonable.”
The court also instructed that the jury could consider any failure by defendant to
explain or deny adverse testimony, but “[a]ny such failure is not enough by itself to prove
his guilt. [¶] The People must still prove the Defendant guilty beyond a reasonable
doubt.”
With respect to the instructions on the specific charged offenses, although the
court instructed that the People had the burden of proof, it did not instruct that the burden
of proof was beyond a reasonable doubt. Still, the court did instruct the jury that “[t]he
People have the burden of pro[ving] beyond a reasonable doubt that the Defendant did
not act in self-defense. [¶] . . . [¶] If the People have not met this burden as to any count
alleged, including the lesser offenses, you must find the Defendant not guilty of that
count or that lesser offense.” The court continued, “You must not find the Defendant
4
guilty unless you all agree that the People have proved that the Defendant committed at
least one of the acts, and you all agree on which act it was that he committed.”
3. Closing Arguments
The prosecutor did not mention the burden of proof or presumption of innocence
during the initial closing argument or rebuttal. In response to an objection by defense
counsel during the prosecutor’s initial closing argument, the court reminded the jury that
“[n]othing in this case shifts the burden to the Defendant to prove anything. The burden
is on the People in all instances.”
During his closing argument, defense counsel stated: “So I want to also remind
you that the burden in the case is on the People to prove the case beyond a reasonable
doubt. That’s all of the counts alleged in the Information, and it’s all of the elements of
each count that’s alleged in the Information. And it’s also to prove beyond a reasonable
doubt that the defense of self-defense as to any particular count does not apply. [¶] It’s a
heavy burden. . . . But that’s what we’ve decided that we require from the People in
order to find a person guilty of a crime. [¶] I’m not going to read this to you, but the
Court has already told you what the legal standard is, giving guidance on how to
determine what exactly is a reasonable doubt. So you should consult this, but I would
suggest to you also that it’s hard to define exactly what a reasonable doubt is, beyond
what our Judicial Council has done in the instruction. But if you’re not convinced,
you’re just not convinced.” Defense counsel continued: “The burden cannot be shifted
to the defense. [Defendant] does not have to prove anything.”
4. Instructions After Closing Arguments and Written Instructions
While instructing the jury on lesser included offenses, the court instructed: “And
whenever I tell you the People must prove something, I mean they must prove it beyond a
reasonable doubt.” The court also assured the jury that the jury instructions that were
read to them were “all there,” and that they could review the written versions as needed.
5
The court also provided written instructions to the jury. Four of these referenced
the beyond a reasonable doubt standard of proof: CALCRIM No. 225 (circumstantial
evidence regarding intent or mental state), CALCRIM No. 361 (failure to explain or deny
adverse evidence), CALCRIM No. 3470 (self-defense (non-homicide)), and CALCRIM
No. 3517 (lesser included offenses). The lesser included offense instruction stated:
“Whenever I tell you the People must prove something, I mean they must prove it beyond
a reasonable doubt unless I specifically tell you otherwise.”
DISCUSSION
A. Legal Background
The trial court has a sua sponte duty to instruct the jury on the presumption of
innocence and the People’s burden of proof beyond a reasonable doubt in every criminal
case. These instructions must be given in oral and written form before deliberations,
even if previously given during jury selection. (People v. Elguera (1992) 8 Cal.App.4th
1214, 1217-1219; accord, People v. Crawford (1997) 58 Cal.App.4th 815, 819-826; see
People v. Vann (1974) 12 Cal.3d 220, 226-227 (Vann).) A court may satisfy its
obligations by giving CALCRIM No. 220,2 CALJIC 2.90, or something similar that
2 CALCRIM No. 220 reads: “The fact that a criminal charge has been filed against the
defendant[s] is not evidence that the charge is true. You must not be biased against the
defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or
brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove something, I mean they must prove it beyond
a reasonable doubt [unless I specifically tell you otherwise]. [¶] Proof beyond a
reasonable doubt is proof that leaves you with an abiding conviction that the charge is
true. The evidence need not eliminate all possible doubt because everything in life is
open to some possible or imaginary doubt. [¶] In deciding whether the People have
proved their case beyond a reasonable doubt, you must impartially compare and consider
all the evidence that was received throughout the entire trial. Unless the evidence proves
the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an
acquittal and you must find (him/her/them) not guilty.”
6
addresses the required principles. (People v. Aranda (2012) 55 Cal.4th 342, 349.)
