People v. Flores

• Decision Date: 31 January 2007
• Docket Number: No. D047249.,D047249.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Stanley Raymond FLORES, Defendant and Appellant.

54 Cal.Rptr.3d 98

147 Cal.App.4th 199

The PEOPLE, Plaintiff and Respondent, v. Stanley Raymond FLORES, Defendant and Appellant.

No. D047249.

Court of Appeal, Fourth District, Division 1.

January 31, 2007.

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.

HUFFMAN, Acting P.J.

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, 87 S.Ct. 824, 17 L.Ed.2d 705 (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, 90 S.Ct. 1068, 25 L.Ed.2d 368, 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, 115 Cal.Rptr. 352, 524 P.2d 824 (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, 115 Cal. Rptr. 352, 524 P.2d 824.) 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. 226-227,115 Cal.Rptr. 352, 524 P.2d 824.) 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 hot 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, 115 Cal.Rptr. 352, 524 P.2d 824, 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, 115 Cal.Rptr. 352, 524 P.2d 824.) 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, 90 S.Ct. 1068 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, 115 Cal.Rptr. 352, 524 P.2d 824.) Accordingly, Vann applied the standard of reversible error set forth in Chapman, supra, 386 U.S. 18 at page 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 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. 228,115 Cal.Rptr. 352, 524 P.2d 824.)

In People v. Elguera (1992) 8 Cal. App.4th 1214, 10 Cal.Rptr.2d 910 (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, 10 Cal.Rptr.2d 910.) In Elguera, as in Vann, supra, 12 Cal.3d 220, 115 Cal.Rptr. 352, 524 P.2d 824, the trial court instructed the jury panel members during jury selection on the reasonable doubt standard of proof. (Elguera, supra, at pp. 1217-1218, 1222,10 Cal.Rptr.2d 910.) Also, in Elguera, as in Vann, the trial court gave CALJIC No. 2.01 on...