Failure to give the reasonable doubt instruction requires reversal only if the error is not harmless beyond a reasonable doubt. The court forgot to read CALJIC No. 2.90 at appellant’s trial for voluntary manslaughter and participation in a street gang. Appellant argued this required a full reversal. The Court of Appeal held failure to give the reasonable doubt instruction is subject to harmless error analysis, and is not reversible per se. (Agreeing with People v. Flores (2007) 147 Cal.App.4th 199, 211.) As to the manslaughter conviction the error was harmless in light of the fact that all but one of the jury instructions regarding the murder charge and lesser offenses discussed the applicable burden of proof. So, under the totality of the circumstances, the instructions sufficiently explained the concept of reasonable doubt as to this offense. In contrast, the instruction relating to the substantive gang offense did not mention the prosecution’s burden to prove the offense beyond a reasonable doubt. The omission as to this charge was not harmless beyond a reasonable doubt considering the jury acquitted appellant of the gang enhancement which shares some elements. The gang offense was reversed.
The court did not err in refusing to grant use immunity to a defense witness. Appellant argued he was denied due process when the court denied his request to grant use immunity to a defense witness who allegedly handed the lethal weapon to appellant. Assuming arguendo a trial court has the authority to grant use immunity to a defense witness, no error occurred here. A request for use immunity must show that the proffered testimony is clearly exculpatory and essential, and that there is no strong government interest justifying exclusion. Here the testimony was neither clearly exculpatory nor essential as it would only corroborate appellant’s claim of self-defense to which appellant himself testified.