PEOPLE v. ARANDA

Appellant's Petition for Review

Cal.November 16, 2010

S188No. D055701 _ IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. Plaintiff and Respondent, ANTHONY ARANDA,JR., ) ) ) ) Vv. ) ) ) ) Defendant and Appellant. ) -) PETITION FOR REVIEW ' Petition for Review ofAppellant After a Decision by the Court of Appeal Fourth Appellate District, Division One Filed October 6, 2010 William J. Capriola Post Office Box 1536 Sebastopol, California 95473 (707) 829-9490 State Bar No. 135889 Counsel for Appellant by Appointmentofthe Court of Appeal under the Appellate Defenders, Inc.’s independent case system. TOPICAL INDEX Page . ’ TABLE OF AUTHORITIES .............love b ene e cece eteeebecteebnreenns ii PETITION FOR REVIEW .... occ ccc ccccccccccccccceceecees vb cebeueeeeees 1 _ ISSUES PRESENTED FOR REVIEW ..........-.-..--.occasLecce eee eee. 2 WHY REVIEW SHOULD BE GRANTED ...... 00. ccecececccccceceececeecee. 2 STATEMENT OF THE CASE AND FACTS ..... 0c ccc ccceccucuccececcsceeee3 ARGUMENT.. 20.0.0 c cece cece ccc c ec cee eben cc beeceeseees vob ce ce eeees 3 I. THE TRIAL COURT’S FAILURE TO READ THE JURY A GENERAL REASONABLE DOUBTINSTRUCTION LIKE CALIJIC NO. 2.90 WAS STRUCTURAL ERROR UNDER CLEARLY ESTABLISHED FEDERAL LAW ..........cececee- ee. 3 Il. |THE COURT OF APPEAL APPLIED HARMLESS ERROR REVIEW IN AN OBJECTIVELY UNREASONABLE MANNER IN UPHOLDING APPELLANT’S VOLUNTARY MANSLAUGHTER CONVICTION .....0.0 ccc cc cccccecceeeeceue. 4 Ul. THE TRIAL COURT PREJUDICIALLY VIOLATED APPELLANT’S FEDERAL CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY REFUSING TO GRANT IMMUNITY TO TISDALE 2.0... ccc cece cece cece cece ceeeebecbebbeccbece. 8 CONCLUSION o.oo ccc ccccccccccccccccbecc eee e cee.eee Dobe ceeeee. 10 CERTIFICATE OF COMPLIANCE ... o.oo cece cc cccccccucececececeebeeeee. 10 APPENDIX A (Decision of the Court of Appeal) TABLE OF AUTHORITIES Baldwin v. Reese (2004) 541 U.S.27 ooo ceee cece eveeeeeceeeeuneeeees Dveeeeaee 2 Chapman vy. California (1967) 386 U.S.18 0.0...eeeens 2, 4, 10 Falconer v. Lane (7th Cir. 1990) 905 F.2d 1129 ......... cc cueeeuceeuteureeneees 7 People v. Aranda (2010) 188 Cal.App.4th 1490 .............eee ee eee e 1 People v. Crawford (1997) 58 Cal.App.4th 815 2.6... ceceeens 3,4 People v. Elguera (1992) 8 Cal.App.4th 1214... ..... 0.0.0... eee eee Lecce eee 5 People v. Flores (2007) 147 Cal.App.4th 199 Loeec ee eee 3,4 People v. Maurer (1995) 32 Cal.App.4th 1121 2.0.0... eeeeeeee ees 7 Peoplev. Phillips (1997) 59 CalApp.4th 952 ccc cece | bec eee ees 3,4 People v. Thompson (1987) 195 Cal.App.3d 244 .........e eee e. veveeeteeeeeeees 7 People v. Vann (1974) 12 Cal3d220 oo. cccccccccsececececceceseceeeeenee. 4 Sullivan v. Louisiana (1993) 508 U.S. 275 2...ceeee eee 4 Taylor v. Kentucky (1978) 436 U.S.478 00... e ceceeteeens 6 Statutes & Rules Cal. Rules of Court, rule 8.500 0.ceeee ee nee eee n eens 1 tule 8.504 000eeeee eee eee nes 1 -ii- IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, ANTHONY ARANDA,JR., ) ) ) ) ) Vv. ) ) ) ) . ) Defendant and Appellant. ) ) PETITION FOR REVIEW TO: THE HONORABLE RONALD GEORGE, CHIEF JUSTICE OF CALIFORNIA, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA Defendant and appellant, ANTHONY ARANDA,JR., by and through counsel, hereby petitions for review, pursuant to California Rules of Court, rules 8.500 and 8.504, the published decision of the Court of Appeal for the Fourth Appellate District, Division One,filed October 6, 2010.' (People v. Aranda (2010) 188 Cal.App.4th 1490.) ' A copy ofthe opinion ofthe Court of Appeal is hereunto attached as Appendix A. ISSUES PRESENTED FOR REVIEW I. . IS A TRIAL COURT’S FAILURE TO INCLUDE AN INSTRUCTION ON REASONABLE DOUBTIN ITS CHARGE TO THE JURY STRUCTURAL ERROR, OR SHOULDIT BE REVIEWED UNDER THE STANDARD OF CHAPMAN YV. CALIFORNIA (1967) 386 U.S. 18, 24? I. IF THE FAILURE TO DELIVER A REASONABLE INSTRUCTION IS SUBJECT TO REVIEW UNDER THE CHAPMAN STANDARD, DID THE STATE COURT OF APPEAL UNREASONABLY APPLY THAT STANDARD IN THIS CASE IN AFFIRMING APPELLANT’S VOLUNTARY MANSLAUGHTER CONVICTION? lI. WHETHER THE TRIAL COURT’S REFUSAL TO GRANT IMMUNITYTO A DEFENSE WITNESS VIOLATED APPELLANT’SFEDERAL CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE? WHY