Flores

*202 Opinion

Stanley Raymond Flores appeals a judgment following his jury convictions on 16 counts of lewd acts on a child (Pen. Code, § 288, subd. (a)) 1 and three counts of aggravated sexual assault on a child (§ 269). On appeal, Flores contends the trial court erred by (1) not instructing with CALJIC No. 2.90 on the reasonable doubt standard of proof; and (2) omitting four counts from its instructions with CALJIC Nos. 2.02 and 3.31. Because the jury in this case was not instructed Flores could not be found guilty unless all of the elements of the charged offense(s) were proved by the prosecutor beyond a reasonable doubt, Flores was denied his federal constitutional right to a jury verdict of guilty beyond a reasonable doubt and therefore his convictions must be reversed.

FACTUAL AND PROCEDURAL BACKGROUND

John C. and Irma C. lived in a home with their three children, N.C. (bom in 1995), A.C. (bom in 1999), and J.C. (bom in 2000). Flores is Irma’s father and the grandfather of her three children. From late 2001 through June 2004, Flores intermittently lived in a detached game room between John and Irma’s home and their garage. 2 In June 2004, Flores permanently moved out of…

I concur in the majority opinion to the extent it (1) concludes the trial court committed constitutional *220 error by omitting CALJIC No. 2.90 or an alternative instruction on the reasonable doubt standard of proof and (2) reverses Stanley Raymond Flores’s convictions. I dissent from the majority opinion to the extent it concludes the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ] applies to that federal constitutional error. As held in People v. Crawford (1997) 58 Cal.App.4th 815 [ 68 Cal.Rptr.2d 546 ] and People v. Phillips (1997) 59 Cal.App.4th 952 [ 69 Cal.Rptr.2d 532 ], the failure of a trial court in a criminal case to instruct the jury that the prosecution must prove each element of a charged offense beyond a reasonable doubt is federal constitutional error in noncompliance with the Fifth and Sixth Amendments of the United States Constitution, and requires reversal per se; the error cannot be considered harmless under Chapman .

A federal constitutional error in omitting an instruction that the prosecution has the burden to prove each element of a charged offense beyond a reasonable doubt is structural error under…

HUFFMAN, Acting P.J.

Stanley Raymond Flores appeals a judgment following his jury convictions on 16 counts of lewd acts on a child (Pen.Code, § 288, subd. (a)) [1] and three counts of aggravated sexual assault on a child (§ 269). On appeal, Flores contends the trial court erred by: (1) not instructing with CALJIC No. 2.90 on the reasonable doubt standard of proof; and (2) omitting four counts from its instructions with CALJIC Nos. 2.02 and 3.31. Because the jury in this case was not instructed Flores could not be found guilty unless all of the elements of the charged offense(s) were proved by the prosecutor beyond a reasonable doubt, Flores was denied his federal constitutional right to a jury verdict of guilty beyond a reasonable doubt and therefore his convictions must be reversed.

John C. and Irma C. lived in a home with their three children, N.C. (born in 1995), A.C. (born in 1999), and J.C. (born in 2000). Flores is Irma's father and the grandfather of her three children. From late 2001 through June 2004, Flores intermittently lived in a detached game room between John and Irma's home and their garage. [2] In June 2004, Flores permanently moved out of the game room and into…