P. v. Castanon CA2/1

Filed 7/11/13 P. v. Castanon CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B240764

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA051775) v.

MANUEL J. CASTANON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, Judge. Reversed and remanded. ______ Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent. ______

An information, filed on April 6, 2011, charged Manuel J. Castanon with one count of second degree robbery (Pen. Code, § 211)1 and specially alleged that he had used a firearm while committing the offense (§ 12022.53, subd. (b)). The information also specially alleged that Castanon (1) had a prior conviction for assault with a firearm (§ 245, subd. (a)(2)) that qualified as a strike under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and subjected him to a five-year enhancement under section 667, subdivision (a)(1); and (2) had served a prior prison term within the meaning of section 667.5, subdivision (b). The jury found Castanon guilty of second degree robbery. It found not true the special allegation of firearm use. In a bifurcated proceeding, Castanon admitted that he had a prior conviction for assault with a firearm for purposes of sentencing under the Three Strikes law, section 667, subdivision (a)(1), and section 667.5, subdivision (b). The trial court sentenced Castanon to a state prison term of 11 years, consisting of the middle term of three years for the second degree robbery, doubled under the Three Strikes law, plus five years for the section 667, subdivision (a)(1), enhancement. The court stayed execution of a one-year term for the section 667.5, subdivision (b), prior prison term. On appeal, Castanon contends that the trial court’s omission of CALJIC No. 2.90, the standard reasonable doubt instruction, requires reversal of the judgment. We conclude that the court’s failure to define reasonable doubt for the jury, which amounts to state law error, was not harmless under People v. Watson (1956) 46 Cal.2d 818, 836. We thus reverse the judgment. DISCUSSION The trial court, which used CALJIC to instruct the jury, did not include CALJIC No. 2.90, explaining the presumption of innocence, burden of proof and defining