REVIEW SHOULD BE GRANTED | This petition raises important questions of California law that ought to be authoritatively settled by this Court. In addition,to the extent that this petition raises federal constitutional claims,it is presented to exhaust appellant’s state remedies so that he can proceed to federal court in the event this Court does not grantrelief. (See Baldwin v. Reese (2004) 541 U.S. 27, 29 ["Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies.. .."].) STATEMENT OF THE CASE AND FACTS Except as otherwise noted, the case is fully stated and the facts fully set forth in the opinion of the Court of Appeal. ARGUMENT I. THE TRIAL COURT’S FAILURE TO READ THE JURY A GENERAL REASONABLE DOUBT INSTRUCTION LIKE CALJIC NO. 2.90 WAS STRUCTURAL ERROR UNDER CLEARLY ESTABLISHED FEDERAL LAW. Citing People v. Flores (2007) 147 Cal.App.4th 199, the Court of Appeal stated thatthe trial court’s failure to give the jury a standard burden ofproof instruction like CALJIC No. 2.90, is not per se reversible error. (Slip opn. at p. 5.) This conclusion warrants review. California courts are presently divided on whether the omission of a general reasonable doubt instruction like CALJIC No. 2.90 or CALCRIM No. 220 constitutes structural error as opposed totrial error. The appellate courts in People v. Phillips (1997) 59 Cal.App.4th 952, 957 and People v. Crawford (1997) 58 Cal.App.4th 815, 821-823, found the omission of such an instruction to be structural error requiring per se reversal, whereas People v. Flores, supra, 147 Cal.App.4th at p. 211, concludedthatit wastrial error subject to review underthe standard of Chapmanv. California (1967) 386 U.S. 18, aA. The - reasoning in Phillips and Crawfordis persuasive. Phillips and Crawford . are well-grounded in the United StatesSupreme Court’s decision in Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278. (People v. Phillips, supra, 59 Cal.App.4th at pp. 956-958; People v. Crawford, supra, 58 Cal.App.4th at pp. 821-823.) Flores, on the other hand,is based on People v. Vann (1974) 12 Cal.3d 220, a decision issued almost 20 years before the United States Supreme Court issued Sullivan, and is at odds with Sullivan. (People v. Flores, supra, 147 Cal.App.4th at p. 211.) This Court should _grant review to settle this split of authority, and should find that the omission of a general instruction on the reasonable doubt standard ofproof is structural error under Sullivan, and is not subject to harmless error analysis under Chapman. Il. THE COURT OF APPEAL APPLIEDHARMLESS ERROR REVIEW IN AN OBJECTIVELY UNREASONABLE MANNERIN UPHOLDING APPELLANT’S VOLUNTARY MANSLAUGHTER CONVICTION. Applying the Chapmanstandard, the Court of Appeal concluded that the trial court’s error in omitting CALJIC No. 2.90 was harmless beyond a reasonable doubtas to appellant’s voluntary manslaughter conviction.’ (Slip opn.at pp. 9-10.) Specifically, the appellate court foundthat, “After. reviewing the jury instructions pertaining to murder and voluntary manslaughter on count 1, we conclude the sum ofthe instructions’ sufficiently relayed the concept ofreasonable doubtto the jury. (Slip opn. at p. 9.) This analysis is flawed for several reasons. | First, the concept of reasonable doubt wasneverdefinedforthe jury. CALJIC No. 2.90 would havefilled this lacuna and providedthe jury with the guidance they needed in applying what was probably the most essential conceptin this case. (See People v. Elguera (1992) 8 Cal.App.4th-1214, 1223 [relying on fact that “jury was not provided .. . any definition of reasonable doubt”as a key reason for concludingthat the omission of CALJIC No. 2.90 was prejudicial under the Chapmanstandard] (original italics].) The opinion of the Court of Appeal does not mentionthisfact. The Court ofAppeal’s opinion also fails to acknowledge that the Jury here wasnotinstructed on the presumption of innocence. “‘The principle that there is a presumption of innocencein favor ofthe accusedis the undoubted law, axiomatic and elementary, and its enforcementlies at * The court did find the error prejudicial as to count 3, and reversed appellant’s criminal street gang conviction. (Slip opn. at pp. 