Opinion Bank # O-252 (Re: F 2.50.01a [Evidence Of Other Sexual Offenses (EC 1108): Jury Must Find Defendant Guilty Of Charged Offense Beyond A Reasonable Doubt].)
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THE PEOPLE, Plaintiff and Respondent, v. ZEN RIVERAL
BERSAMINA, Defendant and Appellant.
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT,
73 Cal. App. 4th 930; 87 Cal. Rptr. 2d 43
July 27, 1999, Filed
NOTICE: NOT CITABLE – ORDERED NOT PUBLISHED
SUBSEQUENT HISTORY: Review Denied October 20, 1999 and the Reporter of Decisions directed not to publish this opinion. in the Official Reports (Cal. Const., art. VI, § 14; rule 976, Cal. Rules of Ct.).
PRIOR HISTORY: Superior Court of Contra Costa County. Contra Costa County Super. Ct. No. 9715285. James J. Marchiano.
DISPOSITION: The conviction under count one (§ 288) is reversed; the remainder of the judgment is affirmed.
COUNSEL: Attorney for Defendant and Appellant: John Ward, by appointment of the Court of Appeal under the First District Appellate Project Independent Case System.
Counsel for Plaintiff and Respondent: Bill Lockyer, Attorney General, Robert R. Anderson, Acting Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General,
Ronald E. Niver, Supervising Deputy Attorney General, Ross C. Moody, Deputy Attorney General.
JUDGES: Haerle, J. We concur: Kline, P.J., Lambden, J.
OPINION BY: HAERLE
OPINION: [Page 935]
Defendant and appellant Zen Riveral Bersamina was convicted of one count of lewd conduct on a child (Pen. Code, § 288, subd. (a)) [Footnote 1] and one count of residential burglary (§ 459-460, subd. (a)). He was sentenced to 35 years to life in prison. We reverse the conviction under section 288 because the jury was erroneously instructed that it could conclude Bersamina “did commit” the crime of lewd conduct on a child if it found, by a preponderance of the evidence, that he had committed a prior sexual offense. [Footnote 2] Although Bersamina also argues that his burglary conviction should be reversed because, among other things, it is not supported by substantial evidence, we disagree and, accordingly, affirm this conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
On October 25, 1996, nine-year-old Jane Doe spent the night at her friend Jennifer McCurry’s house in Antioch. During the night, Jane, who was asleep on the living room floor, was awakened by a strange man rubbing her breast in a circular movement over her pajamas. The only light in the room came from a hall light. She got up and hid in the bathroom. After about five minutes, she went back to the living room and lay down and then observed the intruder going through a purse as though looking for money. The man gestured to her to be quiet and began unzipping his pants. Jane went into the bedroom where her friend, Jennifer, and Jennifer’s mother, Marsha McCurry, were sleeping and reported that she had seen a man in the living room unzipping his pants. Mrs. McCurry checked the house and, when she returned, told the girls that she hadn’t seen anyone.
At trial, Jane described the man as having a little mustache and long, black hair in a skinny ponytail with a rubber band around it. He was wearing baggy black pants and a white tank top with three or four holes in it. The holes were rough around the edges and located in the front of his shirt. The man also had a tattoo on his right shoulder that looked like a police badge or a star. He also had other tattoos that showed through the tank top. At the preliminary hearing, Jane testified that she did not really see the man’s pants and she did not tell the police about the rubber band holding the ponytail. At trial, Jane stated that she had been mistaken in this testimony from the preliminary hearing. She also did not describe the tattoos until the preliminary hearing. Finally, at the preliminary hearing, Jane testified that she did not think the man who had touched her had a moustache. At trial, Jane reported that she had thought more about the man and after “picturing” it mentally, thought he had a moustache.
When the police came to investigate the break-in, Jane did not tell the officer that the intruder had touched her chest. She told her friend Jennifer and asked her not to say anything. Later that evening, after Jennifer reported this information to her own mother, Jane was contacted by another police officer, whom she told about the touching. At this time, according to the police officer who interviewed her, Jane did not mention a ponytail or tattoos. She was “extremely frightened, upset, embarrassed, scared” and “depressed” when he spoke to her, and it was “very difficult” to get [Page 937] information from her. He did not ask Jane directly about the attacker’s hairstyle or about any tattoos.
Marsha McCurry’s niece, Sharon Toderick, was also at the McCurry house that night. Toderick arrived at the house at around 3:00 a.m., after attending a late night event. As she walked up the driveway toward the house, she saw a man standing in front of their neighbor, Troy Sweeny’s, house. The man mentioned something about the weather, but Toderick “dismissed” this comment and went inside. When she got inside, Toderick saw Jane asleep on the floor of the living room. Toderick lay on the couch and read for a while after getting ready for bed. While she was reading, the man she had seen outside knocked on the window. Toderick went to the front door and the man asked for a cigarette. She went outside, got a cigarette from her car, and gave it to him. She declined his invitation to keep him company while smoking, and went back inside. She then went to bed. At trial, Toderick described this man as having a moustache and goatee, and wearing light colored baggy pants.
Toderick fell asleep and was awakened by a man crouched about six inches away from where she slept on the couch. Toderick told the man several times to “get out” and threatened to scream. The man told her, “If you do, we’ll all get in trouble.” After she continued to tell the man she would scream, he left. At trial, Toderick said she did not recognize the man who had been crouched by the couch. She recalled that he had facial hair similar to the man who asked her for a cigarette and a similarly shaped face. The two men also wore similar light colored baggy pants.
