Filed 8/9/21 P. v. Perez CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078217
Plaintiff and Respondent,
(Super. Ct. No. DF012969A)
v.
ABEL PEREZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
Randall Conner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine
Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Abel Perez was convicted by jury of assault by a state prison inmate with force
likely to cause great bodily injury. The jury issued a true finding he utilized a deadly
weapon during the assault. He raises numerous claims on appeal to challenge his
conviction. His principal contention is the trial court erred by suggesting to the jury the
beyond-a-reasonable-doubt standard was equivalent to normal decisions made in daily
life.
We are compelled to agree. This is not a case involving an isolated comment at
some relatively remote point in the trial. Nor is it a case in which the challenged
comments were clearly dwarfed by proper instruction.
Rather, the trial court here compared a jury’s criminal factfinding role with daily
decisionmaking both while reading evidentiary instructions prior to hearing evidence, and
then again while reading evidentiary instructions at the close of trial. For these reasons
we find the comments prejudicial and will reverse the judgment.1
BACKGROUND
Charges
The Kern County District Attorney charged Perez with committing assault by a
state prison inmate with force likely to cause great bodily injury. (Pen. Code,2 § 4501,
subd. (b).) It was also alleged Perez suffered numerous prior convictions. (§§ 667,
subds. (b)-(i) & 1170.12, subds. (c)-(g) , 667, subd. (a), 667.5, subd. (b).)
Trial Evidence
Multiple state prison correctional officers testified they responded to a radio call
regarding a fight between inmates. Each testified Perez and Mario Martinez3 were
attacking the victim. None of the officers observed any weapons during the altercation,
and none knew how or why it began.
1Some of the issues raised on appeal concern the jury’s true finding on using a
deadly weapon. This finding was not an enhancement but rather a special finding by the
jury after it reported it had reached a verdict. We do not address these issues because the
disposition renders them moot.
2 All statutory references are to the Penal Code.
3 Martinez was tried and convicted as a co-defendant. He is not involved in this
appeal.
2.
A subsequent search of the yard in which the altercation occurred revealed two
“inmate-manufactured weapons.” Medical personnel examined the victim and concluded
he suffered multiple puncture wounds.
Martinez, Perez, and the victim each testified at the trial. The victim invoked his
right against self-incrimination and refused to answer questions. Martinez testified he
was defending himself and neither he nor Perez used a weapon. Martinez claimed Perez
was attempting to break up the fight.
Perez’s testimony was consistent with Martinez’s testimony. He denied both
assaulting the victim and possessing a weapon.
Verdict and Sentence
Perez was convicted as charged.4 The jury also found true he personally used a
deadly weapon.5 He was sentenced to serve 26 years to life in prison.
DISCUSSION
During jury selection, the court commented about the technical nature of jury
instructions and offered an analogy to a dog’s decisionmaking. It repeated the analogy,
and described a second, during the post-evidence instructions preceding the jury’s
deliberations.
Perez complains the court’s comments and analogies effectively undermined the
People’s burden of proof. The People claim the argument is forfeited and, alternatively,
lacks merit. Specifically, the People argue Perez failed to object and “the court did not
intend for the [voir dire] pet analogy to act as a substitute for formal jury instructions”
and “these initial comments were made before the jury was sworn, and such comments
are rarely viewed as a substitution for later formal instructions. [Citation.] Given the
4After the verdict was recorded, Perez admitted the prior conviction allegations
were true.
5 Again, this was not an enhancement.
3.
early stage of the proceedings, it is not even clear that all of the eventually seated jurors
were even privy to these initial comments. The court’s comments never informed the
jury that they should let a pet decide the case or that such pedestrian levels of certainty
should guide resolution of the case. Rather, the court was merely making the innocuous
point that decisions are made in everyday life, so the jury should not be afraid to make a
decision in a criminal matter.”
As for the post-evidence comment, the People suggest “the court’s comments prior
to deliberations did not lower the burden of proof. [Citation.] The court’s comments
merely continued with the innocuous theme that the jury should not be daunted by the
language used in the instructions, and that people and animals make decisions every day.
It is important to note that the trial court never told the jury that they could use their
everyday decision-making standard in a criminal context.”
The record belies the People’s contentions. Although not all jurors heard the
court’s analogy during jury selection,6 each juror heard the reiterated, more detailed
version during the post-evidence instructions. As explained below, the analogy was
given in context to aid understanding the instructions. We will reverse the judgment
because the analogy impermissibly lowered the burden of proof.