10-12.) -5- 999the foundation ofthe administration of our criminal law. (Tiaylor v. Kentucky (1978) 436 U.S. 478, 483.) ‘The Supreme Court has suggested that instructing jurors on the presumption of innocenceisprobably even more effective in protecting the accused against conviction except upon proof beyond a reasonable doubt thanis telling them of the reasonable doubt standarditself: “[In] a criminal case the term [presumption of innocence] does conveya special and perhaps useful hint over and above. the other form of the rule about the burden ofproof, in that it cautions the jury to put away from their mindsall the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced. In other words, the rule about burden ofproof requires the prosecution by evidence to convincethe jury of the accused’s guilt; while the presumption of innocence, too, requiresthis, but conveys for the jury a special and additional caution (whichis perhaps only an implied corollary to the other) to consider, in the material for their belief, nothing but the evidence,i.e., no surmises based on the present situation of the accused. This caution is indeed particularly needed in criminal cases.” (/d. at pp. 484-485.) CALJIC No. 2.90 would have provided the jury with this essential information: “A defendant in a criminal action is presumedto be innocent until the contrary is proved, and in case of a reasonable doubt whether[his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden ofproving [him] [her] guilty beyond a ~ reasonable doubt.” (CALIJIC No. 2.90.) Third, the Court of Appeal assumesthat, based onthe murder instructions, the jury would have understoodthat they neededto find every element beyond a reasonable doubt before they could convict appellant of voluntary manslaughter, even though “thetrial court did not reference reasonable doubtexplicitly in the definition of manslaughter.” (Slip opn. at p. 9.) This assumption is unreasonable. Jury instructions cannot be analyzedas if the jury consisted of lawyers, or appellate justices. (Falconer v. Lane (7th Cir. 1990) 905 F.2d 1129, 1136-1137; People v. Maurer (1995) 32 Cal.App.4th 1121, 1127 “We must bear in mind that the audience for these instructions is not a room of law professors deciphering legal abstractions, but a room oflay jurors reading conflicting terms.”]; People v. Thompson (1987) 195 Cal.App.3d 244, 251 [noting that jurors are “temporary visitors attempting to comprehenda foreign language”].) If anything, the absence of an explicit reference to reasonable doubtin the manslaughter instructions would have led the lay persons on the jury to conclude that the prosecution’s burden ofproofwasdifferent as to the lesser included offense than it was for the charged crime of murder. Finally, the opinion of the Court of Appeal fails to mention the highly unusual fact that neither the prosecutor nor defense counsel made any reference whatsoeverto the reasonable doubt standard or the presumption of innocense during their summationsto the jury. (3 RT 706- 745.) The omission of these concepts during the closing arguments of counsel could only have aggravated the omission of CALJIC No. 2.90 from the court’s predeliberation chargeto the jury. | Forall these reasons, this Court should grant review and reverse that portion of the Court of Appeal’s opinion affirming appellant’s voluntary manslaughter conviction. Tl. THE TRIAL COURT PREJUDICIALLY VIOLATED APPELLANT’S FEDERAL CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY REFUSING TO GRANT IMMUNITYTO TISDALE. The Court ofAppeal held that the trial court properly denied appellant’s request to grant use immunity to Gregory Tisdale because “the omitted testimony was not clearly exculpatory or essential for Aranda to present an effective defense.” (Slip opn. at pp. 12-13.) This conclusion warrants review. Had immunity been granted, Tisdale would havetestified -8- that he saw the decedent rushing toward appellant with a rock when . appellant shot him. (2 RT 344.) This testimony would have supported appellant’s defense of self-defense and as such wasclearly exculpatory. Tisdale’s testimony wasalso essential to appellant’s self-defense theory of the case. Without corroboration