People v. Freeman

¶1—I concur in the judgment. I am also in general agreement with the majority opinion by Justice Arabian and with the concurring opinion by Justice George.

¶2*526I write separately for one purpose, and for one purpose alone.

¶3For 15 years, the Legislature has had before it an invitation to prohibit trial courts from attempting to define proof beyond a reasonable doubt in their jury instructions in criminal cases. (See People v. Brigham (1979) 25 Cal.3d 283, 292-316 [157 Cal.Rptr. 905, 599 P.2d 100] (conc. opn. of Mosk, J.).)

¶4The invitation was extended at that time because any purported instructional definition of reasonable doubt—including, and perhaps especially, that which is deemed standard—was seen to run a substantial risk of violating the due process clause of the Fourteenth Amendment to the United States Constitution, which, in the words of In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375, 90 S.Ct. 1068], “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.” (.People v. Brigham, supra,25 Cal.3d at p. 293 (cone. opn. of Mosk, J.).)

¶5The risk of a violation of the Fourteenth Amendment’s due process clause is even more substantial today. Indeed, it may now be characterized as grave. (See generally, Victor v. Nebraska (1994) 511 U.S. _ [127 L.Ed.2d 583, 114 S.Ct. 1239].)

¶6During the past 15 years, however, the Legislature has not acted. It shows no sign of acting now. Against its omission, we should take steps. In so doing, we would not trench on the legislative sphere. We would merely carry out our paramount obligation to enforce the United States Constitution, which is of course “the supreme law of the land” (Cal. Const., art. Ill, § 1). For we are required not only to remedy federal constitutional violations committed in the past, but also to prevent similar violations arising in the future.

¶7Therefore, under the Fourteenth Amendment’s due process clause, I would henceforth prohibit trial courts from attempting any instructional definition of proof beyond a reasonable doubt.

¶8—I concur in the thoughtful analysis set forth in the court’s opinion. I write separately to echo the court’s request that the Legislature address the numerous concerns regarding the clarity of California’s standard reasonable doubt instruction, CALJIC No. 2.90, pointedly expressed by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S__[127 L.Ed.2d 583, 114 S.Ct. 1239], affirming People v. Sandoval (1992) 4 Cal.4th *527155, 185-186 [14 Cal.Rptr.2d 342, 841 P.2d 862]. (See maj. opn., ante, pp. 501-505.)1

¶9In tracing the origins of CALJIC No. 2.90 to a charge given more than a century ago in Commonwealth v. Webster (1850) 59 Mass. (5 Cush.) 295, 320, the high court in Victor summarized certain relevant judicial and legislative commentary, observing: “The California instruction [CALJIC No. 2.90] was criticized in People v. Brigham [(1979)], 25 Cal.3d 283, 292-316 [(] 157 Cal.Rptr. 905, 911-926, 599 P.2d 100, 106-121 [)] (Mosk, J., concurring). Justice Mosk apparently did not think the instruction was unconstitutional, but he ‘urge[d] the Legislature to reconsider its codification.’ [Citation.] The California Assembly and Senate responded by requesting the [CALJIC Committee] ‘to study alternatives to the definition of “reasonable doubt” set forth in Section 1096 of the Penal Code, and to report its findings and recommendations to the Legislature.’ [QCal. Assem. Con. Res. No. 148, 1986 Cal. Stats. 5634. [)] The committee recommended that the legislature retain the statutory definition unmodified, see Alternative Definitions of Reasonable Doubt: A Report of the Committee on Standard Jury Instructions —Criminal to the California Legislature (May 22,1987), and § 1096 has not been changed.” (Victor v. Nebraska, supra, 511 U.S_[127 L.Ed.2d at p. 593, 114 S.Ct. at p. 1245].)

¶10In the report cited in Victor, Alternative Definitions of Reasonable Doubt, approved by the Committee on Standard Jury Instructions—Criminal of the Los Angeles Superior Court on February 19, 1987, and reprinted by the Los Angeles Daily Journal on May 22, 1987, as Report No. 87-10 (the CALJIC Report), the CALJIC Committee considered various criticisms that had been directed toward California’s standard reasonable doubt instruction, studied similar instructions given in other jurisdictions, and concluded, inter alia, that “the Legislature should retain the present definition of reasonable doubt,” observing that “the definition [of reasonable doubt] embodied in [Penal Code] section 1096 has survived ... all appellate challenges and efforts to modify and improve it.” (CALJIC Rep., supra, at pp. 7-8, italics *528added [citing People v. Paulsell (1896) 115 Cal. 6, 12 [46 P. 734]; People v. Chun Heong (1890) 86 Cal. 329, 332 [24 P. 1021]; People v. Strong (1866) 30 Cal. 151, 155].)

