APPEAL from a judgment of the Superior Court of Riverside County, Albert J. Wojcik, Judge. Affirmed in part, reversed in part. (Super. Ct. No. SWF010404).
The opinion of the court was delivered by: Huffman, Acting P. J.
CERTIFIED FOR PUBLICATION
Anthony Aranda, Jr. appeals a judgment following his conviction of one count of voluntary manslaughter (Pen. Code,*fn1 § 192, subd. (a)) and one count of actively participating in a criminal street gang (§ 186.22, subd. (a)). Aranda contends the trial court should have read the jury CALJIC No. 2.90*fn2 on the prosecution's burden of proof and reasonable doubt. Aranda also challenges the trial court's denial of his motion to grant use immunity to a defense witness on grounds that the proposed testimony was clearly exculpatory and essential to his defense.
We conclude, as to count 1, there were adequate jury instructions contained within the original instructions for murder, and lesser included manslaughter and the trial court's instructional error was harmless beyond a reasonable doubt. However, as to count 3, we conclude there was no cure for the trial court's error included in the "active participation in a street gang" jury instructions. With regard to count 3, the instructional error was not harmless beyond a reasonable doubt, and thus we reverse the conviction as to that count only. As to the second issue, we conclude that the trial court correctly denied Aranda's motion to grant use immunity to a defense witness.
FACTUAL AND PROCEDURAL BACKGROUND
On September 10, 2004, Aranda attended a house party in Hemet with Sean Tisdale. A number of attendees were known members of the Southside Criminals street gang. Aranda also was connected to another local street gang called Hemet Trece. At some point in the evening, the eventual victim Luis Gonzalez, a member of the rival street gang 18th Street, his girlfriend Angela Gonzalez and her older brother Adam Gonzalez left the party without incident. Although several people at the party had given Adam a small amount of money to buy methamphetamine (meth), Luis and Angela refused to take him to purchase meth and instead they continued home. After they arrived home, unidentified people from the party started making threatening phone calls to their home about the money Adam collected to buy meth.
Luis, Angela and Adam drove back to the party to return the money. When they arrived, Adam walked directly into the backyard. Almost immediately after, a fight started between Adam and Aranda and that fight precipitated a larger brawl involving a number of people in attendance. Aranda saw Adam carrying a knife and at some point during the chaos Tisdale handed Aranda a gun. During a heated exchange, Aranda pulled out the gun and pointed it at Luis, who was holding a rock. After exchanging words, Luis rushed towards Aranda with the rock before Aranda ultimately shot and killed him. After he shot Luis, Aranda and his friends left the party.
Aranda was arrested on a separate parole violation and after several weeks of questioning and investigation, he was charged with murder, carrying a concealed firearm in a vehicle while being a participant in a street gang and actively participating in a criminal street gang. Count 2, a violation of section 12025, subdivision (b)(3), was later dismissed on the People's motion.
At trial the jury ultimately acquitted Aranda of murder and the section 186.22, subdivision (b)(1) allegation that he committed the crime for the benefit of a street gang. However, the jury did convict him of voluntary manslaughter, found the section 12022.5, subdivision (a) allegation that Aranda used a firearm to be true, and convicted him of active participation in a gang as charged in count 3. Aranda appeals.
I. JURY INSTRUCTIONS ON REASONABLE DOUBT
During the jury selection process, the court made various references to the prosecution's burden of proof and the reasonable doubt standard applicable in criminal trials. However, the trial court did not give the standard CALJIC No. 2.90 instruction regarding the prosecution's general burden of proof and reasonable doubt standard as part of its predeliberation instructions.
The trial court did give the jury proper instructions for circumstantial evidence and did include the concept of reasonable doubt in the substantive crimes and allegation enhancements charged in count 1 for murder.
The due process clauses of the Fifth and Fourteenth Amendments to the federal Constitution mandate that a defendant can only be convicted if every element of a crime is proven beyond a reasonable doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278.) Likewise, the presumption of innocence is tied to the prosecution's burden to prove a defendant guilty beyond a reasonable doubt solely on the facts proven at trial. (Taylor v. Kentucky (1978) 436 U.S. 478, 483.) If general jury instructions on the presumption of innocence and reasonable doubt are omitted, the totality of the circumstances, including the other jury instructions, must be evaluated to determine whether the defendant received a fair trial. (Kentucky v. Whorton (1979) 441 U.S. 786, 789.)
Trial courts must give jury instructions (CALJIC No. 2.90 is one example), on the presumption of innocence and the burden of the People to prove the defendant's guilt beyond a reasonable doubt. (People v. Vann (1974) 12 Cal.3d 220, 225-226.) Isolated or limited references to the standard of proof are not adequate to instruct jurors that defendants should be acquitted unless each element of a crime was proven beyond a reasonable doubt. (Id. at p. 227.) Failure to give such instructions constitutes a violation of the federal Constitution unless other instructions given to the jury cure the error. Neither trial court instructions during jury selection nor closing arguments of counsel, without more, are ordinarily enough to cure such an instructional error. (Ibid., fn. 6.)
When the trial court instructs the jury, at a minimum, that the prosecution must prove its case beyond a reasonable doubt and the definition of that standard is appropriate, then failure to give the standard burden of proof instruction such as CALJIC 2.90, is not per se reversible error. (People v. Flores (2007) 147 Cal.App.4th 199, 211 (Flores).) Rather, we review the record to determine if the error was "harmless beyond a reasonable doubt." (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) To determine whether the error in this particular case ...