After the man left, Toderick locked the front door. She noticed that Jane was not in the living room. Toderick then went into Marsha McCurry’s room, where she found Jane. Toderick and McCurry went into the living room to check the doors and windows. They then returned to McCurry’s room. As they were lying down the bedroom door opened. They did not see anything and after they called out to the person, they heard the door close. Toderick and McCurry went to get another person staying in the house that evening, Steve Ausemus, who is married to McCurry’s daughter. As they checked the house the power went out. They heard someone run by the sliding glass door that led to their backyard and
heard someone knock on it once or twice. Marsha McCurry called the police. Toderick testified that her wallet was close to where she was sleeping in the living room and that $ 40 was missing from it.
At trial, Toderick testified that Bersamina was someone she had seen on other occasions, before that evening, at Troy Sweeny’s house, generally [Page 938] when he was sitting on the front porch with other people or going in and out of the house. (Troy Sweeny’s house is next door to the McCurry house.) She believed that he looked “similar” to the man who asked her for a cigarette the night of the break-in because his face was shaped somewhat the same and he had a moustache and goatee although Bersamina’s facial hair was a “little thinner” than the man she saw the night of the break-in. She testified that Bersamina “could have” been the man who asked her for the cigarette that night. At a photographic lineup, Toderick saw two photographs that she believed look like the intruder, but she could not positively identify either as the intruder. One of the photographs she chose was of Bersamina.
Both Jane and Jennifer testified that several days later, on Halloween, they went trick-or-treating with Marsha McCurry. At Troy Sweeny’s house, a man wearing a mask answered the door. He pulled it off and told the girls that he did not have any more candy but they could have a banana. After leaving the house, Jane told both McCurry and Jennifer that the man who had opened the door looked like the man who had broken into the house that night. At trial, Jane testified that she was “positive” that this was the same man. After reporting this information to the police, Jane was asked to identify the man who had touched her. At trial, Jane described the photo line-up as follows: Detective Barakos showed her a sheet of photographs and told her “pick one and we’ll see if it’s the right guy or not.” Jane testified that before she saw the pictures she assumed the intruder’s picture would be included. This impression was not, however, based on anything Detective Barakos said to her.
Detective Barakos testified that he presented a photo array to Jane. Before doing so, he admonished Jane that, among other things, she could not conclude or guess that the pictures contained a picture of the person who committed the crime. Jane signed this admonition. After looking at the pictures for less than a minute, Jane chose Bersamina’s picture. She said she was positive that he was the man who had touched her that evening.
Steve Ausemus, McCurry’s son in law, testified about a number of encounters he had with Bersamina following the incident on October 26th. The day after the incident, Ausemus was in the backyard of McCurry’s house installing a security light when he saw Bersamina near the house next door. Ausemus said he stared at the man and had a “real gut instinct” he was the intruder. After this, Bersamina went into the house, and left with his girlfriend, carrying some articles of clothing. Ausemus said he did not see Bersamina at Sweeny’s house for a couple of weeks after that.
Several weeks later, Ausemus saw Bersamina on the front porch of Sweeny’s house. Bersamina asked Ausemus why he was “always looking over here staring at me.” Ausemus then asked Bersamina why he was always [Page 939] looking at the McCurry house and its female residents. Ausemus told Bersamina to “keep himself to his property and quit touching little kids.” Bersamina replied that he did not know what Ausemus was talking about and that Ausemus had “nuthin’ on him.”
Detective Barakos testified that he interviewed Troy Sweeny, with whom he is acquainted. Sweeny told Barakos that Bersamina had been living at his house and owned clothing similar to that described by Jane. In February, 1997, before Jane had identified Bersamina in the photo lineup, Bersamina contacted Barakos and said he had heard Barakos was investigating a case involving him. He gave Barakos a pager number to contact him later. After trading messages, Bersamina agreed to meet Barakos on May 1, 1997. Bersamina cancelled this meeting and did not call back at a time he had said he would. On May 5, Detective Barakos paged Bersamina again. On May 6, Barakos dialed Bersamina’s pager number and was told it was no longer in service. Barakos reached him that same day and Bersamina said he would call to set up an appointment. He did not do so and was arrested on May 31, 1997.
At the time Bersamina was arrested, he was wearing a white tank top “with a hole in the left breast area.” He had a “buzz” haircut and a moustache and goatee. When he was arrested, Bersamina denied having been in the McCurry house. He told the police they should check on other residents of the house, including his brother. Bersamina admitted he was at the Sweeny house on Halloween, but denied speaking to any children.
Troy Sweeny testified that Bersamina was living in Sweeny’s house in October 1996. He said Bersamina wore his hair in a ponytail or braid fastened by the rubber band from the newspaper. Sweeny also testified that Bersamina had a white tank top with several rough-edged holes in front, that he wore this tank top about once a week and that he had a goatee and mustache, smoked cigarettes, and often wore a beanie or knit cap. Sweeny testified that he spoke to Bersamina while Bersamina was in custody. Sweeny told Bersamina that he had described the tank top with holes in it. Bersamina replied, “I threw that away a while ago.” Sweeny did not recall that Bersamina had a marijuana leaf tattoo on his shoulder at the time he lived with him. Bersamina did have other tattoos on his right arm.
Antioch police officer Clifford Rezentes testified that while he was searching Bersamina before taking him into custody, Bersamina told his girlfriend, “I knew this was gonna happen. The stupid little girls.”
At trial, Bersamina offered the testimony of Richard Kimmons, an amateur tattoo artist, who testified that he gave Bersamina a marijuana leaf tattoo [Page 940] on his shoulder in February 1997. Kimmons believed he knew the date because it was soon after he (Kimmons) was released from jail. Kimmons’ mother also testified that she saw her son give Bersamina the tattoo in mid-February, 1997. Bersamina’s cousin and his cousin’s fiance also testified that the tattoo was new in March or May 1997.