from another witness, the risk of the jury discounting appellant’s testimony as self-serving wasgreat. Indeed,this is exactly whatthe prosecutortold the jury during closing argument: “The only evidence of self defense came from that man’s mouth. That’s it. Anybody can claim self defense. The fact that you say it, doesn’t makeit so.” (3 RT 711.) In light of these comments, the appellate courts characterization of Tisdale’s proposed testimony as “cumulative and non- essential” to appellant's defense, is untenable. (Slip opn.at p. 13.) The trial court plainly erred by failing to confer immunity upon Tisdale. This error violated appellant’s rights under the due process and compulsory process clauses ofthe Fifth, Sixth, and Fourteenth Amendments, depriving _ him ofa fair trial and his right to present a defense. Thetrial court’s failure to grant use immunity to Tisdale prevented appellant from calling the one witness who could corroborate his version of the events, thereby severely prejudicing his ability to present his defense of self-defense. Giventhat the jury accepted, in part, appellant’s theory of defense based only on the testimony of appellant himself, the error cannot be deemed harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) This Court should grant review andso hold. CONCLUSION For the reasons expressed above, review should be granted. Respectfully submitted, eeta ae , on oaie °a Neen William J. Capriola Counsel for Appellant CERTIFICATE OF COMPLIANCE I, William J. Capriola, in compliance with rule 8.504(d)(1), hereby certify, in reliance on the word count of the computer program usedto prepare this document,that this document, excluding tables, is 2,245 words. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Sebastopol, California, on November10, 2010. 2 . WilliamJ. Capriola -10- a APPENDIX "A" Filed 10/6/10 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATEDISTRICT ~ DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D055701 Plaintiff and Respondent, v. (Super. Ct. No. SWF010404) ANTHONY ARANDA,JR., Defendant and Appellant. APPEALfrom a judgmentof the Superior Court of Riverside County, Albert J. Wojcik, Judge. Affirmedin part, reversed in part. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown,Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Raymond M.DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent. Anthony Aranda, Jr. appeals a judgment following his conviction of one count of | voluntary manslaughter (Pen. Code,! § 192, subd. (a)) and one countof actively © participating in a criminalstreet gang (§ 186.22, subd. (a)). Aranda contendsthe trial court should have read the jury CALJIC No. 2.902 on the prosecution's burden ofproof and reasonable doubt. Arandaalso challengesthetrial court's denial of his motion to. grant use immunity to a defense witness on groundsthat the proposed testimony was clearly exculpatory andessential to his defense. Weconclude, as to count 1, there were adequate jury instructions contained within the original instructions for murder, and lesser included manslaughter andthetrial court's instructional error was harmless beyond a reasonable doubt. However, as to count 3, we conclude there wasno cure for the trial court's error includedin the "active participation ina 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. Asto the second issue, we concludethat the trial court correctly denied Aranda's motion to grant use immunity to a defense witness. 1 All further statutory references are to the Penal Code unless otherwise noted. 2 CALJIC No. 290 provides: "A defendantin a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether[his or her] guilt is satisfactorily shown,[he or she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him or her] guilty beyond a reasonable doubt." Reasonable doubt is defined as follows: "It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration ofall the evidence, leaves the minds of the jurors in that condition that they cannotsay they feel an abiding convictionofthe truth of the charge." FACTUAL AND PROCEDURAL BACKGROUND On September 10, 2004, Aranda attended a house party in Hemet with Sean Tisdale. A numberofattendees were known