¶11I was one of two members of the CALJIC Committee (the Honorable Norman L. Epstein being the other) who, in light of the archaic and confusing language set forth in CALJIC No. 2.90, disagreed with the recommendation of the CALJIC Committee that the Legislature retain the reasonable doubt instruction in its present form. I continue to adhere to the views expressed in our 1987 minority report, and set them forth at some length in an attempt to persuade the Legislature to amend Penal Code sections 1096 and 1096a:

“We respectfully disagree with the principal conclusion reached in the scholarly and well-written report of the ‘Reasonable Doubt’ subcommittee, and endorsed by the CALJIC Committee: that Pen[al] C[ode] sections 1096 and 1096[a], and CALJIC [No.] 2.90 should not be changed.

“Every judge who has given the present reasonable doubt instruction, and every attorney who has participated in a case in which it was given, is aware of its deficiencies. And every juror who has heard it and tried to apply it must have been baffled. The reason is that the present formulation is not only internally inconsistent and confusing, but borrows as its central phrase in explanation of reasonable doubt, a bit of early 19th Century philosophical arcana that few understood then and none comprehend now.

“The first paragraph of the instruction states a rule in plain English that everyone can understand: in criminal cases, defendants are presumed to be innocent until guilt is proved; if there is a reasonable doubt about guilt, they are entitled to an acquittal; and the effect of this is to place on the State the burden of proving guilt beyond a reasonable doubt.

“The second paragraph begins with a promise to define reasonable doubt. It never does. A juror attentively listening to this instruction must wonder where he or she went wrong, because the paragraph is inconsistent in purporting to define the phrase, yet not doing so.

“What it does do is impart an element of confusion that is never resolved. It refers to ‘moral evidence,’ a term never defined and certainly not a matter of common understanding.

“And it follows that by an equally confusing reference to ‘a moral certainty.’ The apparent origins of these terms, traced to an 1850 opinion of the Massachusetts Supreme Court, are discussed in Justice Mosk’s brilliant essay on the reasonable doubt instruction. [See People v. Brigham (1979) 25 Cal.3d 283, 292 [157 Cal.Rptr. 905, 599 P.2d 100] (conc. opn. of Mosk, J.).]

*529“Justice Mosk is correct in his conclusion that the deficiencies of the instruction are ‘glaring.’ And his solution is equally correct: do not attempt a definition of reasonable doubt, because the term is simply not definable in any way that would improve its comprehensibility. Certainly the present formulation does not enlighten its meaning.

“There are some terms and concepts that defy usable definition. Love, hope, specific colors, and many others come to mind. The concept of reasonableness is the most common, and we find it used throughout the standard jury instructions. Save in this one instance, it is never defined.

“And there is no evidence that a definition is needed. As Justice Mosk pointed out, there are many terms used in instructing juries in criminal cases of which ‘it can be said that “a jury which did not understand them would not understand an explanation of them.” [Citation.] Certainly this is true of the “explanation” of reasonable doubt currently embodied in section 1096 and in the many other definitions proposed over the years.’ (.People v. Brigham, supra,25 Cal.3d at [pp.] 314-315.)

“Against this, two arguments are raised: unless reasonable doubt is defined, juries will ask what it means and judges will err in trying to respond to their questions; and any change risks wholesale reversals of convictions. Neither argument stands scrutiny.

“The short answer to the first is that the same problem exists now in terms of jury questions about ‘moral certainty.’ Trial judges have attempted answers to these questions, and have erred, by informing juries that the concept is the opposite of ‘immoral certainty,’ or that it has a religious connotation. The better response, and the one most commonly used, is not to define it.

“It is likely that the attempt to define reasonable doubt in the present instruction raises more questions in the minds of jurors than would an instruction without a definition of that term. The majority report points out that ‘Judges in those states where reasonable doubt is not defined rarely receive a request for a definition from jurors.’ Pen[al] C[ode] section 1096a provides that no instruction other than that set forth in section 1096 need be given; that provision could be made mandatory.

“There is simply no basis to apprehend that a reasonable doubt instruction in the terms of the present first paragraph, and mandated by the Legislature, would be found constitutionally insufficient. No case has been cited or found that reached such a conclusion. [In re Winship (1970) 397 U.S. 358, 364 (25 L.Ed.2d 368, 375, 90 S.Ct. 1068)] was the first U.S. Supreme Court case to explicitly hold that the Due Process Clause protects an accused against conviction except upon [proof beyond a] reasonable doubt. But neither that case nor any later decision has prescribed any particular definition of the *530concept. Certainly none has required ‘moral evidence’ or ‘moral certainty’ as constitutional imperatives. And, as the majority report discloses, most American jurisdictions do not employ these phrases in defining reasonable doubt, and several do not attempt any definition of the term.