The jury convicted Bersamina on both counts. He was sentenced to 35 years to life in prison. This timely appeal followed.
A. The Trial Court Erred In Instructing the Jury Pursuant to CALJIC No. 2.50.01
The jury in this case heard evidence regarding a prior sexual battery committed by Bersamina. At the close of trial, the jury was instructed, pursuant to CALJIC No. 2.50.01 (6th ed. 1996), that “If you find that the defendant committed a prior sexual offense, you may, but are not required to infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition you may, but are not required to infer that he was likely to commit and did commit the crime of which he is accused.” The jury was instructed that the prosecution had the burden of proving the commission of the prior sexual offense “by a preponderance of the evidence” and was given a standard definition of this term. [Footnote 3] The jury also heard standard instructions that the presumption of innocence “places upon the People the burden of proving [the defendant] guilty beyond a reasonable doubt” and that “each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt.” It was also instructed to consider the instructions as a whole, and “each in light of all the others.”
Bersamina contends that the first quoted instruction, CALJIC No. 2.50.01 (6th ed. 1996), violated his rights under the due process clause of [Page 941] the United States Constitution because it allowed the jury to conclude that he “did commit the crime of which he was accused” if it found, by a preponderance of the evidence, rather than beyond a reasonable doubt, that he had committed the prior sexual offense. The People argue, on the other hand, that this instruction was authorized by Evidence Code section 1108 and, in any event, any error was cured by subsequent general instructions regarding the prosecution’s burden of establishing guilt beyond a reasonable doubt.
We review jury instructions as a whole and ask whether there is a “reasonable likelihood” that the jury understood the instructions to permit a conviction based on a lesser standard of proof. (People v. Clair (1992) 2 Cal. 4th 629, 663, 828 P.2d 705.) We conclude that such a reasonable likelihood exists in this case.
An important threshold question is what we should properly call the evidentiary device created by this instruction. In this opinion we describe it as a “permissive presumption.” The United States Supreme Court has described this sort of presumption as follows: “the most common evidentiary device is the entirely permissive inference or presumption, which allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant.” (Ulster County Court v. Allen (1979) 442 U.S. 140, 157, 60 L. Ed. 2d 777, 99 S. Ct. 2213.) The challenged instruction does just this – it tells the jury that it may “infer” the elemental fact (i.e., that Bersamina “did commit” the crime of which he was charged) from proof of the basic fact (i.e., that he had committed a prior sexual assault).
There is a great deal of case law regarding the constitutionality of various kinds of presumptions in criminal prosecutions. It is quite clear that mandatory presumptions and mandatory rebuttable presumptions may violate the due process clause. The first sort of presumption does so when it eliminates the requirement that the State prove “‘beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged,'” and thus deprives a criminal defendant of his constitutional rights under In re Winship (1970) 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068. (Sandstrom v. Montana (1979) 442 U.S. 510, 523, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (Sandstrom).) Mandatory rebuttable presumptions are also constitutionally infirm when they shift to the defendant the burden of proof on the elements of a crime, a burden that properly belongs to the State. (Id. at p. 525, see also People v. Roder (1983) 33 Cal. 3d 491, 499, 189 Cal. Rptr. 501, 658 P.2d 1302.)
On the other hand, permissive presumptions do not suffer from the same due process problems. “Because [a] permissive presumption leaves the trier [Page 942] of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the `beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. . . . Only in that situation is there any risk that an explanation of the permissive inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (Ulster County Court v. Allen, supra, 442 U.S. at p. 157, 99 S. Ct. 2213.)
We are not here concerned with whether such a “connection” can be made. Instead, we are called on to consider the more fundamental question of whether, when the ultimate fact to be reached through a permissive presumption is a fact the prosecution is required to prove beyond a reasonable doubt (such as whether the defendant committed the charged crime), due process requires that the basic fact must also be proven beyond a reasonable doubt. In our view, the answer to this question must be yes.
At first glance, Evidence Code section 607 would appear to have some significance to this issue. This section provides that “when a presumption affecting the burden of proof operates in a criminal action to establish presumptively any fact that is essential to the defendant’s guilt, the presumption operates only if the facts that give rise to the presumption have been found or otherwise established beyond a reasonable doubt and, in such case, the defendant need only raise a reasonable doubt as to the existence of the presumed fact.” Therefore, Evidence Code section 607 requires that the facts giving rise to a presumption affecting the burden of proof must be proven beyond a reasonable doubt.
However, the application of Evidence Code section 607 to the permissive presumption created by CALJIC No. 2.50.01 is limited by the fact that Evidence Code section 600, subdivision (a), defines a “presumption” narrowly as a mandatory presumption (“an assumption of fact that the law requires to be made”). As we have said, when a mandatory presumption goes to a fact that the prosecution is required to prove beyond a reasonable doubt, this presumption violates the due process clause. (Sandstrom, supra, 442 U.S. at p. 523.) Evidence Code section 607, then, applies only to mandatory presumptions affecting the People’s burden of proof, presumptions which the United States Supreme Court has ruled are unconstitutional.
In response to our request for supplemental briefing on the applicability of Evidence Code sections 600 and 607 to this matter, the People tell us, citing [Page 943] Engstrom v. Auburn Auto. Sales Corp. (1938) 11 Cal. 2d 64, 69, 77 P.2d 1059, that “an inference is a permissive deduction while a presumption is a deduction directed to be drawn by law.” The People reason, therefore, that the requirements of Evidence Code section 607 do not apply to this case because that code section applies only to mandatory presumptions.