members of the Southside Criminalsstreet gang. Arandaalso was connected to another local street gang called Hemet Trece. At some point in the evening, the eventual victim Luis Gonzalez, a memberofthe 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 phonecalls to their home about the money Adam collected to buy meth. Luis, Angela and Adam droveback to the party to return the money. When they arrived, Adam walked directly into the backyard. Almost immediatelyafter, a fight started between Adam and Arandaandthatfight precipitated a larger brawl involving a numberofpeople 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 pointedit at Luis, who was holding a rock. After exchanging words, Luis rushed towards Aranda with the rock before Arandaultimately shot andkilled him. After he shot Luis, Aranda andhisfriendsleft the party. Aranda wasarrested 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 3 criminalstreet gang. Count2, a violation of section 12025, subdivision (b)(3), was later | dismissed on the People's motion. Attrial 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. DISCUSSION I JURYINSTRUCTIONS| ONREASONABLE DOUBT During the jury selection process, the court made various referencesto 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. Thetrial court did give the jury properinstructions for circumstantial evidence and did include the concept of reasonable doubt in the substantive crimes andallegation enhancements charged in count 1 for murder, The due processclauses 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 innocenceis tied to the prosecution's burden to prove a 4 defendant guilty beyond a reasonable doubtsolely on the facts proven attrial. (Taylorv. 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 mustgive 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. (/d. 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. Neithertrial court instructions during jury selection nor closing arguments of counsel, without more, are ordinarily enough to cure such an instructional error. (/bid., fn. 6.) Whenthetrial 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 burdenofproofinstruction 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 whetherthe errorin this particular case warrants reversal, it is instructive to evaluate the pretrial instructions and the predeliberation instructions as to each substantive charge. A. Pretrial Instructions During the second day ofthe jury selection process, the trial court gave the jury generalpretrial instructions regarding the prosecution's burden to prove the defendant guilty beyond a reasonable doubt for each element of the charged offenses: . "{E]Jach alleged crime . . . has certain ingredients. And wecall those elements. To find one guilty of a crime, whatever it might be .. . you must be convinced of guilt beyond a reasonable doubtas to elements one, two, three, whatever the numberis, as to those elements. Okay?" Thetrial court repeated these instructions throughout the selection process through questionand answer exchangeswith individual prospective jurors and with the entire proposed panel. Whenthe jury returned the next day,the trial court continued its discussion of the prosecution's burden of proof and the presumption of innocence again. While these pretrial admonitions, absent extraordinary circumstances, are not enough to satisfy the federal constitutional requirements for the structure of a criminaltrial, they should be considered part ofthe totality of the circumstances when evaluating the _ adequacyofthe instructions. (Flores, supra, 147 Cal.App.4th at p. 211.) B. General Predeliberation Instructions After the defense rested its case the trial court gave the standard jury instructions, using the CALJIC series, but omitted the instructions regarding the prosecution's burden of proof and presumption of innocence contained in CALJIC No. 2.90. However, the ~ trial court did address the prosecution's burden of proof when reading the jurors CALJIC No. 2.01 on circumstantial evidence, explaining: "[E]ach fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt . . . before an inference essential to establish guilt maybe found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyonda