People v. Diaz CA2/1

Filed 7/24/14 P. v. Diaz CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B248386

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA397666) v.

JUAN DIAZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara R. Johnson, Judge. Reversed. Jennifer Hansen, 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, Steven E. Mercer and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Juan Diaz of burglary. In instructing the jury prior to its deliberation, the court apparently through inadvertence neglected to instruct that the defendant is presumed innocent and that he must be proven guilty beyond a reasonable doubt. On review of the whole record of instructions, we conclude that the court’s failure to instruct on reasonable doubt requires Diaz’s conviction be reversed. FACTS AND PROCEEDINGS BELOW We summarize the facts briefly because, as we explain below, the strength of the prosecution’s evidence is irrelevant to our decision. Based on information obtained from a wiretap, police believed that Diaz and an accomplice intended to assault Rafael Davila in his auto shop. Police officers observed Diaz and a companion enter the shop and later run out and drive away. The officers stopped and detained Diaz and his companion. In a field identification, Davila identified the two men as the ones who assaulted him and attempted to rob him in his shop. The People charged Diaz with robbery and burglary. A jury convicted him of burglary and acquitted him of robbery. The court sentenced Diaz to the midterm of two years in prison. Diaz filed a timely notice of appeal. DISCUSSION Penal Code section 1096 provides in relevant part that: “[a] defendant in a criminal action is presumed to be innocent until the contrary is proved . . . beyond a reasonable doubt” and defines the term “reasonable doubt.” Evidence Code section 502 states that “[t]he court . . . shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact . . .” The substance of Penal Code section 1096, quoted above, has been incorporated into CALCRIM No. 220. (People v. Aranda (2012) 55 Cal.4th 342, 353 (Aranda).) Here, however, the court read only the first paragraph of CALCRIM No. 220 which states: “The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just