We cannot agree that this is an appropriate reading of Evidence Code section 607. In our view, this statute correctly expresses a general principle, grounded in federal constitutional law, that applies to all presumptions that affect the burden of proof, namely that a “basic fact” which forms the basis of a presumption must be proven beyond a reasonable doubt. As has been often noted, “the Due Process Clause 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.” (In re Winship, supra, 397 U.S. at p. 364.) It necessarily must follow that when the defendant’s conviction is based on proof of a “basic fact” which acts as a proxy for proof of the ultimate fact, the basic fact must be proven beyond a reasonable doubt.
In those opinions that advert to this issue, courts simply assume that basic facts will be proven beyond a reasonable doubt. (See, e.g., Rose v. Clark (1986) 478 U.S. 570, 580, 92 L. Ed. 2d 460, 106 S. Ct. 3101 [“When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt”]; Santiago Sanchez Defuentes v. Dugger (11th Cir. 1991) 923 F.2d 801, 804, emphasis added [“A presumption is an evidentiary device that enables the trier of fact to presume the existence of an element of the crime from a basic fact already proven beyond a reasonable doubt”]; McInerney v. Berman (1st Cir. 1980) 621 F.2d 20, 24, emphasis added [jury “may infer the existence of malice from the fact, proved beyond a reasonable doubt, that a defendant shot the victim, stabbed him, or otherwise harmed him with a deadly weapon”].) In supplemental briefing on this issue, however, the People contend that the basic fact here need only be proven by a preponderance of the evidence. It is indeed true, as the People contend, that evidence of uncharged crimes is admissible if it is proven by a preponderance of the evidence. For example, in People v. Carpenter (1997) 15 Cal. 4th 312, 382, 935 P.2d 708 (Carpenter), our Supreme Court concluded that the prosecution need show only by a preponderance of the evidence that the defendant had committed the uncharged crimes. However, this evidence was not part of the prosecution’s chain of proof. Instead, it was offered “‘solely on the matter of the state of mind involved in the commission of the offenses.'” As the Supreme Court earlier explained in People v. Tewksbury (1976) 15 Cal. 3d 953, 965, [Page 944] 127 Cal. Rptr. 135, 544 P.2d 1335, footnote 12, “When the People bear the burden of proof of a fact deemed to lie outside the direct chain of proof of an accused’s guilt of the crime charged, they are not required to prove that fact beyond a reasonable doubt. Thus in People v. Lisenba (1939) 14 Cal. 2d 403, 94 P.2d 569 we held that the People could establish the fact of a prior similar criminal act for the purpose of demonstrating a common scheme or design, without the burden of proving the prior crime beyond a reasonable doubt.” Here, however, the jury was instructed that it could reach a conclusion (i.e., that Bersamina “did commit” the crime), on which the People bore the burden of proof beyond a reasonable doubt, despite the fact that the People were required to demonstrate the prior crime only by a preponderance of the evidence. There is no suggestion in Carpenter [Footnote 4] that when other crimes evidence forms the basis of such a presumption, this evidence may be proven only by a preponderance of the evidence.
Nor does Evidence Code section 1108 itself authorize either this presumption or a preponderance of the evidence standard of proof to reach it, despite the People’s suggestion to the contrary. Section 1108 provides only that evidence of prior sexual offenses is admissible. In People v. Fitch (1997) 55 Cal. App. 4th 172, 182, footnote 4 (Fitch), the jury was instructed that “evidence that the defendant committed a crime other than the one for which he is on trial, if believed, was also admitted and may be considered as evidence that he has a trait of character that predisposes him to commission of certain crimes.” Evidence Code section 1108 does not, however, go so far as to create a presumption which would allow a jury to use other crimes evidence, proven only by a preponderance of the evidence, to conclude that the defendant committed the crime.
We note, too, that, in the principal published decision under section 1108, Fitch, supra, 55 Cal. App. 4th 172, the jury was not instructed with CALJIC No. 2.50.01. Instead, the instruction in that case made clear that “the question [the jury] was to decide was whether defendant committed the crime charged and that he could be found guilty only if the jury was convinced beyond a reasonable doubt that he committed the crime.” (Id. at p. 182.)
B. The Error Was Not Cured By General Instructions Regarding the Prosecution’s Burden of Proof
Although we conclude that CALJIC No. 2.50.01 is constitutionally infirm because it instructed the jury that it could convict Bersamina after finding, only by a preponderance of the evidence, that he had committed a prior sexual offense, our inquiry does not end here. Instead, we must view this instruction in light of the instructions as a whole in order to determine whether there is a reasonable likelihood that the jury understood the instruction in this way. (People v. Cain (1995) 10 Cal. 4th 1, 36, 892 P.2d 1224.)
The People contend that more general instructions regarding the prosecution’s burden of proof, which make no reference to the erroneous instruction, corrected any error in this instruction. The jury was instructed that “each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt.” (CALJIC No. 2.01.) The jury was told that the prosecution bore the burden of proving guilt beyond a reasonable doubt and was given a definition of this phrase. (CALJIC No. 2.90.) The jury was instructed that, “for the limited purpose for which you may consider such [prior acts] evidence, you must weigh it in the same manner as you do all other evidence in the case.” (CALJIC No. 2.50.) The jury was also instructed to consider the instructions as a whole, and “each in light of all the others.” (CALJIC No. 1.01.)
At most, however, these general instructions provided the jury with a contradictory definition of the burden of proof necessary to convict Bersamina. The jury was told under CALJIC No. 2.50.01 that it could conclude Bersamina “did commit” the charged crime after finding certain facts true by a preponderance of the evidence. It was also told that the prosecution had the burden of establishing every element of the crime beyond a reasonable doubt. At no point did the general reasonable doubt instructions explain to the jury how it might reconcile the conflict between these instructions.