Additional Background
Jury selection in this case involved multiple jury panels over several days. Each
panel was instructed with the pattern reasonable doubt jury instruction. It reads as
follows:
“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.
6 The court separated the entire jury venire into multiple groups during jury
selection. It appears at least two empaneled jurors were not in the group that heard the
court’s analogy during jury selection.
4.
“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.”7 (CALCRIM No. 220, CALCRIM No. 103.)
The reasonable doubt standard featured prominently throughout jury selection.
After the initial questions to the first panel were complete, the court remarked,
“I'm more and more convinced that the jury instructions that I
will give you at the conclusion of the case are going to be, by
and large, foreign to you. They’re in technical language.
They’re designed to be understandable, but we deal with
concepts that you as lay people don’t normally address or
discuss; but these kinds of concepts that we address and bring
up in the instructions are important concepts. It’s what our
law is based upon. There has to be specificity to what we do,
but I would suggest to you that by and large, a lot of these
concepts I'll go over with you at a later time, and I may
7 CALCRIM No. 103 is the pre-trial version of the reasonable doubt instruction
generally read during jury selection and prior to opening statements. For clarity’s sake,
we quote the CALCRIM No. 220 pattern instruction verbatim, and not the words the trial
court actually spoke. Any difference between the court’s language and the pattern
CALCRIM No. 220 instruction is immaterial.
5.
discuss a couple of them now before we finish, pertain to
things that we do intuitively on an everyday basis.
“There was some discussion of circumstantial evidence. We
rely on circumstantial evidence, as been pointed out to you,
every day of our lives when we drive to work. We probably
don’t give much thought to it, to making an analysis based
upon direct versus circumstantial evidence, but it’s something
you’re familiar with.
“Things like intent. Intent, oftentimes in a criminal case,
becomes important. If it is, I’ll give you an instruction on
that, but we constantly evaluate the intent of the people that
we are around. Our pets even evaluate our intent. My dog is
able to figure out on a weekend when I’m going someplace
and he has a good chance of going along because he’ll be in
front of the door. On the workweek he stays in his bed as I
walk by. So he’s been able to figure out something about me
and my operation to understand what my intent is when I
walk out the door.
“So these things aren’t foreign concepts, but they are new
concepts and that’s why the attorneys spend some time
discussing them with you. When I started out, I commented,
I don’t care if you like the law; I just want you to be able to
follow the law. You as a juror has to be able to follow the
law, not necessarily like it.”
The court did not again read the reasonable doubt instruction until after the close of
evidence.
In its concluding instructions, the court read the CALCRIM No. 220 reasonable
doubt instruction outlined above. It then read instructions on evidence, direct and
circumstantial evidence, sufficiency of circumstantial evidence, witnesses, and union of
act and intent.8 The court then commented,
“And usually it’s about this point that I make a comment on
some of the instructions I read and some of the instructions
I'll give to you. But there’s an old adage regarding the law.
8 CALCRIM Nos. 222, 223, 224, 226, and 250, respectively.
6.
For those of you who are engineers you might find it
interesting or funny. But the adage is the law isn’t based on
logic. The law is based upon experience. Of course the law
necessarily needs to be precise. But what I read to you and
read on a regular basis, as the juries come in and the more I
read them, the more I'm convinced that these instructions
simply, in a very specific way, codify or express what all of
us as humans experience.
“We all deal with evaluating the credibility of people around
us and the TV commercials we listen to. We all determine
the culpability of people around us, whether someone cut us
off intentionally or someone bumped into us in the
supermarket by accident. Even our pets make those
determinations. If you stumble over it – there was an old
writer back in the 1920s who made a comment one time – and
he would report on criminal cases – that even the family dog
knows the difference between a kick done in anger and a
master stumbling over his pet. So even animals do that. My
own dog can figure out when on weekends I’m going to go
run an errand which he'll get invited on and during the week
when I’ll drive to work. And during the week, he doesn’t get
up from his bed by the door. On the weekend he’s probably
got an 80, 90 percent accuracy rate of when I'm going out the
door of when he’s gonna get a ride. It’s not perfect because
sometimes I’m actually going out to the garage to do
something else. But he’s able to determine my intent.