reasonable doubt." C. Jury Instructions for Count 1 More importantly in analyzing Aranda's assertion oferror, the trial court's instructions for murder andits lesser included offenses contained referencesto the prosecution's burden of proof and the reasonable doubt standard. Thetrial court read the jury CALJIC No.8.71 distinguishing the degrees of murder: "If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by Defendant, but you unanimously agree that you have reasonable doubt whether the murder wasofthe first or second degree, you must give Defendantthe benefit of that doubt and return a verdict fixing the murderas of the second degree, as well as a verdict of not guilty of murderin the first degree." The trial court also read the jurors CALJIC Nos. 8.72, 8.74 and 8.75 on voluntary manslaughter as the lesser included offense if the jury had a reasonable doubt about Aranda's culpability for murder. Those instructions provide as follows: "If you are convinced beyond a reasonable doubt and unanimously agree that the killing was unlawful, but you unanimously agreethat you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of that doubt andfindit to be manslaughter rather than murder." (CALJIC No. 8.72.) "Before you may return a verdict in this case, you must agree ~ unanimously not only as to whether the defendantis guilty or not guilty, but also, if you should find him guilty of an unlawfulkilling, you must agree unanimously as to whetherheis guilty of murder of the first degree or murder of the second degree or voluntary manslaughter." (CALJIC No.8.74.): "If you are notsatisfied beyond a reasonable doubtthat the defendantis guilty of the crimeof first degree murder as charged in Count 1 and you unanimously so find, you may convict him of any lesser crime provided youare satisfied beyond a reasonable doubt that he is guilty of a lesser crime." (CALJIC No.8.75.) Thetrial court also read the jury CALJIC No. 8.50 regarding reasonable doubt and the prosecution's burden to prove the murder charge, and thejury's duty to give Aranda the benefit of the doubt when deciding between murder and voluntary manslaughter: "To establish that the killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not donein the heat of passion or upon a sudden quarrelorin the. actual, even though unreasonable, belief in the necessity to defend against imminentperilto life or great bodily injury." Thetrial court also read the jury CALJIC No. 5.15 outlining the prosecution's burden to prove beyond a reasonable doubtthat the killing was not justifiable or excusable: "Upona trial of a charge of murder, a killing is lawful if it was justifiable or excusable. The burdenis on the prosecution to prove beyond a reasonable doubtthat the homicide was unlawful... . If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty." Thetrial court also read CALJIC No. 8.40 defining voluntary manslaughter and the elements that must be proven, but did not specifically mention the prosecution's burden ofproof or reasonable doubt: "There is no malice aforethoughtifthe killing occurred upon a sudden quarrel or heat of passion,or in the actual but unreasonable belief in the necessity to defend oneself against imminentperil to life or great bodily harm. [{] . . . [J] In order to prove this crime, each of the following elements must be proved: [{] One, a human being was killed; [§] Two, the killing was unlawful; and [{] Three, the perpetratorofthe killing either intendedto kill the alleged victim or acted in conscious disregard forlife; and [{] Four, the perpetrator's conductresulted in the unlawful killing." Finally, as to the gang and firearm enhancementallegations in count 1, the court also read the relevant CALJIC instructions3 containing the prosecution's burden of proof and reasonable doubt. After reviewing the jury instructions pertaining to murder and voluntary manslaughter in count 1, we conclude the sum ofthe instructions sufficiently relayed the concept of reasonable doubtto the jury. (Victor v. Nebraska (1994) 511 U.S. 1, 5; (People v. Mayo (2006) 140 Cal.App.4th 535, 549-550.) The court clearly instructed the jury aboutthe prosecution's burden of proofas to murder, and by implication, voluntary manslaughteras the lesser included offense in count 1. ‘Although Arandapoints out that the trial court did not reference reasonable doubt explicitly in the definition of manslaughter, the murder instructions gave the jury a clear indication that to convict Aranda of murder or voluntary manslaughter, it would need to find every elementin the charge beyond a reasonable doubt. (/d. at pp. 546-547.) Thus, we conclude, under the Chapman standard, the court's error in omitting generalized CALJIC No.2.90 instruction was cured through subsequentinstructions. 