In Francis v. Franklin (1985) 471 U.S. 307, 322, 85 L. Ed. 2d 344, 105 S. Ct. 1965, the jury was erroneously instructed to apply a mandatory rebuttable presumption regarding an element of the charged crime. The jury was also given a correct instruction directly contrary to the erroneous one. The court concluded that “nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory [Page 946] instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” (Ibid.) [Footnote 5] [Page 947] It would be even more difficult to conclude that the very general instructions on the burden of proof given in this case cured the infirmity in CALJIC 2.50.01. As one court points out, in the context of contradictory civil instructions, “where two instructions are inconsistent, the more specific charge controls the general charge.” ( LeMons v. Regents of the University of California (1978) 21 Cal. 3d 869, 878, 148 Cal. Rptr. 355, 582 P.2d 946 (LeMons).) The LeMons court explained, “The reason for this rule is well expressed in Nickell v. Rosenfield (1927) 82 Cal. App. 369, 377, 255 P. 760: “‘Every trial judge knows from experience that many general instructions are quite puzzling to the average juror . . .; but when the court takes up the particular situation involved, and bases a charge thereon by applying the facts to the law, instantly the jury becomes directly interested.'” (LeMons, supra, 21 Cal. 3d at p. 878, fn. 8.) Here, of course, although the jury was instructed that the prosecution bore the burden of proving Bersamina’s guilt beyond a reasonable doubt, it was specifically told that if it found, by a preponderance of the evidence, that he had committed the prior sexual offense, then it could conclude that he did commit the crime. Because the latter charge was far more specific than the general charge, we cannot conclude that the general reasonable doubt instructions cured the defective instruction. (See also United States v. Sanchez-Lima (1998) 161 F.3d 545, 549 [“`A specific instruction which is defective in respect to the burden of proof is not remedied by correct general statements of law elsewhere given in the charge unless the general statement clearly indicates that its consideration must be imported into the defective instruction'”].)
In this connection, it is instructive to note that CALJIC No. 2.50.01 was modified in 1999 to add the following language: “However, if you find [by a preponderance of the evidence] that the defendant committed [a] prior sexual offenses, that is not sufficient by itself to prove [beyond a reasonable doubt] that [he] [she] committed the charged crimes. The weight and significance of the evidence, if any, are for you to decide.” (CALJIC No. 2.50.01 (6th ed. 1999 rev.).) Although we do not here opine as to whether this instruction will pass constitutional muster, we note that the “cure” represented by this additional language is at least as specific as the erroneous instruction itself, and is clearly related to the instruction, something that cannot be said about the more general reasonable doubt instructions cited by the People. Similarly, in Hall v. Kelso (11th Cir. 1990) 892 F.2d 1541, 1545, the court found that a proper burden of proof instruction did not cure an erroneous mandatory rebuttable presumption instruction, because this proper instruction “was not linked to the erroneous one in such a way as to explicate it or to make clear that the proper instruction was preeminent and controlling.” (See also Lakes v. Ford (11th Cir. 1986) 779 F.2d 1578, 1582 [“assertedly curative language on criminal intent only [Page 948] contradicts the mandatory presumption without explaining its import and applicability.”] and Brooks v. Kemp (1985) 762 F.2d 1383, 1389 [“The problem with the state’s argument is that the [proper] malice instruction does not either expressly or impliedly refer for a definition of intent to the earlier [improper] intent instruction”].)
Nor are we persuaded otherwise by the People’s contention at oral argument that the trial court’s admonition to the jury before the introduction of the uncharged crimes evidence somehow clarified the contradiction between CALJIC No. 2.50.01 and the general reasonable doubt instructions. In fact, this admonition simply repeated the faulty instruction (“if you find the defendant had this disposition you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused.” The trial court then emphasized the permissive nature of the presumption, telling the jury “[It] doesn’t necessarily mean that he committed the crime of which he is charged.”) He also told the jury that “the charges here, have to be proved on the evidence submitted in this case along with all the other instructions and evidence . . . .” At no time, however, did the trial court say anything to correct the erroneous invitation to the jury that it could conclude Bersamina “did commit” the charged crime if it found the prior acts true by a preponderance of the evidence.
Having concluded that CALJIC No. 2.50.01 is constitutionally infirm, we now turn to the consequences of this error.
C. The Error Is Reversible Per Se
Instructional errors, including “misdescriptions, omissions, or presumptions – as a general matter fall within the broad category of trial errors subject to Chapman v . California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (Chapman)] review on direct appeal.” (People v. Flood (1998) 18 Cal. 4th 470, 499, 957 P.2d 869 (Flood).) On the other hand, in a more limited class of cases, errors which “affect the framework in which the trial proceeds, rather than simply an error in the trial process itself” ( Arizona v. Fulminante (1991) 499 U.S. 279, 310, 113 L. Ed. 2d 302, 111 S. Ct. 1246), are reversible per se. ( Sullivan v. Louisiana (1993) 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (Sullivan).)
The People contend that Chapman harmless error analysis applies here; Bersamina advocates the Sullivan standard. In our [Page 949] view, because the erroneous instruction permitted the jury to reach a guilty verdict after finding by a preponderance of the evidence rather than beyond a reasonable doubt, that Bersamina had committed a prior sexual offense, Sullivan mandates reversal per se.