“The majority justices in Brighamrecognized the force of Justice Mosk’s criticism of the present provision. They acknowledged that he ‘is correct when he criticizes the standard definition of reasonable doubt contained in CALJIC [No.] 2.90. The Legislature should be encouraged to clarify this important area of the law.’ [(]People v. Brigham, supra,25 Cal.3d at [p.] 290, fn. 11.[)]

“A similar question was before the [California] Supreme Court within the last year. In People v. Rodriguez [(1986)] 42 Cal.3d 730, 780 [], the special circumstance of killing a person one knows or reasonably should have known to be an on-duty police officer (Pen. C[ode §] 190.2[, subd.](a)(7)) was attacked as too vague for a death penalty standard. The court upheld it. The defendant argued that the court has a sua sponte duty to instruct on the meaning of ‘reasonably should have know[n].’ But ‘any instruction elaborating on the term “reasonable" would add little, if anything, to the understanding of most jurors.’ (42 Cal.3d at [p.] 782.) And ‘[s]uch an instruction could do little more than inform the jury that “reasonable” means “what an average person of average intelligence would have known under the circumstances.” ’ (42 Cal.3d at p. 782, fh. 19.)

“The United States Supreme Court reached a similar conclusion over 30 years ago: ‘A definition of a doubt as something the jury would act upon would seem to create confusion rather than misapprehension. “Attempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.” [(Miles v. United States (1880) 103 U.S. 304, 312 [26 L.Ed. 481, 484].)]’ [(Holland v. United States (1954) 348 U.S. 121, 140 [99 L.Ed. 150, 166-167, 75 S.Ct. 127].)]

“In light of these authorities, and others, and the absence of any to the contrary, it is not credible that an instruction that does not define reasonable doubt would be unconstitutional. Indeed, as we have seen, the present instruction purports to define it but does not.

“It is the purpose of a court’s charge to the jury to explain the governing legal principles that the jurors must apply, in terms that they can understand. To instruct in terms that no one understands, or can understand, is at best unfair to the jury and to the litigating parties. At worst, it is the kind of error that undermines confidence in the jury process.

“The [California] Supreme Court was right in inviting the Legislature to clarify the reasonable doubt instruction. The Legislature was wise in seeking *531the advice of this Committee in approaching this task. We do it no service in advising that there is nothing to clarify.” (Minority Report to CALJIC Rep., pt. 10, at pp. 51-53, original italics.)

¶12To the foregoing, I would add only that the high court’s criticism of CALJIC No. 2.90 in Victor, supra,511 U.S__[127 L.Ed.2d at pp. 594-597, 114 S.Ct. at pp. 1247-1248], commands attention. Somewhat ominously, that court observed that “the common meaning of the phrase [moral certainty] has changed since it was used in the [1850] Websterinstruction, and it may continue to do so to the point that it conflicts with the [constitutional] standard.” (Id., at p. _ [127 L.Ed.2d at p. 597, 114 S.Ct. at p. 1248].) Noteworthy, too, are the following observations made by Justice Kennedy in his concurring opinion in Victor:

“[A]s the Court makes clear, what once might have made sense to jurors has long since become archaic. In fact, some of the phrases [set forth in CALJIC No. 2.90] confuse far more than they clarify.

“Though the reference to ‘moral certainty’ is not much better, California’s use of ‘moral evidence’ is the most troubling, and to me seems quite indefensible. The derivation of the phrase is explained in the Court’s opinion, but even with this help the term is a puzzle. And for jurors who have not had the benefit of the Court’s research, the words will do nothing but baffle.

“I agree that use of ‘moral evidence’ in the California formulation is not fatal to the instruction here. I cannot understand, however, why such an unruly term should be used at all when jurors are asked to perform a task that can be of great difficulty even when instructions are altogether clear. The inclusion of words so malleable, because so obscure, might in other circumstances have put the whole instruction at risk.” (Id., at p. _ [127 L.Ed.2d at p. 601, 114 S.Ct. at p. 1251].)

¶13As the court aptly has stated in the case now before us: “The clarity and constitutionality of California’s instruction on reasonable doubt are too important to simply ignore the high court’s warning signals.” (Maj. opn., ante, at p. 504.) I concur in these views, again adding my voice to the many who have lamented the unnecessary and indecipherable phraseology of CALJIC No. 2.90, and who have recommended that the Legislature amend Penal Code sections 1096 and 1096a to provide a more comprehensible and helpful instruction to guide California jurors in future criminal cases.

¶14Appellant’s petition for a rehearing was denied January 5, 1995.