“So as I read these instructions to you, I encourage you not to
be put off by them because they are not foreign topics. They
are foreign only because of the formal language that we use in
these because these instructions obviously must be specific.
We can’t just have general concepts of the law that we expect
you to apply.”
Thereafter, the parties completed closing arguments and the case was submitted to the
jury.
Analysis
We first address the forfeiture issue. Then we turn to the claimed instructional
error.
7.
A. Forfeiture
“[F]ailure to object to instructional error will not result in forfeiture if
the substantial rights of the defendant are affected. [Citation.] Here, [Perez] claims that
the flawed instructions deprived him of due process, and because this would affect his
substantial rights if true, his claim is not forfeited.” (People v. Mitchell (2019) 7 Cal.5th
561, 579-580; § 1259.)9
B. Instructional Error
“The federal Constitution’s due process guarantee ‘protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.’ [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,’ but it does require that, ‘ “taken as a whole, the instructions … correctly
conve[y] the concept of reasonable doubt to the jury.” ’ [Citation.] What matters … is
‘whether there is a reasonable likelihood that the jury understood the instructions to allow
conviction based on’ insufficient proof.” (People v. Daveggio and Michaud (2018)
4 Cal.5th 790, 839-840 (Daveggio and Michaud).)
“[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 v. Louisiana (1993) 508 U.S. 275,
9 We also note, “ ‘[t]he fact that a party, by failing to raise an issue below, may
forfeit the right to raise the issue on appeal does not mean that an appellate court is
precluded from considering the issue. “An appellate court is generally not prohibited
from reaching a question that has not been preserved for review by a party …. Whether
or not it should do so is entrusted to its discretion.” ’ [Citations.] Here, nothing less
fundamental is at stake than the denial of [Perez’s] due process protection ‘against
conviction except upon proof beyond a reasonable doubt.’ ” (People v. Johnson (2004)
119 Cal.App.4th 976, 984-985 (Johnson); People v. Williams (1998) 17 Cal.4th 148, 161,
fn. 6 [“An appellate court is generally not prohibited from reaching a question that has
not been preserved for review by a party.”].)
8.
281.) In such a case, the error “compels reversal per se.” (Johnson, supra,
119 Cal.App.4th at p. 986; accord People v. Reese (2017) 2 Cal.5th 660, 668-669.)
Courts have long cautioned “ ‘modifying the standard instruction [on reasonable
doubt] is perilous, and generally should not be done ….’ ” (Daveggio and Michaud,
supra, 4 Cal.5th at p. 844.) The core concern with analogizing the reasonable doubt
standard to ordinary events is inadvertently communicating to jurors “sufficient
confidence to make an ordinary or even important life decision” is proof “beyond a
reasonable doubt.” (People v. Potts (2019) 6 Cal.5th 1012, 1040 (Potts).)
The court here, mindful of perilously modifying instructions, explained to jurors,
“We can’t just have general concepts of the law that we expect you to apply.” But it did
so nonetheless by stating, “We all determine the culpability of people around us, whether
someone cut us off intentionally or someone bumped into us in the supermarket by
accident.” No matter the court’s motivation, “jurors should not be instructed to convict
based on the level of certainty needed to make decisions ‘in the ordinary affairs of life.’ ”
(Daveggio and Michaud, supra, 4 Cal.5th at p. 841.)
The court also equated determining culpability to a “dog know[ing] the difference
between a kick done in anger and a master stumbling over his pet.” The court even
solemnized this example by crediting the point “to an old writer back in the 1920s
who … would report on criminal cases ....” Then, the court added a personal example
regarding its own dog’s “80, 90 percent accuracy rate of when I’m going out the door of
when he’s gonna get a ride.” “[S]uggesting a specific quantitative measure of reasonable
doubt” is inappropriate. (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1267-
1268 (Katzenberger).)
The Supreme Court has twice recently addressed a judge’s spontaneous comments
on reasonable doubt. In each case the Supreme Court found no error, but those cases are
readily distinguishable and help illustrate the error in this case.
9.
First, in Potts, supra, the trial court referenced a hypothetical scenario in which
parents solve the mystery surrounding an eaten raspberry pie. (Potts, supra, 6 Cal.5th at
p. 1039.) The Supreme Court stated, “The court did not communicate that if jurors had
sufficient confidence to make an ordinary or even important life decision, then they had
been convinced beyond a reasonable doubt. The court instead provided a commonly used
court example of a fictional scenario and indicated that most parents would be able to
reach a beyond-a-reasonable-doubt conclusion ….” (Id. at p. 1040.)