3 CALJIC No. 17.24.2 [Felonies Committed for the Benefit of Street Gangs], CALJIC No. 17.19 [Personal Use of a Firearm]. 9 The jury was given detailed instructions andit is reasonableto infer, from the resulting conviction for voluntary manslaughter, the jury understood and applied the correct standard of proof. Therefore, in reviewing the totality of the circumstances,thetrial court's omission did not deprive Arandaofa fair trial and therefore the error was harmless beyond a reasonable doubt. D. Jury Instructions for Count 3 The sameis nottrue as to the charge of "active participation in a street gang" in count 3. There is no disputethat the court's CALJIC No. 6.50 jury instruction for that specific charge did not include any referenceatall to the prosecution's burden of proof or reasonable doubt. In contrast to count 1, the instructions for the substantive charge of active participation in a street gang stood alone without connection to the prosecution's burden or reasonable doubt. The jury was instructed with CALJIC No. 17.24.3 as follows: "Evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crimes for which the defendantis ontrial. [§] This evidence, if believed, may not be considered by you to prove the defendant is a person of bad character... .. It may be considered by you only for the limited purpose of determiningif it tends to show that the crime or crimes charged were committed for the benefitof, at the direction of, or in association with a criminalstreet gang with the specific intent to promote, further or assist in any criminal conduct by gang members. [{]] For the limited purpose for which you mayconsider this evidence, you must weighit in the same manneras you doall other evidence in this case." Wehavestated that pretrial admonitions could not cure the omission of CALJIC No. 2.90 absentextraordinary circumstances. (People v. Flores, supra, 147 Cal-App.4th 10 at p. 215) Likewise, predeliberation references madeinjury instructions for count 1 were also insufficient to inform the jury that Aranda wasentitled to acquittal unless the prosecution proved each element beyond a reasonable doubt for count 3. (People v. Vann, supra, 12 Cal.3d at p. 227, fn. 6.) Althoughthe trial court made a reference in the jury instructions to weighingall of the evidencein the same way,indirect references to reasonable doubt cannot meet federal constitutional requirements. "[We] cannot presume that a reasonable doubt instruction given in a specific context .. . will necessarily be understoodbyall of the jurors to apply generally to their determination of the defendant's guilt." (Flores, supra, 147 Cal.App.4th at p. 217, originalitalics.) As Aranda points out, the jury acquitted him of the correctly instructed commission of a crime for the benefit of a street gang allegation in count 1 but nevertheless found him guilty of the similar charge of active participation in a street gang ~ in count 3. While there is a difference between being an active gang member and committing a crime for the benefit of a street gang, andit is possible that the jury would have found Arandaguilty of count 3 if it had been properly instructed, we cannotsay that there is no reasonable possibility that the omission of CALJIC No. 2.90 contributed to Aranda's conviction for that count. (Chapman, supra, 386 U.S.at p. 23.) _ The specific instructions containing references to the prosecution's burden and reasonable doubt read to the jury for the other substantive charges clearly suggest thereis more than a reasonable possibility the omission of CALJIC No. 2.90 contributed to Aranda's conviction