Failure to properly instruct the jury regarding the presumption of innocence and the
requirement of proof beyond a reasonable doubt can violate state law and a defendant’s
federal due process rights. (Id. at pp. 349, 356-357.)
If, as a whole, the court’s instructions failed to explain (1) the substance of the
presumption of innocence and (2) that the defendant cannot be convicted “ ‘unless each
element of the crimes charged was proved to the juror’s satisfaction beyond a reasonable
doubt,” the error amounts to a federal due process violation. (People v. Aranda, supra,
55 Cal.4th at pp. 355, 358.) We review whether such an error was harmless under
Chapman v. California (1967) 386 U.S. 18, 24, which requires reversal unless a
reviewing court determines beyond a reasonable doubt that the error did not contribute to
the verdict obtained. (Aranda, at p. 350.)
For example, in Vann, the trial court failed to include in its predeliberation jury
instructions the reasonable doubt standard. (Vann, supra, 12 Cal.3d at pp. 225-226.) Our
Supreme Court concluded the trial court’s two references to the reasonable doubt
standard in predeliberation instructions failed to adequately convey the requisite burden
of proof. First, the trial court instructed the jury that it could not return a verdict based on
circumstantial evidence unless “ ‘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.’ ” (Id. at p. 226.) This instruction was insufficient because it did not
make clear that guilt based on direct evidence must also be proved beyond a reasonable
doubt. (Ibid.) Second, the trial court instructed that evidence of “ ‘good character may
be sufficient to raise a reasonable doubt whether a defendant is guilty.’ ” (Id. at p. 227.)
However, this instruction was inadequate because it failed to (1) connect the reasonable
doubt standard to any issue other than character and (2) explain that a reasonable doubt
would require acquittal. (Ibid.) Although the trial court mentioned the requisite burden
of proof during jury selection, and counsel mentioned it during closing argument, these
7
statements did not “cure” the trial court’s failure to properly instruct the jury regarding
the issue. (Id. at p. 227, fn. 6.)
Applying the Chapman harmless error standard, we conclude the instructions here
did not adequately convey the prosecution’s burden or the presumption of innocence.
Similar to Vann, the court here mentioned before the jurors were impaneled that
defendant was presumed to be innocent and that the prosecution had to prove his guilt
beyond a reasonable doubt. But the power of these instructions was reduced because
they were given to prospective jurors who were still unaware if they would be serving
during the trial and were therefore unlikely to have given the same focused attention as
actual jurors. (See People v. Elguera, supra, 8 Cal.App.4th at p. 1222.) We further note
that the court mentioned the prosecution’s burden without explaining what it meant by
beyond a reasonable doubt. This was insufficient guidance for the potential jurors.
The court’s additional instructions prior to and after closing argument were
similarly insufficient to instruct the jury on the presumption of innocence and the burden
of proof. The court did not adequately explain the presumption of innocence when it
explained that the jury could only rely on the evidence presented at trial and that it must
not let bias, sympathy, or prejudice influence its decision. In addition, while the court
repeatedly mentioned that the prosecution bore the burden of proof, it failed to specify
that the prosecutor had to prove each required element beyond a reasonable doubt. The
court instructed that the jury could rely on circumstantial evidence to find defendant
guilty only if it was convinced that the prosecution had proven each essential fact beyond
a reasonable doubt, but this was insufficient to tell the jury that it also needed to do so
before considering direct evidence. (See Vann, supra, 12 Cal.3d at pp. 226-227.) The
same is true for the court’s instructions regarding defendant’s failure to deny adverse
evidence, whether defendant acted in self-defense, and lesser included offenses. Further,
the jury was not given any explanation as to what that the beyond a reasonable doubt
burden of proof entails. The court’s instruction that the jury could only accept
8
“reasonable conclusions” was not sufficient to explain the requisite burden of proof, or
that acquittal was required if the jury found a reasonable doubt. We find nothing further
in the written instructions that would properly instruct the jury regarding the beyond a
reasonable doubt standard or the presumption of innocence.
Although defense counsel did stress the prosecution’s required burden of proof
and provide some explanation as to what beyond a reasonable doubt means, we note that
the court directed the jury that it had to follow the court’s instructions, rather than the
attorneys. As such, these comments do not cure the court’s errors.
We cannot say beyond a reasonable doubt that the court’s failure to properly
instruct the jury was harmless. A jury reasonably could have been confused about the
presumption of innocence and the required burden of proof, given the court’s limited
mentions of and failure to explain the presumption of innocence and beyond a reasonable
doubt standard.
DISPOSITION
The judgment is reversed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
KRAUSE, J.
9