Metropolitan News-Enterprise


Monday, February 23, 2004


Page 1


Judge’s Reasonable Doubt Instruction Requires Reversal—C.A.


By KENNETH OFGANG, Staff Writer/Appellate Courts


A judge’s reasonable doubt instruction, suggesting that people plan vacations and other events in their lives “because we have a belief beyond a reasonable doubt that we will be here tomorrow,” was erroneous and prejudicial, the Court of Appeal for this district has ruled.

Div. One threw out Danny D. Johnson’s conviction for stalking, burglary, and theft, along with the 11-year second-strike sentence imposed by Los Angeles Superior Court Judge Mark Nelson.

Johnson was arrested a year ago after he allegedly removed a stereo and a cordless phone from the apartment of his ex-girlfriend and smashed them to the sidewalk. The arresting officers found a wallet in his possession that wasn’t his, and the owner of the wallet testified he did not know Johnson.

Disputed Instruction

The ex-girlfriend testified that Johnson had been harassing her for months and that she had obtained a restraining order. Police officers had responded several times to calls indicating that the defendant had beaten her up or otherwise harassed her, but testified that she always recanted.

On appeal, the defendant raised two issues, one of which was that Nelson should have instructed the jurors on a “claim-of-right” defense to the burglary charge, since the defendant and the victim had previously lived together in the apartment.

The panel found it unnecessary to reach that issue, finding that the disputed reasonable doubt instruction lowered the prosecution’s burden of proof and required reversal.

Nelson told jurors:

“The burden is proof beyond a reasonable doubt. A doubt that has reason to it, not a ridiculous doubt, not a mere possible doubt. Because we all have a possible doubt whether we will be here tomorrow. That’s certainly a possibility.  We could be run over tonight. God, that would be a horrible thing, but it’s a possibility. It’s not reasonable for us to think that we will because we plan our lives around the prospect of being alive. We take vacations; we get on airplanes. We do all these things because we have a belief beyond a reasonable doubt that we will be here tomorrow or we will be here in June, in my case, to go to Hawaii on a vacation. But we wouldn’t plan our lives ahead if we had a reasonable doubt that we would, in fact, be alive.”

That is not the standard, Justice Reuben Ortega wrote for the Court of Appeal.

Ortega cited People v. Nguyen (1995) 40 Cal.App.4th 28. The prosecutor there argued that reasonable doubt was “a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you’re driving. If you have reasonable doubt that you’re going to get in a car accident, you don’t change lanes.”

The argument was misleading, the appellate court found, because it “trivializes the reasonable doubt standard.” The decision to change lanes while driving is reflexive rather than deliberative, the panel explained, while “the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce.”

Previous Case Cited

Ortega reasoned that most decisions that people make in the course of their ordinary lives are based on the preponderance of evidence, and that Nelson’s instruction was similar to the prosecutor’s argument in Nguyen.

“We are not prepared to say that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors or that such people finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor,” Ortega wrote. “Nor can we say that people make such decisions while aware of the concept of ‘beyond a reasonable doubt.’ Accordingly...the trial court’s attempt to explain reasonable doubt had the effect of lowering the prosecution’s burden of proof.”

The Nguyen court, the justice acknowledged, affirmed the defendant’s conviction on the ground that the jury was otherwise properly instructed on reasonable doubt. But Ortega rejected the Nguyen court’s harmless-error analysis, saying that Johnson’s lost “substantial rights” as a result of “an instruction that reduced the prosecution’s burden to a preponderance of the evidence.”

The case is People v. Johnson, 04 S.O.S. 800.


Copyright 2004, Metropolitan News Company