As we recently explained “the fundamental importance of the requirement of proof beyond a reasonable doubt as a component of the right to trial by jury in our scheme of justice was clearly enunciated in Sullivan v. Louisiana (1993) 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 . . . . [¶] The Sullivan decision is straightforward and uncompromising. The court held that a constitutionally deficient reasonable doubt instruction cannot be harmless error.” (People v. Crawford (1997) 58 Cal. App. 4th 815, 821.) The Sullivan court “concluded that the giving of a constitutionally deficient reasonable doubt instruction is among those constitutional errors that require reversal of a conviction, rather than those that are amendable to harmless-error analysis. The court reasoned that, essentially, there had been no jury verdict within the meaning of the Sixth Amendment, the premise for harmless-error analysis. `There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilt-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt–not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough.'” (Id. at p. 822, fn. omitted, quoting Sullivan, supra, 508 U.S. at p. 280.)
We are, of course, mindful that improper presumptions are generally subject to the Chapman standard of review. (Flood, supra, 18 Cal. 4th at p. 499.) Given that the instruction in this case can be characterized as an improper presumption, why does the error here not mandate Chapman review? In Rose v. Clark, supra, 478 U.S. 570, the United States Supreme Court pointed out that Sandstrom error (i.e., the use of an unconstitutional mandatory presumption) is not the sort of error which affects the “structural integrity” of a trial. This is so, the court explained, because, despite the use of the impermissible presumption, the jury nevertheless reaches a guilty verdict beyond a reasonable doubt: “When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.” (Id. at p. 580.) The court, therefore, had before it a jury verdict reached beyond a reasonable doubt, a verdict on which harmless error scrutiny could be applied.
Here, we have no assurance that the jury reached its verdict beyond a reasonable doubt. The jury was not instructed to presume that Bersamina [Page 950] “did commit” the charged crime based on predicate facts that it was required to find true beyond a reasonable doubt. Because it found these predicate facts only to be true by a preponderance of the evidence, its conclusion that Bersamina “did commit” the charged crime was not a conclusion reached beyond a reasonable doubt. Therefore, we cannot apply a harmless error analysis to this verdict and must instead apply the more exacting standard set out in Sullivan.
In supplemental briefing, the People argue that Chapman error analysis applies here because a proper reasonable doubt instruction was given to the jury and, therefore, there is a jury verdict “upon which harmless-error scrutiny can operate.” (Sullivan, supra, 508 U.S. at p. 280.) However, the People do not acknowledge that, in fact, the jury had before it two routes to a guilty verdict, one which required it to travel a lesser and therefore unconstitutional distance than the other. It is quite evident that when this occurs, we cannot assume that the jury chose the constitutional route over the unconstitutional one. In Sandstrom, supra, 442 U.S. 510, the United States Supreme Court rejected a similar argument. There, the State argued that a jury which returns a general verdict of guilty after being given both constitutionally correct and incorrect instructions, could be presumed to have followed the correct instruction. The court reasoned, “As the jury’s verdict was a general one . . . we have no way of knowing that Sandstrom was not convicted on the basis of the unconstitutional instruction. And ‘it has long been settled that, when a case is submitted to the jury on alternative theories, the unconstitutionality of any of the theories requires that the conviction be set aside.'” (Id. at p. 526, quoting Leary v. United States (1969) 395 U.S. 6, 31-32, 23 L. Ed. 2d 57, 89 S. Ct. 1532.)
Similarly, here, the jury could have found Bersamina guilty on the basis of the instruction set out in 2.50.01, or it could have reached its verdict after following the more general instructions regarding the prosecution’s burden of proving guilt beyond a reasonable doubt. Because we do not know which is the case, this jury’s guilty verdict cannot be subject to harmless error scrutiny. (Sullivan, supra, 508 U.S. at p. 280.) Bersamina’s conviction under section 288, therefore, must be reversed. [Footnote 6]
D. CALJIC No. 2.50.01 Could Not Be Read to Apply to the Burglary Charge
As we understand it, Bersamina argues that any error in giving CALJIC No. 2.50.01 mandates reversal of his burglary conviction because the jury would have understood this instruction to apply not only to the sexual assault charge but also to the burglary charge. In our view, a jury reasonably would not have understood this instruction to apply to the burglary charge. Although the instruction referred generally to the “crime” of which Bersamina was accused, preceding this language were several references to “sexual offenses.” Thus, the jury was told that “if you find that the defendant committed a prior sexual offense” and “you may . . . infer that the defendant had a disposition to commit the same or similar type sexual offenses.” In the context of these earlier references, we do not think it reasonably likely that the jury would have understood that it was free to infer that Bersamina was likely to commit and did commit the crime of burglary if it also found he had committed the uncharged sexual offense.
E. Substantial Evidence Supports the Jury’s Conclusion That Bersamina Committed the Burglary
Bersamina contends that substantial evidence does not support his burglary conviction because the evidence was insufficient to establish that he was the person in the house that evening. We disagree. “It is well established an appellate court may not reverse a conviction for insufficient evidence, if there is, on the whole record, substantial evidence to support it. [Citation.] We view all of the evidence in the light most favorable to the prosecution where any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (People v. Gutierrez (1992) 10 Cal. App. 4th 1729, 1733.) Although Bersamina claimed at trial that he was not present in the house that evening, this record contains substantial evidence to support his conviction.
Jane’s testimony convincingly identified Bersamina as the person who had broken into the McCurry house that evening. At trial, she described the man she had seen in the house. Jane testified that the intruder wore his hair in a ponytail fastened with a rubber band. The intruder, according to Jane, had facial hair and was wearing a white tank top with holes in the front of the shirt. Troy Sweeny, Bersamina’s roommate at the time of the break-in, testified that, around the time of the break-in, Bersamina wore his hair in a [Page 952] ponytail or braid and he fastened it with a rubber band. He also had a goatee and mustache. Sweeny also testified that Bersamina frequently wore a tank top like the one Jane had seen and, in fact, when Bersamina was arrested he was wearing a similar tank top with similar holes in it. In addition, when Jane saw Bersamina several days later on Halloween, she was positive he was the person who had broken into the house that evening. She also picked Bersamina’s picture out of a photographic lineup.