The Supreme Court concluded the “brief, inartful pretrial reference to the
reasonable doubt standard—a standard the court had already defined properly and would
again define after the close of evidence,” was not error. (Potts, supra, 6 Cal.5th at
p. 1041.) In contrast, here the court’s most damaging comments came after both
evidence and defining reasonable doubt.
For a similar reason, this case is unlike Daveggio and Michaud, supra. There, the
judge commented, “In a criminal case, the scales of justice start tipped in favor of the
defense, because the defendants are presumed to be innocent. The burden the
prosecution must meet is to bring those scales into balance and then substantially tip them
in favor of the truth of the charges that were filed against the defendants.” (Daveggio
and Michaud, supra, 4 Cal.5th at p. 838.) The Supreme Court did not find error because
“the challenged comments were made before the jury had even been selected and several
months before the trial began.”10 (Id. at p. 842.)
This case is different. Here, the most prejudicial comments came after evidence
concluded and after reasonable doubt was last properly defined. That timing makes it far
more likely the comments impacted the jury’s deliberations. (Cf. Daveggio and
Michaud, supra, 4 Cal.5th at p. 844 [“trial court’s comments on the reasonable doubt
10 The Supreme Court also noted the “use of the scales-of-justice metaphor thus
did not evoke a simple preponderance inquiry.” (Daveggio and Michaud, supra,
4 Cal.5th at p. 843.)
10.
standard several months before trial were such that they could [not] have had any impact
on the jury’s deliberations.”].)
To be fair, the court here did not explicitly state ordinary life decisions are made
beyond a reasonable doubt. But it nonetheless stated culpability is routinely determined
on a daily basis. What matters is whether the jury could have understood culpability to
mean guilt beyond a reasonable doubt. (See Daveggio and Michaud, supra, 4 Cal.5th at
p. 840.) We believe the answer is yes, because culpability is readily understood to mean
guilt.
The fact the court here read to jurors the reasonable doubt standard multiple times
does not alter our view. The court’s final words explaining reasonable doubt came before
it intertwined “determin[ing] the culpability of people” with life’s ordinary affairs. That
entanglement was accompanied by vivid examples which likely left an “indelible
impression” on jurors’ minds. (Daveggio and Michaud, supra, 4 Cal.5th at p. 842; cf.
People v. Nguyen (1995) 40 Cal.App.4th 28, 36 [prosecutorial error in “suggesting the
reasonable doubt standard is used in daily life” not cured by admonition “to read the
instructions”].)
Finally, we are not persuaded by the People’s argument the court’s comments are
better understood as an “innocuous point that decisions are made in everyday life, so the
jury should not be afraid to make a decision in a criminal matter.” After providing the
grocery store and pet “culpability” examples, the court remarked, “I encourage you not to
be put off by [the instructions] because they are not foreign topics. They are foreign only
because of the formal language that we use in these because these instructions obviously
must be specific.” These remarks are consistent with an effort to translate the pattern
11.
reasonable doubt instruction, i. e., “proof that leaves you with an abiding conviction that
the charge is true,”11 into less formal language.12
Under these circumstances, we conclude “ ‘there is a reasonable likelihood that the
jury understood the instructions to allow conviction based on’ insufficient proof.”
(Daveggio and Michaud, supra, 4 Cal.5th at p. 840.) “[T]he court’s tinkering with the
statutory definition of reasonable doubt, no matter how well intentioned, lowered the
prosecution’s burden of proof below the due process requirement of proof beyond a
reasonable doubt.”13 (Johnson, supra, 119 Cal.App.4th at p. 985.)
DISPOSITION
The judgment is reversed.
SNAUFFER, J.
WE CONCUR:
MEEHAN, Acting P.J.
DE SANTOS, J.
11 CALCRIM No. 220.
12 It is true the prosecutor referenced the pattern reasonable doubt instruction
multiple times in closing argument, including the “abiding conviction” language, after the
court’s analogy. But the prosecutor was careful to remind the jurors, “The judge gives
you the law that you apply to the evidence.” This could well have increased the
likelihood the jurors understood the judge’s additional comments as law.
13 All remaining contentions are moot.
12.