for count 3. The totality of the circumstancesleads us to conclude that under the Chapmanstandard,thetrial court's error was not unimportant in 1] comparison to everything else the jury considered and therefore was not harmless beyond a reasonable doubt. Forthis reason we reverse the convictionas to count3 only. I USE IMMUNITY Arandaalso asserts his convictions should be reversed becausethe trial court erred in denying his motion to grant use immunity to Tisdale. Aranda contendsthat Tisdale would havetestified that the gun used in the shooting was concealed in his van and Aranda was not aware that Tisdale had a gun. Tisdale would havealsotestified that he ~ handed the gun to Aranda during the fight and witnessed Luis approach Aranda with a rock before a shot wasfired. Arandacontendsthat he has a due process right to have clearly exculpatory evidence presented to the jury. (See Governmentofthe Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964, 970.) It is not clearly established, however,that a trial court has the authority to grant such immunity even in furtherance of a criminal defendant's due process rights. Assuming howeverthat such authority exists, we concludethatthetrial court properly denied Aranda's motion. (People v. Stewart (2004) 33 Cal.4th 425, 468- 469; People v. Hunter (1989) 49 Cal.3d 957, 973.) Thetest for a judicial grant of use immunity on the basis of a defendant's due process rights contains three elements. The testimony must be clearly exculpatory, it must be essential and there cannot be a strong governmentalinterest that justifiesits exclusion. (People v. Stewart, supra, 33 Cal.4th at p. 469.) 12 Arandahasnot established each of these necessary elements. Here, the expected testimony was not clearly exculpatory or-essential. Tisdale's proposed testimonythat Arandaacted in self-defense was essentially duplicative of Aranda's own testimonythat Luis was running towards him with a rockat the time he fired the gun. The jury presumably took Aranda's testimony into account in convicting him of voluntary manslaughter instead of murder. (See People v. Michaels (2002) 28 Cal.4th 486, 529 [where a defendantkills another in imperfect self-defense, i.e., with the actual but unreasonable belief that deadly force was necessary; he is guilty of voluntary manslaughter rather than murder].) Tisdale's testimony would not have presented any additional evidence supporting a claim of reasonable self-defense. It would simply be cumulative and nonessential to Aranda's defense. Thus, evenif the trial court had powerto grant use immunity to Tisdale, it properly denied Aranda's motion because the omitted testimony was not clearly exculpatory or essential for Arandato present an effective defense. 13 DISPOSITION The judgmentis reversed as to count 3. In all other respects the judgmentis affirmed. HUFFMAN,ActingP.J. WE CONCUR: NARES,J. AARON,J. 14 DECLARATION OF SERVICE Re: People v. Aranda I, William J. Capriola, declare that I am over eighteen years of age, and not a party to the within cause; my employment address is Post Office Box 1536, Sebastopol, California 95473-1536. I served a true copyofthe attached: PETITION FOR REVIEW on each of the following, by placing same in an envelope (or envelopes) addressed (respectively) as follows: . Office of the Attorney General Superior Court of California State of California County of Riverside Post Office Box 85266 4100 Main Street San Diego, CA 92186 Riverside, CA 92501 Appellate Defenders, Inc. Office of the District Attorney 555 West Beech Street, Suite 300 Riverside County San Diego, CA 92101 | 3960 OrangeStreet Riverside, CA 92501 Clerk of the Court of Appeal Fourth Appellate District, Division One Anthony Aranda, G-52174 750 B Street, Suite 300 P.O. Box 3030 San Diego, CA 92101 Susanville, CA 96127 Each envelope was then, on November15, 2010, sealed and deposited in the United States Postal Service at Sebastopol, California, in the county in which I am employed, with the first class postage thereon fully prepaid. I declare under penalty of perjury that the foregoing is true and correct. Executed at Sebastopol, California, this 15th day ofNovember, 2010. “a“e “| aa “ i ae ce William J. Capriola