It is also true, as Bersamina points out, that there were weaknesses in the evidence identifying Bersamina. The living room in which Jane slept was lighted only by a hall lamp, there was some question about whether the tattoo Jane described was a tattoo Bersamina had received after the break-in, and Jane was unable to identify Bersamina at the preliminary hearing and did not identify him at trial. As for the latter “inconsistency,” Bersamina’s appearance had changed quite a bit between the time of the break-in and the time of the preliminary hearing and trial. On balance, the evidence linking Bersamina to the crime was sufficient to support the jury’s conclusion that Bersamina was the person who broke into the McCurry house on October 26, 1996.
F. Admission of Identification Evidence Was Not Improper
Bersamina attacks the admission of evidence that, in a photographic lineup, Jane chose Bersamina’s picture. He argues that the lineup was “unduly suggestive” and, therefore, in violation of due process. [Footnote 7] At trial, Detective Barakos described the photographic lineup. He was assigned to the case in October, 1996, but did not have any contact with the victims until four months later in February, 1997. At this time he learned that, on October 31, 1996, Jane had seen the “responsible” person at the home next door to the McCurry’s. Detective Barakos compiled a photo lineup which consisted of six photographs, one of which was Bersamina’s. On April 7, 1997, Barakos showed the photo lineup to Jane at Jane’s home. He gave Jane a standard admonition, which warned her that “the fact that the photographs are shown to you should not influence your judgment. You should not [Page 953] conclude or guess that the photographs contain the picture of the person who committed the crime. You’re not obliged to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties.” Jane was asked if she understood the admonition and, although Barakos did not recall whether she said she did, he “attempted to explain it in simpler terms.” He had her sign her name to indicate that she had understood the admonition and then showed her the photographs. Jane looked at the photographs for less than a minute and pointed to Bersamina’s picture. Barakos asked her if she “was sure that is the person who touched her inappropriately” and Jane replied that she was “positive.” On cross-examination, Jane testified that Detective Barakos showed her a sheet of photographs and told her “Pick one and we’ll see if it’s the right guy or not.” Jane also testified that before she saw the pictures, she thought the suspect’s picture would be included in the lineup. However, she also testified that this impression was not based on anything Barakos told her. Bersamina bears the burden of “showing an unreliable identification procedure.” (People v. Ochoa (1998) 19 Cal. 4th 353, 412, 966 P.2d 442 (Ochoa).) “Whether an extrajudicial identification admitted at trial is so unreliable as to violate a criminal defendant’s right to due process of law under the Fourteenth Amendment is governed by principles stated in Manson v. Brathwaite (1977) 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243. Those principles — although variously phrased in various state and federal decisions — establish the following structure of analysis. [¶] The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.]” (People v. Gordon (1990) 50 Cal. 3d 1223, 1242, 270 Cal. Rptr. 451, 792 P.2d 251.)
In arguing this point, Bersamina focuses on the second factor; a factor we do not reach because we are of the opinion that the procedure used here was not improperly suggestive. “For a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness–i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.” (Ochoa, supra, 19 Cal. 4th at p. 413.) “‘A procedure is unfair which suggests in advance of [Page 954] identification by the witness the identity of the person suspected by the police.'” (Ibid.)
With regard to the issue of whether the lineup was impermissibly suggestive Bersamina argues that this was the case because Jane may not have understood the admonition Barakos gave her. At the most fundamental level, Bersamina has not proffered any evidence that Jane did not understand what Barakos told her. Nor has Bersamina provided us with any authority for the proposition that a ten-year-old child, because of his or her age, would be incapable of understanding either a standard lineup admonition or a “simplified” version of it.
Bersamina also argues that because Barakos did not “deal with” the fact that Jane might have chosen Bersamina’s picture because it was a picture of the man she saw on Halloween and believed to be her attacker rather than the man she saw the evening of the break-in, the lineup was unduly suggestive. We disagree. This possibility may have indicated to a jury that Jane’s identification of Bersamina was entitled to less weight, but it did not somehow suggest to Jane that she should choose Bersamina’s picture. Finally, although Jane testified that she believed her attacker’s picture would be in the lineup, she admitted that this impression was not formed by Barakos who, in fact, admonished Jane that she was not obliged to pick any picture out of the lineup.
Therefore, we reject Bersamina’s claim that the photographic lineup constituted a denial of due process.
G. CALJIC No. 2.90 Is Not Erroneous
The jury in this case was instructed under CALJIC No. 2.90, which defines reasonable doubt as that state of the evidence which “leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” Bersamina contends this definition violates due process of law because it “wholly fails to specify the `degree’ [citation] of certainty required for proof beyond a reasonable doubt.” As our Supreme Court recently noted, “We have repeatedly upheld the efficacy of this instruction, and defendant cites no persuasive reason to revisit this conclusion.” (People v. Bradford (1997) 14 Cal. 4th 1005, 1054, 929 P.2d 544; see Victor v. Nebraska (1994) 511 U.S. 1, 6, 127 L. Ed. 2d 583, 114 S. Ct. 1239; People v. Bolin (1998) 18 Cal. 4th 297, 330, 956 P.2d 374.) We are similarly unpersuaded that there is any reason to “revisit this conclusion” and accordingly decline Bersamina’s invitation to do so. [Page 955]
The conviction under count one (§ 288) is reversed; the remainder of the judgment is affirmed.
Footnote 1: All further statutory references are to the Penal Code, unless otherwise noted.
Footnote 2: Because we reverse Bersamina’s conviction under count one (§ 288) on this ground, we do not reach the following additional issues Bersamina raises regarding this count: (1) whether there was sufficient evidence to support the section 288 conviction; (2) whether the trial court committed prejudicial error when it admitted evidence of Bersamina’s prior sexual offense under Evidence Code sections 1101, 1108 and 352; (3) whether the trial court should have sentenced Bersamina, on the section 288 conviction, under the three strikes law rather than under section 667.61 (the “one strike law”); (4) whether the three strikes law and the one strike law could both be applied to determine Bersamina’s sentence on the section 288 conviction; and (5) whether the second strike doubling provision is applicable to Bersamina’s life term under the one strike law.
Footnote 3: This definition was as follows: “within the meaning of those preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed a sexual offense other than that for which he is on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that a defendant committed the other sexual offense. `Preponderance of the evidence’ for purposes of those limited instructions means evidence that has a more convincing force than that opposed to it. If the evidence is so evenly balanced that you’re unable to find the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.”
Footnote 4: The People also rely on People v. McClellan (1969) 71 Cal. 2d 793, 804, 80 Cal. Rptr. 31, 457 P.2d 871 [evidence of other crimes offered during guilt trial may be proven by preponderance of the evidence.] The other crimes evidence in McClellan, as in Carpenter, was not admitted as part of a presumption, but was simply relevant evidence of “a common plan or scheme [citation] and as circumstantial evidence that the defendant had committed” the charged crime. (Id. at p. 803.)
Footnote 5: Closing arguments of both the prosecution and the defense did nothing to clarify this contradiction but, instead, wavered between emphasizing Bersamina’s prior offense as proof of Bersamina’s “propensity” to commit the charged crime, to disclaiming its importance. Nor was the discussion of the prosecution’s burden of proving guilt beyond a reasonable doubt clear or in any way related to the standard of proof required under CALJIC No. 2.50.01.
For example, the prosecutor, after extensively reviewing the facts that tied Bersamina to the charged crime, ended her opening argument by stating that “the last thing I want to talk to you about is the defendant’s propensity to commit this sort of crime.” She then repeated the details of the prior crime and read the jury the following language from CALJIC No. 2.50.01: “If you find that the defendant committed a prior sexual offense, you may infer that the defendant had a disposition to commit the same or similar type crimes. If you find that the defendant had this disposition, you may infer that he was likely to commit and did commit the crimes of which he is accused with here today.”
The defense attorney, on the other hand, began her closing argument by stating that “He’s [Bersamina] a scapegoat that the government feels no one is going to care about. And maybe they are not going to be required to meet their burden of proof. This is a guy who did something the People don’t approve of. He committed a crime, a sexual assault in the past. [¶] Well, that is not the case. Everybody is entitled to have a case against them proven beyond a reasonable doubt.” At the close of argument, the defense attorney told the jury, “The bottom line is, whatever you think may or may not have happened, what you’ve got to actually decide is does the evidence establish reasonable doubt that he is guilty of the crimes charged. Yes it does. . . . [¶] And ya know, reasonable doubt . . . is a very, very important cornerstone of our system of justice in criminal law . . . . [¶] `Use of the reasonable doubt standard is indispensable to command the respect and confidence of the community in applications of criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper fact finder of his guilt with utmost certainty.'” On rebuttal, in response to the defense’s argument that Bersamina was a scapegoat, the prosecution stated, “I’m not asking you to convict this man because he has a prior. I am allowed under the law to present evidence to you that you are entitled to consider upon deliberating on somebody’s guilt. And that is one piece of evidence that I am entitled to give to you. . . . [¶] I’ve never asked you to do more with it, and I will not. It’s one piece of evidence, like everything else that you are entitled to consider.”
In contrast, in People v. Acosta (1999) 71 Cal. App. 4th 1206, petition for review filed June 15, 1999, our colleagues in the Sixth District found that an analogous instruction given pursuant to Evidence Code section 1108 was erroneous but cured by more general reasonable doubt instructions. The court, in reaching this conclusion, seemed to be particularly swayed by closing arguments of the prosecution and defense. These arguments included a reiteration by the prosecution of its burden of proof (“‘If I don’t prove my burden, you find him not guilty. If you weigh it and find I haven’t met the burden, the facts aren’t there, you find the defendant not guilty. That’s your job.'”) The prosecutor also reread the definition of “reasonable doubt.” (Id. at p. 1223.) Similarly, defense counsel emphasized the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt and argued that this burden hadn’t been met. (Ibid.) The same attention to the prosecution’s burden of proof was not, however, present in this case.
Footnote 6: Following oral argument in this case, our colleagues in Division Three of this district considered the propriety of CALJIC No. 2.50.01. Justice Walker concluded, as we do here, that this instruction was given in error and that this error must be considered Sullivan error. (People v. Guzman (1999) 73 Cal. App. 4th 103, [86 Cal. Rptr. 2d 164, 178].)
Footnote 7: Bersamina admits that he did not, at trial, object to the introduction of this evidence. He now argues that this issue has not been waived because, in light of certain trial court comments during a motion to dismiss under section 995, it would have been futile to do so. In these comments, the trial court indicated its belief that the identification made at the photographic lineup was reliable and probative. Although we are not entirely convinced by this argument, Bersamina also contends, in the alternative that, if an objection was required, his counsel was ineffective for failing to make one, and this error was not harmless “by any test.” Therefore, we reach the issue of whether this evidence was properly admitted. As described more fully infra, we conclude that, in fact, there was nothing unduly suggestive about the lineup and, therefore, Bersamina’s ineffective assistance argument fails.